A DUBLIN man who lost a case in the Court of Criminal Appeal last March had his application to take a further point of appeal rejected yesterday.
Eamon Kelly (47), of Furry Park Road, Dublin, had appealed a conviction for having Pounds 500,000 worth of cocaine for supply. The court reduced his 14-year term by a year on the grounds that he had been in prison for almost a year before he was sentenced in June, 1994.
Last month, he asked the Court of Criminal Appeal for permission to go to the Supreme Court, saying a point of law of exceptional public importance was involved. This point was: "That a permanent record of the results of forensic tests made and done on behalf of the prosecution should be kept and disclosed for the consideration of the court of its evidential value, especially where such evidential value is or may be the subject of differing assessments between responsible experts."
Yesterday, Mr Justice Blayney, presiding in the Court of Criminal Appeal, said no part of the court's judgment delivered on March 4th, 1996, involved the point of law being raised by the applicant. The point was essentially an abstract one and could not properly be entertained by the Supreme Court.
The point of law related to smudge marks on a plastic bag which contained cocaine. Kelly denied ever touching the bag.
A Garda forensic expert said he found smudges on the bag which might have been made by fingermarks but they were of no evidential value. He did not keep a permanent record of the results or smudges.
Kelly's counsel submitted that the failure by the garda to keep a permanent record of the smudges deprived the defence of the opportunity of having the permanent record examined by their expert. They were deprived of the opportunity to argue that if there was no trace of any of Kelly's fingerprints, it could be inferred he did not handle the bag.
Mr Justice Blayney said the Court of Criminal Appeal took the view in March that in the light of the garda's evidence, which was accepted by the defence, any record of these smudges would have been of no value to the defence.