Court of Appeal dismisses murder appeal where significant delay did not prejudice trial due to strong witness evidence and admissions.

THE COURT OF APPEAL

Record No. 107/2017

Birmingham J.

Mahon J.

Edwards J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND–

JOHN JOSEPH MALONE

APPELLANT

JUDGMENT of the Court delivered on the 19th day of April 2018 by Mr. Justice Mahon

1. The appellant was convicted on the 13th April 2017 at the Central Criminal Court of the murder of Ann Nancy Smyth, (“Mrs.

Smyth”), on the 11th September 1987 and was sentenced to life imprisonment on the same date. The jury’s unanimous verdict of

guilty followed a fifteen day trial which commenced on the 22nd March 2017. This is the appellant’s appeal against conviction.

2. The murder victim, Mrs. Smyth, was killed in her home at 42, Wolf Tone Street, Kilkenny on the 11th September 1987. She was

sixty nine years old, a widow and living alone. It is known that on the night of the 10th September 1987 Mrs. Smyth visited a public

house close to her home and consumed a number of alcoholic drinks. She was dropped home by the publican shortly after midnight on

the morning of the 11th September 1987. At approximately 3.45 a.m. on that morning smoke was observed coming from Mrs. Smyth’s

house. A flicker of flame was seen at 5.10 a.m. at which time the fire brigade and other emergency services were alerted. It was

initially believed that Mrs. Smyth’s death was accidental but a post mortem examination revealed that the cause of death was

asphyxia due to manual strangulation.

3. Four witnesses gave evidence of having seen the appellant outside Mrs. Smyth’s house between midnight and 1 a.m. on the

morning of the 11th September 1987. Two of them gave evidences of hearing a heated argument between the appellant and Mrs.

Smyth, and one, Geraldine Brennan, gave evidence of having heard the appellant threaten Mrs. Smyth. An additional four individuals

gave evidence of the appellant confessing to them over a period of time that he had been responsible for Mrs. Smyth’s death. These

included the appellant’s brother, Bernard Malone and his former wife, Ann Malone. Another witness, Eileen Kelly, gave evidence that

the appellant had admitted to her that he had killed Mrs. Smyth, but maintained that he had not intended to do so. She gave

evidence that the appellant had demonstrated to her how he had placed his hands on Mrs. Smyth’s neck and then squeezed her

throat.

4. When interviewed by the gardaí in 1987 the appellant initially denied that he had been in the vicinity of Mrs. Smyth’s house on the

night in question. He later admitted that he and Mrs. Smyth had been engaged in a heated row over a period of approximately thirty

minutes either on the street outside Mrs. Smyth’s house or inside her garden area at approximately forty minutes past midnight. The

appellant said he left the area and returned to his own home by 2 a.m. He denied murdering Mrs. Smyth and denied having entered

her home on the date in question.

5. The appellant was arrested and questioned by gardaí in relation to Mrs. Smyth’s death some five days after the occurrence. He

was not charged for a further twenty seven years. His trial commenced nearly thirty years after the event.

The grounds of appeal

6. The grounds of appeal relied upon by the appellant as per his written submissions to this court, are as follows:-

(i) This appeal is grounded upon the remedial prejudice suffered by the appellant by reason of there being a three decade

delay in prosecuting the index offence; One example of prejudiced evidence at the trial was the number of absent

witnesses. Witnesses unavailability caused severe limitations in cross examinations of the available witnesses whereby

matters could not be referred to which had the potential to directly contradict incriminatory statements. Prejudice also

emerged in the manner of frailty of memory. It is an inevitable consequence when permitting and / or causing decades to

pass between an alleged offence and the subsequent trial. It is respectfully submitted that the appellant is in no way

culpable for the delay.

(ii) This prosecution was a statements case. Therefore, testing witnesses’ credibility was key. Unfettered cross

examination is critical for a defence. While these are basic ingredients of a fair trial, the appellant’s ability to test the

allegations in this way was greatly hindered through the unavailability of witnesses. An unsatisfactory situation emerged

whereby a number of witnesses’ accounts were left unchallenged beyond a bare denial, despite the existence of witness

statements which directly contradicted the evidence given.

(iii) Another regular feature of the appellant’s trial was the frailty of memory from the available witnesses, particularly

when proved incorrect on a matter through other available evidence. Responses that it was ‘thirty years ago’ were a daily

occurrence. To a jury this is perhaps not an unreasonable reply when asked about matters going back for what is a

lifetime for some. In this way the appellant was prejudiced and his ability to cast doubt in a manner common to all

contested litigation was severely undermined.

(iv) Owing to the prosecutorial delay on the within matter, the appellant was reduced in large part to answering

allegations with unsubstantiated denials. It is contended that the devil is often in the detail in criminal prosecutions, but

when such passage of time has elapsed, it is very difficult to answer ones accusers with any level of specificity which

could rebut an assertion.

