The Court of Appeal has dismissed John Joseph Malone’s appeal against his conviction for the 1987 murder of Ann Nancy Smyth, ruling that the delay in prosecuting him did not make his trial unfair.
Malone was convicted by a jury at the Central Criminal Court on 13 April 2017 and sentenced to life imprisonment. The Court of Appeal judgment, delivered on 19 April 2018 by Mr Justice Mahon, considered his appeal against conviction.
Smyth, 69, was found dead at her home at 42 Wolfe Tone Street, Kilkenny, on 11 September 1987. She had died from asphyxia caused by manual strangulation. Malone was arrested and questioned five days after her death, but was not charged for another 27 years.
His appeal argued that the passage of almost 30 years left him unable to test prosecution evidence fairly. He relied on witnesses who had died or were otherwise unavailable, limits on cross-examination, and the frailty of witnesses’ memories. The prosecution disputed that the delay had materially affected the evidence.
The appeal court noted that witnesses testified they had seen Malone near Smyth’s home or heard an argument between them that night. Several witnesses also said Malone later admitted responsibility for Smyth’s death. Those accounts were evidence given at trial; the appeal court did not make new findings about the underlying events.
The court considered the defence application, made after the prosecution case at trial, to withdraw the case from the jury because of delay. The trial judge refused it, concluding that the available evidence could be addressed with an appropriate warning. The judge then warned jurors to account for the limits of long-past recollections and noted that Smyth’s parents, whose earlier statements differed from their daughter’s account, were no longer available for cross-examination. No requisitions were raised on the delay warning.
The Court of Appeal held that the trial judge was right to refuse to withdraw the case. It pointed to the number and clarity of witnesses’ evidence and the warning given to the jury. It concluded that Malone’s defence had not been unduly hampered and that the trial was fair. The court dismissed the appeal, leaving the conviction and life sentence undisturbed.