An appeal by a man serving a life sentence for the murder of his teenage girlfriend, whose naked and battered body was found in the grounds of a Dublin convent, concluded yesterday at the Court of Criminal Appeal. Judgment was reserved.
In submissions, the court was asked by Mr Patrick MacEntee SC, for Keith Kelly, to reformulate the present law on the defence of provocation in murder trials. This was resisted by Mr Denis Vaughan Buckley SC, for the DPP, who said he did not believe the law as it stood was confusing for juries.
In May 1997, a jury took almost five hours at the Central Criminal Court to convict Kelly, now aged 21, Colepark Drive, Ballyfermot, Dublin, of the murder of Melanie Gleeson (15) in the grounds of the Dominican Convent, Ballyfermot, on Hallowe'en night 1995.
Kelly alerted workmen and staff of the college to a body in the peace garden of the convent on November 1st, 1995. Ms Gleeson's body, naked apart from a pair of socks, lay on the ground. She had severe head injuries and her facial features were distorted.
Kelly eventually told gardai he had hit Ms Gleeson on the head with a stone during an argument over her relationship with another youth. Kelly said he and the girl had been drinking and had an argument following intercourse.
State Pathologist Dr John Harbison said she died due to multiple head injuries. There was also evidence of attempted strangulation but that did not kill her, he said.
Mr MacEntee said Kelly had lost control, he and Melanie were very young, he was very much attracted to her and she had told him on the night in question she was seeing another youth.
In reply to the judges, Mr Mac Entee agreed Kelly had brought up the subject himself and that it was not a surprise to him that Melanie had another relationship. The court heard Kelly had said in a statement that they had a conversation about the matter the week before her death.
Mr MacEntee said the problem was whether the trial judge properly explained the possibility of Kelly's losing control with the jury and whether previous decisions on provocation (in the cases of Mac Eoin and Mullane) were adequate tests in relation to the interrelationship between provocation and proportionality. He was asking the court to reformulate that test.
Provocation is a partial defence in law which can reduce a murder charge to manslaughter but cannot result in acquittal. Where a person is provoked, the crime may amount to manslaughter notwithstanding the accused's intention to kill or cause serious injury.
The test in Irish law is subjective. The provocation under which an accused is acting must be such that having regard to their character, temperament and circumstances, it causes them to cease temporarily to have control at the time they killed the victim. The test also stipulates the accused must use no more force than is reasonable having regard to the effect of the provocation. Mr MacEntee said the MacEoin decision said if the prosecution could prove beyond reasonable doubt that the force used was excessive and unreasonable having regard to the provocation, the defence of provocation fell. This was not a subjective test and the core of his complaint. He said the inquiry into provocation should be solely into whether the claim of loss of self-control was genuine.
In this situation, the defence of provocation fell if the prosecution proved the force used in response was excessive. The proportionality issue was an extra question which caused a provocation defence to collapse. The formulation of the law as it stood was unhelpful, in appropriate and misplaced.
A judge should be free to charge a jury on provocation in a manner which put proportionality anterior to and giving rise to a loss of self-control. In this case, the violence used went to the credibility of the claim that the accused lost control. The trial judge had to charge the jury within the parameters of existing decisions.
Opposing the appeal, Mr Vaughan Buckley said the judge was more than fair to the defence and had allowed the issue of provocation go to the jury, although he had said there was "precious little" evidence of it. If Mr MacEntee was correct, anyone accused of murder, with no witness present, could make up any story they liked regarding alleged statements or threats by their victim. There was no reason to redefine the law.
The provocation defence fell if the reaction was proven by the prosecution to be excessive in light of the accused's personality, temperament and circumstances. Mr MacEntee was effectively saying that the proportionality requirement should disappear.