A man whose conviction for murdering his pregnant ex-girlfriend was quashed in March faces a third trial for her killing despite an appeal by his lawyers that a second retrial would not be justified.
Stephen Cahoon (aged 42), with a last address at Harvey Street, Derry, Northern Ireland, admitted strangling mother-of-four Jean Teresa Quigley (aged 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. A hung jury failed to reach a verdict in his first Central Criminal Court trial.
In March, the Court of Appeal quashed his conviction due to an error in the judge's instructions to the jury, ordered a retrial and remanded him in custody.
His lawyers asked the Court of Appeal today to use its discretion in ordering that he not face a third trial.
Counsel for Cahoon, Michael O'Higgins SC, submitted that his client had served close to 10 years in prison and it was very hard to reconcile how somebody could have served 10 years in jail and still be told the presumption of innocence applied.
It was inimicable to the presumption of innocence, Mr O'Higgins said, that somebody could be in jail for 10 years without determination of their case.
However, President of the Court of Appeal Mr Justice Seán Ryan said it was of real importance “to establish whether Jean Quigley was murdered or the victim of manslaughter”.
He said there was a balance between the rights of an accused person and the rights of the public, the deceased and their family to see that justice is done.
Mr Justice Ryan said the court was satisfied that this was a matter of real gravity because of the nature of the crime.
There was scarcely something more serious than alleged murder, he said.
A retrial was in the interests of justice, he said. “The case will proceed”.
A number of matters raised by Mr O'Higgins such as witness “drift”, and the possible perils of contradictory accounts from previous testimonies, were matters for the exercise of the trial judge's discretion, Mr Justice Ryan said.
The Supreme Court has said there is no statutory limit on the number of times somebody can be tried, the court heard.
Cahoon's successful ground of appeal 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, Mr Justice Ryan said “it was a mistake on a central if not the central point of the whole case,” he 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.
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 Cahoon's application that a retrial should not be the outcome. That matter has now been finalised.
Mr O'Higgins said the Central Criminal Court had fixed October 27 for trial.
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.