The Court of Criminal Appeal has refused Keith Cunningham leave to appeal his murder conviction for the stabbing death of Desmond Kimmins in Drogheda in 2007.
In a judgment delivered on 30 July 2013, the court also refused Cunningham’s application to introduce fresh expert evidence about knives recovered near the scene. It concluded that the proposed evidence was not shown to have had a material and important influence on the trial’s outcome.
Cunningham had pleaded guilty to manslaughter but not guilty to murder. A jury found him guilty of murder by majority verdict at the Central Criminal Court on 16 March 2009. The appeal concerned that conviction; the Court of Criminal Appeal did not conduct a new trial.
At trial, Assistant State Pathologist Dr Curtis said two knives, or knives of similar types, could have caused some of Kimmins’s wounds. Neither knife was linked to the crime by DNA or other material. The prosecution evidence was disclosed shortly before trial and admitted by the trial judge on the sixth day. The judge said the prosecution had to prove the intent required for murder and disprove any available defence beyond reasonable doubt.
On appeal, Cunningham relied on a forensic biologist’s later opinion that one of the knives could not have caused the wounds and that the other could not be excluded as the source of the chest wound. The appellate court said the opinion did not rule out the second knife and related to an issue that was “limited and tangential” to the questions the jury had to decide: intent and whether Cunningham acted in self-defence using excessive force. It refused to admit the fresh evidence and held that the late service and admission of Dr Curtis’s evidence had not made the trial unfair.
The court also upheld the trial judge’s refusal to direct the jury to acquit at the close of the prosecution case. It said there was sufficient evidence for the jury to consider whether Cunningham intended to kill or cause serious injury, or was reckless as to that risk, and whether he had acted in self-defence.
Cunningham’s challenges to the judge’s directions about jury disagreement and to the judge’s treatment of evidence that he had been held in a headlock also failed. The appeal court found the comments about reaching a unanimous verdict did not make the conviction unsafe and said the jury had heard the headlock evidence. It refused leave to appeal.