The King v Stephen McKinney
| Jurisdiction | Northern Ireland |
| Judge | O'Hara J |
| Judgment Date | 15 December 2023 |
| Neutral Citation | [2023] NICA 84 |
| Date | 15 December 2023 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2023] NICA 84
Judgment: approved by the court for handing down
(subject to editorial corrections)*
Ref: OHA12341
ICOS No: 18/072668
Delivered: 15/12/2023
IN HIS MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
___________
THE KING
v
STEPHEN McKINNEY
___________
Mr McCartney KC with Mr D Halleron (instructed by Roche McBride Solicitors) for the
Appellant
Mr R Weir KC with Mr M Chambers (instructed by the Public Prosecution Service) for
the Crown
___________
Before: Keegan LCJ, O’Hara J and McFarland J
___________
O’HARA J (delivering the judgment of the court)
Introduction
[1] On 21 July 2021, the appellant was convicted by a jury of the murder of his
wife at the end of a trial presided over by McBride J (“the judge”). Mrs McKinney
died on 13 April 2017, in the early hours of the morning. The appellant had made a
999 call at 01:15 seeking help. At the time the whole family, including their two
children, were on a boat on Lough Erne, the boat having been moored overnight at
Devenish Island. When the police and the RNLI arrived at the scene, they found
Mrs McKinney in the water immediately beside the boat. Despite being taken out of
the water and given emergency medical attention, Mrs McKinney was pronounced
dead at 02:52. The conclusion of the pathologist who conducted the postmortem
was that she died from drowning. There was no evidence of a struggle. Tests
revealed that she had Zopiclone (a sedative) in her blood at a level beyond what
would be regarded as therapeutic.
[2] The appellant’s case was that Mrs McKinney had fallen into the water and,
despite him jumping in, he had been unable to save her. He said in interview that
she had awoken from her sleep, gone out to the back of the boat to check if it was
moving and had then fallen in. The prosecution relied on a number of strands of
2
circumstantial evidence including differing accounts given by the appellant and his
demeanour during the 999 calls as well as in the aftermath of the incident.
[3] Before this court, Mr McCartney KC on behalf of the appellant, advanced
seven grounds of appeal. Leave had been granted by Humphreys J on three
grounds which were:
(ii) The failure to stop the trial and discharge the jury following the publication of
the outcome of the application for a direction of no case to answer.
(iii) The failure to stop the trial and discharge the jury following the death of
junior counsel for the appellant.
(iv) The admission of bad character evidence.
[4] It was Mr McCartney’s case for the appellant that individually and
collectively the grounds which he advanced made the guilty verdict unsafe. Those
seven grounds will be dealt with below. We are grateful to all counsel for the
helpfully succinct way in which each ground was addressed.
Ground 1 – The judge erred in law in failing to accede to the defence application for
no case to answer
[5] At the conclusion of the prosecution case, Mr O’Rourke submitted that there
was no case for the defendant to answer. The judge heard extensive submissions on
this issue and delivered a 30 page ruling, rejecting the application. No issue of
substance was taken by the appellant in this court with the legal approach followed
by the judge in giving her ruling. She cited the classic authority of R v Galbraith
[1981] 2 All ER 1060 at page 1062 where the court said:
“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. (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, upon 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 view to be taken of a witness’s reliability, or other
matters which are generally speaking within the province
of the jury and where on one possible view of the facts
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