A Scotsman has won his appeal against his conviction for the murder of a New Age traveller at a camp site in Co Tipperary.
The Court of Criminal Appeal yesterday quashed the conviction of Mr John James Kelly (39) for the murder of Mr Chris Cybulla (42), an Englishman, at the Commons, Curreeny, Kilcommon, Co Tipperary, on December 28th, 1999. A retrial was ordered.
The three-judge court, presided over by Ms Justice McGuinness, sitting with Mr Justice O'Neill and Mr Justice Gilligan, allowed the appeal on the basis of the trial judge's failure to allow the defence of provocation be put before the jury.
Presenting the appeal, Mr Shane Murphy SC, for Mr Kelly, argued that a cumulative series of events on the day Mr Cybulla was killed was sufficient to establish a basis for making a defence of provocation.
He said these included an incident where Mr Kelly's car was damaged by Mr Cybulla driving directly at it.
He said Mr Kelly was also sneered at and taunted by Mr Cybulla when Mr Kelly approached him about the car incident.
Counsel added that Mr Kelly was preparing to walk away from Mr Cybulla when the latter cursed Mr Kelly and the taunt had a racist element about it.
When all these events were put together, they constituted evidence which should have been put before the jury to consider.
Mr Patrick McCarthy SC, for the DPP, opposed the appeal. He argued there was a cooling-off period between the car incident and the stabbing of Mr Cybulla. The evidence as advanced was insufficient to establish a basis for provocation, he submitted.
Giving the court's decision, Ms Justice McGuinness said the court accepted Mr Murphy's argument that, even where the defence does not raise the defence of provocation, a court might allow the matter be put before a jury.
The court also accepted there was a low threshold whereby a jury might consider a provocation defence.
The judge said the defence advanced by Mr Kelly at his trial was that he had acted in self-defence and believed that Mr Cybulla had a large and dangerous knife in his possession.
That did not preclude the defence of provocation being advanced.
It seemed to the Court of Criminal Appeal, on the accumulation of the various pieces of evidence referred to by Mr Murphy, that there was sufficient evidence to have allowed the defence of provocation of Mr Kelly by Mr Cybulla to go before the jury and for the jury to decide the weight and credibility of that evidence.