D.P.P.-v- Brian Kearney, [2009] IECCA 112 (2009)

Docket Number:76/08
Judge:Kearns J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL

Kearns J.

Dunne J.

MacMenamin J. [C.C.A. No. 76 of 2008]

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)RESPONDENTAND

BRIAN KEARNEYAPPLICANT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 9th day of October, 2009

This is an appeal brought by the applicant following his conviction for the murder of his wife, Siobhan Kearney, on the 28th February, 2006 at Carnroe, Knocknashee, Goatstown in Dublin. The trial commenced in the Central Criminal Court in Dublin on the 18th February, 2008 and concluded on the 5th March, 2008 when, following the delivery of a majority verdict by the jury, the applicant was sentenced to life imprisonment.

It was a case based on circumstantial evidence in that there was no primary evidence linking the applicant to the killing of his wife in the family home on the date in question. However, it was contended by the prosecution that the evidence which it adduced established that the applicant had the opportunity and motive to commit the offence, the motive being that the deceased was actively pursuing a separation of which the applicant was not in favour. The applicant and his wife, Siobhan, and their young son, Daniel, aged three years, were the only persons residing at the time in the house at Knocknashee in Goatstown. The body of Siobhan Kearney was found in her bedroom in circumstances where the door was locked and a length of flex was found around her body. These facts were relied upon by the defence at trial as indicative of the possibility that the deceased committed suicide. This theory was not, however, pursued during the course of the appeal before this Court.

Instead, the case made on behalf of the applicant was to the effect that the circumstantial evidence was of poor quality and insufficient to exclude the possibility that some third party had entered the house after the departure of the applicant for work shortly after 7.37 a.m. on the date of the killing.

The specific grounds of appeal relied upon by the applicant include the following:-1. (a) The learned trial judge erred in law and in fact in permitting the admission into evidence of a diary or any part or mention thereof.

(b) With regard to the admission of the diary or any mention thereof, the prosecution failed to establish good and sufficient grounds for the admission thereof and the learned trial judge ruled upon the submission, inter alia, on grounds not argued.

  1. The trial was unsatisfactory by reason of the prosecution leading an amount of evidence which was both intended and actually conveyed to the jury that the accused had exercised his right to silence during questioning in garda custody.

  2. The learned trial judge erred in refusing an application for a directed acquittal of the accused at the conclusion of the prosecution case.

    THE EVIDENCE

    Dr. Marie Cassidy, State Pathologist, gave detailed evidence during the trial, but it is sufficient for present purposes to record that she gave ligature strangulation as the cause of death of Siobhan Kearney. She also gave evidence that the time of death was within three hours either side of 9 a.m. on the morning in question. The deceased was five foot three inches in height, of slim build and weighed forty-five kilograms.

    Niamh McLaughlin, a sister of the deceased, described how she arrived at the house in Knocknashee at 9.30 a.m. on the morning of the 28th February, 2006. There were no other cars in the driveway. She let herself into the house and went upstairs to Siobhan's room which was locked. Siobhan's son, Daniel, was elsewhere in the house and unattended. Niamh McLaughlin contacted her parents by mobile phone and thereafter Deirdre and Owen McLaughlin arrived at the house at approximately 10.15 a.m. Mr. McLaughlin broke the door down and then discovered the body of his daughter lying on the floor of the bedroom.

    Deirdre McLaughlin gave evidence that the applicant, who had been telephoned and told to come back to the house, stated upon arrival and on hearing the news that "we would be together forever". When spoken to on the telephone he had asked no questions about why he had to come home and, on arrival to the house, he did not go upstairs but went into the sitting room. Brighid McLaughlin, another sister of the deceased, gave evidence that when she spoke to the applicant he stated "poor you Brighid and all that's happened with you and Michael". Brighid McLaughlin took this as being a reference to her late husband Michael who died in tragic circumstances in 2003. She found it an extremely odd remark.

    A close friend of the deceased, Anne Clohessy, gave evidence that on the evening of 27th February, 2006 the deceased had a meal in her apartment. Present were her partner, Julian, and the deceased's son, Daniel. She described Siobhan as having been in good form and they spent time chatting about what school her son Daniel would enroll in. Sergeant Charles McConalogue gave evidence that he was a friend of the McLaughlin family. He had gone to the deceased's house just before midday on the 28th February, 2006. He there met the applicant and told him that detectives wished to speak to him upstairs. The witness described how the applicant got out of a chair and walked towards him saying "Charlie, will I be fit to go through with it?". At a later stage the applicant asked Sergeant McConalogue if he could leave and also enquired if the detectives would want his clothing. Sergeant McConalogue was taken aback by this question and passed what had been said onto his colleague garda officers. Ms. Emer Brennan, the manager of a hair salon near the Goat Pub, gave evidence that on Monday, 27th February, 2006 Siobhan Kearney rang up to make an appointment to have her hair blow-dried and was given an appointment for 10.30 a.m. on Tuesday, 28th February, 2006. Ms. Jacinta Kane gave evidence that she was the secretary at St. Killian's School on Roebuck Road and told the Court that in January, 2006 the deceased had requested a place in the school for her son Daniel with a view to his commencing in St. Killian's in February, 2006. Ms. Jacinta Kenny gave evidence that she was the secretary of our Lady's Grove School in Goatstown and confirmed she also had a conversation with Siobhan Kearney in respect of her son Daniel. This conversation took place on 13th February, 2006 and was in relation to enrolling Daniel in the school in the coming September. Ms. Philomena Daly gave evidence that she worked in the Citizens Advice Bureau in Sandyford Road and described how on the 27th February, a woman who gave her name as Siobhan Kearney rang the centre seeking an appointment with someone in the legal section. She was given an appointment for the 9th March.

    A Mr. Hugh Hannigan, solicitor, gave evidence that Siobhan Kearney contacted him seeking family law advice. She had a meeting with him at his offices on the 23rd January, 2006 and was accompanied by her sister, Aisling. As a result of the instructions he received, he wrote a number of letters to the accused dated respectively the 26th January, 2006, 3rd February, 2006 and 14th February, 2006. A more detailed letter was sent to the applicant's solicitors on the 24th February, 2006. He gave evidence to the court that, to the best of his recollection, he had asked Siobhan Kearney to keep a diary of all the events that were occurring in the house at that time.

    Detective Sergeant Michael Gibbons gave evidence that on entering the bedroom where the deceased's body was found, he observed a key lying on the floor inside the door. There was no door saddle for the door in question and there was sufficient room for the key to be slid under the door...

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