Mayo farmer Pádraig Nally was refused leave to appeal his sentence for manslaughter yesterday at the Central Criminal Court.
On November 11th, Nally (61), of Funshinagh, Cross, Mayo was sentenced to six years for the manslaughter of John Ward, a Traveller and father of 11 in October 2004.
In refusing the appeal against the conviction, Mr Justice Paul Carney, who had been the trial judge, said: "I don't think I could look Mrs Ward and her 11 children in the face."
It is still open to Mr Nally to appeal the judge's decision yesterday to the Court of Criminal Appeal.
Mr Justice Carney said he could not allow an appeal on the basis that the jury "was not consciously and deliberately provided with the infrastructure to bring in a perverse verdict".
He said "this was quite an exceptional trial in which the people of Ireland divided themselves on social lines". He added that this was a "highly emotive trial".
The judge said the defence, during the trial last July when Nally was found not guilty of murder but guilty of manslaughter, succeeded in putting the defence of provocation to the jury.
Provocation cannot reduce an unlawful killing to anything less than manslaughter, he said.
He said he was "satisfied" on the facts, mainly provided by the accused man himself, that "this killing was unlawful".
"Any finding to the contrary would be perverse," he added. He also refused leave to appeal the severity of the sentence.
He said the Court of Criminal Appeal "recently in a significant number of cases substantially reduced sentences of Mr Justice White, Abbott and myself".
"I have looked at those cases and the Court of Criminal Appeal have been reducing them to sentences of eight years. The sentence here falls below that. I refuse leave to appeal," he told the packed court room.
Defence counsel Brendan Grehan SC had sought leave to appeal against the conviction and the severity of the sentence.
Mr Grehan told the court that the trial judge had "usurped the constitutional function of the jury by refusing to allow them consider a verdict of not guilty when an unlawful killing was never admitted or conceded by the defence".
Mr Justice Carney asked Mr Grehan were there "any circumstances that this could be a lawful killing" to which the defence barrister replied: "yes".
"Mr Nally was acting in self defence," Mr Grehan said. "There were two people on his property and he acted out of fear," he added.
Mr Grehan said the jury last July when deliberating their verdict were told by Mr Justice Carney that they only had two options open to them; manslaughter or murder.
Mr Justice Carney yesterday said he had agreed to an application by the prosecution during the trial that the killing was none other than an unlawful killing and that the issue was one between murder and manslaughter.
"Mr Ward had been savagely beaten, 20 blows of an ash stick to him and this was described by Dr Marie Cassidy in her evidence," he said. "The accused having wounded the deceased with a shotgun then went to the outhouse for ammunition. He reloaded and pursued Ward who was limping away in manifest retreat and shot him," Mr Justice Carney said. "The killing was unlawful and could not be regarded as anything else under the law," he added.
In refusing leave to appeal, the judge said he would grant a certificate if the defence wanted to appeal the decision (to the Court of Criminal Appeal).