DPP v Kearney
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 19 January 2012 |
| Neutral Citation | [2012] IECCA 1 |
| Docket Number | RECORD NO. 76/2008 |
| Court | Court of Criminal Appeal |
| Date | 19 January 2012 |
BETWEEN
and
[2012] IECCA 1
COURT OF CRIMINAL APPEAL
Criminal law - Point of law of exceptional public importance - Prejudicial evidence - Courts of Justice Act, 1924 - Criminal Justice Act, 2006 - Whether the issue regarding the admissibility of a diary kept by the deceased involved a point of law of exceptional public importance or was merely an issue relevant to the particular facts of this case.
Facts The applicant was refused leave to appeal against his conviction of the murder of his wife. The prosecution case against the applicant depended almost entirely on circumstantial evidence including evidence that the deceased was pursuing a marital separation and issues were raised at trial regarding the admission into evidence of a diary kept by the applicant's wife. The prosecution sought to introduce evidence confined to the fact that the diary was found hidden in the hot-press together with other items, including the deceased's passport and a €500 note. The applicant objected to this evidence being led on the grounds that it had no probative function, it was prejudicial and invited the jury to speculate as to its contents, and the prejudicial effect outweighed any probative value. The trial judge determined that the probative value of the evidence outweighed any prejudice and on appeal this court ruled that the evidence was relevant as indicating the state of mind of the deceased in relation to a separation. The applicant herein sought a certificate pursuant to the Courts of Justice Act, 1924 section 29 that the decision of the Court of Criminal Appeal involved a point of law of exceptional public importance and that it was desirable in the public interest that an appeal should be taken to the Supreme Court. The applicant had not disputed that the deceased was seeking a separation and it was argued that as a consequence the introduction of the diary evidence added nothing to the prosecution case in evidential terms. It was further submitted that the evidence was prejudicial but it was no longer submitted that it had no probative value.
Held by CCA; Finnegan J. (Dunne, MacMenamin JJ) in refusing the application: That the applicant appeared to be seeking to contest the manner in which the Court of Criminal Appeal applied the law to the facts of this case. What the applicant sought to raise as the proposed point of law was in fact simply the application of a well established principle of law to the facts of this particular case, namely whether the prejudicial effect of the evidence outweighed its probative value. The question sought to be clarified was very specific to the circumstances of this case and did not raise an issue of law of general application. Nor did it raise a point of law of exceptional public importance.
Reporter: L.O'S
COURTS OF JUSTICE ACT 1924 S29
COURTS OF JUSTICE ACT 1924 S29(2)
DPP v MCCARTHY & ORS UNREP CCA 16.6.2010 2010/16/3808 2010 IECCA 51
DPP v MELEADY & GROGAN 2001 4 IR 16 2001/8/2025
The applicant was convicted of the murder of his wife, Siobhán Kearney, on the 28th February 2006 at Carnroe, Knocknashee, Goatstown, Dublin. He sought leave to appeal his conviction and by judgment delivered on the 9th October 2009 this court refused the applicant leave. The applicant now seeks a certificate pursuant to the Courts of Justice Act 1924 section 29 that the decision of the Court of Criminal Appeal involves a point of law of exceptional public importance and that it is desirable in the public interest that an appeal should be taken to the Supreme Court. The point of law in respect of which a certificate is sought is as follows:-
"In circumstances where:-"
(i) The prosecution intends to lead evidence which is relevant.
(ii) Which is prejudicial (in the sense that it may lead to a potential unfairness on an accused).
(iii) That which it is sought to establish has already been proved in the case by other evidence which was unchallenged and common case:
Is it open to the learned trial judge to admit the evidence mindful of its potential prejudicial effect?
To appreciate the context in which the proposed point of law arises it is necessary to look briefly at proceedings in the court of trial, on the application for leave to appeal against conviction to this court and on this application and it is proposed to do so now in turn.
The relevant evidence at the court of trial can be summarised briefly. The prosecution case depended almost entirely on circumstantial evidence. One strand of this evidence was to the effect that the deceased was pursuing a separation from the applicant and that she was doing so seriously. The following evidence was led by the prosecution:-
1. Evidence of Philomena Daly. The witness worked part-time at a Citizen's Advice Centre. On the 27th February 2006 she received a telephone call from a woman who gave her name as Siobhán Kearney. She wanted an appointment with someone in the legal section to advise her on a separation.
2. Evidence of Hugh Hannigan. The witness is a solicitor. In September 2005 he had contact with Siobhán Kearney. She wished to institute separation proceedings. She had no wish for reconciliation. He met with Siobhán Kearney on the 23rd January when he was formally instructed to make contact with the applicant in relation to a separation. As was his practise in family law proceedings he advised Siobhán Kearney to keep a diary.
3. Evidence of Detective Garda John Phelan. On Wednesday, 8th March 2006 he was involved in a search of the house Carnroe. On searching a hot-press he found the deceased's passport and a diary. The entries in the diary started on the 27th January 2006 and ended on the 27th February 2006.
On the second day of the trial an issue arose in the absence of the jury as to the use which the prosecution intended to make of the foregoing evidence which was not resolved but left over until the relevant evidence should be reached. On Day 7 the issue of the admissibility of the evidence was considered. The prosecution at that time indicated that it intended to rely upon the contents of the diary and much of the discussion concerned this. However on Day 9 the prosecution indicated that it did not intend to rely upon the contents of the diary and this discussion is not now relevant. However no ruling was made by the learned trial judge on this occasion. Finally the matter arose again on Day 9 at which point the prosecution indicated the evidence would be confined to the fact that the diary was found hidden in the hot-press together with the other items found there, the deceased's passport and a €500.00 note. Counsel for the applicant objected to this...
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