The Court of Criminal Appeal refused Brian Kearney a certificate to appeal to the Supreme Court over the admission of evidence that a diary belonging to his wife had been found in their home.
In its judgment delivered on 19 January 2012, the court said the proposed legal question was specific to the circumstances of the case and did not raise a point of law of exceptional public importance. It was also not satisfied that an appeal was desirable in the public interest, as required by section 29 of the Courts of Justice Act 1924.
Kearney had been convicted of murdering his wife, Siobhán Kearney, on 28 February 2006 at Carnroe, Knocknashee, Goatstown, Dublin. The Court of Criminal Appeal had refused him leave to appeal his conviction in October 2009. He then sought a certificate that would allow an appeal to the Supreme Court.
At trial, the prosecution presented evidence that Siobhán Kearney was pursuing a separation. A solicitor testified that she had instructed him to contact her husband about separation proceedings. The prosecution also relied on evidence that a diary, passport and €500 note were found in a hot-press at the house. The diary entries ran from 27 January to 27 February 2006. The prosecution did not put the diary’s contents before the jury.
The defence argued that mentioning the diary could prompt jurors to speculate about its contents, unfairly prejudicing Kearney. The trial judge ruled that the diary was relevant to showing that the deceased was serious about separation and that its probative value outweighed the potential prejudice, given that its contents were not disclosed.
For the certificate application, Kearney accepted that the diary evidence was probative, but argued that its value was limited because the separation was already established by other, unchallenged evidence. The court noted that the prosecution case had not closed when the diary evidence was given and that the deceased’s intention to separate was central to the prosecution case as a possible motive.
The court said the trial judge had to balance probative value against prejudice, and that the earlier appeal court had upheld the decision to admit the evidence. The certificate ruling did not reconsider the murder conviction or grant a further appeal; it refused permission for the proposed Supreme Court appeal.