Court of Appeal in Northern Ireland Decisions

Neutral Citation no. [2001] NICA 41	Ref:	COGC 3397
Judgment: approved by the Court for handing down	Delivered:	20.09.01
(subject to editorial corrections)

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ------------ THE QUEEN v TREVOR JAMES LESLIE McKEOWN ------------

COGHLIN J

This is an appeal by the appellant, Trevor James Leslie McKeown, against his conviction of the offences of murder and possession of a firearm and ammunition with intent, contrary to Article 17 of the Firearms (Northern Ireland) Order 1981 on 9 June 1999 at Belfast Crown Court. The appellant had pleaded not guilty to both counts in the indictment but, after a trial without a jury, he was convicted of both offences by McCollum LJ who sentenced him, respectively, to life imprisonment and twenty years' imprisonment.

Background facts

The background facts have been set out in detail in the judgment of the learned trial judge and they may be briefly summarised as follows.

Bernadette Mary Martin ("the deceased") was an eighteen year old Catholic girl from Lurgan who formed a close relationship with Gordon Greene, a Protestant workmate, who resided at 6 Soldierstown Road, Aghalee. This relationship had lasted for some seven months prior to 14 July 1997 during which time each was made welcome by the other's family, they frequently visited each other's houses and occasionally stayed overnight. The deceased usually stayed in Gordon Greene's home at weekends.

In the early hours of 15 July 1997, while she was sleeping in a bedroom at Gordon Greene's home, the deceased was shot several times by an intruder as a result of which she sustained fatal injuries. The Crown case was that the intruder was the appellant, Trevor James Leslie McKeown, who was both a neighbour and friend of the Greene family.

As the learned trial judge recorded in his judgment, there was no eyewitness or forensic evidence to link the appellant directly to the crime and the Crown case was based upon circumstantial evidence. The main strands of evidence relied upon by the Crown were as follows:

(i) On Monday 14 July 1997 the appellant, together with Gordon Greene's parents and their daughter Lynn travelled to Bangor in order to watch a procession subsequently returning to Lurgan to see a parade at that location. Gordon Greene's father, Samuel Greene, then went to the "Institute", a working man's club at the corner of Market Street and Union Street. Some time later that evening, probably around 11.00 pm, Gordon Greene's sister, Lynn Greene, went to the Institute in order to speak to her father. While she was looking for her father she met the appellant who was standing in the top bar. The appellant told Lynn Greene that he did not know the whereabouts of her father and he offered her a lift home sharing his taxi. In the course of a general conversation which then ensued the appellant remarked that he was going to "… get the gun that shot McGoldrick" and shoot himself. When asked about this remark, Lynn Greene said she had formed the impression that the appellant was drunk and, in fact, she told the appellant to "stop talking crap". Lynn Greene agreed, in cross-examination, that she had not told the police about this remark when she was making a statement on the following day but she said that this was because she had not thought anything more about what the appellant had said until she had time "to sit down and think about it". She denied that she had made up this account of her conversation with the appellant either because she was seeking to attract attention to herself or because he had rejected her suggestion that they should become romantically involved. The learned trial judge accepted that these remarks had been made by the appellant.

(ii) During the course of the trial forensic evidence was given by Mr Leo Rossi of the Forensic Science Agency of Northern Ireland. Mr Rossi carried out a forensic examination of a Spanish made Star Lancer pistol which had been recovered during the search of a field adjacent to Soldierstown Road, Aghalee on 20 July 1997 and, having done so, concluded that this was the weapon which had been used in the murder of the deceased and also in the murder of Mr J McGoldrick on 8 July 1996. It appears that the killing of Mr McGoldrick was a sectarian murder.

(iii) The point at which the weapon was found was comparatively close to the appellant's house.

(iv) The appellant was a person who had regularly visited the Greenes' home and would have been familiar with the layout of their house as well as knowing of the relationship between the deceased and Gordon Greene.

(v) A Mr Paul Camlin, who was a friend of the appellant, told the court how he had been drinking during 14 July 1997 with another friend named Noel Best. After visiting a public house, Mr Camlin and Mr Best, together with some other friends, consumed more alcohol at the appellant's home in the absence of the appellant. At about 11.00 pm it appears that Mr Camlin and Mr Best left the appellant's house in order to take another of their friends home and, when doing so, they brought with them a Union Jack and an Ulster flag. After leaving their friend, they were returning to the appellant's house when they encountered Gordon Greene and the deceased, who were walking on the other side of the road making their way to Gordon Greene's home. According to Mr Camlin, as they passed by, Gordon Greene shouted "up the Provos", at which point Paul Camlin and Noel Best pulled their coats over their heads and ran off to the appellant's house. Gordon Greene gave a somewhat different account of this encounter to the court alleging that Paul Camlin and Noel Best appeared to be drunk and that they were "roaring and shouting" as they waved the flags. Gordon Greene conceded in cross-examination that he could have said something to Paul Camlin and Noel Best although he could not recollect saying anything like "up the Provos".

