Attorney General v Kelly (No. 2)

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

Court of Criminal Appeal.

Attorney-General v. Kelly (No. 2).

THE ATTORNEY-GENERAL

and

THOMAS J. KELLY No. (2). (1)

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.

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 (reported [1937] I. R. 315).

The accused was again indicted for the same offence and tried in the Central Criminal Court in April, 1937, when the jury were unable to agree on a verdict and were accordingly discharged. The accused was again put upon trial on the same indictment in November, 1937, and

before the trial opened an application on behalf of the accused was made that the indictment be quashed on the ground that it was preferred without jurisdiction. This application was refused, the trial proceeded and the accused was convicted and sentenced to death. From this conviction and sentence the accused appealed on the grounds:1. That the indictment preferred against him was preferred without jurisdiction. 2. That the trial Judge had no jurisdiction to try the case. 3. That the order of the Court of Criminal Appeal and the subsequent re-trial in April, 1937, constituted an acquittal in law and was a bar to the trial of the accused in November, 1937

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...