Irish Court of Criminal Appeal

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Cite as: [2012] IECCA 1

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Judgment Title: DPP -v- Brian Kearney

Neutral Citation: [2012] IECCA 1

Court of Criminal Appeal Record Number: 76/08

Date of Delivery: 19/01/2012

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Dunne J., Mac Menamin J.

Judgment by: Finnegan J.

Status of Judgment: Approved

COURT OF CRIMINAL APPEAL

RECORD NO. 76/2008

Finnegan J.
Dunne J.
MacMenamin J.

IN THE MATTER OF SECTION 29 OF THE COURTS OF JUSTICE ACT 1924

BETWEEN

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

RESPONDENT

and

BRIAN KEARNEY

APPLICANT

Judgment of the court delivered on the 19^th day of January 2012 by Finnegan J.

The applicant was convicted of the murder of his wife, Siobhán Kearney, on the 28^th February 2006 at Carnroe, Knocknashee, Goatstown, Dublin. He sought leave to appeal his conviction and by judgment delivered on the 9^th 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:-

The prosecution intends to lead evidence which is relevant.

Which is prejudicial (in the sense that it may lead to a potential unfairness on an accused).

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.

Proceedings in the Court of Trial
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:-

Evidence of Philomena Daly. The witness worked part-time at a Citizen’s Advice Centre. On the 27

^th

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.

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 23

^rd

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.

Evidence of Detective Garda John Phelan. On Wednesday, 8

^th

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 27

^th

January 2006 and ended on the 27

^th

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 evidence being led on the following grounds:-

1. The evidence has no probative function in that it does not tend to indicate that the applicant killed his wife.

2. The introduction of the diary into evidence is an invitation to the jury to speculate as to its contents.

3. Even if probative the evidence of the diary is so prejudicial as to outweigh its probative value.

Insofar as it was submitted on behalf of the applicant that the evidence of the diary was prejudicial this was solely on the basis that it was an invitation to the jury to speculate on the contents of the diary.
The learned trial judge on Day 9 ruled that the diary was relevant, that it had probative value in that it shows that the deceased was genuine in her pursuit of a separation and that as the contents of the diary were not being open to the jury its probative value outweighed any prejudice.

Proceedings in the Court of Criminal Appeal
Only one of the grounds upon which the applicant sought leave to appeal is relevant to this application namely Ground 2:-
“2(a) The learned trial judge erred in law and in fact in permitting the admission into evidence of the 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.”
On this ground it was argued that the diary was not probative. However on this application it is accepted that the diary was indeed probative and the question of law posed presupposes that the evidence in question is probative. Accordingly it is not necessary to consider this aspect of the submissions to the Court of Criminal Appeal. Essentially therefore the surviving submissions relevant to this application relate to the prejudicial nature of the evidence adduced. The prejudice identified was only this: being told about the existence of the diary would evoke curiosity in the jury and that they would most likely speculate as to the contents of the diary and would inevitably do so in a manner prejudicial to the applicant.
The Court of Criminal Appeal dealt with the issues as follows. It held that the diary could only relate to the state of mind of the deceased and not to that of the applicant. The court was satisfied that the diary was relevant as indicating the state of mind of the deceased in relation to a separation.

Proceedings on the application pursuant to section 29 of the Courts of Justice Act 1924
The submissions on behalf of the applicant on this application were as follows. The issue to which the evidence of the finding of the diary was directed was not in dispute and therefore the introduction of the evidence added nothing to the prosecution case in evidential terms. Mr Hannigan’s evidence had not been challenged. It was not in dispute that the deceased was seeking a separation. The prejudice alleged was as before the court of trial – that the jury would speculate as to the contents of the diary.
An additional issue was sought to be raised arising out of the juxtaposition in evidence of the diary, the passport and the €500.00 note. However this had not been raised before the Court of Criminal Appeal and was not pursued before this court on this application.

Discussion
The Courts of Justice Act 1924 section 29 as substituted by the Criminal Justice Act 2006 section 22 provides as follows:-

“29(1) No appeal shall lie to the Supreme Court from a determination by the Court of Criminal Appeal of any appeal or other matter except in accordance with this section.