Paul Camlin told the court that he and Noel Best then returned to the appellant's home, that they were both drunk and that he fell asleep on a couch. He said that he was later woken by the return of the appellant and, while he did not personally see him, he heard the appellant being told by Noel Best about the encounter with Gordon Greene and the deceased and how Gordon Greene had shouted "up the Provos". When the appellant was given this information, according to Paul Camlin, he said "I'm going to get him". Paul Camlin said that the appellant and Noel Best then went upstairs and, after a period of apparently searching about, Noel Best said "I have got it" or "I have found it". Paul Camlin said he saw Noel Best and the appellant then leave the house and that, at that time, the appellant was wearing a black denim coat and trousers. After some time, Paul Camlin heard a bang which he attributed to "a barley banger" which is a form of bird scaring device. Paul Camlin said that he then left the appellant's house and "jogged" round to his sister's house from where he subsequently observed the appellant walking back up Coronation Gardens wearing a green coat and a woolly hat.

(vi) When the police arrived at the appellant's house at 11.00 am on Tuesday 15 July someone inside the dwelling shouted "wait a minute, wait a minute" and when the police entered they found the appellant, completely naked, kneeling in a bath containing a few inches of water washing shampoo out of his hair under a tap. There was a red mop bucket in the bathroom containing some clothes which were steeping and, in a washing machine, which was in operation, the police found a blue cotton shirt, a khaki green parka jacket, a black knitted ski mask and a black knitted pullover. The appellant told the police that he wore the jacket and the mask when out "hunting with dogs" but he agreed that he had not pursued this activity for some time.

(vii) The appellant gave an account of his movements to the police in the course of which he said that, after arriving home by taxi, some time after midnight, he had decided to go down to John Greene's for "a drink and a bit of crack". He described how he had entered the house through the back door, which was open, that he had then switched on a light and, having seen a number of people sleeping, he then left the house. Throughout his questioning by the police he denied any involvement in the murder.

The submissions

Mr Harvey QC and Mr Mullan appeared on behalf of the appellant while the Director of Public Prosecutions was represented by Mr Creaney QC and Mr Lynch QC. We are indebted to both sets of counsel for their careful preparation of the appeal and the clarity of their submissions.

In a well constructed and admirably concise argument Mr Harvey QC concentrated his attack upon the refusal by the learned trial judge to grant the defence application that there was insufficient evidence at the conclusion of the Crown case upon which a tribunal of fact could properly convict emphasising, in particular, the frailties of the evidence given by Paul Camlin.

Mr Harvey QC condemned Paul Camlin as a wholly unreliable witness referring the court to the amount of alcohol that he had consumed on the night of the murder and to his open admission that he had told the police "a pack of lies" when he was initially interviewed about the murder. Mr Harvey QC submitted that Paul Camlin's account of the timing of the appellant's movements when he returned to his house in the early hours of the morning on 15 July 1997 was quite inconsistent with the appellant being the person who carried out the murder at the time established by other reliable evidence called on behalf of the Crown. Mr Harvey QC reminded the court that, in a case based upon circumstantial evidence, it was of fundamental importance that none of the individual "strands" of evidence should be inconsistent with the appellant's guilt. In such circumstances, Mr Harvey QC criticised the learned trial judge for failing to appreciate properly the significance of and devote adequate attention to the evidence relating to time. Mr Harvey QC referred the court to the cross-examination of Paul Camlin in relation to the events which took place after the return of the appellant to his home at about 2.10 or 2.15 am, which appeared at pages 142 to 144 of the transcript.

Mr Harvey QC also criticised the learned trial judge for failing to give adequate weight to the inconsistencies in the accounts given by Paul Camlin relating to the clothing allegedly worn by the appellant on the morning of 15 July 1997, the circumstances in which Paul Camlin described the return of the appellant to his home and the alleged conversation which then took place between the appellant and the Noel Best. According to Mr Harvey QC the learned trial judge also gave undue weight to a number of factors including the "profile" of the murderer, the fact of the appellant bathing and washing his clothes when the police arrived at his home, the remark made by the appellant to Lynn Greene about the gun used in the McGoldrick murder, the appellant's knowledge of the Greene family, their home and the Aghalee area, and Gordon Greene's evidence relating to the possibility that the gunman had worn a balaclava.

The relevant law

It was accepted by both sides at the trial and on appeal that the Crown case was based entirely upon circumstantial evidence and this was fully recognised by the learned trial judge who referred to the remarks of Carswell LJ, as he then was, in R v Meehan and others (Belfast Crown Court unreported) when he observed of such evidence that:

"It has to be evaluated with the correct amount of circumspection. Where it points in one direction only, it can be a highly convincing method of proof. It is necessary, however, to beware of the possibility that it may be laying a false trail. It is incumbent upon the Crown to establish that the evidence points beyond reasonable doubt to one conclusion only, and in the process to rule out all other reasonably tenable possibilities which may be consistent with the evidence."

