1. This is an appeal against the conviction of both appellants by Kerr J, sitting in Belfast Crown Court without a jury on 2 February 2000, on five counts on an indictment charging them with a number of terrorist offences. The charges arose out of an incident on 3 March 1998, when two masked gunmen entered a public house known as the Railway Bar in Poyntzpass, Co Down and sprayed the occupants with gunfire. Two men, Damien Trainor and Philip Allen, died and two others, Clarence Frazer and Stephen Williamson, sustained injuries from gunshot wounds. Three men were charged with a series of charges. One, Ryan Thomas Robley, pleaded guilty to a number of charges and after a trial the judge convicted the appellants on two counts of murder, two of attempted murder and one of possession of firearms with intent. The evidence against each appellant was circumstantial in nature and the major issue before the trial judge and on appeal was whether the evidence was sufficient to constitute a prima facie case against each. That evidence was not identical in the case of each appellant, though much of it was common to both. The learned judge acknowledged at the outset of his judgment the obligation upon him to consider separately the evidence against each appellant, and we shall do the same. It was also argued, amongst other submissions, that the judge drew unjustified inferences under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 from the fact that neither appellant gave evidence.

2. The facts of the incident were set out in the following passage, which we gratefully adopt, at pages 2 to 3 of the judge’s judgment:

3. The prosecution case was that the circumstantial evidence, when taken together, all pointed so clearly towards the appellants that it was capable of proving to the requisite standard that each of them was guilty of the murder of the victims and the cognate offences. The several strands of evidence upon which the Crown relied to constitute their case were the following:

4. The bin bag had in fact first been found on 4 March 1998 by a Constable Francey engaged in a search, but after looking inside he replaced it in the bunker, having been informed that the police were not seeking clothing. The judge discussed these pieces of evidence with care. He expressed himself as satisfied that those items attributed to McClean were in fact his. The probative value of each comparison relied on by the Crown against McCready was lower on the scale of probability than in McClean’s case: the comparison of the boots was sufficient to give moderate support to the proposition that McCready was their regular wearer, the head hair comparison is not a conclusive match and the database for comparison of the sample of mitochondrial DNA is not large enough to provide conclusive proof. The judge concluded, however, that there was a sufficient prima facie case that the clothing and footwear attributed to McCready were his.

5. The judge adopted a statement of the law concerning the evaluation of circumstantial evidence which I expressed at pages 34 and 35 of my judgment in R v Caraher and others (1999, unreported), and which we consider suitably conveys the proper approach:

6. I would also refer to two quotations from Commonwealth decisions, approved and adopted by the Court of Appeal in R v Meehan [1991] 6 NIJB 1 at 32-34. The first is from Thomas v The Queen [1972] NZLR 34 at 36, where the trial judge Henry J stated in charging the jury:

7. The second is from Cote v The King [1942] 1 DLR 336, where the Supreme Court of Canada said:

8. Counsel for the appellants attacked the judge’s conclusions on a number of grounds, but the major theme was that the connections made by him between the clothes, the Ford Escort car and the appellants could not be supported. They submitted that in consequence the circumstantial evidence was not sufficiently compelling to constitute a prima facie case against either appellant. The second main area of criticism of the judge’s conclusions was in respect of the inferences which he drew from the failure of each to give evidence and the way in which he used this failure against them. They presented their arguments in a series of discrete points, which tend to overlap. We shall consider the points raised by counsel and then address the overall questions whether we find a prima facie case established against each appellant and, if so, whether the overall burden of proof resting on the Crown has been discharged.

9. A major challenge was mounted in argument to the connection which the judge drew between the finding of the guns and the finding of the clothing. He inferred it from the relative proximity between them and the facts that Keys had taken the police to both sites. Counsel for the appellants submitted in relation to the proximity point that too much weight was placed on this. They submitted that the fact that Keys accompanied the police officers to each site and pointed out its location was inadmissible (though no objection was taken at the time when the evidence was adduced) and when it was ruled out the link between the guns and the clothing was too weak to be sustained.

