Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Brian Kearney

Neutral Citation: [2009] IECCA 112


Court of Criminal Appeal Record Number: 76/08

Date of Delivery: 09 October 2009

Court: Court of Criminal Appeal

This is an appeal brought by the applicant following his conviction for the murder of his wife, Siobhan Kearney, on the 28th February, 2006 at Carnroe, Knocknashee, Goatstown in Dublin. The trial commenced in the Central Criminal Court in Dublin on the 18th February, 2008 and concluded on the 5th March, 2008 when, following the delivery of a majority verdict by the jury, the applicant was sentenced to life imprisonment.

It was a case based on circumstantial evidence in that there was no primary evidence linking the applicant to the killing of his wife in the family home on the date in question. However, it was contended by the prosecution that the evidence which it adduced established that the applicant had the opportunity and motive to commit the offence, the motive being that the deceased was actively pursuing a separation of which the applicant was not in favour. The applicant and his wife, Siobhan, and their young son, Daniel, aged three years, were the only persons residing at the time in the house at Knocknashee in Goatstown. The body of Siobhan Kearney was found in her bedroom in circumstances where the door was locked and a length of flex was found around her body. These facts were relied upon by the defence at trial as indicative of the possibility that the deceased committed suicide. This theory was not, however, pursued during the course of the appeal before this Court.

Instead, the case made on behalf of the applicant was to the effect that the circumstantial evidence was of poor quality and insufficient to exclude the possibility that some third party had entered the house after the departure of the applicant for work shortly after 7.37 a.m. on the date of the killing.

The specific grounds of appeal relied upon by the applicant include the following:-

1. (a) The learned trial judge erred in law and in fact in permitting the admission into evidence of a diary or any part or mention thereof.

(b) With regard to the admission of the diary or any mention thereof, the prosecution failed to establish good and sufficient grounds for the admission thereof and the learned trial judge ruled upon the submission, inter alia, on grounds not argued.

2. The trial was unsatisfactory by reason of the prosecution leading an amount of evidence which was both intended and actually conveyed to the jury that the accused had exercised his right to silence during questioning in garda custody.

3. The learned trial judge erred in refusing an application for a directed acquittal of the accused at the conclusion of the prosecution case.

Niamh McLaughlin, a sister of the deceased, described how she arrived at the house in Knocknashee at 9.30 a.m. on the morning of the 28th February, 2006. There were no other cars in the driveway. She let herself into the house and went upstairs to Siobhan’s room which was locked. Siobhan’s son, Daniel, was elsewhere in the house and unattended. Niamh McLaughlin contacted her parents by mobile phone and thereafter Deirdre and Owen McLaughlin arrived at the house at approximately 10.15 a.m. Mr. McLaughlin broke the door down and then discovered the body of his daughter lying on the floor of the bedroom.

Deirdre McLaughlin gave evidence that the applicant, who had been telephoned and told to come back to the house, stated upon arrival and on hearing the news that “we would be together forever”. When spoken to on the telephone he had asked no questions about why he had to come home and, on arrival to the house, he did not go upstairs but went into the sitting room. Brighid McLaughlin, another sister of the deceased, gave evidence that when she spoke to the applicant he stated “poor you Brighid and all that’s happened with you and Michael”. Brighid McLaughlin took this as being a reference to her late husband Michael who died in tragic circumstances in 2003. She found it an extremely odd remark.

