Attorney General v Kelly (No. 2)

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Date: 10 December 1938

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...