10. The evidence challenged came from police officers, not from Keys himself, who was not called as a witness. They described the visits to the locations in which the guns and clothing were found, in each case accompanied by Keys, who showed them where to look. The Crown rely upon the fact that Keys pointed out these locations as evidence of his knowledge that these items had been secreted in the respective hiding-places, which constituted a significant link between the guns and the clothing. The fact that Keys pointed out the locations is, however, equivalent to his having said to the police where they were (see May, Criminal Evidence, 4^th ed, paras 9-15 and 9-16) which if recounted by the police officers would be hearsay evidence. The Crown riposte was that the evidence was adduced not to show the truth of what Keys by inference told them, but the state of his mind. His knowledge of both locations is accordingly probative as a link between the contents of each hiding-place.

11. The admissibility of evidence as to the state of mind of a third person was considered by the House of Lords in R v Blastland [1986] AC 41. The appellant, who was charged with the buggery and murder of a young boy, advanced the defence that the offences were committed by another person known as Mark. He sought to call several witnesses to adduce evidence that Mark had told them before the victim’s body was discovered that a young boy had been murdered, but the judge ruled that such evidence was inadmissible as hearsay. The appellant was convicted and his appeal was dismissed by the Court of Appeal and House of Lords.

12. Counsel for the appellant submitted that the evidence was admissible original evidence as tending to prove Mark’s state of knowledge, from which the jury might reasonably have inferred that Mark might have himself committed the offences. The House of Lords rejected this argument. Mark’s state of knowledge was neither a fact in issue at the trial nor of direct and immediate relevance to an issue arising. Lord Bridge articulated the principle and its application to the case at page 54:

13. Mr McCrudden QC for McClean and Mr Harvey QC for McCready both submitted that the present case was directly analogous to R v Blastland , in that Keys’ knowledge of the location of the guns and clothing could have been obtained from any of a number of sources, and that it was mere speculation how he came by it. Mr Lynch QC for the Crown pointed to the fact that Keys had been arrested at 1.55 am on 4 March 1998, so there was little opportunity for him to hear from other sources where the items had been hidden. Taken together with his proved links with the appellants, this tended to show that he had the knowledge because he had some connection with the planning of the attack, the attack itself or the disposal of the guns and clothing. That accordingly provided a probative link between the objects found.

14. We consider that there is a tenable distinction between the present case and R v Blastland . In the latter case the issue to which the knowledge possessed by Mark was directed was whether he might have committed the offences himself. That could not legitimately be directly proved by evidence from a third party that Mark had so admitted, and it was sought to adduce evidence of his knowledge to prove the same thing in an indirect fashion. In the present case the comparable issue would be whether Keys had taken part in the conspiracy. The Crown is not seeking to establish that possibility, merely that there is a link between the guns and the clothing through some activity or information which gave Keys knowledge of the whereabouts of both. It is not mere speculation how he came by this knowledge, there is a sustainable inference on the facts that he came by the knowledge by means of his own connection or a well-informed source connected with the perpetrators of the attack in the bar. We take the view that the evidence was admissible, and that it is a matter of inference how much weight one puts on it. The judge had regard to it, putting it in the scale along with other matters, but did not treat it as conclusive evidence. We are of opinion that he was justified in doing so, and we ourselves have regard to the evidence as tending to some extent to show a connection between the guns and the clothing.

15. Counsel for the appellants both submitted that the fibre evidence was insufficient to establish a connection between the appellants and the crime. Its strength was lessened by the common nature of the cloth in Mrs Gibson’s jeans, and the fact that the police officer who first discovered the clothing opened the bin bag and rummaged inside it before replacing it in the bunker. They also suggested that the owners of the clothing might have done no more than steal the car to order, without being made privy to the purpose for which it was to be stolen. These factors have to be taken into account in assessing the strength to be attributed to the fibre evidence, and the judge referred specifically to the first two in his judgment. He also took into account the fact that the guns and clothing were found relatively close to each other. The appellants’ counsel submitted that the distance of 170 yards was such that the proximity proved nothing, but we consider that the fact that the items were apparently dumped in the same estate may properly be regarded, as part of the amalgam of factors, as tending to show some connection between them.

