Court of Criminal Appeal quashes murder conviction due to newly discovered evidence raising reasonable doubt.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Hanna J.

McCarthy J.

[C.C.A. No. 116 of 2003]

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 29 OF THE COURTS OF JUSTICE ACT, 1924

(AS AMENDED BY SECTION 22 OF THE CRIMINAL JUSTICE ACT, 2006)

AND

IN THE MATTER OF AN APPLICATION PURSUANT TO SECTION 2 OF THE CRIMINAL PROCEDURE ACT, 1993

BETWEEN

MICHAEL JOSEPH KELLY

APPLICANT

AND

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 27th day of May, 2009

Michael Joseph Kelly, the applicant herein, was convicted on 24th March, 1983, by a jury in the Central Criminal Court of the murder of Margaret Glynn at

the house which she occupied with her brother Martin Glynn at Ballinamore Bridge, Co. Galway on 15th November, 1981.

An application for leave to appeal was brought to this Court in 1984, but the same was refused on 25th May, 1984. Thereafter the applicant was refused a

certificate pursuant to s.29 of the Courts of Justice Act, 1924 for the purpose of bringing an appeal to the Supreme Court on a point of law.

Following conviction, the applicant was sentenced to penal servitude for life. He was however released on licence in the mid 1990s. In 2008, the applicant

sought to have his conviction for murder quashed pursuant to the provisions of s. 2 of the Criminal Procedure Act, 1993 on the basis that newly discovered

facts had come to light which showed that there had been a miscarriage of justice in his case. Before referring to the judgment delivered by this Court in

respect of that application, it is necessary to set out the background facts of the 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 movements or whereabouts the previous evening.

Reliance was also placed on a further conversation which the applicant had some three days prior to the deaths with a local man, Mr Thomas Geraghty, in

which the applicant expressed his concerns that if Margaret Glynn survived her brother, she would sell up the cottage and he would be forced to leave with

nothing, despite having been told by the Glynns that the place was to be left to him by way of recompense for looking after them while they were alive.

The applicant’s defence at trial was that he had no hand, act or part in the arson of the house at Keeves, Ballinamore, Co. Galway, nor had he anything to

do with the killing of Margaret Glynn. The medical evidence relied on by the prosecution was challenged both through cross-examination and by the

evidence of an expert, Dr. Declan Gilsenan, a pathologist, who was called by the defence and who disagreed with some of the findings of Dr. Harbison. The

applicant gave evidence in a voir dire hearing that his statement was not made voluntarily but rather was made only following intimidation by the gardaí who

had interviewed him. However, the learned trial judge ruled that the said statement had been made voluntarily, and the same was duly considered by the

jury as part of the evidence in the case. At trial, the applicant made an unsworn statement before the jury denying any involvement in the murder of

Margaret Glynn.

THE 2008 APPLICATION

The application contained two grounds of appeal which contended that newly discovered facts had come to light such as would indicate that the original

conviction of the applicant was unsafe. The first related to the discovery by the applicant’s solicitor of post-mortem photographs depicting the dissection of

the neck of the late Margaret Glynn deceased as carried out by Dr. Harbison. These photographs were not available to the defence at trial. These

photographs were viewed in 2008 by Dr. Basil Purdue, a Home Office pathologist retained on behalf of the applicant and he concluded that these

photographs made it plain that the body of Margaret Glynn was severely affected by both heat involving the left side of the neck and autolysis of such a

degree that bruising could not be safely diagnosed.

The second alleged newly discovered fact related to the emergence of technology which had a relevance in determining the authenticity of the inculpatory

statement made by the applicant. Counsel on behalf of the applicant contended that technology which was not available at time of trial, namely the CUSUM

test, suggested that there had been more than one contributor to the making of the statement by the applicant so that it could no longer be safely regarded

as the applicant’s own statement.

Having heard evidence from experts called both on behalf of the applicant and the respondent in relation to these two issues, the Court reserved judgment

and subsequently delivered same on 1st February, 2008.

