The Supreme Court has dismissed a man’s appeal against his conviction for the murder of a pigeon enthusiast with a sub-machine gun.
Christopher McDonald, from the East Wall area of Dublin, was sentenced to life imprisonment after being found guilty in 2017 at the Central Criminal Court of murdering Keith Walker (36) at the Blanchardstown Pigeon Racing Club car park, Clonsilla, on June 12th, 2015.
In a unanimous ruling on Thursday, a five-judge Supreme Court dismissed McDonald’s appeal, which centred on DNA evidence being obtained from him upon his arrest and detention at Blanchardstown Garda station.
The DNA linked McDonald to items discovered by gardaí near the scene of the crime, including clothing items which matched the cross-dressing disguise of Mr Walker’s killer.
In his appeal, McDonald claimed the samples should have been inadmissible as he said gardaí failed to comply with a compulsory mechanism to obtain his samples under the Criminal Justice (Forensic Evidence) Act 1990.
The swabs were instead taken voluntarily under a common law power with his consent, which McDonald submitted was invalid due to what he claimed was a lack of legal access.
This was in circumstances where he had already had a brief phone call with a solicitor and was awaiting the solicitor’s arrival at the station.
'No question of trickery'
Both the criminal trial judge and the Court of Appeal held the evidence was admissible on the basis that the compulsory mechanism was available to gardaí and would have overridden any refusal on the part of McDonald.
Giving judgment on behalf of the Supreme Court, Mr Justice Peter Charleton said McDonald’s consent to the sample was valid and it was not necessary for his solicitor to be present for the swabbing.
There is a “fundamental distinction”, he said, between material taken from a person’s mind and physical samples drawn from the suspect’s clothing or body. That does not negate requirements of fairness, but the application of that fairness does not give a person in custody a more extensive right to privacy than would be afforded a person on a public street, he went on.
“A fingerprint or a sample of DNA does not change in nature regardless of the nature of the process by which it is obtained. Nonetheless, that process cannot be coercive or unfair,” the judge said.
The reality to this case is that McDonald did have a consultation with his solicitor prior to any sample being taken, he said. Furthermore, McDonald was informed of his rights and there is no question of trickery or coercion in obtaining the specimen, the judge added.
The judge noted the 1990 Act did not abolish the common law, and the Supreme Court has previously held that it did not constitute the only means whereby a sample for forensic testing might be obtained.
Mr Justice John MacMenamin, Ms Justice Iseult O’Malley and Mr Justice Seamus Woulfe indicated their agreement with the judgment. Mr Justice Gerard Hogan agreed with the judgment to the effect that the appeal should be dismissed and McDonald’s conviction upheld.
In a separate concurring judgment, Mr Justice Hogan said he was reserving his position on the broader question of the extent of any entitlement on the part of a detained suspect to legal assistance in the course of pre-trial detention.
The resolution of this issue did not materially affect the outcome of McDonald’s appeal as the 1990 Act would have enabled the gardaí to take his sample with or without his consent.