A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that court to the Supreme Court if that court or the Attorney General in any case or, if he or she is the prosecuting authority in the matter, the Director of Public Prosecutions certifies that the decision involves a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court.”

Having regard to the terms of section 29(2) counsel for the applicant in his submissions to the court recognised that it is necessary that the applicant formulate a question which involves a point of law and which goes beyond the four corners of this particular case.
Section 29 requires that an applicant satisfy the court that the decision of the court determining the application for leave to appeal involved a point of law of exceptional public importance and that it is desirable in the public interest that the person should take an appeal to the Supreme Court. As Fennelly J. remarked in Director of Public Prosecutions v Anthony McCarthy & Ors Court of Criminal Appeal 16^th June 2010:-

“It is not easy to conceive of a point of law which would satisfy the first part of this test but not the second. The second part of the test underscores the exceptional character of the certificate requested of the court. At a minimum an applicant must be able to point to a significant point of law which is involved in the decision.

The proposed point of law must have been involved in the decision of the court in the sense that the court’s ruling on the point formed part of the reasoning leading to the rejection of the application. In other words, it must be possible to identify a point of law upon which the court relied and which it applied in making its decision. Implicitly also, the point of law must have been contested. In a literal sense, every application for leave to appeal raises some point of law. Where the law is not in dispute, but an unsuccessful applicant criticises the manner in which the court has applied it to the facts, this section does not apply.”

In the present case it is relevant that the applicant no longer contends that the evidence of the existence of the diary had no probative value. The complaint is that such value was limited. It was also claimed that it was unnecessary that the evidence be adduced because it was clear from the manner in which witnesses relevant to the diary had been cross examined that there was no issue but that the diary had been kept by the deceased. The evidence was prejudicial as the jury, not being told the contents of the diary, must inevitably speculate as to the contents and will do so in a manner prejudicial to the applicant.
In People (D.P.P.) v Meleady, unreported, Court of Criminal Appeal 20^th March 2001 Geoghegan J. said:-

“A judge, as part of his inherent power, has an overriding duty in every case to ensure that the accused receives a fair trial and always has discretion to exclude otherwise admissible prosecution evidence if, in his opinion, its prejudicial effect on the minds of the jury outweighs its true probative value.”

This principle is well established in Irish law. In the present case it was the function of the learned trial judge to balance the probative value of the evidence against any prejudice which might result to the applicant as a result of its admission. On appeal to this court the learned trial judge’s decision to admit the evidence was upheld.
It seems to this court that what the applicant is seeking here to do is to contest the manner in which the Court of Criminal Appeal applied the law to the facts of this case, that is the manner in which it balanced the probative value of the evidence and the prejudice contended for on behalf of the applicant. What is sought to be raised as the proposed point of law is in fact simply the application of a well established principle of law to the facts of this particular case.
A feature of the facts of the present case is the following. The applicant makes with significant force the point that there was no dispute on the evidence concerning that the deceased intended to separate. The prosecution evidence was not challenged in cross-examination. The evidence of the diary was accordingly unnecessary for the purposes of the prosecution case. This court would observe with regard to this submission that the prosecution case had not closed when the evidence of the diary and its finding was given. The evidence of the finding of the diary was one strand in the case woven by the prosecution based on circumstantial evidence. The prosecution could not be certain that the particular strand might not be damaged by some further evidence led either by the prosecution or by the defence or that some other strand in the circumstantial evidence might similarly be weakened. The deceased’s intention to separate was central to the prosecution case in that it established a possible motive. In the absence of unfairness in terms of prejudice this court can see no reason why the prosecution should have been precluded from leading this evidence simply because other evidence to the like effect had been led.
This court concludes that the question sought to be certified is one which is very specific to the circumstances of this case and does not raise an issue of law of general application. It does not raise a point of law of exceptional public importance.

Disposition
The court is not satisfied that the decision of the Court of Criminal Appeal on the application for leave to appeal involved a point of law of exceptional public importance or that it is desirable in the public interest that an appeal be taken to the Supreme Court on the point of law sought to be raised. Accordingly the court refuses the applicant a certificate under the Courts of Justice Act 1924 section 29.