John Joseph Malone
A man jailed for life following a “cold-case” investigation into a killing in Kilkenny 30 years ago has brought an appeal against his conviction for murder.
John Joseph Malone (54), of Newpark, Kilkenny City, had pleaded not guilty to the murder of 69-year-old Ann 'Nancy' Smyth at her home on Wolfe Tone Street, Kilkenny on September 11, 1987.
He was unanimously found guilty by a Central Criminal Court jury following three hours and 26 minutes of deliberating and accordingly given the mandatory life sentence by Mr Justice Patrick McCarthy last April.
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".
On the same night Malone was drinking in another pub in Kilkenny City and left around mid-night. Instead of going home he walked to Wolfe Tone Street where he was seen by several witnesses acting suspiciously.
One neighbour, Geraldine Brennan, heard him banging on Ms Smyth's door and window and shouting: "Let me into the fucking house. I just want to fucking talk to you." At one stage he said: "I'll fucking get you." Ms Brennan went outside and saw Malone kick Nancy's door, bang her window and slam her gate. She described him as "angry and agitated".
In the early hours of the morning of September 11, hours after Malone was heard threatening Ms Smyth, smoke was seen coming from Ms Smyth's home. When emergency services arrived they found the 69-year-old and her Labrador dead inside the burning house.
The investigation into Ms Smyth's death received a boost in 2012 when, following an appeal for information that was recommended by the Serious Crime Review Team, several witnesses came forward. Each of them told gardai that Malone, the chief suspect, had confessed to Nancy Smyth's murder.
Malone was on bail when the trial began but this was revoked after he was seen shouting abuse at the home of 81-year-old Eileen Kelly days before she was due to give evidence against him.
Opening an appeal against his conviction today on the principle ground that the trial judge should have withdrawn the case from the jury at the close of the prosecution's case, Malone's barrister, Colman Cody SC, said the evidence of Geraldine Brennan was the ground on which his client's appeal turned.
Mr Cody said Geraldine Brennan was living on Wolfe Tone Street with her parents in 1987. In a statement to gardaí at the time, Ms Brennan said she was asleep in bed in the rear of their home and that the first she heard of anything untoward was at 5am when her father woke her up.
However, Mr Cody said Ms Brennan made a further statement in 2013 which, she accepted, was substantially different and of an “entirely different character”. She stated that she had been on Wolfe Tone Street with her parents on the night in question and that she had “effectively a ringside view” of what was going on.
Mr Cody said there were stark differences between what three other witnesses had observed on Wolfe Tone Street and what Ms Brennan said she had observed. She was the only witness to give evidence of Malone behaving in a verbally and physically aggressive manner towards the deceased including the words 'I'm going to get you'.
She was the only witness to come forward to say that not only was Malone aggressive but that he had made a threat.
Mr Cody said the initial Garda investigation in 1987 “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 said Ms Brennan's father died in 2011. Her mother had died previously. This was relevant to the “very culpable delay” in the case.
He said it was possible the defence would have been able to blow holes in the credibility of Ms Brennan's statement, had her parents been alive for the trial.
Mr Justice George Birmingham remarked that the difficulty facing Malone in focusing his appeal on Ms Brennan, was that three other people put him at the scene at a relevant time and Malone had been going around Kilkenny confessing to people “left right and centre”.
Counsel for the Director of Public Prosecutions, Seán Gillane SC, said the defence had secured from Ms Brennan what every defence counsel in the country seeks to obtain from prosecution witnesses: an admission that she hadn't told the truth in 1987.
Ms Brennan stated that her father told her not to get involved and to get into the house because “the Malone fella” would come down to their house, Mr Gillane said.
He said it would have been irrational for the jury to conclude Malone was not the man having that “heated argument” with Ms Flynn who was subsequently killed in the following number of hours in her home. One of the other witnesses decscribed the man as having a speech impediment and, Mr Gillane said, there was evidence Malone had a speech impediment.
Mr Gillane said Malone made multiple confessions to different people in different contexts and none of them had an “axe to grind”.
He submitted that Malone's conviction was safe, his trial satisfactory and that the trial judge's rulings “could not have been in any other direction”.
Mr Justice George Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, said the court would reserve judgment.
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.