In relation to the photographs, the Court was satisfied that the missing photographs did constitute evidence which warranted the description of being “new

discovered facts”. They were elements of the overall post-mortem photographic evidence which were not given to the defence at time of trial, although it was

not suggested that this was done deliberately or that any suspicious circumstances surrounded their non-production at that time. The Court in its judgment

then continued (at p.34):-

“That said, the Court is satisfied that they would have been of little benefit to the defence in this case. Firstly, the Court has considerable

doubts as to whether photographs of such a prejudicial nature would ever have been introduced in evidence and believes that the defence

would have been more likely to object to their proof than anything else. Secondly, having considered the expert evidence of Dr. Purdue and

Professor Crane, and while of the view that these internal photographs – taken in isolation – would not have confirmed bruising of the neck or

a diagnosis of cause of death as either strangulation or neck compression, the Court must nonetheless bear in mind that these photographs

are not to be taken in isolation on the issue of causation, but must be considered in the context of the other photographs, the position of the

body as subsequently found, the examination, findings and evidence of Dr. Harbison and, naturally, the evidence of the two witnesses heard

on the appeal.

Taking all this evidence together, the Court is greatly assisted by the evidence given by Professor Crane. The Court specifically notes that

Professor Crane based his conclusions not only on the findings made by Dr. Harbison, but also on what he saw as findings of considerable

significance, namely the presence of areas of discolouration on the right parietal area of the skull of the deceased and over her right jaw. This

patchy area of discolouration was on the side of the body which was uppermost in the bed and thus, in Professor Crane’s opinion, was not

what one would expect to find if discolouration had been caused by putrefaction or staining. One would expect uniform discolouration in either

of those circumstances. Blood staining tends to follow the direction of gravity and was more likely in this instance to be found on those

portions of the body in contact with the bed. The body was burnt predominantly on the left side where it was in contact with the bed.

Putrefaction tends to be uniform where it is evident. The Court is satisfied there is thus a very sound basis for the opinion of Professor Crane

that, whatever about the findings in relation to the neck, the findings in relation to the skull and jaw are bruising and nothing else.

In relation to the neck it is clear that bruising cannot be excluded. That it was bruising was the professional opinion of Dr. Harbison whose

many, many years of professional expertise must be accorded proper and due weight in any review of the type being undertaken in this case.

He was the man on the spot and the person best able to make an assessment from the primary material consisting of the remains of the

deceased. No witness can exclude compression of the neck as a cause of death. Ultimately the difference between this diagnosis and one of

strangulation is more a matter of semantics than substance. What must be excluded on the evidence, however, is any accidental or natural

cause of death. Indeed, the Court considers the possibility of both Martin Glynn and Margaret Glynn dying of natural causes within minutes or

a few hours of each other as something which is totally ruled out on the evidence in this case, particularly having regard to the occurrence of

the fire which clearly took place after Margaret Glynn had died. The Court does not believe therefore that any further cross-examination of Dr.

Harbison by reference to the absent photographs would have thrown any real doubt on his diagnosis of cause of death.”

In relation to the evidence led in relation to the CUSUM technique, the Court did not accept that a newly discovered fact had been established under this

heading for the reasons set out in the judgment. As no point of law is stated to have arisen from the Court’s conclusion on this particular issue, the Court

does not propose to address it further at this point.

THE PRESENT APPLICATION

The present application is one whereby the applicant now seeks a certificate under s.29 of the Courts of Justice Act, 1924, as amended by s.22 of the

Criminal Justice Act, 2006. The applicant contends that the following points of law of exceptional public importance arise from the judgment of this Court

delivered on 1st February, 2008 as follows:-

(a) In the process of evaluating evidence constituting newly discovered fact, ought the Court of Criminal Appeal seek to weigh evidence and

resolve significant conflicts of fact concerning such newly discovered fact.

(b) In the course of evaluating newly discovered facts is the Court of Criminal Appeal correct in confining its deliberations to the use that could

have been made of such evidence in the trial by the jury to the exclusion of consideration of the potential effect of same in the course of a voir

dire conducted by the learned trial judge as to the admissibility of alleged confession evidence.

JURISDICTION

The first question which must be addressed as a preliminary issue is whether this Court has jurisdiction to grant a certificate under s.29 of the Act of 1924

in circumstances where it has refused an application brought pursuant to s.2 of the Criminal Procedure Act, 1993.

As noted in the judgment of February, 2008, the 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 section 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.”

The Court is satisfied that, insofar as sub-section (2) of the relevant section provides that an application under sub-section (1) is to be treated “for all

purposes” as an appeal to the Court against the conviction or sentence, that provision is sufficient to confer upon this Court the necessary jurisdiction to

grant a certificate under s.29 of the Act of 1924 where it is satisfied it should do so.

