Tuesday 21 August 2018

Killer who confessed 'left, right and centre' has conviction for murdering woman 30 years earlier upheld

John Joseph Malone Photo: Collins Courts
John Joseph Malone Photo: Collins Courts

Ruaidhrí Giblin

A MAN who was said to have gone around Kilkenny confessing to people “left, right and centre” that he had killed a woman in 1987, has had his conviction for murdering her 30 years earlier upheld by the Court of Appeal.

John Joseph Malone (54), of Newpark, Kilkenny City, had pleaded not guilty at the Central Criminal Court to the murder of 69-year-old Ann 'Nancy' Smyth at her home on Wolfe Tone Street, Kilkenny on September 11, 1987. He was not charged with Mrs Smyth's murder for 27 years.

Ann 'Nancy' Smyth lived with her pet Labrador on Wolfe Tone St in Kilkenny. Ann Lahart, who was a bartender in a pub on John Street where Nancy was a regular in 1987, described her as a "lovely person", quiet in her own way but happy to chat with those she knew. "She was partial to her rum and blackcurrant and she also liked her whiskey lemonade," she told the court. On the night she died, Nancy called to the pub around 9 o'clock and was in "great form”.

Malone was unanimously found guilty by a jury following three hours and 26 minutes of deliberations and was given the mandatory life sentence by Mr Justice Patrick McCarthy on April 13, 2017.

He lost an appeal against his conviction today with the Court of Appeal holding that Malone’s trial was fair and his ability to mount a defence was not unduly hampered by the lengthy delay.

Giving judgment in the three-judge court, Mr Justice Alan Mahon said Mrs Smyth, a 69-year-old widow who lived alone, was killed in her home on the night of September 11, 1987.

That night, she had visited a local pub, consumed a number of drinks and was dropped home by the publican shortly after midnight on September 11th.

At around 3.45am, smoke was observed coming from Mrs Smyth’s house. A flicker of flame was seen at 5.10am at which time the fire brigade and other emergency services were alerted.

It was initially believed her death was accidental but a post mortem examination revealed the cause of death to have been asphyxia due to manual strangulation. Her Labrador also died in the fire.

Four witnesses gave evidence of having seen Malone outside Mrs Smyth’s house between midnight and 1am. Two of them gave evidence of hearing a heated argument between Malone and Mrs Smyth and one, Geraldine Brennan, gave evidence of having heard Malone threaten Mrs Smyth.

A further four individuals gave evidence of Malone having confessed to them over the years that he had been responsible for Mrs Smyth’s death. These included Malone’s brother, Bernard Malone and his former wife Ann Malone.

Another witness Eileen Kelly, gave evidence that Malone had admitted killing Mrs Smyth to her but maintained that he had not intended to do so. She gave evidence that Malone had demonstrated to her how he had placed his hands on Mrs Smyth’s neck and squeezed her throat.

Mr Justice George Birmingham remarked during the appeal hearing that three people, other than Geraldine Brennan, on whom the appeal was focused, had put Malone at the scene at a relevant time and Malone had been going around Kilkenny confessing to people “left right and centre” in the years that followed.

Malone was arrested and questioned by gardai five days after Mrs Smyth’s killing. He initially denied having been in the vicinity of Mrs Smyth’s house on the night in question but admitted later that he had had a heated row with Mrs Smyth for about 30 minutes either on the street outside or in her garden area.

He said he had left the area and returned home around 2am. He denied murdering Mrs Smyth and denied having entered her home on the date in question.

He was not charged for a further 27 years. His trial commenced nearly 30 years after Mrs Smyth’s death.

Counsel for Malone, Colman Cody SC, said the initial Garda investigation in 1987 had “stalled”. The first significant development came after an appeal for people to come forward with information was published in the Kilkenny People newspaper in 2005.

One woman came forward with a statement claiming Malone confessed to her that he had killed Ms Smyth. As a result, Mr Cody said the Gardai were in a position to reactivate the investigation on foot of this "very significant breakthrough" but that didn't happen until 2012 when a “cold case” review was conducted and there was a reconstruction on RTE's Crimecall program which brought forward additional confession evidence.

Mr Cody submitted that a fair trial was impossibly due to the delay in prosecuting his client. He said his client was prejudiced by the non-availability of certain witnesses due to the passage of time and the frailty of memory that naturally occurs over 30 years.

Mr Justice Mahon said the trial judge was correct in refusing to accede to a request to withdraw the case from the jury at the close of the prosecution case.

While there was a significant delay in bringing the prosecution, there were nevertheless a significant number of witnesses available to give evidence, and who did give evidence, with a clear recollection as to what had occurred some thirty years earlier, Mr Justice Mahon said.

Indeed, the clarity of the evidence from a number of prosecution witnesses, who claimed to have identified (Malone) in the vicinity of Mrs Smyth’s house or who saw both engage with each other on the morning in question, and also witnesses to whom (Malone) later made unsolicited admissions “was quite remarkable,” the judge said.

“Especially unusually for any murder trial, but particularly so for a murder of such antiquity as this, was the fact that a number of witnesses gave evidence that (Malone) had, in effect, admitted his involvement in the killing of the deceased to them and in some cases graphically so.”

Furthermore, Mr Justice Mahon said the trial judge had given the jury a “solid” delay warning.

Mr Justice Mahon, who sat with Mr Justice George Birmingham and Mr Justice John Edwards said the court was satisfied that Malone’s trial was fair and that his ability to mount a defence was not unduly hampered by the lengthy delay.

The appeal was therefore dismissed.

Malone made no reaction when the judgment was delivered.

CONFESSIONS

In 2012 gardai appealed for information and witnesses came forward. A number of those witnesses were members of a Presbyterian Bible group which Malone would join from time to time.

Jude Curran told the court that Malone came to his house months after Nancy's death. He said: "I was reading the Bible and John Joe came in and just said to me: ‘Jude, if somebody murdered someone, would God forgive them?’” A few months later Malone came to him again. “He just said to me that he couldn’t make out how forensics says that Mrs Smyth was strangled,” he said. “He had told me that he had argued with her and that he pushed her and she fell,” he continued, adding that Mr Malone had told him she had banged her head off a stone.

“That he brought her in, sat her down and she died, and that he set fire to the house,” he said.

Billy Patterson, another member of the Bible group, said Malone once told him that he was considering becoming a Christian. Mr Patterson said he asked what would stop him, and that the accused replied that he’d done something. He said he asked Malone if what he had done had to do with ‘the old woman’.

“He said yes, and I said to him: ‘Did you do it?’ and he said yes."

The court also heard from the accused man's brother, Barney Malone, who said John Joe had confessed to him one night about ten years ago. Barney's wife, Ann Malone, said the accused had once threatened her, saying he would burn her house down, as he had done to Nancy Smyth.

81-year-old Eileen Kelly also took the stand to reveal that a few months after Nancy was killed, she confronted him and he told her it was an accident. She said Malone told her he had argued with Nancy and she told him to go away and accused his brother of having robbed her in a pub. She said he told her that he caught Ms Smyth, shoved her in the door and squeezed her too tight.

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