Nally has sentence for killing Traveller quashed

Co Mayo farmer Pádraig Nally was freed on bail yesterday after the Court of Criminal Appeal quashed his conviction and six-year sentence for shooting dead a Traveller on his lands two years ago, and ordered a retrial.

The three-judge appeal court ruled that the jury at Mr Nally's trial should have been allowed to consider the full defence of self-defence.

It was for the jury to decide whether the force used by Mr Nally was reasonable and whether or not they should acquit him, the court held.

Mr Justice Nicholas Kearns, presiding, said Mr Nally, pending his retrial, should be given bail. The new trial is expected to take place early next year.

Following the brief hearing, Mr Nally consulted with his lawyers Brendan Grehan SC, and Michael Bowman BL, and members of his family, before he was escorted by prison officers from the court. He was then taken to the Midlands Prison to sign a bail bond before his release.

Moving Mr Nally's appeal earlier this year, Mr Grehan had argued that trial judge Mr Justice Paul Carney had erred in law by not allowing the jury to consider a full defence of self-defence and by not allowing them to bring in an acquittal.

At the trial, Mr Justice Carney had told the jury they could only bring in a verdict of either guilty of murder or guilty of manslaughter. Mr Nally (62), of Funshinagh Cross, Claremorris, was sentenced to six years in prison last November for the manslaughter of John Ward, a father of 11, following his conviction by a jury the previous July.

The 42-year-old Mr Ward had been shot twice and beaten with a stick, the trial was told. The second and fatal shot was fired after Mr Ward, from Carrowbrowne halting site, on the outskirts of Galway city, had left the farmyard on October 14th, 2004, and was limping down the road.

During his trial, Mr Nally told the Central Criminal Court that he never intended to kill Mr Ward. He said that in the 18 months before the shooting there were two break-ins at his property and he was growing increasingly paranoid and fearful. He said he believed his life was under threat.

Mr Grehan submitted during the appeal that the single point of appeal against Mr Nally's conviction was a very important constitutional point - whether or not there are any circumstances in which a trial judge can ever direct a jury that they must convict in the absence of agreement by the defence that acquittal was not an option. In Mr Nally's case, the trial judge had made that direction at the request of the prosecution.

In their 18-page judgment yesterday, the three judges at the Court of Criminal Appeal, Mr Justice Kearns, Mr Justice Diarmuid O'Donovan and Mr Justice Eamon de Valera, said Mr Nally's defence at the trial had been one of self-defence.

Delivering the court's judgment, Mr Justice Kearns said that, at the conclusion of the case there was "a rather unusual development" when Paul O'Higgins SC, for the DPP, invited the trial judge to direct that the defence of self-defence should be allowed to go to the jury "in a truncated form, shorn of any possibility that the jury might acquit altogether, on the basis that the amount of force used was so excessive as to destroy any notion that it was objectively reasonable and that in such circumstances it should only be open to the jury to convict of either murder or manslaughter", the court noted.

Mr O'Higgins had urged the trial judge not to leave open the possibility that the jury might bring a complete acquittal which, counsel contended, would be "plainly perverse".

Mr Justice Kearns said the Supreme Court had held in another case, the Davis case, that the constitutional right to trial with a jury had, as a fundamental and absolutely essential characteristic, the right of the jury to deliver a verdict. The Supreme Court had also held that, while a trial judge had the right to direct a jury to enter a not guilty verdict, there was no right to direct a jury to enter a guilty verdict.

The court also reviewed several English cases concerning the role of trial judges and juries and their responsibilities. Unfortunately, Mr Justice Kearns said, neither the Supreme Court decision in the Davis case nor any of the English authorities were available to the trial judge in the Nally case.

While this was, perhaps, because the case was held outside Dublin, in circumstances where gathering written legal authorities may have posed certain practical difficulties, the prosecution should have anticipated that the nature of the ruling being sought was one which required support, if it was available, from decided legal authority.

Quite clearly, the issue of self-defence was a central issue at every stage of this case, Mr Justice Kearns said."As events transpired , the jury were denied the opportunity to return a verdict of not guilty, even if such a verdict may have flown in the face of the evidence and however inappropriate the learned trial judge might have considered such an outcome to be," Mr Justice Kearns added.