A Scotsman has won his appeal against his conviction for the murder of a new age traveller at a campsite in Co Tipperary.
The Court of Criminal Appeal today quashed the conviction of Mr John James Kelly (39) for the murder of Mr Chris Cybulla (42), an English man, 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 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 the deceased driving directly at it.
He said Mr Kelly was also sneered at and taunted by Mr Cybulla when Mr Kelly approached the deceased about the car incident.
Counsel added that Mr Kelly was preparing to walk away from Mr Cybulla when the latter said: "Come on, you Scottish cunt." This 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 CCA'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 for their determination.
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 CCA, on the accumulation of the various pieces of evidence referred to by Mr Murphy, that there was sufficient evidence to have allowed provocation go before the jury and for the jury to decide the weight and credibility of that evidence.
In those circumstances, the court would allow the appeal, quash the conviction and order a re-trial.