A close friend of the deceased, Anne Clohessy, gave evidence that on the evening of 27th February, 2006 the deceased had a meal in her apartment. Present were her partner, Julian, and the deceased’s son, Daniel. She described Siobhan as having been in good form and they spent time chatting about what school her son Daniel would enroll in. Sergeant Charles McConalogue gave evidence that he was a friend of the McLaughlin family. He had gone to the deceased’s house just before midday on the 28th February, 2006. He there met the applicant and told him that detectives wished to speak to him upstairs. The witness described how the applicant got out of a chair and walked towards him saying “Charlie, will I be fit to go through with it?”. At a later stage the applicant asked Sergeant McConalogue if he could leave and also enquired if the detectives would want his clothing. Sergeant McConalogue was taken aback by this question and passed what had been said onto his colleague garda officers. Ms. Emer Brennan, the manager of a hair salon near the Goat Pub, gave evidence that on Monday, 27th February, 2006 Siobhan Kearney rang up to make an appointment to have her hair blow-dried and was given an appointment for 10.30 a.m. on Tuesday, 28th February, 2006. Ms. Jacinta Kane gave evidence that she was the secretary at St. Killian’s School on Roebuck Road and told the Court that in January, 2006 the deceased had requested a place in the school for her son Daniel with a view to his commencing in St. Killian’s in February, 2006. Ms. Jacinta Kenny gave evidence that she was the secretary of our Lady’s Grove School in Goatstown and confirmed she also had a conversation with Siobhan Kearney in respect of her son Daniel. This conversation took place on 13th February, 2006 and was in relation to enrolling Daniel in the school in the coming September. Ms. Philomena Daly gave evidence that she worked in the Citizens Advice Bureau in Sandyford Road and described how on the 27th February, a woman who gave her name as Siobhan Kearney rang the centre seeking an appointment with someone in the legal section. She was given an appointment for the 9th March.

A Mr. Hugh Hannigan, solicitor, gave evidence that Siobhan Kearney contacted him seeking family law advice. She had a meeting with him at his offices on the 23rd January, 2006 and was accompanied by her sister, Aisling. As a result of the instructions he received, he wrote a number of letters to the accused dated respectively the 26th January, 2006, 3rd February, 2006 and 14th February, 2006. A more detailed letter was sent to the applicant’s solicitors on the 24th February, 2006. He gave evidence to the court that, to the best of his recollection, he had asked Siobhan Kearney to keep a diary of all the events that were occurring in the house at that time.

Detective Sergeant Michael Gibbons gave evidence that on entering the bedroom where the deceased’s body was found, he observed a key lying on the floor inside the door. There was no door saddle for the door in question and there was sufficient room for the key to be slid under the door. He also gave evidence of speaking to the applicant who had confirmed to him that Siobhan had been out the previous evening to visit a friend and had taken their son Daniel with her. She had returned at around 9 p.m. and had gone upstairs. He informed Sergeant Gibbons that he had spoken to her briefly before she went to the attic room where she would have been sending emails relating to their business. He then put the child to bed. He confirmed that he and the child slept in one room and Siobhan slept in the room where her body was found. He told Sergeant Gibbons that he got up at around 7 a.m. on the morning of his wife’s death and gave breakfast to the child. He had his own breakfast, then came upstairs, washed his teeth and put his hand on the bedroom door and tried the handle. Unusually, the door was locked and he got no answer. He told Sergeant Gibbons that he left for work then at about 7.50 a.m. and went first to Kellehers in Sandyford Industrial Estate.

Having gone downstairs following this conversational exchange, the applicant came back upstairs and enquired of Sergeant Gibbons whether or not the gardai wanted his clothes. On being informed that they did the applicant asked for a specific jumper or jeans and a top from the clothes in the back room. The gardai decided not to give him the ones that he asked for and, as there did not appear to be much in the way of clothing available, said they would get the clothes he was wearing later. Sgt. Gibbons gave evidence that when he later went to the house in which the applicant’s parents resided at about 11.30 p.m. that same day he was informed by the applicant’s mother that she had washed all his clothing. The applicant’s mother brought the gardai officers out to the garage, took the applicant’s clothes from the line, and handed them to the gardai.

Sergeant Gibbons also gave evidence that on the morning of Wednesday, 1st March, 2006 the applicant provided a witness statement and the same was duly admitted in evidence. In the course of this witness statement, the applicant said “the last time I was in that room, prior to going in there with you, was about 7 o’clock the previous evening, 28th February, 2006, my birthday. I just had a quick shower in the en suite in that room”.

The applicant was arrested on the 2nd March, 2006 at Dromartin Road in Goatstown for the murder of his wife. He was brought to Dundrum Garda Station. Having been brought to an interview room at Dundrum Garda Station he was there interviewed and a memorandum of that interview was produced in court. In the course of the interview, the applicant was asked, inter alia, the following questions:-

“Q. Do you accept that she died in your house the other day?

A. I do.

Q. Do you accept that she died in your home while there was just you, her and your son in the house?

A. Correct.

Q. I tell you that, I tell you also that she didn’t commit suicide, in other words she didn’t hang herself. Do you accept that?

