Attorney General v Kelly

• Jurisdiction: Ireland
• Judgment Date: 05 February 1937
• Date: 05 February 1937
• Court: Court of Criminal Appeal (Irish Free State)

Court of Criminal Appeal.

Attorney-General v. Kelly.

THE ATTORNEY-GENERAL

and

THOMAS KELLY (1)

Criminal law - Application for leave to appeal - Fresh evidence - Evidence similar in character to evidence at trial - Whether a ground for appeal - Procedure followed when dealing with fresh evidence - Fresh evidence as a ground for a new trial - Courts of Justice Act, 1924 (No. 10 of1924), sects. 31, 32, 33 - Courts of Justice Act, 1928 (No. 15 of 1928),sect. 5.

Criminal Appeal.

This was an application for leave to appeal by the applicant from his conviction and the sentence of death passed upon him in the Central Criminal Court for the murder of Patrick Henry, with whom the applicant had lived in Boyle, County Roscommon. The evidence given at the trial, so far as relevant to this report, and the grounds of the application for leave to appeal are sufficiently set out in the judgment of the Court of Criminal Appeal delivered by Sullivan C.J., post, p. 320.

On the application for leave to appeal, the ground chiefly relied on for the applicant was that there were then available witnesses in a position to give evidence on behalf of the applicant, whose existence was unknown at the

date of the trial, to prove that the murdered man, Patrick Henry, was alive on the 12th September, 1935, a day after he had, according to the evidence for the State, been murdered, and after the applicant, as it was proved by that evidence, had left the house and district. If Henry was alive on the 12th September, 1935, then the evidence for the State established a complete alibi for the applicant.

At a trial for murder, five witnesses called for the defence, swore that they had seen the murdered man alive at a date subsequent to the date upon which, according to the evidence for the State, he had been murdered by the accused. If the evidence of the said five witnesses were true, the State evidence established that the crime could not have been committed by the accused, who, by that evidence, was proved to have left the neighbourhood immediately after he, as alleged, had committed the crime, and not to have returned until he was arrested. Notwithstanding this evidence, the accused was convicted and sentenced to death. Upon application to the Court of Criminal Appeal for leave to appeal, one of the grounds relied on was that fresh evidence had come to light since the trial, the existence of which had not been known to the accused or his solicitor at the date of the trial. The fresh evidence consisted of the evidence of seven other witnesses who were prepared to swear to having seen the murdered man alive on the same date as that deposed to by the said five witnesses at the trial. It was contended for the State that this was not a "sufficient ground of appeal" within the meaning of sect. 32 of the Courts of Justice Act, 1924.

The Court of Criminal Appeal granted leave to appeal upon the said ground, although the trial was admittedly impeccable, and the verdict otherwise incapable of being disturbed. The Court, however, ordered that the fresh evidence should be heard by that Court as part of, and before determining, the appeal, giving leave to the...