Queen v Terence Malachy Davison, James McCormick and Joseph Gerard Fitzpatrick
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 27 June 2008 |
| Neutral Citation | [2008] NICC 28 |
| Court | Crown Court (Northern Ireland) |
| Date | 27 June 2008 |
| Year | 2008 |
1
[2008] NICC 28 Ref:
GIL7192
Judgment: approved by the Court for handing down Delivered:
27/6/08
(subject to editorial corrections)*
IN THE CROWN COURT IN NORTHERN IRELAND
________
THE QUEEN
-v-
TERENCE MALACHY DAVISON
JAMES McCORMICK
JOSEPH GERARD FITZPATRICK
________
GILLEN J
Introduction
[1] This trial arises out of the events leading up to the death of Robert
McCartney on 31 January 2005. Mr McCartney died as a result of a stab
wound in the lower left abdomen. Terence Malachy Davison has been
indicted on a charge of murder and affray. James McCormick and Joseph
Gerard Fitzpatrick have both been indicted on charges of affray and Joseph
Gerard Fitzpatrick has been charged with a further offence of assault on
Edward Gowdy. Much of the evidence in this case was not in dispute and
can be briefly summarised in the factual background that I will shortly set
out. I am indebted to counsel for both defence and prosecution who have
processed this case in exemplary fashion agreeing that virtually all of the
uncontested evidence be proved by written statements under the Criminal
Justice (Miscellaneous Provisions) Act (NI) 1968.
[2] I make it clear at the outset that I have borne in mind that in a criminal
case the tribunal of fact has to be satisfied beyond reasonable doubt of the
material facts which have to proved in order to establish the commission of
the particular offence (the facta probanda, as distinct from the facta probantia
which when put together go to make up the matters to be proved).
Accordingly when in this judgment I state that I am satisfied about a
particular fact or conclusion, I mean that I am so satisfied beyond reasonable
doubt.
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[3] The present task of deciding whether the prosecution has established
guilt beyond reasonable doubt is wholly different from that which I
performed at the end of the prosecution case in deciding whether there was
evidence that could conceivably support a guilty verdict.
Factual background
[4] The deceased and some of his friends, including Ed Gowdy and
Brendan Devine, were drinking in Magennis’s Bar in May Street, Belfast
during the course of 30 January 2005. It is clear that a great deal of alcohol
had been consumed. Terence Davison was also present in the Bar in the
company of his partner and others including perhaps his nephew Gerard
“Jock” Davison.
[5] At some stage after about 10 pm a quarrel broke out involving the
deceased allegedly arising out of certain gestures which he had made.
Whether these were gestures of a sexual nature in the direction of the women
who were in the company of Mr Davison or whether they were gestures made
in the course of discussions about a football match that had been on the
television and which were misinterpreted I am not required to determine.
Suffice to say that at some point Terence Davison engaged in acrimonious
exchanges with the deceased over the matter. Mr Davison told police in the
course of interviews with him that these exchanges so far as he was concerned
ended amicably with handshakes. Given the affray that clearly erupted in the
bar as evidenced by the injuries Brendan Devine sustained to his throat and
the amount of blood subsequently seen by PSNI SOCO throughout the bar I
doubt the truth of this assertion.
[6] At some stage Gerard Davison engaged in the quarrel with the
deceased and Brendan Devine. Matters appear to have developed into a
brawl within the Bar in the course of which Brendan Devine alleges he was hit
over the head with a bottle and received injuries to his neck which bled
profusely. Gerard Davison also received a fairly severe injury to his hand.
[7] The dispute appears to have spilled out into the street in front of the
Bar and continued there.
[8] In the street outside Magennis’s Bar, it seems clear that at least Brendan
Devine and Gerard Davison exchanged in further rancorous dispute. Ed
Gowdy gave his black tee-shirt to Mr Devine and cleaned up some of the
blood that was on him.
[9] Thereafter the matter becomes one of disputed fact save that it is clear
that Mr McCartney and Mr Devine made their way down Market Street
towards the area of East Bridge Street/Cromac Street. It is the prosecution
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case that they were followed by a group of men bearing weapons from
outside the bar in May street.
[10] The events that occurred in Market Street and thereafter in Cromac
Square have been the subject of close analysis in this case and I will turn to
them in some detail later in this judgment.
[11] It is clear however that eventually both Mr Devine and Mr McCartney
were found in Cromac Square. Mr Devine had a single stab wound to the
abdomen as did the deceased who had also sustained injuries to his face.
[12] Reports came into the police and to the Ambulance Service reporting
an incident and the injuries. Ambulance Control received two calls in relation
to the incident at 10.50pm and at 10.51pm. An ambulance arrived at the scene
at 10.59pm where police were already administering first aid to Mr
McCartney and Mr Devine.
[13] A paramedic who arrived on the scene found Mr McCartney lying on
his back. Police had already applied field dressings to his head and stomach.
An incision wound was found on Mr McCartney who was sufficiently
conscious at that stage to be able to give his name. The deceased then starting
drifting into unconsciousness and was transferred into an ambulance which
left the scene at 23.09. Mr Devine was also attended to and similarly required
transfer by ambulance to hospital.
[14] On arrival at the hospital the duty consultant identified a stab wound
on the left groin and cardio pulmonary resuscitation was commenced. The
abdominal injury was treated in the course of an operation by a consultant
surgeon. Following surgery Mr McCartney was transferred to Intensive Care
but he died at 8.12 am.
[15] A post mortem on Mr McCartney’s remains was conducted by Dr
Bentley the Deputy State Pathologist who concluded that Mr McCartney had
died from a stab wound to the abdomen. He found that the track of the
wound was left to right, front to back and slightly downwards. The
configuration of the wound suggests that the weapon used had a flat shape
with one sharp edge such as a knife. In addition he found injuries to the face
which included a broken nose and a laceration to the right lower eyelid.
There were further non-specific injuries to his arms and legs.
[16] Extensive evidence was given by scenes of crime police officers and
other police who attended the scene. Again, much of this was not in dispute.
[17] Examination of the Bar by police in the aftermath of the incident
revealed that the CCTV cameras had not been recording at the time of the
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