The King v James Alexander Smith
| Jurisdiction | Northern Ireland |
| Judge | Keegan LCJ |
| Judgment Date | 14 December 2023 |
| Neutral Citation | [2023] NICA 86 |
| Date | 14 December 2023 |
| Court | Court of Appeal (Northern Ireland) |
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Neutral Citation No: [2023] NICA 86
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: KEE12338
ICOS No: 12/52676/A04
Delivered: 14/12/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
THE KING
v
JAMES ALEXANDER SMITH
___________
Mr Taylor KC with Mr Halleron (instructed by Madden & Finucane Solicitors) for the
Applicant
Mr McCollum KC with Mr McDowell KC (instructed by the Public Prosecution Service)
for the Respondent
___________
Before: Keegan LCJ, Treacy LJ and Fowler J
___________
KEEGAN LCJ (delivering the judgment of the court)
Introduction
[1] This application for leave to appeal follows the judgment of this court of 5 May
Commission (“CCRC”) reference following a conviction for murder, attempted
murder, and two offences of possession of a firearm with intent to endanger life. The
did not consider that this was truly a Jogee case. In any event , the court stated at para
[87]:
“[87] … The facts of this case are particularly stark and
must dictate the outcome. The crime was a crime of
planned violence which involved the use of weapons. The
inference of participation with an intention to cause really
serious harm is very strong. Put simply, in this case, if it is
a Jogee case, we are entirely satisfied that no substantial
injustice arises by virtue of the change in the law.”
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[2] We will not repeat further the reasons given for dismissal which are contained
within the judgment. However, in relation to any further appeal points arising the
court also stated at para [88]:
“If no substantial injustice arises thus far what remains is
an attempt to re-open an appeal which has already been
determined by the Court of Appeal. That court was entirely
satisfied as to the safety of the convictions. The
circumstances in which such an appeal will be entertained
are heavily circumscribed as we have discussed above. If
pursued, we will consider the remaining application for
leave to appeal on paper or orally after counsel has had an
opportunity to consult and consider our ruling on the
CCRC reference.”
[3] The applicant has since indicated his intention to seek leave to argue two of the
four further grounds of appeal originally advanced (described as grounds 5 and 6)
and has sought an oral hearing which we permitted.
[4] The further grounds of appeal which are pursued challenge the safety of the
conviction on two fronts, based upon a critique of the following evidence which was
adduced at trial:
(a) Photographic evidence, namely images of the person contended to be the
applicant:
(i) in Mountcollyer Avenue on 12 May 2011; and
(ii) from the ANPR camera on Belvoir Road at 12:50 on 13 May 2011; and
(b) DNA evidence in respect of a glove recovered from Peter Greer’s address at
60 Mountcollyer Avenue.
[5] The amended grounds of appeal now read as follows:
“Amended Ground 5: Photographic evidence: Fresh
expert evidence relating to the photographic evidence
relied on by the Crown at trial (Hindsight): [Raymond
Evans]
(1) That the jury could not safely conclude that the man
alleged by the Crown to be the appellant in:
(a) The recordings from the CCTV camera in
Mountcollyer Avenue on 12 May 2011 at around:
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(i) 12:26; and
(ii) 17:35.
(b) The still from the ANPR in Belvoir Road at 12:50 on
13 May 2011 [Fig 06] was the appellant.
(2) That, consequently, the jury could not rely upon the
evidence in (1)(a) and (b) as part of the circumstantial
evidence against the appellant.
(3) It is further submitted that it is in the interests of
justice that this fresh expert evidence should be admitted
by the court under section 25 Criminal Appeal (Northern
Ireland) Act 1980.
Amended Ground 6: DNA Evidence: Fresh expert
evidence relating to the DNA evidence found on a glove
at Greer’s address: [Professor Syndercombe Court]
The appellant will seek to rely on the expert report from
Professor Syndercombe Court dated 22 June 2019, that
clarifies and significantly undermines the evidence of Miss
Beck, the DNA expert called on behalf of the Crown at trial,
who stated that the appellant could not be excluded as
being a minor contributor to the DNA profile found on the
right glove discovered in Greer’s wardrobe in
Mountcollyer Avenue.
It is submitted that Miss Beck’s evidence on this point was
highly prejudicial and misleading and should have been
excluded under Article 76 Police and Criminal Evidence
Northern Ireland Order 1989 [sic], or subject to a strict
warning by the trial judge as to its limitations.
It is further submitted that the court should consider the
impact of the proposed fresh evidence on the safety of the
convictions in the context that, for the first time in these
proceedings, the Crown has conceded that the evidence of
Miss Beck on this point “was not of any significance in the
case against Smith.” It is submitted that this is a
recognition by the Crown of the weaknesses in the DNA
evidence now identified by Professor Syndercombe Court,
and that the failure to communicate this concession to the
jury renders the convictions unsafe.
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