R v Kelly (hanged) and Connolly (dec'd)

UK Court of Appeal 2003

This version of the judgment has been prepared by: Dr Robert N Moles and Bibi Sangha
Underlining where it occurs is for editorial emphasis]

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Court of Appeal - Tuesday 28 October 2003

Lord Justice Rix - Introduction and Synopsis

Over 50 years ago, on Saturday 19 March 1949 at about 9.35 pm, a notorious double murder occurred at the Cameo Cinema in Liverpool. Its manager, Leonard Thomas, and assistant manager, John Catterall, were shot dead in the course of a robbery of the day’s takings. Connolly and Kelly were subsequently tried for the murders. The Crown alleged that Kelly was the gunman and Connolly his lookout. They were arrested on 30 September 1949, after statements implicating them were made by James Northam and Jacqueline Dickson.

Two weeks earlier, a prisoner called Robert Graham made a statement that Donald Johnson had confessed to him while in prison. In November 1949 Graham made further statements concerning further alleged prison confessions to the murders, this time by Kelly and Connolly. Graham said that each of them had confessed their roles to him while they were together in Walton Prison. Notice of the additional evidence was served on the defence on the first day of their joint trial, which lasted from 12 to 28 January 1950. It had not been available at the committal proceedings in October 1949. Graham’s first statement was never disclosed to the defence, nor even to prosecuting counsel. The discovery of that first statement, still present in police files, in the early 1990s ultimately led to applications to the CCRC and, in 2001, to these references to the Court of Appeal.

Johnson had already stood trial charged with being an accessory after the fact to the murders and had been acquitted at the time when Graham, said that Johnson had confessed to carrying them out. Johnson’s trial took place in June 1949, soon after he had made unsigned statements to the police on 2 and 6 May in which he had confessed to helping the gunman, whom he described and disguised as “Charlie Duggan” (or “Dugan”), dispose of the gun. He was acquitted because the judge ruled that the second of his police statements had been obtained by inducements and was inadmissible. Graham said that following that acquittal Johnson, who at this time was in custody on another matter, had returned to prison and told him in glee that he had committed the murders himself and now could no longer be prosecuted for them.

That account was given, in Graham’s first statement dated 15 September 1949. Graham’s statement was made to DCI Balmer who reported on this development to his superior, Chief Supt Smith, in writing dated 17 September 1949. He said: “I am satisfied GRAHAM is telling the truth. Whether JOHNSON is, is of course, a different matter.” CS Smith endorsed the report on 20 September 1949 as follows: “I beg to report that although the statement of GRAHAM is very interesting, it does not seem that we can do anything further regarding JOHNSON at the moment.” The report was then passed to the Assistant Chief Constable, who initialled it and added the word “Seen”.

The subsequent statements of Northam and Dickson were also made to Balmer, as was Graham’s second statement. In the course of his evidence at the joint trial, Balmer said that the first time he had met Graham in connection with the case was on 19 November 1949.

[CI Balmer said, in answer to a question from the judge, that “The first time I saw him in connection with this case was on this date – 19 March”. The reference to “March” was clearly a slip for “November”, since 19 November not March was the subject matter of the questioning at this point and “this date” had already been identified as 19 November. 19 March was the date of the murders.]

At Kelly’s re-trial Graham also said that he had first met Balmer on 19 November (both in cross-examination and re-examination), that “the only persons who ever spoke to me about this case was Kelly and Connolly”, and that “I am on oath in this box and I can only say I knew nothing about it until I was told by these two people charged with it”. A short while later, in direct answer to the judge, Graham again said that he first saw Balmer on 19 November. All that evidence was false and probably deliberately so. Balmer died on 3 May 1970, and thus no explanation from him regarding the non-disclosure of Graham’s first statement or any other matter is available. 

Despite the evidence of Northam and Dickson, and the evidence of Graham concerning the prison confessions of Kelly and Connolly, their first trial ended in January 1950 without any verdicts. Within two days the Liverpool Echo was reporting that the retrial would take place, again in Liverpool, at the next assizes commencing in January 1950. In the event, there was a slight delay, during which the trials of Kelly and Connolly were split. Kelly’s retrial began on 2 February and ended on 8 February with his conviction. He was tried only for the manager’s murder. He was sentenced to death. The judge said that “the Jury have rightly found you guilty”. He commended Northam and Dickson for their evidence and said he would forward a recommendation regarding Graham. Kelly’s appeal was heard and dismissed on 10 March. He was hanged on 28 March. His daughter, Kathleen Hughes, is now the applicant in the reference which has led to this appeal.