Discussion

7. The core issue in this appeal is that of delay. The appellant maintains that the non availability of certain witnesses because of the

lengthy period since the event, namely thirty years, and also the frailty of memory that naturally occurs over that length of time was

such as significantly prejudiced the appellant in his ability to defend the charge of murder and that a fair trial was therefore rendered

impossible.

8. The respondent refutes any suggestion that the appellant was prejudiced by the delay in bringing this prosecution. In support of

this contention, she points to the evidence from a number of individuals still living who recollected the events of thirty years

previously, and more particularly, their evidence as to what they saw and heard and the evidence of what the appellant had

subsequently stated to some of them. She observed that this is a case where the delay has had unusually little impact upon the

evidence in the case.

9. Probably the most crucial evidence for the prosecution was that of Geraldine Brennan who then lived close to Mrs. Smyth’s house.

Her evidence was that she had seen the appellant interact with the deceased in a demonstrably aggressive manner including making

expletive laden threats to her to the effect that he would attack her. Her evidence was undoubtedly of significant probative value,

and this is conceded in the submissions made on behalf of the appellant. Ms. Brennan made a statement in 1987, and made further

statements in 2012. The evidence Ms. Brennan gave was broadly in accordance with her 2012 statement. She said that she was on

the street in the company of her parents when she witnessed the appellant acting in the way described.

10. Ms. Brennan’s parents also made statements in 1987. Both are long since deceased. Ms. Brennan’s late parents stated in 1987

that they had witnessed or heard an altercation outside the deceased’s house but that their daughter, Ms. Brennan, had remained in

the house at the time. The late Mr. Brennan stated that his daughter had remained in bed during this time. Ms. Brennan said that her

late mother’s version of events and in particular her contention that she, Ms. Brennan, had remained in the house in the course of this

incident was intended by her to ensure that she, Ms. Brennan, would not become embroiled in the subsequent investigation of Mrs.

Smyth’s death.

11. Following the conclusion of the prosecution case on Day 12 of the trial, Mr. Cody S.C., on behalf of the appellant, made an

application for the withdrawal of the case from the jury. In the course of his submission to the learned trial judge in support of this

application, Mr. Cody said, inter alia:-

“..This is a case of considerable antiquity. It is almost 30 years old, Judge, and the - even though a certain amount of

latitude was afforded it obviously wasn't going to be sufficient for me to be able to put matters to witnesses in order to

demonstrate that potentially matters they had given evidence of were in conflict with observations that were made by

other persons who were in a position to observe or hear things at 42 A Wolfe Tone Street on the night in question and

could have potentially called into question or undermined the evidence given by those witnesses.

(referring to Ms. Brennan)...her evidence was at variance with what her own mother observed. I use that as an example

of the prejudice. It's not the only one.. .

But it leaves the accused, Judge, in the position where through no fault of his own but through the passage of time

there are many witnesses, Judge, who are not available through death, illness or otherwise who'd be potentially available

to give evidence in relation to the matter which might have the potential effect of undermining certain critical evidence

in this case. The garda case is the presence and conduct of John Joe Malone, but over and above what John Joe Malone

says in his garda interview, clearly the garda case is that his conduct went well beyond that which he admitted to in his

interviews and we now find ourself, Judge, as I say at this point, it's the close of the prosecution case, where that

evidence is not going to be available to us..and in my respectful submission..no matter how careful, how detailed or

contextualised the delay warning would be in - and one of the matters that arises in a delay warning is, of course,

depending on the circumstances of the case, where the trial judge would identify possible areas where an accused might

be prejudiced through the lapse of time. But as I - in my respectful submission, any such warning, Judge, would not

have the desired effect. The damage is irremediable in my respectful submission and for that reason..I say that the

case should be withdrawn from the jury.”

12. Further submissions were made by both sides including by Mr. Gillane S.C. (for the respondent) who took issue with the

submissions made on behalf of the appellant. He referred to the speculative aspect of the appellant’s prejudice argument. He said:-

“The only thing of any specific relevance to the case that my friend has mentioned has been a reference to the

Brennans who lived on Wolfe Tone Street and the potential evidence that they might have to offer, although you're still

in the dark, as I understand, as to what that potential evidence would be were it available and I respectfully submit that

not only is that an unhappy situation to be in from the point of view of an application being advanced to you, to actually

withdraw a case from the jury, it's the one area of the case where, in fact, there isn't any prejudice at all because it's

the one area of the case where Mr Cody has been crystal clear in putting matters to witnesses that his client was there

and that he is the person engaged in the argument with the deceased at that very time. It can't be enough to simply

say that there are people who are dead, people die in respect of cases that have no delay aspect to them at all. There

has to be, I respectfully submit, something on which this application can be looked evidentially other than a simple broad

invocation of some class of unspecified prejudice. So, I respectfully submit that, in fact, this is a case which is classically

for the jury's determination and shouldn't be withdrawn on that basis.”

