Queen v Terence Malachy Davison, James McCormick, Joseph Gerard Fitzpatrick
| Jurisdiction | Northern Ireland |
| Judge | Gillen J |
| Judgment Date | 19 June 2008 |
| Neutral Citation | [2008] NICC 25 |
| Court | Crown Court (Northern Ireland) |
| Date | 19 June 2008 |
| Year | 2008 |
1
Neutral Citation no. [2008] NICC 25 Ref:
GIL7205
Judgment: approved by the Court for handing down Delivered:
19/6/08
(subject to editorial corrections)*
IN THE CROWN COURT IN NORTHERN IRELAND
________
BELFAST CROWN COURT
________
THE QUEEN
-v-
TERENCE MALACHY DAVISON
JAMES McCORMICK
JOSEPH GERARD FITZPATRICK
_______
GILLEN J
[1] At the end of the prosecution case, counsel on behalf of each of the
defendants made an application that there was no case to answer on each of
the counts in this indictment i.e. count 1 of murder against Davison, count 2
of affray against all three accused and count 3 of assault against Fitzpatrick.
Legal principles governing the applications
[2] In instances where a judge sits with a jury the principles governing
submissions of no case to answer are to be found in R v Galbraith 73 Cr. App.
R. 124 (“Galbraith”) and R v Shippey (1998) Crim. LR. 767 (“Shippey”). In the
case of Galbraith Lord Lane CJ described the principles in determining
whether a direction of no case to answer should be made as follows:
“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 –
2
(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
views 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.”
[3] In R v William Courtney (unreported KERF5734) the Court of Appeal
in Northern Ireland expressly adopted the approach followed in The Chief
Constable of the PSNI v LO (2005) NICA 3 (“LO”) when adapting these
principles to the context of a non-jury trial. The following passages from LO
were approved:
“(13) In our judgment the exercise on which a
magistrate or judge sitting without a jury must
embark in order to decide that the case should not be
allowed to proceed involves precisely the same type
of approach as that suggested by Lord Lane in the
second limb of Galbraith but with the modification
that the judge is not required to assess whether a
properly directed jury could not properly convict on
the evidence as it stood at the time that an application
for a direction was made to him because, being in
effect the jury, the judge can address that issue in
terms of whether he could ever be convinced of the
accused’s guilt. Where there is evidence against the
accused, the only basis on which a judge could stop
the trial at the direction stage is where he had
concluded that the evidence was do discredited or so
intrinsically weak that it could not properly support a
conviction. It is confined to those exceptional cases
where the judge can say, as did Lord Lowry in
Hassan, that there was no possibility of his being
convinced to the requisite standard by the evidence
given for the prosecution.
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