The Court of Criminal Appeal has refused Michael Joseph Kelly a certificate to appeal its 2008 decision rejecting his application to have his murder conviction quashed on the basis of newly discovered facts.
In a judgment delivered on 27 May 2009, the court said it had jurisdiction to grant a certificate under section 29 of the Courts of Justice Act 1924 in a case brought under section 2 of the Criminal Procedure Act 1993. It refused the application, finding that no point of law of public importance arose.
Kelly was convicted by a jury in the Central Criminal Court in 1983 of murdering Margaret Glynn. The judgment said he was sentenced to life imprisonment and released on licence in the mid-1990s. His 2008 application relied on post-mortem photographs that had not been available to the defence at trial and on a later-developed CUSUM test concerning the authorship of his confession statement.
In its February 2008 ruling, the Court of Criminal Appeal accepted that the missing photographs amounted to newly discovered facts. It concluded, however, that they would have been of little benefit to the defence when considered alongside the other evidence. The court did not accept that the CUSUM evidence established a newly discovered fact. Kelly’s current application sought a certificate to appeal that ruling on two proposed legal questions: whether the court could weigh conflicting evidence about newly discovered facts, and whether it should consider how the photographs might have affected the trial judge’s decision on the confession’s admissibility.
Kelly’s counsel argued that the 2008 court had gone beyond its role by resolving conflicts between expert evidence and preferring one expert’s opinion. Counsel also submitted that the photographs might have helped the defence challenge the confession during a voir dire, the hearing on its admissibility.
The Director of Public Prosecutions argued that the court had to evaluate the new material to decide whether it could render the conviction unsafe. The court agreed that evaluation was required, including assessing new evidence in the context of the trial evidence and considering whether the defence could have used it to raise a doubt about a significant part of the prosecution case.
The court said this assessment was part of its appellate role and did not perform the function of a jury at first instance. It found that the 2008 court had properly assessed the expert evidence and concluded the photographs could not have raised a doubt in a reasonable jury’s mind. The 2009 ruling addressed whether to grant a certificate; it did not reopen or quash Kelly’s conviction.