|Neutral Citation No  NICA 61||Ref:||HIG8687|
|Judgment: approved by the Court for handing down||Delivered:||19/12/2012|
|(subject to editorial corrections)*|
HIGGINS LJ (giving the judgment of the court)
 The applicants are three of seven defendants who faced charges arising out of the events in Ballymena on 6 and 7 May 2006 which resulted in the death of Michael McIlveen. Each appellant was arraigned at Belfast Crown Court before Mr Justice Hart on 7 September 2007. At arraignment Jeff Colin Lewis pleaded not guilty to murder, affray and criminal damage. On 19 January 2009 at Antrim Crown Court before Mr Justice Treacy, the applicant was re-arraigned and pleaded guilty to the count of criminal damage. Christopher Francis Kerr and Aaron Cavana Wallace pleaded not guilty to murder and an alternative count of affray. On 25 February 2009 at the same court and before the same judge each appellant was convicted of murder.
 Late on Saturday night 6 May 2006 Michael McIlveen and two friends namely D and P went to an area adjacent to Ballymena Leisure Centre with the intention of meeting up with a friend K. At the leisure centre there was a substantial group of people already gathered which included the applicants. The arrival of these three young Catholics inspired some hostility and unpleasantness and remarks of a sectarian nature particularly from Lewis. The atmosphere, notwithstanding the original hostility, appears to have improved somewhat and the three Catholics remained in and around the vicinity of the leisure centre for a period of time. Following a phone call from his father P said that he had to go home and his walking away appears to have reignited some sectarian hostility. As a result of what he saw and heard D feared some form of attack on P might be imminent. He went and got Michael McIlveen and as the three tried to extricate themselves by walking away they realised that they were being followed. When Michael McIlveen and P started to run the group of Protestants who had been following gave chase. The pursuit ended in the alleyway at the back of number 11 Granville Drive.
 Lewis had run separately from the main group and by a different route and arrived at the alleyway behind Granville Drive ahead of the others. A fight started between Lewis and the deceased and it appears that the deceased was having the better of it. After this broke up Lewis and the deceased made their way to a car park at the upper end of the alleyway and the fight started again. By this stage the opposing crowd had congregated at the opposite end of the alleyway.
 While the deceased and his friend P were fleeing the pursuing crowd the accused Kerr went into his own home and obtained a baseball bat. His case was that he obtained it for his own protection as he had experienced a threatened assault with weapons from Catholic youths in this area at Christmas 2005 and had also been threatened at Easter 2006, a few weeks before this incident. Whether Kerr was telling the truth about his reason for getting the baseball bat was a major issue at the trial.
 Kerr made his way to the alleyway with the baseball bat. His case was that it was snatched from his possession by Moon. Armed with the baseball bat, Moon, accompanied by his associates, advanced at speed up the alleyway towards Michael McIlveen and Lewis who were at the opposite end of the alleyway. In the alleyway Michael McIlveen was attacked by Moon who felled him with the baseball bat. The pathology evidence indicated that the deceased was struck at least twice on each temple as a result of which he sustained comminuted fractures of the skull leading to brain damage. The prosecution case was that he was surrounded by a crowd which kicked him while he lay defenceless. Those who allegedly were involved in the kicking included Kerr, Lewis and Wallace and each was also alleged to be present and encouraging the attack. All three were prosecuted on the basis that they were secondary parties to a joint enterprise to assault the deceased. Moon pleaded guilty to murder. The three applicants maintained that they were not party to any joint enterprise and had not foreseen the death or serious bodily injury of Michael McIlveen.
The issues in the appeal
 There was considerable dispute about the conduct of each of the applicants at the end of the alleyway where the deceased was attacked. Each appellant admits that he was there but denies that he participated in or encouraged the attack. D was the only eyewitness called on behalf of the prosecution to establish the role of each of the appellants. That role was clearly crucial to the determination of whether the jury should infer that each applicant was party to the joint enterprise to attack the deceased and foresaw that the deceased might sustain death or serious bodily injury as a result of that attack.
 In his review of D's evidence the learned trial judge reminded the jury that D was right about the presence of each of the appellants, that he was right about the sequence of the fights between the deceased and Lewis and that he was right about the attack by Moon. It does not appear to us that those matters were much in issue in the trial. What was in issue, however, was the assertion by D that Lewis kicked the deceased approximately 30 times, that Kerr kicked the deceased between 20 and 25 times and that Wallace kicked the deceased twice. Lewis admitted in interview that he had kicked the deceased once but the others denied that they had done so at all.
 The truthfulness and accuracy of D in relation to the role played by each appellant was clearly central to his reliability and the prosecution case. The appellants relied heavily on the pathological evidence given in relation to the deceased. The body was carefully examined for evidence of bruises. The pathologist indicated that he revisited the body some days after his initial examination in order to ascertain whether any bruising had developed. Essentially his examination identified the injuries caused by blunt trauma to the right and left temple but apart from two bruises to the shoulder blades and two old bruises to the leg no other evidence of injury was detected. The applicants contended that this cast doubt not alone on the reliability of D but also on his truthfulness. His evidence was already suspect in their eyes because at the earlier and aborted trial he had suggested that a total of some 30 kicks had been visited upon the deceased whereas now he was suggesting approximately double that number. The inconsistency of D's evidence about the number of kicks with the medical evidence was completely unexplained.
