The Court of Criminal Appeal yesterday quashed the conviction of a man serving a life sentence for the murder of his former girlfriend, whose naked and battered body was found in the grounds of a Dublin convent.
The court directed a retrial in the case of Mr Keith Kelly (21), Colepark Drive, Ballyfermot, Dublin, and freed him on bail pending that. A new trial date will be fixed later this month.
In its decision, the three-judge court set out new guidelines to be adhered to by trial judges when charging a jury on the defence of provocation in murder trials. (Provocation can only reduce a murder charge to manslaughter - it cannot lead to acquittal.)
The court found the trial judge had charged the jury on the defence of provocation in accordance with the law as formulated by the Court of Criminal Appeal in the Mac Eoin and Mullane cases, but, because of certain wording in the Mac Eoin decision from which the judge quoted, there was "serious danger" the jury may have received inconsistent messages for the charge, it said.
The jury foreman had twice asked the judge to redirect them on the provocation issue. The trial judge believed there was a problem and had granted a certificate of leave to appeal. In those circumstances, while there was no criticism of the trial judge, the court found his charge was unsatisfactory and there was a risk the conviction was unsafe.
At the Central Criminal Court on May 9th, 1997, the jury took almost five hours to convict Mr Kelly of the murder of Melanie Gleeson (15) in the grounds of the Dominican Convent, Ballyfermot, on Halloween night 1995. Her body, with severe head injuries, was found in the peace garden of the convent on the morning of November 1st 1995.
Yesterday, Mr Justice Barrington, with Mr Justice McCracken and Mr Justice Kearns, said Mr Kelly's appeal raised an important issue as to how a trial judge should charge a jury on provocation.
The Mac Eoin and Mullane cases established that the test to be applied to the question whether the accused was so provoked as to lose his self-control and kill the deceased was subjective, not objective. A jury must decide whether there was evidence that a particular accused person, "with his peculiar history and personality", was so provoked by something said or done by the deceased, as to totally lose his self-control.
Mr Justice Barrington said the problem with the Mac Eoin case was not the decision itself but the way it was worded. The wording appeared to apply a subjective test to whether the accused was so provoked that he lost his self-control but then applied an objective test to his reaction on being so provoked.
The problematic wording stated: "If the prosecution prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails."
Mr Justice Barrington said that sentence, if it stood alone, suggested a purely objective test, but that could not have been intended. It would make no sense to suggest a man who had been so provoked that he lost his self-control should measure his reaction and use no more than reasonable force in response.
The Mullane case had stated the test on provocation was totally subjective but emphasised the jury must decide the credibility of the evidence of the accused regarding provocation. Just because an accused person said he lost control, a jury did not necessarily have to accept that.
In the appeal, Mr Patrick Mac Entee SC, for Mr Kelly, had asked the court to reformulate the law and simplify directions to a jury on provocation. He argued the inherent ambiguities in passages which the trial judge quoted from Mac Eoin and Mullane were likely to, and did in fact, confuse the jury.
Setting out "general guidance" on the principles to be applied by a trial judge when charging a jury on provocation, the court said the trial judge must apply the principles to the concrete evidence before the jury and point out there was a certain threshold of credibility.
It would not be sufficient for the defence to show an accused lost his temper, was easily provoked or was drunk. The loss of self-control must be total, the reaction "must come suddenly before there has been time for passion to cool", cannot be tinged by calculation and must be genuine in the sense the accused did not deliberately set up the situation which he now invoked as provocation.