In a letter dated 28 February 1950 from the Deputy Director of Public Prosecutions, to the Under Secretary of State at the Home Office, the former wrote as follows:

"The all-important evidence for the prosecution consisted of a woman named Dickson and a man named Northam, both persons of bad character, who swore that they were in a Public House on the night of the murder with Kelly and Connolly, that they heard the robbery of the cinema planned by these men, and that after the shooting, Kelly admitted that he had shot the Manager and the Under-Manager and Connolly stated that he had waited outside the cinema but that he ran away as soon as he heard the shots. Graham corroborated the evidence of Dickson and Northam, because he swore that in conversations which he had with both accused in prison, each admitted to him the part which each had played in the commission of the crime, which was substantially the same as the admissions which they had made to Dickson and Northam prior to their arrest."

"I am of the opinion that but for the evidence that Graham gave before Mr Justice Cassels, Kelly would not have been convicted."

The Under Secretary replied on 13 March 1950 to confirm the Secretary of State’s decision to recommend the remission of the remainder of Graham’s sentence and his immediate release from custody.

Connolly was due to be tried separately on 13 February 1950, soon after Kelly’s conviction. On that day, he was given the opportunity to plead to new charges of robbery and conspiracy to rob. He pleaded guilty, and was sentenced to ten years imprisonment on the count of robbery and two years concurrent on the count of conspiracy. The prosecution offered no evidence on the counts of murder, and the jury were directed to acquit.

Connolly was released from prison in about 1956. He died on 18 April 1997. His widow, Eileen Connolly, is now the applicant in the reference which has led to this appeal.

Before his death Connolly, then a hotel doorman, met a businessman who was a guest in the hotel where he was working. That was in the middle of 1991. The businessman was Mr Luigi Santangeli, who as a teenager had tried to attend the joint trial in Liverpool, but failed because of the great number of people queuing to get in. As a result of what he was told by Connolly, Mr Santangeli resolved to research the case. Connolly said that neither he nor Kelly had been involved in the murders. Mr Santangeli believed him and felt he had a responsibility to bring the matter into the public domain. Later that year he obtained access from the police to the case papers. Among them he found the original manuscript and a typed version of Graham’s first statement. A visit to the public records office in July 1994 produced the notice of additional evidence dated 12 January 1950 relating to Graham’s second statement. Also in 1994 he visited the cells in Walton Prison where Kelly and Connolly had been kept on remand awaiting trial. At his request recordings were made of interviews with Connolly conducted in August 1993 and October 1994 by Mr Roger Phillips and Mr Roger Wilkes respectively, both BBC journalists: the transcripts of those interviews are among the material which has come before this court as a result of the CCRC references.

Also among that material are the statements and additional statements of Northam and Dickson made on 29 September and 10 October 1949. These were not mentioned in the judge’s summing up of the re-trial and do not appear to have been disclosed to the defence: although the defence may have known of their existence there is no sign that they knew of their contents. The significance is that a comparison of the earlier statements with the additional statements, and of the statements as a whole with evidence given at committal and at trial, may have affected those witnesses’ credibility.

The grounds of appeal in the case of Kelly are that his conviction is unsafe because (1) Graham’s first statement was not disclosed; (2) Northam’s and Dickson’s statements were not disclosed; and (3) Kelly’s retrial was severed from that of Connolly’s without just or legal cause. The grounds of appeal in the case of Connolly are that his conviction is unsafe because (1) his guilty pleas were induced by duress of circumstances and / or oppression such as effectively denied him a free choice in making his plea; and (2) the first statement of Graham and the statements of Northam and Dickson were not disclosed.

The Crown accepted the authenticity of Graham’s first statement and that even under the duties of disclosure which applied in 1949 it should have been disclosed and was not. Furthermore he accepted that its disclosure would have been likely to have undermined the integrity of at least Graham and Balmer, that the importance of Graham’s evidence was accurately reflected in the deputy DPP’s letter (“but for the evidence that Graham gave…Kelly would not have been convicted”), and that the integrity of Balmer was also of paramount importance. He said: “If Graham’s account had been severely undermined by reason of his earlier account, an already weak case became significantly less compelling.” In these circumstances the Crown felt unable to argue that the remaining evidence was of such quality or strength as to permit submissions that the conviction of Kelly was safe. Nevertheless, Mr Pownall submitted that if this had been a modern case, and Kelly were alive, the Crown would have sought a re-trial.

