D.P.P.-v- Michael Joseph Kelly,  IECCA 7 (2008)
THE COURT OF CRIMINAL APPEALKearns J.Hanna J.McCarthy J. [C.C.A. No. 116CPA of 2003]IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993BETWEEN MICHAEL JOSEPH KELLYAPPLICANTANDTHE DIRECTOR OF PUBLIC PROSECUTIONSRESPONDENT JUDGMENT of the court delivered on the 1st day of February 2008 by Kearns J. Michael Joseph Kelly, the applicant herein, was convicted on 24th March, 1983, by a jury in the Central Criminal Court (Gannon J.) of the murder of Margaret Glynn at the house which she occupied with her elderly brother Martin Glynn, at Keeves, Ballinamore Bridge, Co. Galway on 15th November, 1981.Leave to appeal was refused by this Court on 25th May, 1984, and the applicant was later refused a certificate to appeal to the Supreme Court pursuant to s. 29 of the Courts of Justice Act, 1924.Following conviction the applicant was sentenced to penal servitude for life. He was however released on licence in the mid 1990s.The applicant now seeks to have his conviction for murder quashed pursuant to the provisions of s. 2 of the Criminal Procedure Act, 1993 on the basis that there are newly discovered facts which show that there has been a miscarriage of justice in his case.THE CRIMINAL PROCEDURE ACT, 1993The Criminal Procedure Act, 1993 makes provision for the Court of Criminal Appeal to review alleged miscarriages of justice in cases where the court has previously rejected an appeal or an application for leave to appeal in the case.Section 2 of the Act provides as follows:-"(1) A person -(a) who has been convicted of an offence either -(i) on indictment, or (ii) after signing a plea of guilty and being sent forward for sentence under s. 13 (2) (b) of The Criminal Procedure Act, 1967, and who after appeal to the Court including an application for leave to appeal, and any subsequent re-trial, stands convicted of an offence to which this paragraph applies, and (b) who alleges that a new or newly discovered fact shows that there has been a miscarriage of justice in relation to the conviction or that the sentence imposed is excessive, may, if no further proceedings are pending in relation to the appeal, apply to the Court for an order quashing the conviction or reviewing the sentence. (2) An application under subsection (1) shall be treated for all purposes as an appeal to the Court against the conviction or sentence(3) In subsection (1) (b) the reference to a new fact is to a fact known to the convicted person at the time of the trial or appeal proceedings the significance of which was appreciated by him, where he alleges that there is a reasonable explanation for his failure to adduce evidence of that fact.(4) The reference in subsection (1) (b) to a newly-discovered fact is to a fact discovered by or coming to the notice of the convicted person after the relevant appeal proceedings have been finally determined or a fact the significance of which was not appreciated by the convicted person or his advisers during the trial or appeal proceedings.(5) Where- (a) after an application by a convicted person under subsection (1) and any subsequent re-trial the person stands convicted of an offence, and(b) the person alleges that a fact discovered by him or coming to his notice after the hearing of the application and any subsequent re-trial or a fact the significance of which was not appreciated by him or his advisers during the hearing of the application and any subsequent re-trial shows that there has been a miscarriage of justice in relation to the conviction, or that the sentence was excessive,he may apply to the Court for an order quashing the conviction or reviewing the sentence and his application shall be treated as if it were an application under that subsection."In the instant case, the application is grounded on s. 2(4), that is to say it is based on what are contended to be "newly discovered facts" coming to the notice of the applicant and his advisors after his appeal herein had been disposed of.Before considering the elements of what may constitute a "newly discovered fact" it is necessary to set out the background to this case.BACKGROUND In the early morning of 15th November, 1981, a fire occurred in a three-roomed cottage occupied by Martin and Margaret Glynn in a rural area near Ballinasloe, Co. Galway. The Glynns were brother and sister, both of whom were elderly and unmarried (Martin Glynn was aged 85 years and Margaret Glynn aged 87 years). Martin Glynn was in poor health and unable to look after himself but his sister was in somewhat better health. At the time of their death, both were being looked after by the applicant, who at the time was aged 29 years and resided with them, and who was staying in the house on the same night.Following the fire, Margaret and Martin Glynn were found dead in the house and brought to Portiuncula Hospital in Ballinasloe. The applicant was interviewed at Ballinasloe Garda Station later that day on Sunday, 15th November, 1981 when he outlined how he had woken up