R v McGinley and Another
| Jurisdiction | Northern Ireland |
| Judge | Nicholson LJ |
| Judgment Date | 19 October 2006 |
| Neutral Citation | [2006] NICA 43 |
| Date | 19 October 2006 |
| Court | Court of Appeal (Northern Ireland) |
| Year | 2006 |
Neutral Citation no. [2006] NICA 43 Ref:
NICF5628
Judgment: approved by the Court for handing down Delivered:
19/10/06
(subject to editorial corrections)
Corrected on 7/11/06
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND
________
THE QUEEN
-v-
JULIE McGINLEY AND MICHAEL ANTHONY MONAGHAN
________
Before: Nicholson LJ, Campbell LJ and Sheil LJ
_________
NICHOLSON LJ
Introduction
[1] Julie McGinley and Michael Anthony Monaghan were convicted on
3 December 2002 at Belfast Crown Court after a trial before Kerr J (the trial
judge) and a jury of the murder of Gerald McGinley, the husband of Julie
McGinley, and were each sentenced to imprisonment for life. Under the Life
Sentences (NI) Order 2001 the trial judge, as required by Article 5 of the
Order, fixed the period to be served in respect of the deterrence and
retribution requirements of their sentences at 15 years. Both sought leave to
appeal against their convictions. The single judge refused leave to appeal in
both cases.
[2] Mr Barry MacDonald QC and Mr Tom McCreanor appeared for Mrs
McGinley (on the appeal but not at the trial). Mr Gallagher QC and Mr
Kearney appeared for Mr Monaghan. Mr Terence Mooney QC and Mr
O’Reilly appeared for the prosecution.
[3] Some but not all of the evidence was transcribed. We have read all that
was transcribed. Some statements of evidence were read by agreement to the
jury. We also have read them. Some of the evidence was not transcribed.
This was the choice of the applicants and we are confident that nothing was
omitted which was helpful to their cases.
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[4] We have consistently borne in mind that the cases against the two
applicants must be considered separately and that some of the evidence
which we set out below affects one of them, not the other. But it has been
impractical to segregate the evidence against each of them as this would
involve repetition where the evidence has been admissible against both of
them or where a witness has given evidence, part of which is admissible
against one and another part of which is admissible against the other.
Furthermore, in order to make sense, it has been necessary to divide the
evidence into topics or issues and set out all the evidence on the relevant topic
or issue together in a coherent whole: thus we have divided the witnesses into
different categories as the trial judge did. But this does not mean that we
have mixed together in our own minds what is admissible against one but not
the other.
[5] We have, needless to say, followed the order in which the trial judge
presented the facts to the jury and our indebtedness to him is plain to see
because we have adopted much of what he told the jury when he was
summing-up the evidence. We are conscious that many of the submissions
made to us were based on criticisms of his summing-up and to that extent our
presentment of the evidence anticipates a rejection of submissions made to us.
But we will deal with the submissions in a separate section of this judgment.
[6] We have also selected the evidence which we are satisfied that the jury
accepted. When we use the word "satisfied" we mean that we are satisfied
beyond reasonable doubt unless we state otherwise. We have omitted
evidence and suggestions made to witnesses when we have been satisfied
that the jury must have rejected that evidence or those suggestions. This has
necessitated a careful examination of the evidence and the suggestions. It
must not be assumed that we have ignored or overlooked cross-examination,
for example, merely because we do not mention it. We could have set out the
entirety of the section of the trial judge's charge to the jury which deals with
the evidence but we have not done so. We have sought to take into account
all the points made in written and oral submissions.
[7] We do not claim to have set out in our summary of the evidence a
comprehensive review of everything that can be said to form the case for the
prosecution or the defence. Some of the evidence has led us to comment on it.
[8] We have stated some of the inferences which we consider that the jury
must have drawn or are highly likely to have drawn during our review of the
evidence. We have dealt with the application to receive fresh evidence in a
separate section.
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Summary of the Evidence
Medical evidence
[9] The partially decomposed remains of Gerald McGinley were found in a
remote wooded area of Aughnesheelin, near Ballinamore, Co Leitrim,
partially covered with black plastic sheeting on 3 June 2001. Dr Marie
Cassidy, deputy State Pathologist for the Republic of Ireland, carried out a
post-mortem on the deceased at Cavan Hospital on that date. The body was
wrapped in plastic which had been opened and exposed the interior contents.
There were no remains of clothing or any personal items. Apart from the
skull and head there was very little damage to the rest of the body. There
were a few small bones missing which did not affect her conclusions about
what had happened to the deceased. We comment that the body must have
been stripped before it was wrapped in plastic and later dumped.
[10] There was an inverted V shaped fracture, described by Dr Cassidy as
an upside down V of the frontal bones of the skull on the forehead. It ran up
from the upper margin of the right orbit extending to the left orbit above the
nasal bones with radiating fracture lines running upwards and backwards
from the centre of this area. The fracture was slightly depressed.
[11] There was a depressed comminuted fracture of the right side of the
face involving the cheek bone, running round the side and part of the upper
jaw extending almost to the right eye socket. The fracture covered an area of
7.5 centimetres. The nasal bones were fractured and the fracture extended
towards the lower end of the left eye socket.
[12] There was a fracture in the region of the mastoid process behind the
right ear. The fracture line ran diagonally. The bone was driven inwards on
the left side. It measured 2.5 cms by 1.5 cms.
[13] On the left side of the face there were two fractures of the lower jaw.
The first of these ran from the lower teeth to the lower margin of the jaw and
the second from the lower jaw to where it meets the skull. That fracture was
at the site of an unerupted tooth which would have weakened the jaw and
made it more vulnerable to injury.
[14] The first injury involved the lower part of the right eye socket
internally, that is to say, looking inside the skull.
[15] There was a fracture of the left seventh rib which was an isolated injury
as the other ribs around it were intact. She was of the opinion that it could
have been caused after death when the body was being removed or
transported. It had no effect on her conclusions. Other incidental damage
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