13. Having considered the submissions made the learned trial judge ruled as follows:-

“I believe on engagement of the evidence available this is a case where, on the face of it, notwithstanding the years

which have elapsed, a very coherent case and, needless to say, far more coherent than might be the case, for

example, with what we will call shortly an old sex case and indeed far more what we shall call independent evidence,

apparently independent evidence, I should rush to add, which would lack - be lacking, for example, in any old case, I feel

they can address it adequately with an appropriate warning.”

14. Four witnesses were then called on behalf of the appellant. Peter Burns, gave evidence that he was walking with his girlfriend

along Wolfe Tone Street between 12.30 a.m. and 1 a.m. on the morning in question. He recalled seeing a man, whom he identified as

the appellant, knocking on the door of the deceased’s house “with purpose” and in a loud fashion. He saw him knocking on the

window and what he saw struck him as a “little bit suspicious”. He also gave evidence that he saw a lady coming into the hallway of

the house shouting loudly at the appellant. He said that he heard the lady threaten the appellant and shout obscenities about the

appellant’s sister. He also recalled the lady exclaim “I don’t care if I had a knife now, I would kill you”. He had not previously known

the appellant, but identified him as being one of four Malone brothers and claimed that the man he saw at the time was one of the

other three Malone brothers whom he knew.

15. Eileen Clifford gave evidence that she saw a man whom she was 95% certain was the appellant leaning on railings outside the

deceased’s house. The time was between midnight and 1 a.m. She was accompanied by Paul Clifford who also said he was very

certain that the man in question was the appellant. He said that the man “appeared to be drunk” and that his behaviour was

“suspicious”. When the Cliffords passed the house approximately an hour later they saw nothing out of the ordinary.

16. Jade Curran, P.J. Dooley, Owen Patterson, Billy Patterson, Bernard Malone (the appellant’s brother) and Anne Malone (Bernard

Malone’s then wife) all gave evidence to the effect that the appellant had in one way or another clearly admitted responsibility for the

death of the deceased. His revelations to Messrs. Curran, Dooley, Patterson and the Malones graphically described the killing of the

deceased. Eileen Kelly gave evidence that the appellant had admitted to her that he had killed the deceased but that he had not

intended to kill her.

17. In the course of his lengthy and comprehensive charge to the jury the learned trial judge specifically warned the jury in relation to

delay. He said:-

“So, you must when analysing the evidence of the witnesses and in particular witnesses whose evidence is dependant

upon recollection of what may have occurred at the time, bear in mind the infirmities which can arise in such testimony

and you must, as it were, factor it in when you're analysing that evidence and there may be, and I speak in principle,

I'm not - it might be in a given case, for example, due to the lapse of time one might attach less weight to particular

evidence than might otherwise be the case. One might find one's self in a situation where having considered the

evidence as a whole or any particular topic or any particular witness one might find one's self in a situation where one

couldn't be satisfied of a particular fact because of the - we could call it the uncertainty or an uncertainty imported into

the evidence by reason of the delay. So, you must be conscious of the fact that there are - that difficulties exist in

assessing evidence at a long remove in time and again I've sought to give you some examples here now as to what

those difficulties might be. You will appreciate also that because of the lapse of time it is more difficult to test the

evidence of somebody who has a poor recall. One of the purposes of cross examination is to test evidence. It may or

may not be a very effective test which it's one of the few tests which exists in the courts in the world. We can't decide

credibility or reliability by machine but it's only with the benefit of information, so to speak, that I can test someone's

evidence, that I can cross examine them, that I can - the words have crept into even to this case, thanks to Mr Gillane,

that it is only - we can only stress test witnesses by cross examination and of course if the witness's response is well, I

can't remember and it's understandable I can't remember, that may inhibit the capacity to test the evidence and then,

of course, it may render it more difficult for a jury to be satisfied on the basis of evidence, obviously tested evidence

and thoroughly tested evidence is likely - is likely to make a jury's task easier, if I could put it no further than that. So,

you can see, that's something which is a fruit of a delay, in principle and indeed in practice in this particular case.”

18. The learned trial judge referred to the unavailability of witnesses because of the passage of time. He specifically referred to the

issue relating to Ms. Brennan’s evidence and the statement made by her parents in 1987. He concluded as follows:-

“It's really - the consequence of that is it's just - the consequence of it is that it means that you must - that you are

deprived, so to speak, of one of the tools that you would often or ordinarily have when looking at her evidence. It

doesn't mean for a second you can't accept it, but you're aware, you must have an awareness that because of delay

that factor exists in the case.”