A. I find it hard to believe under the circumstances. I find the whole lot hard to believe. To come to terms with the whole situation, her death, the tragedy of it all, I have no understanding of it, garda.

Q. It is a fact that she died by strangulation. She didn’t hang herself. So somebody strangled her, is that logical Brian?

A. If you say so.

Q. I do say so but do you accept it?

A. I find it hard to accept it. Should I have a solicitor with me. I have asked for my brother.”

Evidence was also given by Ms. Toni Massey regarding the Kearneys’ financial position. Ms. Massey is a qualified accountant employed by the Garda Fraud Unit as a forensic accountant. She described how the applicant was self-employed and had an electrical business which constituted his principal employment. He and his wife also operated a hotel in Spain. She calculated that when all the family assets were added up, they had a value of €5.1 million which would translate into €4.6 million after tax. She described how the couple were building a second house in the garden with a view to a sale and that there were borrowings made against the family home to build this house. There were also borrowings made against the family home to buy the hotel in Spain. The loan balance as of December, 2005 was €844,456 charged against the family home with monthly repayments of €5,300 per month. In addition there was borrowing for the hotel in Spain in respect of which over €10,000 required to be paid in mortgage repayments. The applicant’s net earnings from his employment amounted to €188,586 per annum. She described how sums totalling €400,000 were drawn down partially by way of borrowings and partly by way of transfers from a family account to the applicant’s own personal account between November, 2005 and March, 2006. In her opinion the applicant and the deceased needed to sell an asset to relieve the €850,000 that they had borrowed on the family home to build the house in the garden. The applicant would have needed the deceased’s consent to sell either Carnroe or the house in the garden.

Further evidence was led that Garda John Phelan found a diary created by the deceased in a hot press when conducting a search there on the 8th March, 2006. Along with the diary was found the deceased’s passport and a €500 banknote. The handwriting in the diary was identified as that of the deceased by Ms. Anne Marie Sparks.

Evidence was also led to demonstrate that the applicant arrived at Kelleher Electric on the morning of the death of his wife between 7.50 a.m. - 8 a.m. which was earlier than he would normally arrive, i.e. between 8.30 a.m. – 9 a.m. Evidence was also led that shortly before midnight on the 27th February, 2006 the deceased had sent a chatty and friendly email to a friend before retiring to bed.

SPECIFIC GROUNDS OF APPEAL

1. THE DIARY

Mr. Michael O’Higgins, senior counsel on behalf of the applicant, submitted that the learned trial judge was in error in permitting the admission into evidence of the diary. Objection had been taken to its admissibility during the course of the trial and the learned trial judge had ruled on the matter as follows:-

“I am satisfied that the diary and the finding of the diary is relevant evidence to put before this jury. I am satisfied that it has a probative value insofar as it does show that the deceased was genuine in her pursuit of a separation. Having read the contents I am satisfied that the prejudicial value of the contents does not outweigh its probative value and in circumstances where the contents are not being adduced before the jury I consider that the fact that they are not being opened does not introduce a prejudice to the accused which is outweighed by the probative value of the finding of the diary. It is clearly relevant that on the day following consultation in respect of separation the deceased commenced maintaining a diary and that that diary was maintained up to the day before her death.”

Mr. O’Higgins stressed that this objection had to be seen against a background where a separation was being sought in this case on an amicable basis. This was not a case where cruelty or adultery had been alleged, nor was it a marriage marred by domestic violence. The defence had never challenged the fact that a separation was being seriously sought by Siobhan Kearney. The very considerable prejudicial potential of the diary and any reference to it could not be accounted by a general direction from the trial judge that the jury should act only on the evidence in the case.

Mr. Denis Vaughan-Buckley, senior counsel for the prosecution, argued that the relevance of the diary was to illustrate that the applicant was serious about the separation and that it was relevant in that context and for that purpose. In written submissions, it was further contended on behalf of the respondent that the fact that the diary was kept concealed, together with the deceased’s passport and some cash, was relevant to illustrate just how seriously the deceased was treating the separation issue. The same submissions outline not merely that the diary was relevant to show that the marriage was not a happy one, but more particularly that the deceased was committed to pursuing a separation and that this would add to a motive for the applicant to murder her. It was thus contended that the diary constituted “evidence which tends to prove or disprove whether the accused committed the act with which he is charged.” (see The People (Director of Public Prosecutions) v. Ferris (Unreported, CCA, 10th June, 2002)).

