The State has argued that technological advancements in DNA analysis are not enough reason to support a reexamination of the evidence that grounded a man's conviction for the rape and murder of a Connemara schoolgirl 28 years ago.
Barristers for the State pointed out today that when John McDonagh (51) first launched an appeal in 2007 against his conviction for the rape and murder of Siobhan Hynes in 1998, he made no application for retesting evidence in line with the science then available.
However, lawyers for McDonagh have said that testimony from a forensic expert shows there is a reasonable possibility of a new result being obtained from evidence retested in line with modern scientific methods.
McDonagh was 27 when he was convicted in 2001 by a Central Criminal Court jury of the rape and murder of Ms Hynes (17), of Sconse, Lettermore, Connemara.
Ms Hynes was found dead at Tismeain beach in the townland of Keeraunbeg in the early hours of December 6, 1998.
McDonagh, formerly of The Demesne, Keeraunbeg, Carraroe, had pleaded not guilty but was convicted following three days of jury deliberations and sentenced to life imprisonment.
The appellant is now seeking to utilise advances in technology and developments in expert knowledge in an attempt to establish that his conviction was unsafe and that there has been a miscarriage of justice in his case.
He has made a novel application to have certain trial exhibits undergo forensic testing and examination, arguing that fibres on Ms Hynes had “not received adequate attention”.
On the third day of the appeal earlier this week, a forensic expert for McDonagh, Clare Jarman, gave evidence that while DNA testing was still useful at the time of the trial, it was “very much in its infancy”.
Ms Jarman said modern technology is more sensitive and current extraction methods are better able to clean samples and remove contaminants.
However Dr Dorothy Ramsbottom of Forensic Science Ireland, who prepared a report for the Director of Public Prosecutions, told the court that the same anti-contamination procedures would not have applied then as now, and the body was touched by a number of people.
“So, if there was a profile obtained, I would expect it was due to contamination post the event rather than prior to the body going into the water,” she said.
Continuing the hearing at the Court of Appeal today (WEDS), counsel for the State, Paul Carroll SC, said that this was not a case where the prosecution secured a conviction on science which was subsequently found to be unsustainable, but a case that was based on numerous strands.
He pointed out that DNA evidence had not been put forward to prove the case, adding that more testing could have been done at the time of the trial.
Mr Carroll said that McDonagh was now making an application that was not grounded in the trial as it proceeded or the evidence on which the conviction was based.
Counsel said that when McDonagh first launched an appeal against his conviction in 2007, no application was made for testing in line with the science then available.
“It can’t be the case that advances in science alone justify a re-examination,” said Mr Carroll, adding that any decision by the court to allow the appellant’s application must be grounded on newly discovered evidence.
To this, Ms Justice Nuala Butler said that this was “the chicken and the egg,” as the appellant could not produce new evidence unless he can get access to the exhibits.
Mr Carroll replied that there must be a threshold to establish why this should be done, adding that the appellant must be able to establish that any new fact found would have been relevant to his trial.
Ms Justice Butler said that the forensic expert, Ms Jarman, had said that the examination carried out on the DNA evidence was appropriate and robust by the standards of the time during the original trial, but that is not the examination that would be done now, since the science has “come on leaps on bounds”. She said that the expert had given evidence that nothing else could have been done in 1999.
Mr Carroll disagreed with this, saying that other things could have been done in 1999, with other samples that could have been requested by the defence.
Ms Justice Butler said that only one swab was tested at the time for forensic evidence, but the current technique is that all swabs would be tested, which would multiply the prospect of finding something.
She said that if male DNA were found, that would be hugely relevant, be it the DNA of the accused or someone else.
Mr Justice Patrick McCarthy said that if a DNA profile were found from a sperm sample, the defence could say that someone else had sexual activity with the victim. “If it was found on the vaginal swabs, it would be very hard to say that’s not relevant,” he said.
Counsel for McDonagh, Michael O’Higgins SC, said that if there were a reasonable prospect that retesting could produce something usable and credible, the retesting should be done.
He said that the evidence of Ms Jarman supported that, adding that a database now exists containing the DNA of known sex offenders.
Mr O’Higgins said that the only development in DNA analysis between 1999 and 2007 was Y-STR testing, which the court heard is useful in isolating male DNA in samples overwhelmed by female DNA.
He said the defence’s expert witness had given evidence that while the testing was commercially available, it was still a niche area, with the State itself not beginning this form of testing until 2016.
Mr O’Higgins said that initially, no DNA evidence was available which would have supported the accused, but now other tests are available.
He said the defence’s submission was aligned with Ms Jarman’s opinion that there is a reasonable possibility of a result with the new science available.
Mr Justice McCarthy, presiding over the three-judge court, said that judgment in the case would be reserved.
The trial in 2001 heard that Ms Hynes had celebrated her 17th birthday a week before she was murdered.
Ms Hynes disappeared from Carraroe village at around 12.50am. She left a car parked outside a local hotel to go to the toilet in a local chip shop, but she never came back. Earlier, when she tried to go to the toilet in a local pub, a doorman refused her entry because she was under-age.
The trial heard that she was raped by McDonagh, who then tried to choke her. After leaving her for dead, he drove his car back to Carraroe village and became involved in a fight.
The trial heard from Dr Louise McKenna, of the State Forensic Science Laboratory, who said there were "numerous" fibres on the jumper McDonagh wore that night which matched Ms Hynes's petrol-blue polyester fleece jacket and wine acrylic jumper.
She also found fibres on the front and back of his jumper which matched fibres from Ms Hynes's black socks.
Fibres from the fleece and the wine jumper were also found in the front passenger seat of McDonagh's car, and fibres from his red fluffy car-seat cover matched two red fibres found on Ms Hynes's clothes.
Dr McKenna said the fibres lent "very strong support to the proposition that Siobhan Hynes was in contact with John McDonagh's jumper and strong support for her being in his car."