16. It is the proper use of the amalgam of factors in a case of circumstantial evidence which is of importance. It is possible in many instances to take any individual piece of evidence and show that it cannot bear much weight or can bear an explanation consistent with innocence, so that it could not of itself be the foundation of a finding of guilt. When such straws in the wind are placed together, if they all point in the same direction, their combined effect may be very convincing of guilt. It is clear from the terms of his judgment that the judge understood and applied this correctly and did not place more weight on any piece of evidence than it could properly bear. Thus, he regarded the making of the calls to the mobile telephone borrowed by McCready, though not of itself determinative of guilt, as carrying some significance and fitting in with the pattern of other pieces of evidence tending when taken together to point towards his complicity.

17. The appellants’ counsel were strongly critical of the reliability of the evidence given by Edgar Nugent. The judge took into account the manifest weaknesses of his testimony and expressed at page 19 of his judgment his reservations about the reliability of that evidence. He expressed himself satisfied, however, that in respect of his visit to McClean’s flat on the afternoon of 3 March 1998 and his description of McClean’s giving him a driving lesson over the roads in the Poyntzpass vicinity his evidence was accurate and truthful. In our view he was entitled, having seen and heard the witness and had an opportunity to assess his veracity, to reach this conclusion. It is to be noted that at page 21 the judge was properly cautious about the significance which he attributed to these pieces of evidence. Counsel complained that the judge was prepared to accept that there may have been an understandable reason for Nugent’s lying about some matters, whereas he did not consider, by applying the equivalent of a Lucas direction given to a jury, whether the appellants may have had some reason for lying which did not demonstrate guilt of the crime. No such reason was put before us and no evidence was placed before the judge which might have tended to establish its existence. In our opinion the judge was entitled to draw adverse inferences from the denials by the appellants that they had been with Keys and Robley on 3 March 1998 and McClean’s claim that he had never taken Nugent on a driving lesson to Poyntzpass.

18. Mr McCrudden submitted that the judge made incorrect use of McCready’s failure to give evidence when considering the ownership of the clothes, in that he took it into account not only against McCready himself but also against McClean. We do not consider that there is the significance in this point which counsel attributed to it. At page 12 of his judgment the judge considered the case against McCready in respect of ownership of the clothing. He concluded, on grounds which were in our view sustainable, that there was a prima facie case that he was the owner of one set of the clothing found and that his failure to give evidence gave rise to a strong adverse inference under Article 4 of the Criminal Evidence (Northern Ireland) Order 1988. He therefore concluded that the clothing in the bin bag attributed to McCready in fact belonged to him. He went on in the succeeding pages to consider whether a connection between the clothing and the weapons had been established. At page 14 he stated, in a passage criticised by Mr McCrudden:

19. Mr McCrudden submitted that the judge was wrong to take into account against both appellants the ownership of the clothing, which had been shown to belong to the two associates, whereas in McCready’s case that ownership had been established to a substantial extent by evidence which was not admissible against McClean. It is to be remarked, however, that the issue to which the judge was directing his attention was the connection between the guns and the clothing and in support of this drew attention to the fact that two complete sets of clothing had been found in the coal bunker, which suggested that they had been used for some connected purpose before their deposit there. His reference to the ownership of the clothing by the appellants, who were known to be associates, was used only as an extra reinforcing argument. If the judge was wrong in relying on this point, accordingly, we consider it only a minor part of his reasoning. He had in our judgment ample material on which to reach the conclusion that there was a proven link between the guns and the clothing, and that conclusion is not invalidated by his reference to the ownership by the appellants of the clothing.

20. We therefore conclude that the judge was entitled to conclude that there was a prima facie case against each appellant of guilt of the mattes with which they were charged. Once that was established, he was then fully entitled to draw adverse inferences against them when they did not give evidence. We do not consider that there is any substance in the criticisms made by the appellants’ counsel of the inferences drawn by the judge from the appellants’ failure to give evidence. On the contrary, we are satisfied that no other or less damaging inference could sensibly be drawn. We consider therefore that the judge was fully justified in concluding that the appellants were guilty as charged, and that the convictions are safe.

21. The appellants’ appeal will be dismissed.