DISCUSSION

In making his submissions, Mr. Anthony Sammon, senior counsel for the applicant, while acknowledging that this Court had correctly identified the relevant

legal principles as elaborated in The People (Director of Public Prosecutions) v. Gannon [1997] 1 IR 40, submitted that this court in evaluating and

assessing the conflicting evidence before it “raised the bar” and went beyond the legal test, putting themselves in the place of a jury at trial. He submitted

that the court had made a determination of fact, deciding upon the credibility of the evidence by stating its preference for the evidence of Professor Crane.

He submitted that the court should not have trespassed into an area which under our legal system is reserved to be the constitutionally appropriate forum of

a jury. He further submitted that the Court of Criminal Appeal has no jurisdiction to substitute its own view of the evidence for that of the trial court.

He submitted that the undisclosed photographs, taken in conjunction with the expert evidence of Dr. Purdue, had a potential to cause doubt both in the

minds of the trial judge and of the jury.

In relation to the second question, Mr. Sammon contended that the court failed to consider how the new evidence might have played out in the context of a

voir dire hearing before the trial judge. Such a hearing could arise, and did arise in this case, in relation to the admissibility of the alleged statement. Before

any confession can be admitted in evidence, the prosecution must satisfy the court beyond a reasonable doubt that the taking of the confession involved no

deliberate and conscious violation of the accused’s constitutional rights and must also establish that the confession is voluntary. Counsel acting for the

applicant at trial would certainly have used the evidence now available arising from the newly discovered photographs to highlight that it was never part of

the prosecution case that the applicant had inflicted blows to the head and face of Margaret Glynn. That was never part of the prosecution case and did not

occur according to the alleged statement of admission relied upon by the prosecution. In such circumstances, a doubt could genuinely have been raised as

to the voluntary nature of the confession, such as might have persuaded the trial judge to exclude it from the evidence to be considered by the jury.

In response, Mr. Thomas O’Connell, senior counsel for the respondent, pointed out that the appropriate test for a Section 2 application is for the court to

decide whether newly discovered facts render a conviction unsafe and unsatisfactory. In this case the newly discovered fact was the existence of the

photographs which had not been disclosed. What happened thereafter was that two experts offered their opinions as to the interpretation of the

photographs. Mr. O’Connell submitted that this process, whereby each of these experts offered his professional opinion, could not be correctly

characterised as a conflict of fact.

He submitted that the court was correct in evaluating the evidence before it in order to ascertain whether the above mentioned test had been met and that

there was no other way that the court could engage in its task of determining whether the conviction was unsafe except by engaging in an evaluation of the

evidence.

The issue for the court under Section 2 was to decide whether the newly discovered fact cast sufficient doubt upon Dr. Harbison’s opinion so as to render

the conviction unsafe. In this context, Mr. O’Connell submitted that the court was entitled to prefer the opinion evidence of one expert over another, taking

the two experts opinions in the context of all of the evidence in the case. The court had set out clearly its reasons for preferring the evidence of Professor

Crane in this respect. Accordingly, no further cross-examination by Dr. Harbison and by reference to the photographs would have thrown any real doubt on

his diagnosis as to the cause of death.

In relation to the second question, Mr. O’Connell argued that if the court was correct in saying that the newly discovered fact would not have made any

difference to the cause of death, then logically it could not have made any difference at any stage of the trial, whether to the conclusion of the jury or to the

prior stage of the voir dire. He contended therefore that no point of law of exceptional public importance arose in the case.

DECISION

The Court is satisfied, firstly, that it would be an inappropriate use of its jurisdiction as elaborated above, to grant a certificate under s.29 of the Courts of

Justice Act, 1924 simply because an applicant was dissatisfied with the Court’s judgment in respect of an application pursuant to s.2 of the Criminal

Procedure Act, 1993.

The Court is also satisfied that the present application is fundamentally misconceived insofar as it contends that the Court is precluded from evaluating the

new evidence. Whether dealing with an application to admit new evidence, or with an application under s.2 of the Criminal Procedure Act, 1993, the Court

must necessarily engage with the evidence adduced in order to discharge its responsibilities and functions. As far back as the decision of this Court in The

People (at the suit of the Director of Public Prosecutions) v. O’Brien (Unreported, CCA, 29th January, 1990) it has been made clear that one of the three

criteria to decide whether new material should be admitted as fresh or new evidence was “that it would materially affect the decision” in the case and that

necessarily implies an evaluation of that evidence.

