Crown Court for Northern Ireland Decisions

"How then should the judge approach a submission of "no case"? –

(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence -

(a) where the judge comes to the conclusion that the Crown's 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;

(b) where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness' 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".

"Where, as in this case, the prosecution rely on circumstantial evidence to establish the defendant's guilt, it is well established that a particular approach to the evaluation of the evidence is required. This is perhaps still best encapsulated in the well known passage from the judgment of Pollock CB in R v. Exall [1866] 4 F&F 922 at 928; 176 ER 850 at 853 (endorsed in this jurisdiction by the Court of Appeal in R v. Meehan No 2 (1991) 6 NIJB 1);

"What the jury has to consider in each case is, what is the fair inference to be drawn from all the circumstances before them and whether they believed the account given by the prisoner is, under the circumstances, reasonable and probable or otherwise . . . Thus it is that all these circumstances must be considered together. It has been said that circumstantial evidence is to be considered as a chain and each piece of evidence as a link in the chain, but that it is not so, for then, if any one link broke, the chain would fall. It is more likely the case of a rope composed of several cords. One strand of the cord might be insufficient to sustain the weight but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of.""

THE CONCLUSION

(1) Michael Reid says a man calling himself Aaron White came into 25 Patrick Place where he was and was part of a joint enterprise to attack him. This man was wearing round tinted glasses. Mr Mateer strongly questions his reliability inter alia because he had drink taken, he said at one stage he did know what was going on and he described him wearing clothes (a yellow top with writing on it) that no one else described. In contrast those that did describe his clothing said he was wearing a zipped up coat. In addition Mr Mateer relies on the fact that he did not tell police initially that the accused had nodded to one of the other assailants, his evidence of struggling outside with another man was not evidenced by smearing of blood and his identification of the accused as the man who had suggested that he cut the body up as a result of watching his lips speaking, did not appear in his initial police statements. Weighing up this evidence against the evidence of Mr Reid, I could not say that there are no circumstances in which I would accept Mr Reid's evidence.

(2) Michael Reid alleged the accused's brother was present at the attack. He was in fact present at the attack and indeed has pleaded guilty to attempted murder.

(3) A pair of glasses which can be connected to the accused – tinted prescription glasses were found outside 25 Patrick Place with Reid's blood on them. Mr Mateer says these could be a spare pair left at Mr Hodge's house at 25 Patrick Place some other time.

(4) A mobile telephone which can be connected to the accused by virtue of messages thereon was found inside 25 Patrick Place at the scene of the attack. Again Mr Mateer says this could have been left some other time.

(5) Mr Agnew (now deceased) made a statement that he had known the accused for 14 years and that he saw him in 23 Patrick Place at a relevant time that evening wearing tinted glasses. He heard him to say to Aidy Mitchell words similar to, "He was going to kill Taig". Mr Mateer points out that Mr Agnew had been drinking, that he was unsure of the precise words and reminds me of all the frailties of relying on evidence that has not been tested by cross examination. In addition Mr Mitchell, who gave oral evidence, had no recollection of seeing the accused that night and by implication had not heard any such words being spoken to him by the accused.

(6) Sarah Macaulay, who alleged she knew the accused for 2 years, alleged she saw the accused that evening with his brother and two others in Patrick Place and she spoke to him. He was wearing tinted glasses. Thereafter she heard him make comments inside 25 Patrick Place to Aidy Mitchell similar to those contained in Mr Agnew's statement. Mr Mateer challenges her evidence as confused and unreliable e.g. she initially recalled only three men in the street, she identified Michael Reid, who she did not know, as the fourth man in the street by virtue of the fact that she subsequently described him as the fourth man in the house speaking to her and White and she denied discussing the events after the incident. I make it clear that I have formed no fixed view on the totality of this witness's evidence in terms of the credibility and for the purpose of this application I make it clear that I would have reached the same conclusion even had her evidence been dismissed by me.

(7) Emma Thompson describes a man at 25 Patrick Place that evening wearing tinted glasses and speaking to her friends about them being young and looking like a kindergarten – a phrase which Ms Macaulay alleges the accused used to her earlier on in the street.

"We are going to kill you, you Fenian bastard and you are going to die".