Attorney General v Kelly (No. 2)

JurisdictionIreland
Judgment Date10 December 1938
Date10 December 1938
CourtCourt of Criminal Appeal
Attorney-General v. Kelly (No. 2).
THE ATTORNEY-GENERAL
and
THOMAS J. KELLY No. (2). (1)

Court of Criminal Appeal.

Criminal law - Charge of murder - Conviction - Conviction reversed and re-trial granted - Courts of Justice Act, 1928 (No. 15 of 1928), sect. 5, sub-sect.1 (b) - Disagreement of jury on re-trial - Discharge of jury - Accused put on trial again and convicted - Jurisdiction of the Court to re-try the accused, the jury having disagreed on former trial.

The Courts of Justice Act, 1928, sect. 5, sub-sect. 1 (b), provides:—

"Where the Court reverse a conviction in whole, the Court shall have jurisdiction to make an order (in this section referred to as an order for a re-trial) authorising the person in respect of whom such conviction was obtained to be re-tried for the same offence as that which was the subject of such conviction, and shall order that the costs of the appeal and of the new trial of the accused person shall be paid by the State, unless the Court shall be of opinion that the necessity for the appeal and the new trial has been caused or contributed to by the defence, and may by such order or any subsequent order direct the person in respect of whose conviction the order was made to be retained in custody or to be admitted to bail on such terms as they think proper."

Held that the word "re-trial" in this sub-section means a finished trial, a proceeding in which the guilt or innocence of the accused is determined, and there is no such determination when a jury is unable to agree on a verdict.

Accordingly, where a re-trial had been ordered under this sub-section and on the re-trial the jury had disagreed, the accused might be put on trial again and as often as might be necessary until the question of his guilt or innocence was determined by a verdict.

Criminal Appeal.

This was an application for leave to appeal by the accused from his conviction and the sentence of death passed upon him in the Central Criminal Court in November, 1937, for the murder of Patrick Henry.

The accused was originally tried for the same offence in November, 1936, and was convicted and sentenced to death. He appealed to the Court of Criminal Appeal and the conviction and sentence were quashed and a re-trial ordered in accordance with the provisions of the Courts of Justice Act, 1928, sect. 5, sub-sect. 1 (b), on the ground that after the trial had concluded the accused had ascertained that certain persons, whom he named, would give evidence on his behalf which, if accepted by a jury, would conclusively establish his innocence of the crime of which he had been convicted...

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5 cases
  • DS v Judges of Cork Circuit Court and DPP
    • Ireland
    • High Court
    • 16 October 2006
    ...1998 IR 379 US v PEREZ 1824 9 WHEAT 579 1824 22 US 579 WADE v HUNTER 1949 336 US 684 R v HENWORTH 2001 2 CAR 47 AG v KELLY (NO 2) 1938 IR 109 RICHARDSON v US 1984 468 US 317 CHARLES v THE STATE 2000 1 WLR 384 FLOWERS v THE QUEEN 2000 1 WLR 2396 COURTS OF JUSTICE ACT 1928 S5(1)(b) CRIMINAL ......
  • Ooi Lean Chai v PP
    • Malaysia
    • Supreme Court (Malaysia)
    • Invalid date
  • DS v Judges of Cork Circuit Court and DPP
    • Ireland
    • Supreme Court
    • 10 June 2008
    ...of indictment relevant to issue of multiple trials - Registrar of Companies v Anderson [2005] 1 IR 21 applied; AG v Kelly (No 2) [1938] IR 109, Z v DPP [1994] 2 IR 476, State (McCormack) v Curran [1987] ILRM 225 and R v Henworth [2001] EWCA Crim 120, [2001] 2 Cr App R 47 considered - Cour......
  • Byrne v Judges of the District Circuit Court
    • Ireland
    • Supreme Court
    • 17 February 2015
    ...whom Fennelly and Finnegan JJ agreed, after analysing several American and English cases, noted that in Attorney General v Kelly (No. 2) [1938] 1 IR 109 the Court of Criminal Appeal had clearly indicated that a jury which has not come to a conclusion had not put an accused in jeopardy. The ......
  • Request a trial to view additional results

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