Appeal court rejects that circumstantial evidence in murder conviction was 'poor'.
THE COURT of Criminal Appeal has said arguments by convicted murderer Brian Kearney that his wife could have been murdered in their home by an unknown intruder were “off any scale of either probability or possibility”.
The three-judge court, with Mr Justice Nicholas Kearns presiding and sitting with Ms Justice Elizabeth Dunne and Mr Justice John MacMenamin, had last July dismissed Kearney’s appeal against his conviction for the murder of his wife at their home in Goatstown, Dublin. The court said it would deliver its reasons later.
In a written judgment yesterday, Mr Justice Kearns said the court rejected claims the quality of the circumstantial evidence in the case was “poor”.
“On the contrary, the compelling nature of the circumstantial evidence was such to exclude every other reasonable possibility in the case,” he said.
Kearney (52) was found guilty at the Central Criminal Court in March 2008 of murdering his 38-year-old wife and mother of their young son at their home at Carnroe, Knocknashee, Goatstown, on February 28th, 2006.
Mr Justice Barry White imposed the mandatory life sentence after the jury returned a majority 11/1 verdict.
During the trial the prosecution said Siobhan Kearney was planning to separate from her husband and to move into a new home the couple had built. It was argued this did not fit into Kearney’s plans, and he strangled her with a vacuum cleaner flex before attempting to make her death look like a suicide.
In the appeal, Michael O’Higgins SC, for Kearney, submitted the conviction was “manifestly unsafe” because of the lack of primary fact evidence linking him to her killing.
In the appeal court judgment, Mr Justice Kearns said the defence, given its acceptance Ms Kearney did not commit suicide, had invited the court “without any evidence whatsoever”, to speculate some unknown intruder entered the family house unseen at a busy time of the morning, did not steal or remove any belongings, murdered Ms Kearney and without explanation “contrived to make the murder look like a suicide”.
“This possibility, measured in the context of all the evidence that was given, is so remote and unlikely as to be off any scale of either probability or possibility.”
Mr Justice Kearns also rejected arguments that the trial judge had erred by allowing into evidence a reference to the fact Siobhan Kearney had kept a diary.
The diary was kept by Ms Kearney on the advice of her solicitor in order to have notes on her relationship with her husband for use in family law proceedings.
Addressing arguments that the references to the diary during the trial had prejudiced Brian Kearney, Mr Justice Kearns said the appeal court was satisfied the diary was relevant evidence. It could only relate to the state of mind of the deceased, not the defendant.
The diary evidence was a relevant strand in the circumstantial evidence. It had, in conjunction with other evidence, built up “block by block” the edifice of circumstantial evidence on which the prosecution relied.
Dismissing other arguments that the prosecution had exceeded what was permissible in Kearney’s exercising of his right to silence during interviews with gardaí, Mr Justice Kearns said the appeal court was “more than satisfied” there was nothing procedurally wrong in telling a jury an extensive interviewing process took place and “nothing of evidential value arose” from those interviews.
The jury was expressly directed it was not to draw any inferences adverse to Kearney from the fact that nothing arose in his interviews with gardaí, the judge added. “Every proper and appropriate warning was given to the jury on this aspect of the case.”