to find the house on fire and that he could not save either Martin or Margaret Glynn. In his initial statement, the applicant lied in relation to the time he was in the house, as the Glynns - following a deterioration of the relationship between them and the applicant - had locked him out the previous day and he had had to force open the door in the hours preceding the fire in order to gain entrance to the house.A post mortem was carried out on the bodies of Martin and Margaret Glynn on 16th November, 1981 commencing shortly before 3pm by the then State Pathologist, Dr. John Harbison. Dr. Harbison concluded that Martin Glynn had died of natural causes, namely bronchopneumonia. He was also of the opinion that Martin Glynn had died prior to the commencement of the fire.In relation to Margaret Glynn, Dr. Harbison noted that the body was clothed and that some of the clothing was burned. The body was severely burned in places, particularly the left side of the head and neck. There was bruising on the under surface of the scalp on the right side which extended down the right cheek bone and into the tissues on the right side of the neck. Further bruising was identified in the muscles overlying the voice box and below the thyroid gland in the front of the neck. A fracture of the thyroid cartilage was suspected. There was no evidence of soot inhalation in the air passages and an analysis of a sample of blood taken from the deceased revealed a carboxyhaemoglobin concentration of less than 2%.Dr. Harbison concluded that Margaret Glynn's neck injuries were indicative of strangulation or throttling. He was of the opinion that she was dead when the fire started and that the distribution of the burns raised the possibility that the fire was a deliberate attempt to conceal homicide.While at trial Dr. Harbison accepted that there was not in fact a fracture of the larynx, he was nonetheless satisfied that death in the case of Margaret Glynn was due to strangulation.On 22nd November, 1981 the applicant was arrested and detained at Ballinasloe Garda Station pursuant to the provisions of s. 30 of the Offences Against the State Act, 1939. On the evening of 22nd, the applicant signed a written statement in which he admitted to the murder of Margaret Glynn.He described how on the day of 14th November he had sought admission to the Glynn's house but had been told to go away. The applicant tried repeatedly to gain access, but without success. At one stage he forced open the door which had been held closed by a stick. Having repaired thereafter to a neighbour's house, the applicant again went up to the Glynn's house during the small hours and lay down on a bed which he had in the house until it was daylight. His statement then continued:-"I got up then and I went over to Marty's bed and I saw that he was not breathing. I then knew that he was dead. Maggie had me driven daft and I went down to her bedroom. It was bright at this stage and I saw the candle lighting beside her bed on a chair. I went to her bed and I saw that she was asleep. I picked up a blanket off her bed and I put it over her face. I then pressed on her neck with my right hand and she started shouting 'don't do it Micheleen'. I kept pressing on her neck until she stopped breathing. I then lifted the blanket off her head and I held it over the candle until it caught fire. I then held the burning blanket to the outside of the bed until it caught fire. When the outside of the bed was on fire I threw the burning blanket on the inside of the bed near the wall. The top part of the bed went on fire and the room was soon all smoke. I went out then from the house and went down to Mickey Donoghues." The applicant was charged with murder and arson contrary to s. 2 of the Malicious Damage Act, 1861 and his case was heard before Mr. Justice Gannon and a jury in the Central Criminal Court between 21st day of March, 1983 and the 24th day of March, 1983. The trial judge directed the jury to find the applicant not guilty of arson. The applicant was found guilty of murder and sentenced to penal servitude for life.The case against the applicant at his trial was based on two main pillars. Firstly, there were the findings of the pathologist who carried out the post mortem on both Margaret and Martin Glynn. Dr. Harbison's view was that Margaret Glynn died from asphyxia caused by compression of her neck in view of injuries which he found, including bruising of her neck, a fracture of her larynx and bleeding into her lungs. Secondly, the prosecution relied on the statement made by the applicant in Ballinasloe Garda Station in which he admitted to killing Margaret Glynn. This confession was made by the applicant to Detective Garda Joseph Shelly and Sergeant Patrick Lynam, both from the Garda Technical Bureau. The prosecution also relied to some extent on evidence that the applicant had asked Mr Donoghue on the night of the 15th November to tell the gardai nothing about his...
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