In the circumstances, Mr Pownall did not address the two other grounds in Kelly’s appeal at length. He submitted, however, that although the defence were aware of the fact that both Northam and Dickson had made statements to the police, they either chose not to see them or asked and were refused. Nevertheless, he accepted that they were clearly disclosable and should in fairness have been disclosed, and that if they had been, the defence would have been able still further to undermine the prosecution case. He submitted that if these further non-disclosures had stood alone, the conviction would have remained safe: as it was, they added significant weight to the principal ground of appeal.

As for severance of the re-trial, Mr Pownall accepted that no proper basis existed for it, but again submitted that the fact that Kelly stood trial alone would not of itself have rendered the verdict unsafe.

The Crown therefore did not seek to uphold the conviction of Kelly for murder. It did, however, seek to uphold Connolly’s convictions, on the ground that his pleas of guilty were unequivocal, freely tendered and not attributable to undue pressure. Nor, it was submitted, were they founded upon any understanding that there was no other material (the undisclosed statements) capable of undermining Graham, Northam or Dickson’s evidence. Moreover, the application to sever his trial from Kelly was made by his own counsel, in his presence and thus presumably with his authority.

At the hearing of these appeals we decided that they should both be allowed. We gave brief reasons at the time, while reserving our fuller judgment.

The Law in Relation to Appeals From Old Convictions

It has been established in R v. Bentley [2001] that in reviewing the safety of old convictions pursuant to references from the CCRC –

"The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

See also R v. King [2000], where Lord Bingham again stressed that this court is concerned only with the safety of the conviction.

In this case, however, it is not controversial that even in 1950, let alone today, the requirements of a fair trial required the disclosure of Graham’s first statement and the Northam and Dickson statements: see R v. Ward (1993), which discusses the position at any rate 30 years ago in 1974, and particularly this passage at 25:

"To return, however, to the position in 1974, Mr Mansfield submits, rightly, that the paragraphs in Archbold were by no means exhaustive. They were merely aspects of the defendant’s elementary common law right to a fair trial which depends on the observance by the prosecution, no less than the court, of the rules of natural justice. No authority is needed for this proposition but it is illustrated by the decision of the Divisional Court in Leyland Justices, ex p. Hawthorn [1979]. On the broad basis of this right, the defendant is plainly entitled (subject to statutory limitations on disclosure, and the possibility of public interest immunity, which we discuss below) to be supplied with police evidence of all relevant interviews with him. We would adopt the words of Lawton L.J. in Hennessey (1979), where he said that the courts must, "keep in mind that those who prepare and conduct prosecutions owe a duty to the Courts to ensure that all relevant evidence of help to an accused is either led by them or made available to the defence …"

The New Evidence

We have received and already discussed a body of new evidence, which includes the undisclosed statements themselves, the police reports of the 1949 investigations, the statement of Mr Santangeli, the transcripts of Connolly’s taped interviews (together with statements from the journalists who conducted them), the Maxwell-Brown material, and statements from the appellants’ families. The Crown does not oppose the reception of any of this new evidence under the provisions of section 23(1) of the Criminal Appeal Act 1968, subject to its caution about the taped transcripts. Mr Pownall accepts Mr Santangeli as a witness of the highest integrity.

Kelly’s Appeal

We are now in a position to revert to our reasons for concluding that Kelly’s conviction is unsafe and thus for allowing his appeal.

The non-disclosure of Graham’s first statement, and to a lesser but cumulative extent the non-disclosure of Northam’s and Dickson’s statements, deprived Kelly and his lawyers of highly relevant material. Subject only to the fact that Miss Heilbron was plainly aware of the existence of at least some of the latter statements (and of the fact that the lending of the overcoat was not mentioned until 10 October), and thus subject to the possibility that the non-disclosures were simply part of a local culture, there is every sign that those non-disclosures, and particularly that of Graham’s statement, were due to deliberate concealment. Indeed, the lies of Graham and CI Balmer in relation to when they first saw one another in relation to the Cameo murders are a strong indication of the need for concealment. The similar lies in relation to the time when the Sunday meeting at the White Star was first revealed to CI Balmer suggest the same conclusion in respect to the statements of Northam and Dickson. Disclosure of the statements would have enabled Miss Heilbron to go further than she was able in attacking the credibility of all three principal witnesses for the Crown. 