By way of alternative submission, Mr. Vaughan-Buckley contended that if the diary was improperly admitted then, having regard to the fact that the contents were not open to the jury, this Court should see the error as one to which the proviso under the Criminal Justice Act 1993 should apply and should not regard the conviction as unsafe for that reason.

While it is obvious to the Court that the diary could only relate to the state of mind of the deceased and not the applicant, the Court is nonetheless satisfied that the evidence in question was relevant. To take a more extreme example, if a person’s packed suitcase were to be found in the hallway by the gardai on the morning of her death, it could scarcely be stated that such evidence would not be relevant. It would not demonstrate anything in the accused person’s mind, but would indicate the determination of the victim of the crime to embark on or persevere with a course of action which might supply a motive for murder to someone else. It does not supply the motive, but is a relevant strand in the circumstantial evidence which, taken in conjunction with the other evidence, builds up, block by block, the edifice of circumstantial evidence upon which the prosecution relies. The crucial test, the Court is satisfied, is relevance. In this regard relevance is not confined only to matters indicative of the perpetrator’s state of mind.

The Court will therefore dismiss this ground of appeal.

2. INTERVIEWS OF APPLICANT

It is further contended on behalf of the applicant that the prosecution led evidence intended to convey to the jury in a fairly crude fashion that the applicant had simply “dried up” following a meeting with his solicitor on the morning of the 2nd March, 2006.

It will be remembered that the applicant answered a sequence of questions, the subject matter of a memo which is proved in evidence, between 8.45 a.m. on 2nd March, 2006 and 10.22 a.m. when the applicant met with his solicitor. This memo was signed by the applicant and witnessed by Sergeant Gibbons and Eugene Stapleton at 11.39 a.m. on the 2nd March, 2006. It was signed by the applicant after he had met his solicitor.

It is events after that point in time to which counsel on behalf of the applicant raises objection. This evidence was led on the third day of the trial by Sergeant Gibbons:-

“I think after the solicitor left you then proceeded to interview him again.

A. Yes Judge.

Q. And I think it is correct to say that nothing of evidential value arises from that interview, my Lord. Is that right?

A. Yes Judge.

Q. And on the date that you arrested him, the first time you arrested him, I think his period of detention was extended, was it?

A. Yes Judge.

Q. I think then he was interviewed by a number of members of An Garda Siochana including yourself and your colleague, Sergeant Stapleton?

A. Yes Judge.

Q. And a lot of other members of An Garda Siochana.

A. Yes Judge.

Q. And I think nothing of evidential value arises from any of these interviews.

A. Yes Judge.”

“Q. Did you interview him more than once?

A. Yes we did.

Q. How many times did you interview him?

A. I think it’s three times, I think. We have them here.

Q. It is correct to say that nothing of evidential value arises from those interviews.

A. Yes Judge.

Q. And indeed I think I have already said this but after the first interview, the first … you interviewed him a second time that day but nothing arose out of that either. There is only one interview that is of any relevance.

A. Yes Judge.

Q. It is the first interview; is that correct?

A. Yes

Q. And the other interviews you had with him on the date of the second arrest, nothing of evidential value arises from that.

A. That is correct.”

In ruling against the objection, the learned trial judge indicated that the time for counsel to make the objection was prior to the leading of the evidence in question. The evidence having been led without objection, the learned trial judge felt he could satisfactorily and adequately deal with any difficulty which might arise when it came to charging the jury. He indicated, as he subsequently in fact did, that he would make it perfectly clear to the jury that a person has certain rights, including a right of silence, that he is entitled to avail of and that nothing adverse to him could be read into the fact that he availed of such rights.

The Court is satisfied that the learned trial judge was absolutely correct in the ruling which he made.