Insofar as the admission of new evidence on appeal is concerned, a detailed review of all the relevant authorities was carried out by this Court in The People

(Director of Public Prosecutions) v. Willoughby [2005] IECCA 4 and the Court in its judgment formulated, inter alia, the following principles appropriate to

such applications:-

“(c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

(d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in

isolation."

The Court could not have made it clearer that an evaluative process must take place in relation to the new material before it can be admitted. The Court

would add that the judgment of this Court in Willoughby was expressly approved by a five member Supreme Court in The People (Director of Public

Prosecutions) v O’Regan [2007] 3 I.R. 805

In the context of an application under s.2 of the Criminal Procedure Act, 1993, similar principles apply. The court must be satisfied, as in the case of an

ordinary appeal, that the newly discovered fact is such that it might have been used by defence counsel to raise a doubt in the mind of the jury such as to

render the conviction unsafe.

The court makes its assessment by reference to the principles elaborated by Blayney J. in The People (Director of Public Prosecutions) v. Joseph Gannon

[1997] 1 I.R. 40. As stressed by Blayney J. in that case, the court’s role is not to enquire whether the new material renders the conviction of the appellant

unsafe and unsatisfactory having regard to the course actually taken by the defence at trial, but rather to ascertain whether the defence could have used the

material in such a way as to raise a doubt about a significant element in the prosecution case and the possibility that a different approach by the defence

may have led to an acquittal. The key passage in the judgment of Blayney J. is at pp.47 to 48:-

“The court could not conclude for certain that the advent of the newly-discovered material would have no effect on the manner in which the

defence was conducted. The furthest one could go would be to say that it is possible that it might not have had any effect and this would not

relieve the court from examining what the position would have been if the defence had availed of the newly-discovered material and altered its

strategy accordingly.”

It is crystal clear from the foregoing citation that the court is, in effect, mandated to weigh and evaluate the evidence for the purpose of this exercise. It is

not a jury function in this particular context, the jury function being one which arises at first instance only. This is not a first instance matter, but rather a

hearing in which in this Court, having ruled that certain newly discovered facts existed, then evaluates and assesses that evidence with a view to

determining whether the conviction is unsafe. This is a task and function which the Court of Criminal Appeal performs as part of its regular jurisdiction. For

example, it is not uncommon in the Court of Criminal Appeal for an appellant to argue at the conclusion of the prosecution case, by reference to the

principles in R v. Galbraith (73 Cr.App.R.124, CA) that there was no evidence sufficient for the case to be left to the jury and that a direction should have

been granted. In ruling on such a ground of appeal, the Court must necessarily evaluate the evidence before the trial judge to determine whether or not he

erred in the particular ruling made on such an application.

In this case the court carefully considered the testimony of the various expert witnesses who gave evidence in relation to the photographs. There were

conflicting opinions, but the whole function of an oral hearing of this nature is to enable the court have as complete a picture as possible before reaching

any conclusion. That is precisely what occurred in this case, where the expert witnesses from both sides were thoroughly tested and examined in direct

examination and in cross-examination. The court then assessed the evidence of those witnesses by reference to the consideration whether or not defence

counsel could have utilised the newly discovered material in such a way as to raise a reasonable doubt in the minds of the jury about a significant element

in the prosecution case. Having conducted that exercise, this court considered, as it was entitled to do, that the newly discovered fact would not and could

not have raised a doubt in the minds of a reasonable jury for all the reasons stated in the judgment.

The Court would wish to emphasise that the mere existence of a newly discovered fact does not thereby and without more raise a doubt about the safety of

a conviction. If that were the case, material of a relatively innocuous nature which later came to light could form the basis for an application under s.2 of the

Act of 1993. The newly discovered material must, under the terms of the Act, tend to show that there may have been a “miscarriage of justice”. While that

term has acquired a particular meaning for the purpose of applications of this nature, one which does not require detailed consideration here, it must also

be taken as meaning that the material or fact newly discovered must be such as would have genuinely enabled the defence to raise a doubt in the minds of

a jury. It does not contemplate remote, hypothetical or fanciful possibilities.

The Court is satisfied that no point of law of public importance arises on this application and will accordingly refuse same.