THE INTRODUCTION of a diary during the trial of Brian Kearney for the murder of his wife Siobhán was prejudicial and led the jury to speculate on its contents, the Court of Criminal Appeal heard yesterday.
The court reserved judgment on an application by Kearney to be allowed appeal his murder conviction to the Supreme Court.
Kearney (53) who was not in court for the hearing, was found guilty at the Central Criminal Court in March 2008 of murdering his 38-year-old wife with a vacuum cleaner flex and attempting to make it look like a suicide, at their home in Goatstown, Dublin on February 28th, 2006.
The three-person Court of Criminal Appeal had already dismissed in July last year an earlier appeal by the former businessman but yesterday his legal counsel made an application under section 29 of the Criminal Courts of Justice Act 1924, to appeal on a specific point of law of exceptional public interest.
The court was asked to consider whether it was open to trial judges to admit evidence in certain circumstances where they are mindful of a potential prejudicial effect on the accused.
The Director of Public Prosecutions (DPP) has opposed the application.
Michael O’Higgins SC for Kearney argued that the probative value of the introduction of certain evidence to the court was outweighed by its prejudicially unfair value to his client.
A diary Ms Kearney was advised by her solicitor to keep when she sought a separation was found in the hot press with her passport and €500.
Mr O’Higgins argued that the “juxtaposition” of the diary with the two other items was prejudicial and fed dramatically into the suggestion that a quick “exit strategy” was necessary.
The strategy was predicated on life in the house being “so unbearable” when in fact it was not a marriage marred by domestic abuse.
The diary was introduced but its contents were not disclosed and Mr O’Higgins said the jury was influenced to speculate on the contents. The court also heard that Ms Kearney’s plans to leave her husband, who was very rich but owed a lot of money, would add to the financial pressures he faced.
Mr O’Higgins said there was no dispute about Ms Kearney’s intention to separate. However, the contention was that the material was put before the jury to show serious intention with regard to separation when “any objective analysis shows it was put before the jury to indicate something else”.
Denis Vaughan Buckley SC for the prosecution said this was not a case of any exceptional public interest. He said evidence produced by the prosecution against an accused was intended to be prejudicial to the accused.
The finding of the diary with the passport and €500 was “actual evidence”.
Mr Vaughan Buckley also rejected the claim that the jury could take a speculative approach. The jury was not entitled to speculate and could make a judgment only on the evidence presented and this had been made clear to them.
He said the defence had originally contended that the deceased had committed suicide, but this was not pursued in the appeal at all. He said the accused accepted that when the deceased died only he, the deceased and their child were in the house and that nobody else could have come into the house to murder her.
Mr O’Higgins advised that the court – Mr Justice Joseph Finnegan, presiding, Ms Justice Elizabeth Dunne and Mr Justice John MacMenamin – should be slow to dismiss the point being made which would reasonably have application in other cases.
The court reserved its judgment.
