How fingerprints on a Christmas card led to an arrest, then an acquittal in B.C.

A man opens a greeting card in this file photo. (Shutterstock)

A break-in suspect whose fingerprints were found on a Christmas card inside the targeted home has been acquitted of the crime, after a B.C. judge ruled the Crown had not proven his guilt beyond a reasonable doubt.

B.C. Supreme Court Justice John Gibb-Carsley issued his ruling in the Penticton case earlier this month, and the decision was published online Wednesday.

In it, the judge describes flaws he saw in the way police and prosecutors handled the Christmas card, which was the only piece of evidence linking accused Joseph George Robert Kirkey to the crime.

Gibb-Carsley found there was a reasonable doubt as to how Kirkey’s fingerprints ended up on the card, and therefore decided the accused must be acquitted.

The break-in

Kirkey was charged with one count of breaking and entering in connection to an incident that occurred in the early morning hours of Jan. 17, 2023, at a home in Penticton.

Prosecutors alleged that Kirkey gained entry into the home by breaking the glass of its back patio door. He then allegedly took “a cellphone, a box of chocolates, a gift bag and a Christmas card” and fled.

The homeowner, anonymized in the decision as Ms. K, was awoken by a person standing in her bedroom and shining a cellphone light.

“She testified that the intruder was in her room for only a few moments and it was dark,” the decision reads.

“Understandably, she could not provide any identification information other than that she thought the intruder was a large man based on his size and that he appeared to be wearing dark clothing. However, she agreed that the intruder may have appeared larger because when she made the observation she was lying at close to floor level.”

Because it was her cellphone that had been taken during the break-in, Ms. K was unable to call her husband, Mr. D, or the police right away. She instead used her computer to send a Facebook message to a friend, who contacted police.

According to the decision, responding officers found the box of chocolates, the gift bag and the Christmas card on steps outside the home.

Mr. D was working in North Vancouver at the time of the break-in and drove back to Penticton when he heard the news, according to the decision. He arrived around 7:30 a.m. and took pictures outside the home.

“These included a photo of a discarded beer can by the window, a plastic table that had been moved on the patio under a window which had a visible shoe impression on the table, and a discarded screen that had been pulled from a window,” the decision reads.

Despite police testifying that they had left a message with the homeowners seeking to come back and search the property further, and despite the homeowners testifying that they would have co-operated with such a search, no additional police search ever occurred.

As a result, police only analyzed the items seized from the steps, not the items Mr. D’s photos documented.

Circumstantial evidence

Gibb-Carsley’s decision explains that in cases like this one that are based on circumstantial evidence, the judge must determine “whether, on the whole of the evidence, the Crown has proven that the accused’s guilt is the only reasonable inference.”

A reasonable inference that does not require the accused’s guilt must be negated by the Crown as it presents its case, according to the decision.

Under cross-examination, police experts told the court that “there is no ability to determine the age of a fingerprint,” fingerprints can remain on objects for years, it’s possible to handle an item without leaving fingerprints, and the presence of a person’s fingerprint on an object does not necessarily mean they were the last person to touch it.

For Gibb-Carsley, this information raised a reasonable alternative explanation for how Kirkey’s fingerprints ended up on the card.

“Greeting cards are often presented for sale at stores in a manner that not only allows, but encourages, the public to interact with the card to examine the message expressed on the inside of the card,” the decision reads.

The judge’s decision doesn’t construct a narrative about how or where Kirkey might have touched the card before it was given to the homeowners. Rather, it notes that there is insufficient evidence to prove that he couldn’t have.

Some of this, the decision suggests, is down to the lack of additional fingerprints from other objects at the scene. Police could have chosen to search for fingerprints or DNA evidence on the frames of the windows and doors, the door handle, or the beer can, the decision notes.

“I acknowledge that the police are free to investigate crime as they see fit and as resources allow,” the decision reads. “However, in circumstantial cases, if there is only one piece of evidence pointing towards an accused, it can greatly weaken the Crown’s case.”

Gibb-Carsley also found the Crown’s presentation of the evidence it did have access to unpersuasive.

“No evidence was put before the Court regarding the origins or history of the Christmas card before it was given to the victims on or around Dec. 20, 2022, by their neighbours,” the decision reads.

“No evidence was tendered as to where the card was purchased, when it was purchased, who purchased it and in what condition it was purchased. For example, there is no evidence whether it was purchased from a rack of cards open to the public to physically handle in order to review the card, in an individually sealed plastic wrapping, as part of a box of greeting cards or whether it was a homemade card. Indeed, the physical Christmas card itself was not put into evidence. The physical Christmas card may have provided evidence of its origin.”

Prosecutors argued that the theory that Kirkey could have touched the card in a store before it was purchased was speculative, but Gibb-Carsley disagreed.

“In my view, it only becomes speculative if one starts with a view that the accused is guilty,” the decision reads. “In other words, it shifts the burden to the accused to explain if he has come into contact with the Christmas card before the card was given to Ms. K. and Mr. D. There is never any burden on an accused to testify or provide evidence.”

Gibb-Carsley acknowledged that the break-in was “a terrifying experience for Ms. K” that has “impacted her negatively in several significant ways,” but he noted that the impact on the victims “must not have any bearing” on the determination of the accused’s guilt.

“On the whole of the evidence, the Crown has failed to prove that the accused’s guilt is the only reasonable inference,” the decision concludes.

“Given that conclusion, I must acquit Mr. Kirkey.”