A man whose conviction for murdering his pregnant ex-girlfriend was quashed in March will ask the Court of Appeal that he not face a second retrial – which would be his third jury trial on the matter.
Stephen Cahoon (42), with a last address at Harvey Street, Derry, Northern Ireland, admitted strangling mother-of-four Jean Teresa Quigley (30), who was 10-weeks pregnant at the time, on July 26, 2008 but denied it was murder.
A jury of seven women and five men unanimously found him guilty of murder at the Central Criminal Court on April 30 2012 and he was immediately sentenced to life imprisonment by Mr Justice Barry White.
It was Cahoon's second trial for murder having been retried after a hung jury failed to reach a verdict in his first Central Criminal Court trial.
The Court of Appeal qaushed Cahoon's conviction in March, ordered a retrial and remanded him in custody.
Counsel for Cahoon, Niall Flynn BL, said a retrial would be Cahoon's third trial on the matter in circumstances where he had already served six years in custody.
In those circumstances it would be unfair on Cahoon and an application in that regard may be forthcoming, the court heard at the time.
During case management procedures in the Court of Appeal today/yesterday(THURSDAY), Mr Flynn said he was seeking a hearing date for an application setting out the reasons why there shouldn't be a third trial.
Counsel for the Director of Public Prosecutions, Patrick Marrinan SC, said the matter had been referred back to the Central Criminal Court and his side were anxious to fix a date for trial “as soon as possible”.
There was no objection by the DPP to Cahoon's application in circumstances where the Court of Appeal had granted liberty to apply.
Mr Justice Garrett Sheehan fixed the date of July 20 next for the hearing.
Cahoon's successful ground of appeal, submitted by his senior counsel Michael O'Higgins SC, was that the trial judge had misdirected the jury while explaining the defence of provocation.
Mr Justice White had told the jury, Mr O'Higgins said, that the concept of provocation could not involve intention because a person is not a master of their own mind when they lose self control.
'Having regard to provocation or loss of self control, no such intent is there,' Mr Justice White had told the jury.
In its judgment, President of the Court of Appeal Mr Justice Seán Ryan said “it was a mistake on a central if not the central point of the whole case,” he said.
Mr Justice Ryan said it was “a small number of words” used by the judge after he gave a substantial direction on the law and facts of the case.
It was not sufficient to answer the appeal by finding that “words were few and might not have had an impact”. The court would have to be satisfied that the words did not actually influence the jury, the judgment stated.
These words came in the course of a brief re-charge just before the jury retired to consider their verdict and it was “at least arguable that their location in the scheme of the judge's instructions gave them a prominence they might not otherwise have had,” according to the judgment.
“Since the critical question in the case was provocation and the judge addressed himself to that specific question when he recalled the jury, a mistake at that stage came at a very important point,” the judgment stated.
Mr Justice Ryan, who sat with Mr Justice George Birmingham and Mr Justice Garrett Sheehan, accordingly allowed the appeal, quashed the conviction and ordered a retrial subject to Mr Flynn's application that a retrial should not be the outcome.
Cahoon, an unemployed labourer originally from Magherafelt in Co Derry, made no reaction when the judgment was delivered.
The Cahoon trials made legal history. He was charged under the Criminal Law Jurisdiction Act of 1976 and was given the option of being tried in the Republic or in Northern Ireland. He opted for trial in the Republic and became the first person to be tried before a jury here for an offence under the anti-terrorist legislation.
The 1976 Act was brought in to allow for trials in the Republic for offences committed outside the jurisdiction in Northern Ireland or Great Britain. It has rarely been used and up until now the only cases have been brought before the three-judge, non-jury Special Criminal Court.