2026 IECA 65

(1)(a) of the Criminal Justice (Theft and Fraud Offences) Act 2001 (count no. 4) in respect of Bill No. CCDP0056/

1. The appellant was tried with his coaccused, one Helen Jones.
2. The particulars of count no. 3 are that on that 4th of September 2019 the appellant did murder one Paul Jones at 108 Bandon Road, Cork. The particulars of count no. 4 are that on the 4th of September 2019 the appellant did enter 108 Bandon Road, Cork, as a trespasser with intent to commit the offence of assault causing serious harm to the person of Paul Jones.
3. The appellant was sentenced to life imprisonment in respect of count no. 3 and a period of three years’ imprisonment on count no. 4 with both sentences to run concurrently and to date from the 10th of September
4. Factual Background
5. The co-accused of the appellant, Ms Helen Jones, is the sister of the deceased. Ms Jones was charged with aggravated burglary and murder (counts nos. 1 and 2 on the indictment) in respect of the same incident on the 4th of September
7. The son of the accused, Mr Cian Jones, was living with his grandmother, Ms Attracta O'Neill, at the time and they both gave evidence at trial having found the deceased on the evening of the 7th of September
8. Cian Jones and his half-sister, Ms Rebecca McNulty, stated in evidence that Helen Jones had attempted to contact them both on the 4th of September 2019 seeking a mobile phone number to contact the deceased. Ms McNulty stated that there had been a family dispute and that Helen Jones and the deceased did not speak.
9. Extensive CCTV footage was shown at trial which included the movements of the appellant and his co-accused on the 4th of September
10. A taxi driver, Mr Pat Moynihan, gave evidence that he collected the appellant and his co-accused that evening. Mr Moynihan then parked outside 108 Bandon Road at their request and stated that Helen Jones went to the door of the house and was “calling Paul by his name, and she was banging at the door”. The appellant initially waited in the taxi. Mr Moynihan witnessed the deceased standing in the hallway, and Helen Jones entered the house followed by the appellant. A number of witnesses gave evidence at trial as to the events of that evening. Ms Birgit Greiner Boland gave evidence that later the same evening she came across two individuals in the vicinity of the house in a distressed state. She stated that the woman had blood on her face and the man was hardly able to walk. At 21.57p.m. she called a taxi for them. Mr Daniel Chide Ibe was the taxi driver that collected the pair and testified that the man had blood on his trousers and on his left hand.
11. The state pathologist conducted a postmortem on the 8th of September 2019 and found that the deceased had sustained some 25 stab wounds as well as a “chop wound” to the head. The findings were that two types of weapons were used to inflict the distinct wounds. On the 10th of September, a bill hook was found by one Garda Paul Buckley nearby at 32 McCurtain Villas, Cork. The appellant and his co-accused were both arrested on the 10th of September. Gardaí also obtained a search warrant for 27 Cahergal Avenue, Ballyvolane, Cork, and a number of exhibits were taken therefrom including a pair of socks and runners. The appellant was detained under section 4 of the Criminal Justice Act 1984 as amended. Detective Superintendent Michael Cummins authorised the taking of non-intimate DNA samples in the form of a buccal swab, the taking of head hair, non-intimate body swabs as well as nail scrapings from the appellant pursuant to section 13

(2)of the Criminal Justice (Forensic Evidence and DNA Database System) Act

1. Detective Superintendent Cummins stated at trial that he authorised these samples based on his awareness of the altercation involving the appellant at 108 Bandon Road which was the last sighting of the deceased alive, the extensive blood evidence found at the address, and the finding of blood in the taxi which the appellant was in subsequently. He swore a statement on the 12th of November 2021 setting out the reasonable grounds for granting the authorisation and accepted in cross-examination that his contemporaneous notes were confined to procedural details rather than the reasons for his reasonable suspicion of the appellant’s involvement in the offence.
2. The exhibits from the appellant’s home and the DNA samples were transferred to the Forensic Science Laboratory. Dr Yvonne O’Dowd, the forensic scientist that examined the materials, gave evidence of the following: blood samples in Mr Ibe’s taxi matched the DNA profile of the appellant; blood staining on the blade of the bill hook matched the DNA profile of the deceased; a sample taken from the handle of the bill hook matched the DNA profile for the appellant; and blood staining on runners taken from the appellant’s home matched the DNA profile of the deceased, as did blood staining on the soles of the socks taken from the appellant’s home. Grounds of Appeal
3. The appellant seeks to have his conviction overturned on the following grounds: i. “The Learned Trial Judge erred in law and in fact in refusing the Applicant’s application to exclude from evidence any DNA evidence concerning and related to a DNA sample taken of the Appellant in September of 2019 pursuant to the provisions of Section 13 of the Criminal Justice (Forensic Evidence and DNA Database System) Act,
4. ii. The Learned Trial Judge erred in law and in fact in refusing the Applicant’s application to exclude from evidence any evidence based and recovered on foot of search warrants issued pursuant to the terms of Section 10 of the Criminal Justice (Miscellaneous Provisions) Act,
5. iii. The Learned Trial Judge erred in law and in fact in refusing the Applicant’s requisition in stating that it was open to the Jury to find the Applicant guilty of burglary in circumstances where the Jury had found the accused not guilty of murder but guilty of manslaughter.” Ground 3 has fallen away upon the hearing of the appeal as the appellant was in fact convicted of murder. The appeal is therefore confined to Grounds 1 and
6. Ground 1: The DNA samples of the appellant
7. In relation to the taking of non-intimate samples from persons in custody of An Garda Síochána, section 13 of the Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 provides that: – 13.

