Queen v Barry McCarney
| Jurisdiction | Northern Ireland |
| Judge | Higgins LJ |
| Judgment Date | 08 May 2015 |
| Neutral Citation | [2015] NICA 27 |
| Date | 08 May 2015 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2015 |
1
Neutral Citation No. [2015] NICA 27
Ref:
HIG9591
Judgment: approved by the Court for handing down
Delivered:
08/05/2015
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
-v-
BARRY McCARNEY
Applicant
________
Before: HIGGINS LJ, COGHLIN LJ and HORNER J
_________
HIGGINS LJ (delivering the judgment of the Court)
[1] Following a trial before Stephens J and a jury at the Crown Court sitting
at Dungannon, the applicant was convicted of the murder of Millie Martin
(Count 1), causing grievous bodily harm to Millie Martin contrary to section 18
of the Offences against the Person Act 1861 (Count 4) and of sexual assault on
Millie Martin, a child under 13 years of age contrary to Article 14(1) of the
Sexual Offences (Northern Ireland) Order 2008 (Count 7). He was sentenced to
imprisonment for life and it was ordered that he serve a minimum of 25 years
imprisonment before being considered for release. Leave to appeal was refused
by the single judge and he renews his application to this court.
[2] The trial commenced before Stephens J and a jury on 2 October 2012.
There were two accused, the applicant and Millie’s mother Rachel Martin. The
original Bill of Indictment against the applicant contained four counts –
Murder, Causing the death of a child, Sexual assault of a child and Causing
grievous bodily harm. Millie Martin’s mother Rachel Martin faced two counts
on the same indictment – Allowing the death of a child and Cruelty to a child.
These counts represented the charges preferred on the direction of the Public
Prosecution Service and on which the applicant was committed for trial on
28 February 2011. During the course of the trial two further counts were added
against the applicant. The Bill of Indictment that was considered by the jury at
the conclusion of the trial was as follows.
2
“FIRST COUNT
STATEMENT OF OFFENCE
Murder, contrary to Common Law.
PARTICULARS OF OFFENCE
BARRY McCARNEY, on the 11th day of December
2009 in the County Court Division of Fermanagh and
Tyrone, murdered Millie Martin.
SECOND COUNT
STATEMENT OF OFFENCE
Causing The Death of A Child or Vulnerable Person
(Caused By Own Act) contrary to section 5 of the
Domestic Violence, Crime and Victims Act 2004.
PARTICULARS OF OFFENCE
BARRY McCARNEY, on the 11th day of December
2009, in the County Court Division of Fermanagh and
Tyrone, a child namely Millie Martin having died as a
result of an unlawful act caused by you, you were at
the time of the act a member of the same household
and had frequent contact with Millie Martin and at
that time there was a significant risk of serious
physical harm being caused to Millie Martin by the
said unlawful act.
THIRD COUNT
STATEMENT OF OFFENCE
Sexual Assault of Child Under 13 by Penetration
(Offences After 01/02/09), contrary to Article 13 of
the Sexual Offences (NI) Order 2008.
PATICULAR OF OFFENCE
BARRY McCARNEY, between the 8th day of
December 2009 and the 11th day of December 2009, in
the County Court Division of Fermanagh and Tyrone,
3
intentionally penetrated sexually the vagina of Millie
Martin, a child under 13 years with a part of your
body or anything else.
FOURTH COUNT
STATEMENT OF OFFENCE
Grievous Bodily Harm With Intent, contrary to
Section 18 of the Offences Against the Person Act
1861.
PARTICULARS OF OFFENCE
BARRY McCARNEY, between the 1st day of
November 2009 and the 11th day of December 2009, in
the County Court Division of Fermanagh and Tyrone,
unlawfully and maliciously caused grievous bodily
harm to Millie Martin with intent to do her grievous
bodily harm.
RACHAEL MARTIN is charged with the following
offences:
FIFTH COUNT
STATEMENT OF OFFENCE
Allowing The Death Of A Child Or Vulnerable Person
(Failing to Protect From Risk), contrary to section 5 of
the Domestic Violence, Crime and Victims Act 2004.
PARTICULARS OF OFFENCE
RACHAEL MARTIN, on the 11th day of December
2009, in the County Court Division of Fermanagh and
Tyrone, a child namely Millie Martin having died as a
result of an unlawful act, were at the time of the act a
member of the same household and had frequent
contact with Millie Martin and at that time there was
a significant risk of serious physical harm being
caused to Millie Martin by the said unlawful act and
you were or ought to have been aware of the risk and
failed to take such steps as you could reasonably have
been expected to take to protect the child from that
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Re Secretary For Justice
...[16]. [161] R v Curtis Esprit [2014] EWCA Crim 1918. [162] R v P [2007] EWCA Crim 3216. [163] Curtis Esprit, at [20]. [164] R v McCarney [2015] NICA 27, at [165] Hui Rafael Junior, at [7]-[8]. [166] 鑽牛角尖. [167] Wu Wing Kit (No 2), at [130]. Note: the judgment in Hui Rafael Junior was cited ......
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Re Secretary For Justice
...[16]. [161] R v Curtis Esprit [2014] EWCA Crim 1918. [162] R v P [2007] EWCA Crim 3216. [163] Curtis Esprit, at [20]. [164] R v McCarney [2015] NICA 27, at [165] Hui Rafael Junior, at [7]-[8]. [166] 鑽牛角尖. [167] Wu Wing Kit (No 2), at [130]. Note: the judgment in Hui Rafael Junior was cited ......
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Re Secretary For Justice
...[16]. [161] R v Curtis Esprit [2014] EWCA Crim 1918. [162] R v P [2007] EWCA Crim 3216. [163] Curtis Esprit, at [20]. [164] R v McCarney [2015] NICA 27, at [165] Hui Rafael Junior, at [7]-[8]. [166] 鑽牛角尖. [167] Wu Wing Kit (No 2), at [130]. Note: the judgment in Hui Rafael Junior was cited ......
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The King v Liam Whoriskey
...817. It has also been applied in this jurisdiction in such cases as R v O’Neill [1997] 9 BNIL 16; R v Marcus [2013] NICA 66; R v McCarney [2015] NICA 27 and, in the unreported case of R v Anderson [1995], also a judgment of this court. In O’Neill, Nicholson LJ said that: “there is no obliga......