Did the non-disclosures make the conviction of Kelly unsafe? In our judgment, they did. The evidence against Kelly was, in Mr Pownall’s words, far from overwhelming. There was no forensic or scientific evidence to link Kelly with the murders. He was not identified at the scene. Northam and Dickson were rightly treated as accomplices. The jury were therefore cautioned against convicting without corroboration. The only corroboration they were offered apart from Graham’s evidence was the coat: it is true that the gunman was seen wearing a belted overcoat, but the only thing to connect Kelly with such a coat was Northam’s and Dickson’s evidence. Outside that evidence he was never seen in hat or coat. The essential corroboration presented to the jury was Graham’s evidence. It was with that that the judge concluded his summing-up – as well as with the point from Northam’s evidence that Kelly had said that the assistant manager was “on his knees” when he shot him again. Unwittingly, however: for that point, which must have seemed so powerful at trial, would have been revealed by disclosure of Graham’s first statement to have been more than double-edged.

On the prosecution’s own case, Kelly’s opportunity to commit the murders was very narrow. He was at the Spofforth Hotel as late as 9.25 pm. He was in the Leigh Arms at 9.45 pm. The shooting was at around 9.35 pm. Kelly had to obtain the hat and coat and go to the Cameo. There was a side door to the cinema at the bottom of a spiral staircase from which the gunman escaped, but that could not be opened from outside. The cut telephone wires were at the bottom of the spiral staircase. They must have been cut in advance of the shooting. The gunman had difficulty getting out of the manager’s office because the lock was shot off. He had to get rid of the gun (on the prosecution’s case, in the lake in the park), stow away the hat and coat, and return to the Leigh Arms.

The prosecution itself did not regard its case as strong. A minute in the DPP file dated 13 October 1949, just before the committal proceedings, says “It is not a strong case.” A letter dated 14 October to the DPP from the prosecuting solicitor says: “You will probably agree that the evidence is not very strong.” After the committal a report dated 22 October says: “A strong prima facie case has been established against both accused, but it will require to be well supported at trial”. It was supported by Graham’s second statement, but to the exclusion of his first. After Kelly’s conviction, the deputy DPP wrote that in his opinion that conviction would not have happened but for Graham’s evidence. The Crown accepts that opinion as correct. Northam’s and Dickson’s evidence suffered from the deficiencies which Miss Heilbron was able to elucidate at trial (the ambivalent letter, the failure to mention anything prior to 29 September, the failure to mention the lending of the overcoat until 10 October) but in addition the concealed failure to mention the meeting on Sunday until the committal proceedings. Thus Graham’s evidence was at the forefront of Mr Gorman’s powerful speech for the prosecution. 

However, if Graham’s first statement had been disclosed, it is difficult to think that his evidence would have had the impact which Mr Gorman obviously believed it forensically deserved. It is not impossible that Graham would never have been called. If the statement had been disclosed between the first trial and the retrial as it should have been, all the more so in that CI Balmer in his evidence at the first trial had lied about meeting Graham for the first time in the case on 19 September (Graham had similarly lied about the date of his first meeting with CI Balmer), it is not impossible that the retrial would not have taken place.

In all these circumstances we consider that Kelly did not have a fair trial, his conviction is unsafe and must be quashed, and the appeal constituted by this reference must be allowed. We would merely add as a postscript, because no point was taken on it at these appeals, that the judge gave no direction to the jury as to how they should view Graham as a witness, other than that he may be regarded “as of importance” and that his evidence could corroborate that of Northam and Dickson. There was no warning of caution in that he may have been seeking an advantage for himself. In this connection, see now Benedetto v The Queen [2003].

The Law in Relation to Appeals From Pleas of Guilty

It follows that if the retrials had not been severed, and if both Kelly and Connolly had been convicted at their retrial, Connolly’s conviction would have been quashed for the same reasons. Does it matter that Connolly pleaded guilty to the new charges of robbery and conspiracy to rob? Mr Pownall submits that it does and that Connolly’s conviction is safely based upon his own unequivocal plea.