(1)Subject to this Act, a member of the Garda Síochána may take, or cause to be taken, a non-intimate sample under this section from a person who is detained under any of the provisions referred to in section 9

(1)for the purposes of forensic testing and, if appropriate, the generation of a DNA profile in respect of the person to be entered in the reference index of the DNA Database System.

(2)A non-intimate sample may be taken under this section only if a member of the Garda Síochána not below the rank of inspector authorises it to be taken for the purposes specified in subsection

(1).

(3)An authorisation to take a non-intimate sample under this section shall not be given unless the member of the Garda Síochána giving it has reasonable grounds— (

1. a)for suspecting the involvement of the person from whom the sample is to be taken in the commission of the offence in respect of which he or she is detained, and (
2. b)for believing that the sample will tend to confirm or disprove the involvement of that person in the commission of the offence concerned.

(4)The results of the forensic testing of a non-intimate sample may be given in evidence in any proceedings.

(5)Before a member of the Garda Síochána takes, or causes to be taken, a non-intimate sample from a person, the member shall inform the person of the following: (

1. a)the nature of the offence in the commission of which it is suspected that the person has been involved; (
2. b)that an authorisation to take the sample from him or her has been given under subsection

(2)and the grounds on which it has been given; … It is contended that the authorisation is bad because there was an insufficient evidential basis justifying the making of the order by Detective Superintendent Cummins. The appellant also submits that because the contemporaneous notes of the gardaí do not expressly state the grounds upon which the authorisation for the taking of forensic samples was granted, the taking of the samples from the appellant was contrary to section 13 of the Act and the results of the samples should not have been admitted at trial. The respondent submits that there is no such requirement in the provision and the statutory language is unencumbered by such a requirement – that the requirement is the existence of reasonable grounds and those grounds “were plainly and unequivocally present”. We can dispose of the proposition that the Act requires that contemporaneous notes of the kind mentioned must be made: the respondent is right in saying that this is not so on any reading of the statute.

1. In oral submissions, a variation of the proposition that such notes were required by the statute was canvassed. It was submitted that the absence of a contemporaneous note, certainly by the Detective Superintendent, if not by Detective Sergeant Wallace who applied for the order, of the grounds on which the order was sought meant that the appellant lacked an essential tool for testing any evidence given pertaining to the grounds; it was suggested that this meant that he was deprived of fair procedures which in turn meant that the evidence should be excluded. We cannot accept this latter proposition either. The absence of some contemporaneous note, either in this context or otherwise, is not in any significant sense a departure from fair procedures or at least is not such a departure as to render the evidence inadmissible per se, nor, in reliance on a generalised and inchoate assertion of want of fairness giving rise to the exclusion of evidence in discretion. We need not quote authorities to reiterate the proposition that any evidence legally admissible should be received by a court, and on the facts this is certainly not a case for exclusion under the heading in question. The witnesses were cross-examined, the actual factual situation as to the circumstances of the offence and the state of the investigation, including what was known to the Detective Superintendent, were clear with a fairly high degree of specificity at that point, and the real focus had to be on whether or not on the basis of what he knew about the matter, the Detective Superintendent had sufficient grounds to make the authorisation.
2. We do not propose to quote in extenso the evidence of the Detective Superintendent because the evidence relevant to the grounds on which the authorisation was made was encapsulated as follows in the trial judge’s ruling: “I'm satisfied that the evidence establishes that at the time that the authorisations were given at 1.30 pm on the 10th of September 2019 Detective Superintendent Cummins had been very much involved in the investigation and had been so involved from the outset. Of this, it seems to me, there can be no doubt. His evidence is that at the time of the giving of the authorisation he was aware of a number of matters which included, one, that Mr O'Hara and Ms Jones had called to 108 Bandon Road; two, that here had been an altercation at the door; three, that he was aware that this was the last known interaction with Mr Jones prior to him being found; four, that he was also aware of ongoing and detailed scenes of crime examination at 108 Bandon Road. There was a lot of blood in the house, and a very detailed examination had been carried out. Five, that he was aware of the search at 27 Cahergal Avenue, and that a scenes of crime examination was being carried out there; and six, that he was aware that a taxi had been seized and a scenes of crime of examination had taken place of the taxi, that there was blood in the taxi which had been washed away to some degree by the taxi driver. It was not suggested that Detective Superintendent Cummins was unaware or could not have been aware or was incorrect in his evidence of his awareness of any of these matters at the time he gave the authorisations. In all of the circumstances I have no reason to doubt but that Detective Superintendent Cummins was possessed of the above knowledge quite apart from any conversation -- sorry, quite apart from any information which was conveyed to him by Detective Sergeant Wallace between 1.23 pm and 1.30 pm. That there may have been economy in statements or in the notes which were taken or indeed not taken outlining the above matters does not, in my view, detract from the evidence in this regard.”
3. The fact of the brevity of the notes made, as referred to by the trial judge, is neither here nor there in that the trial judge was entitled, indeed obliged, to make a finding if he could on such evidence as had been adduced as to those grounds and what the Detective Superintendent knew (insofar as factual findings in that regard were necessary, the ordinary criminal standard of proof was applicable). He reached conclusions of fact, as is manifest from the ruling, to that standard of proof. He then had to decide, having regard to the evidence, whether or not the grounds were objectively reasonable and he reached what in our view are justified conclusions. We cannot see how, given the state of knowledge of the Detective Superintendent as found by the trial judge, there could be any meaningful proposition that the order was unreasonably made.
4. There is no necessity in any of these cases for an investigating officer when he is asking a more senior officer such as a Detective Superintendent to make orders of this type to do so in some pro forma way reciting factual matters which might give rise to reasonable grounds. Of course, the Detective Superintendent must have reasonable grounds but there is absolutely no reason why he might not have obtained the relevant information constituting such grounds himself or from some other officer. What is required is proof of the state of mind on the basis of the information or knowledge the Detective Superintendent has. It may or may not be the case that the conversation that he had with Detective Sergeant Wallace enhanced his state of knowledge. He could authorise the relevant steps even of his own motion, and no doubt Superintendents in charge of investigations in their districts, and intimately involved therewith, have done so. As it happens in this case, it was done at the request of another officer engaged with the matter.
5. We therefore reject the first ground of appeal. Ground 2: The evidence obtained on foot of the search warrants
6. Section 10 of the Criminal Justice (Miscellaneous Provisions) Act 1997 as substituted by section 6