19. No requisitions were raised in relation to the delay issue.

20. It is undoubtedly the case that a right to a fair trial is paramount and that where it is established that an accused person is likely

to be substantially prejudiced in his defence because of delay an application to prohibit the trial is likely to be successful.

21. The importance of a fair trial was emphasised by the Supreme Court in P. O’C v. DPP [2000] 3 I.R. 87, when, in the course of his

judgment Keane C.J. said that:-

“..the public interest in ensuring that every person charged with a criminal offence receives a fair trial must, where a

conflict arises, takes precedence over the unquestionable public interest in the prosecution and punishment of crime.”

22. In H v. DPP [2006] 3 I.R. 575, the issue of prejudice to an accused because of a delay prosecuting H for sexual crimes against

children, Murray C.J. stated:-

“The issue for a court is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious

risk of an unfair trial. The court does not exclude wholly exceptional circumstances where it would be unfair or unjust to

put an accused on trial.”

23. He also said:-

“Therefore, I am satisfied that it is no longer necessary to establish such reasons for the delay. The issue for the court

is whether the delay has resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial.

The court would thus restate the test as:-

“The test is whether there is a real or serious risk that the applicant, by reason of the delay, would not obtain a

fair trial, or that a trial would be unfair as a consequence of the delay. The test is to be applied in the light of the

circumstances of the case.”

24. In Walsh on Criminal Procedure (2nd Edition) the following view is stated at p. 1989:-

“It would appear that an assessment of the balance between prejudice to the accused and the public interest in the

prosecution and the punishment of crime will be influenced by the gravity of the crime in question and the nature of the

evidence against the accused. There were indications in McFarlane v. DPP (No. 2) [2008] 4 I.R. 117, that the gravity of

the crime was a factor to be put into the balance. There have also been indications that the public interest factor will be

particularly weighty where the offence in question is of a type that is generating a significant degree of public

opprobrium.”

25. In McFarlane Kearns J. indicated that it would be extraordinary to prohibit a trial where the accused had admitted the criminal

behaviour in the course of the investigation. This is relevant to the fact that four witnesses in the instant case gave evidence that

the appellant had admitted to them that he had killed Mrs. Smyth. In S.A. v. DPP [2007] IESC 43 Hardiman J., in dealing with a case

involving the historical sex abuse of children in an industrial school and the consequent delay in bringing a prosecution, and where

particular admissions were said to have been made by the accused person, said:-

“To look at these admissions from another point of view, it would in my opinion be extraordinary to prohibit a trial in

circumstances where the defendant admits a significant amount of behaviour of a criminal nature. Without doubt his

ability to be more precise as to the individuals involved, and perhaps about other features, is due to lapse of time, but,

having regard to the admissions, that lapse of time would itself appear to be caused or contributed to by the

defendant’s activities. In those circumstances, I do not consider that the demands of justice or the requirement of a

fair trial require that the respondent be prohibited from prosecuting any of the charges against the applicant. There is,

of course, still a need for great care to be taken, after so long a lapse of time, to ensure that the defendant is not

unreasonably prejudiced by it. This is a matter primarily for the trial judge on the hearing of the criminal case.”

26. An important feature of S.A., it must be said, was that the admissions made were undisputed.

27. In B. v. DPP [1997] 3 I.R. 140 at 202, Denham J. said:-

“If there has been an admission by the accused of all or any of the alleged crimes this will be a factor for consideration.

If the admission is contested that is also a matter for consideration by the Court on an application to prohibit the trial

on the ground of delay.”

Conclusion

28. In the court’s view the learned trial judge was correct to refuse the application to withdraw the case from the jury made at the

conclusion of the prosecution evidence. While there was a very significant delay in the prosecution of this case there were

nevertheless a significant number of witnesses available to give evidence, and who did give evidence, with a clear recollection as to

what had occurred some thirty years earlier. Indeed, the number of prosecution witnesses who claimed to have identified the

appellant in the immediate vicinity of Mrs. Smyth’s house or who saw both engage with each other on the morning in question, and

also witnesses to whom the appellant later made unsolicited admissions, and the clarity of their evidence, was quite remarkable.

Especially unusual for any murder trial, but particularly so for a murder of such antiquity as this, was the fact that a number of

witnesses gave evidence that the appellant had, in effect, admitted his involvement in the killing of the deceased to them and in

some cases graphically so. Additionally, and importantly, the learned trial judge gave the jury a solid delay warning.

29. In the circumstance, the court is satisfied that the trial was fair and that the appellant’s ability to mount a defence to the charge

of murder was not unduly hampered by the lengthy delay in bringing the prosecution. It will therefore dismiss the appeal.