This is not because a plea of guilty in law prevents a finding on appeal that the conviction is unsafe. Mr Pownall acknowledges that that is so, and that “conviction” in section 2(1) of the Criminal Appeal Act 1968 includes a conviction upon a plea of guilty. Thus a plea of guilty is not necessarily a bar to an appeal against conviction: DPP v. Shannon [1975]. But he submits that there was nothing in the facts to remove Connolly’s case from that of a voluntary plea. Similarly, Mr Waldron acknowledges that the existence of the death penalty at that time, being sanctioned by law, could not by itself render Connolly’s plea one obtained by duress. But he submits that it is relevant as a factor to be taken into account when attention is focussed on those matters which affected his decision and were not in accordance with law.

We now come to the first of a number of recent authorities which are of particular relevance to Connolly’s appeal because they concern the effect of non-disclosure on pleas of guilty.

R v. Schlesinger [1995] arose out of the background facts to the Scott Inquiry about arms to Iraq. What they did not know was that the overseas embassies had been approached to scotch any possibility of statements in their support. Ignorant of this non-disclosure, the defendants pleaded guilty, assisted in that decision by being told that they did not face a prison sentence in any event. It was conceded for the Crown that what had occurred was an indefensible abuse of process. It was submitted that the prosecution would have been stayed if the court had known the truth of these matters.

"Whilst the Court was usually slow to set aside pleas of guilty which had been unequivocally made, where they had been made in ignorance of malpractice having operated to a defendant, different considerations might apply."

The brief comment by the late Professor Sir John Smith QC reads:

"The appellants had pleaded guilty but they would, apparently, not have done so if the witnesses whom they hoped to call had been available. Guilty or not, their right to have the charge against them proved beyond reasonable doubt had been, at least, impaired. A defendant does not get a fair trial if he is precluded from calling witnesses whom he believes to be necessary to his defence."

"In R v. Togher [2001] The case is principally authority for the proposition that a broad approach  should be adopted to the statutory test of safety so as to embrace not only circumstances where the conviction might be wrong but also where the appellant had been deprived of a fair trial."

Both parties relied on that authority.

R v. Bhatti CACD December 2000, unreported)contains an extensive summary and analysis of the relevant authorities. The appellant pleaded guilty to causing death by dangerous driving on the basis of a police report that the cause of the accident was the combination of the driver’s poor steering and harsh acceleration. A defence report said a component failure could not be ruled out. The car had been scrapped. The appellant was told that the police expert could not accept the opinions of the defence expert. The appellant pleaded guilty. Later the CPS informed the appellant that independent experts had reviewed the police expert’s report and found it “totally unreliable and riddled with error”. The appeal was allowed.

Connolly’s Appeal

In the light of the authorities Mr Pownall submitted that Connolly’s plea was voluntary, not born of undue pressure, and not founded on any material irregularity or error of law, and that his convictions therefore remain safe. In particular, he submitted that the severance of Connolly’s trial was authorised by him; that Mr Maxwell-Brown’s evidence demonstrates that the plea was voluntary; that Graham was not the only witness in the case; that even if Graham’s statement had been disclosed, there would probably have been a trial in any event, just as the committal was achieved without Graham’s evidence; that there was independent support for Northam’s and Dickson’s accounts in the facts that Connolly handed in his notice on 23 March 1949, applied for a free passage to Australia on 31 March 1949, and had lied to the police by saying that he had been at work on the day of the murders; whereas his alibi that he had been at a dance with his wife was capable of being subject to detailed attack.

However, we have already rejected a finding that Connolly was consulted about the severance of his trial: we consider that, to put it at its lowest, there was a realistic possibility that he was not. As for Mr Rowson’s consultation with Connolly shortly before his trial, we have already found that Connolly’s account is to be broadly accepted, and that in its essence it is supported by Mr Maxwell-Brown’s evidence: indeed, given Mr Maxwell-Brown’s earlier letter of December 1991, we consider that if there is any difference between the accounts we would prefer Connolly’s. We regard his account of the consultation as having the ring of truth. We think that Mr Rowson went to the very limit of what his duty allowed in giving strong, realistic and practical, indeed life and death, advice: we doubt that any leader placed as he was would have acted differently, but it must have amounted to enormous, indeed irresistible, pressure to take the course which would preserve life rather than gamble it. We agree that there was nothing illegitimate in such advice in itself, and that the mere existence of capital punishment was part of the fabric of the then law and could not in itself constitute unlawful or undue pressure. However, that penalty, the availability of the deal, and the advice tendered by Connolly’s lawyers (for we feel sure that no one at that consultation disagreed with Mr Rowson’s advice) did not stand alone. The police had failed to provide even for prosecuting counsel, let alone for the defence, to have the statements of the three leading witnesses in the case. Even if the non-disclosure of Northam’s and Dickson’s statements may not have been enough by themselves to have rendered Kelly’s conviction unsafe, a question we have not had to determine, it added materially to the vice of the non-disclosure of Graham’s first statement, a matter which the Crown acknowledges by itself requires the quashing of Kelly’s conviction. We consider that those non-disclosures meant that Kelly did not have a fair trial, and the severance of the retrials in the event compounded that unfairness. It was Kelly’s conviction on a capital charge in an unfair trial that was the critical background to the advice tendered by Mr Rowson – who was of course ignorant of the non-disclosures – and to the deal negotiated with the prosecution which he held out to Connolly. 