(1)(a) of the Criminal Justice Act 2006 states as follows: – 10.—

(1)If a judge of the District Court is satisfied by information on oath of a member not below the rank of sergeant that there are reasonable grounds for suspecting that evidence of, or relating to, the commission of an arrestable offence is to be found in any place, the judge may issue a warrant for the search of that place and any persons found at that place.

(2)A search warrant under this section shall be expressed, and shall operate, to authorise a named member, accompanied by such other members or persons or both as the member thinks necessary— (

1. a)to enter, at any time or times within one week of the date of issue of the warrant, on production if so requested of the warrant, and if necessary by the use of reasonable force, the place named in the warrant, (
2. b)to search it and any persons found at that place, and (
3. c)to seize anything found at that place, or anything found in the possession of a person present at that place at the time of the search, that that member reasonably believes to be evidence of, or relating to, the commission of an arrestable offence. … 17. This issue hinges on whether or not the application for a warrant in chambers ought to have been recorded by the use of the digital audio recording (‘DAR’) system, in default of which the warrant, or any evidence derived therefrom, should be condemned or excluded. This point was advanced by Mr Grehan at trial on behalf of the co-accused. The issue was addressed by this Court in The People (DPP) v. Helen Jones, judgment delivered on the 6th of June 2024 where we held as follows: “No one could disagree with the then Chief Justice’s observation in Damache ([2012] 2 IR 266) that in principle it is best practice to keep a record of the basis upon which a warrant is granted. However, there is currently no legal requirement to keep a record or note of everything that is said by the Garda officer, Judge and Registrar during an application for a search warrant, whether in audio form (such as by means of the Digital Audio Recording system in operation in courtrooms) or in written form, and it is not the role of this Court to lay down mandatory requirements about such procedural matters. It is undoubtedly possible to conceive of a case where the absence of such a record would be critical to the Court’s decision because of some dispute as to what actually took place at the time of the procedure before the District Judge. However, we do not consider the present case to be such a case. This is not a case where there is a dispute about what information was laid before the District Judge; it is accepted that the Garda officer provided the contents of the written information and we know what that information was. Nor is it a case where the information does not disclose sufficient information on its face to provide reasonable grounds for the issue of the warrant. Further, as to the procedural requirement of sworn information, we are satisfied that the form of the oath was that the Garda officer would “well and truly answer questions” about the information, and the dispute between the parties is as to the legal consequence of that fact, rather than a factual dispute as to what transpired before the District Judge or what precise form the oath took. In those circumstances, even though there was no contemporaneous record of the procedure before the District Judge other than the information and warrant documents themselves, we are satisfied that nothing of consequence flows from the absence of any extraneous recording, whether in written or audio form, in the present case. The appeal is dismissed.” The factual and legal basis for this point was the same in respect of the co-accused. 18. We therefore reject the second ground also and dismiss this appeal.