The Court of Criminal Appeal has quashed Kieran Lynch’s murder conviction and ordered a retrial, finding that the jury may have been confused about how provocation related to the question of intent.
The court’s judgment, delivered by O’Donnell J. on 29 July 2015, said the trial judge’s responses to questions from the jury were “unintentionally but clearly incorrect” if the jury was asking what it needed to establish before finding Lynch guilty of murder. The court could not be satisfied that the jury understood how to address the defence of provocation.
Lynch had been convicted of murder by an 11-to-one majority. At trial, the defence argued that he had killed Catherine McEnery after losing control in response to her alleged words and conduct. The jury was told that manslaughter was the appropriate verdict if it was not satisfied that the prosecution had proved the required intent, or if provocation had not been disproved.
During deliberations, the jury asked whether it could return a verdict based on proof of intent without disproof of provocation. The judge told jurors they could, then later explained that a person could intend to kill or cause serious injury and still rely on provocation. In a further exchange, when the foreman asked whether both matters were needed for a verdict, the judge answered, “No. One or the other,” before adding that the jury could have both.
The appeal court said the question could have concerned the requirements for a murder verdict, for which both proof of intent and disproof of provocation were required. It found an “inescapable possibility” that the jury remained confused and may have thought it did not need to address provocation. The court said this was a fundamental issue affecting confidence in the fairness of the trial and safety of the conviction.
The court rejected a separate challenge to the substance of the judge’s original provocation directions. It said the directions were not erroneous in themselves and that no objection had been made at trial. It also considered fresh expert evidence about the possible effects of medication Lynch had received shortly before the killing. The court said that evidence could have been obtained with reasonable diligence at trial, but it supported its decision to allow the appeal in the circumstances.
The court allowed the appeal, quashed the conviction and directed a retrial. It did not determine Lynch’s guilt at a retrial or make findings on the disputed expert theories. The judgment noted that a retrial concerning events from 2005 would be undesirable for those involved, but concluded that the conviction had to be quashed.