We do not think it wrong in these circumstances to say that Connolly’s decision to plead guilty was founded on an unsafe conviction in an unfair trial. Both parties to the plea bargain negotiated on behalf of Connolly, and indeed the judge who had to approve that bargain, were acting on the basis that Kelly had been properly convicted in a fair trial. Although Kelly had his appeal, it is plain that, as matters were then known, that appeal was given no weight in the scale.

In the present case, however, the non-disclosure, in the case of Graham, went to the credibility of critical corroborative testimony which spoke directly of the defendants’ own confessions, and, in the cases of Northam and Dickson, went to the credibility of the main prosecution witnesses whose testimony again spoke directly of the defendants’ prior planning and subsequent confessions; and all in circumstances, unlikely to be repeated, where one defendant was forced by an unsupportable decision to sever the retrials to choose, following the conviction of the man he denied being his accomplice in guilt, between his desire to plead his innocence and his desire to save his life.

The test of a plea of guilty being “founded on” some material irregularity or error of law expresses a strong and determinative causal connection. The critical and fundamental causative part which the trial of Kelly played in the decision of Connolly can be illustrated by the consideration that if the retrial had not been wrongly severed, Connolly would have been tried with Kelly, and either suffered his fate, or acquitted on the basis on which the Crown were ultimately prepared to accept a plea of not guilty to murder. The critical part which Graham’s evidence played in the trial of Kelly is demonstrated by the fact that if his first statement had been disclosed, it is entirely possible that he would never have been called, or if called discredited: in circumstances where the view expressed after the event was that his was the evidence without which Kelly’s conviction would not have been secured. And if the disclosure had taken place between the first joint trial and Kelly’s retrial, then in the light of the lies told at the first trial, it is possible that there may have been no second trial at all. Moreover, if immediately after Kelly’s retrial the non-disclosures (and lies) had come to light and been understood as they have now been understood, then the Crown would then have been acknowledging that Kelly’s conviction could not survive and it is highly unlikely that Connolly would have been advised in the way in which he was advised, or that he would have changed his plea to one of guilty.

Ultimately, however, the test is of the safety of the conviction. The scope for finding that an unequivocal and intentional plea of guilty can lead to an unsafe conviction must be exceptional and rare. However, undue pressure or errors of law or unfairness in the trial process may all be of such an important causative impact on the decision to plead guilty that the conviction which follows on such a plea can, in an appropriate case, be described as unsafe. In our judgment such is this case. Ultimately, as the authorities emphasise, it is a question of fact in each case.

If Kelly, the alleged gunman and thus primary party cannot be regarded as safely convicted, it is unrealistic to regard Connolly, an allegedly merely secondary party, as safely convicted once the basis for upholding his conviction on his own plea is fatally undermined. In certain respects, for instance the irrelevance in the case of Connolly of Northam’s and Dickson’s evidence about the coat and the absence of any evidence against Connolly of knowledge that the assistant manager had been shot while on his knees, the evidence against Connolly was weaker than that against Kelly.

Conclusion

For these reasons we considered that both convictions were unsafe, and we therefore allowed the appeals in the references concerning both Kelly and Connelly and quashed their convictions. As we intimated at the time of the hearing of these appeals, in the light of our decisions the Cameo murders remain an unsolved crime. If these appeals had happened timeously, fresh trials might have been held, if the Crown would have proceeded with them in the light of the new material, and these matters could have been subjected to the scrutiny of a new jury. As it is, that cannot happen. However, having considered that there was in these cases a breakdown in the due administration of justice and a failure to ensure a fair trial, we consider that the consequence was a miscarriage of justice, which must be deeply regretted.

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