 The treatment of D's evidence was the subject of trenchant criticism by the applicants. Indeed at the end of the judge's charge to the jury counsel on behalf of each applicant had invited the judge to discharge the jury on the basis that his charge had caused irreparable prejudice to their clients as a result of the unbalanced way in which the matter had been placed before the jury. Before this court senior counsel for the prosecution accepted that in light of the issues raised in the trial the learned trial judge ought to have directed the jury that they should consider whether D was telling the truth about the kicks and if they concluded that he was not they should consider whether he was mistaken or untruthful or exaggerating about the role of the persons who were present on the night in question. It is common case that no direction as to whether he was being untruthful was given. The applicants submit, therefore, that in a case where the evidence as to the conduct of the applicants was largely dependent on this single eyewitness the failure of the learned trial judge to expose the possibility that the witness was being untruthful on a central issue inevitably rendered the convictions unsafe.
 The only applicant to give evidence was Kerr. In his police interviews he had suggested that although he had participated in the chase after the two boys from the leisure centre he had in fact been trying to slow down the group he was with so that the two boys would get away. He accepted in evidence that this was a lie. Having asserted that this was the only lie that he told, he then later accepted that he had lied about being approached by paramilitaries. In the course of his evidence Kerr stated that Lewis and another person had kicked the deceased. His veracity on this evidence was in issue as he had admitted that he had lied. In so far as he gave evidence against his co-accused it was, therefore, necessary for the learned trial judge to give a warning that the jury should be cautious about relying on that evidence unless there was other supporting evidence to confirm it. The learned trial judge did indeed give that warning but the prosecution accept the submission on behalf of Kerr that the jury should have been told that the evidence of Kerr about his own conduct should be assessed separately from his evidence against his co-accused. If the jury found that Kerr had lied they could only take this finding into account against him if they were satisfied that the only reason for the lie was to conceal his involvement in the murder. In the absence of that direction the jury were left with the direction on Kerr's evidence that encouraged them not to give any weight to it unless it was supported by other independent evidence. The prosecution accept that the direction as given was inappropriate.
 The next issue arises in relation to Lewis. It is common case that Lewis did not take the same route as his friends during the course of the chase after the deceased and D. Lewis ended up at one side of the alleyway with the deceased and some others, while his friends took up a position on the far side of the alleyway. The alleyway was not brightly lit and that would have created some difficulty in the identification of any individual or what he might have been doing. It is common case that at some stage Moon ran up the alleyway with the baseball bat followed by others in the direction of the deceased and struck him. The prosecution accept that one of the critical issues in relation to the start of the joint enterprise so far as Lewis is concerned is when he became aware of the weapon and when he joined the alleged enterprise to attack the deceased. It is further accepted that nowhere in the charge is the jury invited to consider this critical issue. Lewis makes the case in his interviews that he was unaware of the baseball bat until Moon used it. There was, therefore, a live issue on the prosecution case as to when Lewis became a party to the joint enterprise in order to be convicted of murder and a specific direction on this issue was necessary.
 In relation to Wallace the prosecution applied for leave to introduce bad character evidence by way of MSN messages. Exhibit 352 consisted of messages sent and received by Wallace subsequent to the events in the alleyway. The prosecution sought to establish that the messages constituted an admission of Wallace's participation in the events leading to the death of the deceased and the learned trial judge reviewed the messages in his charge against that background. There was, however, also admitted a second series of messages in Exhibit 351 which consisted of messages passing between Wallace and McLeister in the weeks prior to the incident. These messages suggest an intention to wreck a hut located just off the alleyway with which this case is concerned, and to bring a hammer to cause injury or damage and apparently to use petrol bombs in circumstances where the occupants might be in the hut.
 These materials were plainly very damaging to Wallace. There was no evidence that any of the suggestions had actually been followed up and the charge suggests that counsel for Wallace encouraged the jury to the view that this was no more than dangerous talk among young men. It is, however, clear that this material required a clear direction from the trial judge as to its relevance and use and to ensure that the jury did not give it inappropriate weight. It does not appear that any such direction in relation to this material was given. The prosecution accept that such direction was necessary.
 It was submitted that there were failings in the construction and sequence of the judge's summing up and in the choice of language used to express the opposing arguments raised in the trial. Specifically it was submitted that the evidence of the principal witness was not analysed in depth, in particular with reference to the contrary evidence of the expert pathologist in relation to his findings about the nature and number of injuries sustained by the deceased and found during the post-mortem examination. In addition, it was submitted, not without some force, that in expressing his views on certain aspects of the evidence, as a Judge is in limited circumstances entitled to do, he may have withdrawn from the jury or reduced its opportunity to consider certain important aspects of the evidence and the case made by the applicants at trial, which they ought to consider. However in this regard it is noteworthy that the jury acquitted one of the defendants of murder and convicted him instead of manslaughter. There were a number of other grounds which were either not pressed or, in our view, not made out. However by reason of the cumulative effect of the individual matters set out in paragraphs  to  above the convictions of the three applicants cannot be regarded as safe. Accordingly we grant the applications for leave to appeal and allow the appeals against conviction and grant legal aid for two counsel and solicitor. We shall hear counsel on the question of a retrial and any other orders required.