Firstly, the facts in Finnerty could hardly be more different from those in the instant case. In Finnerty the applicant was accused of rape. He was brought to a Garda Station and detained under s.4 of the Criminal Justice Act 1984. At his trial, it was put to the complainant by counsel for the applicant that the sexual intercourse on the occasion in question was consensual. When the complainant had finished her evidence, prosecuting counsel told the learned trial judge, in the absence of the jury, that she now proposed to adduce evidence as to the fact that the applicant, during the period of his detention in the Garda Station, had made no statement of any sort. Counsel submitted that since it had been made clear on behalf of the applicant that he would be giving evidence which would contradict the account of events given by the complainant, the fact that he had given no such account when being interviewed in the Garda Station would be relevant when the jury came to assess his credibility. The learned trial judge ruled that the evidence was admissible and the applicant was thereafter cross-examined by prosecuting counsel as to what transpired in the Garda Station. The applicant was convicted and unsuccessfully brought an appeal to this Court. However, he obtained his certificate pursuant to s.29 of the Courts of Justice Act, 1924 enabling an appeal to be brought to the Supreme Court. In delivering the judgment of the court which quashed the conviction, Keane J. indicated that the following principles were applicable in cases where a defendant while detained under the provisions of the Act of 1984 has refused to answer questions put to him:-

“(1) Where nothing of probative value has emerged as a result of such a detention, but it is thought desirable that the court should be aware that the defendant was so detained, the court should be simply informed that he was so detained, but that nothing of probative value emerged.

(2) Under no circumstances should any cross-examination by the prosecution as to the refusal of the defendant, during the course of his detention, to answer any questions, be permitted.

(3) In the case of a trial before a jury, the trial judge in his charge should, in general, make no reference to the fact that the defendant refused to answer questions during the course of his detention.”

The Court is more than satisfied that there is nothing procedurally wrong in telling a jury that an extensive interviewing process took place where nothing of evidential value arose from those interviews. Where the court has evidence of a period of detention, it would be impossible to satisfy or prove to a jury that the gardai conducted a full investigation into an offence if they were left with the impression that an accused had not been given an opportunity to answer questions about incriminating evidence. That would lead to a totally unbalanced and misleading misrepresentation of the factual template.

Conversely, to describe the process in some detail and to thereafter indicate that “nothing of evidential value arose” is to comply in full with the spirit and intent of the decision of the Supreme Court in The People (DPP) v. Finnerty.

It has not been suggested in this case that the jury was invited to draw any inferences adverse to the applicant from the fact that nothing of evidential value arose from the interviews. On the contrary, the jury was expressly directed that they were not entitled to draw any inferences adverse to the applicant and were further reminded that the applicant had, in fact, spoken to the gardai and, in answer to their questions, had given them an account which was the subject matter of the memo which was placed before them.

The Court is satisfied that every proper and appropriate warning was given to the jury on this aspect of the case and indeed the Court notes that no complaint by way of requisition was made on the applicant’s behalf to suggest otherwise.

Quite apart from these considerations, the Court is satisfied that, in the light of the presumption of innocence and the inalienable right to silence, both themes on which any trial judge will instruct a jury, no adverse inference will in the ordinary way be likely to be drawn from a failure by an accused person to answer garda questions. A jury in modern times will be well aware that a solicitor would advise a client in most or at least many instances to exercise a right of silence and would equally be well aware that nothing adverse to an accused person can be inferred from that fact.

The Court is further satisfied that the practice adopted by the prosecution in this case has received express approval from this Court in the judgment delivered by Murray C.J. in The People (Director of Public Prosecutions) v. Joseph O’Reilly (Unreported, CCA, 6th March, 2009).

The Court therefore rejects this ground of appeal.

3. DIRECTION APPLICATION / CIRCUMSTANTIAL EVIDENCE

The Court proposes to deal with both the direction application and some general considerations concerning circumstantial evidence as argued by counsel for the applicant.

Insofar as this ground of appeal is concerned, at the outset, the Court notes that the application for direction was made on the very narrow ground that the evidence led by the prosecution failed to exclude the possibility that Siobhan Kearney was alive at the time when the applicant left home. As counsel put it:-

“… it is for the prosecution to satisfy your Lordship that there is a prima facie case and that’s why I would zone in on one area and one area alone … the issue of time of death. As I say, if the prosecution has not advanced evidence to rationally exclude that, then in my respectful submission there is no case to go to the jury because one of the legs has, as it were, failed, or one of the pillars has failed to be stood up.”

Reliance in support of the application was placed on two Australian decisions, namely, The State of Western Australia v. Montani [2007] WASCA 259 and The State of Western Australia v. Christie [2005] WASCA 262. However, in the context of the appeal before this Court, counsel for the applicant has adopted the position that these Australian decisions, whilst useful, do not represent any departure from the test elaborated in R v. Galbraith [1981] 73 Cr. APP. R124.

In response, counsel for the respondent submitted that a combination of all the scientific evidence proved beyond a reasonable doubt that the deceased had not committed suicide. This evidence had not been contradicted by any other evidence in the case. The fact that the time of death could not be ascertained with any degree of certainty did not exclude the inference based on the evidence that the deceased had been murdered and in this context there was no evidence whatsoever to suggest that anyone, apart from the deceased, the applicant and their young child, had been in the house that morning. There had been no evidence of a break-in or forcible entry, no evidence of the sighting of any other person approaching or leaving the premises, and in the circumstances it was submitted that the only reasonable inference to be drawn from the evidence was that the applicant had murdered the deceased.

In dealing firstly with the limited basis upon which the application for a direction was made, the Court would begin by reciting the relevant passage of the judgment of the Court of Appeal delivered by Lord Lane C.J. in R v. Galbraith [1981] 73 Cr. APP. R124 at p.127:-

“Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

In ruling on the application in question, the learned trial judge conducted a careful review of the relevant case law and stated as follows:-

“In the present case the jury are not being asked to draw inferences based solely from a single fact or a circumstance. In particular, they are not being asked to draw inferences solely from the consideration or estimation of the time of death but rather from a combination of circumstances and I do not consider that Dr. Cassidy’s estimated time of death can be taken in isolation. Clearly, the estimation of a time of death is not an exact science and Dr. Cassidy’s estimate must be viewed in light of the entire surrounding circumstances. … I am satisfied that the evidence herein is such that the jury could conclude that the deceased was murdered by the accused and that she had not committed suicide.

Without rehearsing the evidence in detail, such a conclusion could be drawn from the evidence of a number of witnesses and the evidence of a number of facts. Firstly, the accused man had the opportunity to commit the offence of murder. On the evidence before them the jury will be aware that the deceased returned home with their son on the evening of 27th February, 2006; that the alarm was set in the house that evening, had been set in such a fashion that the outer perimeters, so to speak, of the house was alarmed and that alarm remained set until the following morning. It is clear that there were but three occupants in the house, namely the deceased, the accused and the three year old boy, Dan. It is clear – or at least I should not say it is clear – but it is open to the jury to conclude on the evidence given by members of the McLaughlin family that in the first instance Niamh was in the habit of calling to the house every morning, that on this particular morning she called to the house, had entered the house again as was her wont and that she found Dan on his own, that she had gone upstairs and she had tried the bedroom door and found it locked. She had looked through the keyhole and not being able to observe a great detail but she was able to observe, on the evidence, that the key was not in the lock. The key was subsequently found some short distance into the room in circumstances where the opportunity to place the key under the door or slide it under the door was available to the accused man leaving the room apparently locked from inside before departing the house on that morning.

There is no suggestion that there had been any intruder enter into the house and it is highly unlikely that a three year old child would open or be in a position to open the front door to admit any person into the home. The accused had a motive or at least it is open to the jury to conclude that the accused had a motive, that motive being the fact that the deceased was actively pursuing separation, something that the accused man was not in favour of.”

Specifically, the Court does not accept Mr. O’Higgins complaint that the quality of the circumstantial evidence in this case was poor. On the contrary, the compelling nature of that evidence was such as to exclude every other reasonable possibility in the case. Accepting as the defence now does that Siobhan Kearney did not commit suicide, this appeal is effectively transformed into an invitation to the Court, without any evidence in support, to speculate that some unknown intruder, with no apparent motive whatsoever, entered this private dwelling house between 7.40 a.m. and 9.30 a.m. on the date in question, there murdered Siobhan Kearney, did not steal or remove any belongings, came and went unseen at a busy time of morning, and who, finally and inexplicably, contrived to make the murder look like a suicide. This possibility, measured in the context of all the evidence that was given, is so remote and unlikely as to be off any scale of either probability or possibility.

In all these circumstances, the Court will dismiss the appeal herein.