Carswell LJ, as he then was, cited with approval the well known passage from the judgment of Pollock CB in R v Exall (1866) 4 F&F 922 at 928; 176 ER 850 at 853 when the Chief Baron said:

"What the jury has to consider in each case is, what is the fair inference to be drawn from all the circumstances before them, and whether they believe the account given by the prisoner is, under the circumstances, reasonable and probable or otherwise … thus it is that all the circumstances must be considered together. It has been said that the circumstantial evidence is to be considered as a chain, and each piece of evidence as a link in the chain, but that is not so, for then, if any one link broke, the chain would fall. It is more like the case of a rope comprised of several cords. One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength. Thus it may be in circumstantial evidence – there may be a combination of circumstances, no one of which will raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of. Consider, therefore, here all the circumstances clearly proved."

The Court of Appeal subsequently upheld the judgment of Carswell LJ in R v Meehan and others (1991) 6 NIJB 1 and in giving the judgment of the court, Hutton LCJ rejected the submission that each strand of the Crown case should be tested individually and, if found not to be of adequate strength, should not be incorporated into the rope in the following terms at page 32:

"It is, of course, clear that each piece of evidence in the Crown case must be carefully considered by the trial judge but it is also clear law, as stated by Pollock CB, that a piece of evidence can constitute a strand in the Crown case, even if as an individual strand it may lack strength, and that, when woven together with other strands, it may constitute a case of great strength."

In the circumstances of the submissions made to us on behalf of the appellant in this case we remind ourselves of the duty of the judge giving his reasons in a non-jury trial of a scheduled offence as set out by Lowry LCJ in R v Thompson (1977) NI 74 when he said, at page 83:

"He has no jury to charge and therefore will not err if he does not state every relevant legal proposition and review every fact and argument on either side. His duty is not as in a jury trial to instruct laymen as to every relevant aspect of the law or to give (perhaps at the end of a long trial) a full and balanced picture of the facts for decision by others. His task is to reach conclusions and give reasons to support his view and, preferably, to notice any difficult or unusual points of law in order that if there is an appeal, it may be seen how his view of the law informed his approach to the facts."

Again, Lowry LCJ in R v Thain [1985] NI 457 remarked, at page 478:

"Where the trial is conducted and the factual conclusions are reached by the same person, one need not expect every step in the reasoning to be spelled out expressly, nor is the reasoning carried out in sealed compartments with no inter-communication or overlapping, even if the need to arrange a judgment in a logical order may give that impression. It can safely be inferred that, when deliberating on a question of fact with many aspects, even more certainly than when tackling a series of connected legal points, a judge who is himself the tribunal of fact will (a) recognise the issues and (b) view in its entirety a case where one issue is inter-woven with another."

The appeal

It is clear from page 21 of his judgment that the learned trial judge was alerted to the significance of Paul Camlin's evidence relating to the timing of the appellant's movements and the time at which the murder is likely to have been committed. However, a careful consideration of the transcript of the cross-examination of Paul Camlin in relation to the return of the appellant to his house and subsequently leaving again indicates that, far from being sure about times, his responses were characterised by answers such as "I can't honestly remember", "Well I don't know" and "It could have been longer, it could have been shorter, I don't know". In the course of his judgment the learned trial judge recorded that Paul Camlin and Noel Best had consumed a "considerable amount of drink" over 14 July, that when they arrived at the appellant's house both Paul Camlin and Noel Best were drunk and that Paul Camlin had agreed that, when interviewed by the police, instead of giving them assistance, he had told them a pack of lies and made an untrue statement which he had refused to sign. These factors were undoubtedly taken into account by the learned trial judge when he expressed his assessment of Paul Camlin in the following terms at page 26 of his judgment:

"In arriving at my conclusions I do not regard Camlin as an entirely reliable witness. However, on many points his evidence is supported by events or circumstances which are independent of that evidence and the existence of which it is unlikely that he was aware of. I believe that he was telling the truth in the witness box and while unable to be precise about times that he has given a genuine account of what he saw on the night of the murder and more particularly of the exchanges between Best and the accused and his sightings of the accused."

The learned trial judge was fully aware of the dangers of relying on the testimony of Paul Camlin but he enjoyed the inestimable benefit of hearing and seeing, at first hand, the way in which the witness performed when subjected to the rigours of examination and cross-examination and we bear in mind the words of the Lord Justice General in McPhelim v HM Advocate (1960) SC 17 at 21:

"No Court of Appeal can truly recapture the feel and atmosphere of a trial. The drab record of the proceedings cannot reproduce the ebb and flow of the trial, or the variations of emphasis."

In the circumstances we see no reason to differ from the assessment or the conclusion reached by the trial judge both of which were sustainable on the evidence.

After careful consideration of the transcript, in the context of the points so ably made by Mr Harvey QC, we are satisfied that, at the conclusion of the Crown case, the learned trial judge was quite correct in concluding that the testimony of Paul Camlin, the remark allegedly made by the appellant to Lynn Greene about the weapon used to kill Mr McGoldrick, the forensic confirmation that such a weapon was also used to kill the deceased, the admission by the appellant that he had entered the Greenes' home in the early hours of the morning and the circumstances in which the appellant was found by the police including, in particular, the clothes in the washing machine combined to produce a strong prima facie case against the appellant.

The appellant did not give evidence when invited to do so by the learned trial judge who subsequently drew an inference in accordance with Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 that the appellant was unable to provide an innocent explanation for the strands of circumstantial evidence indicating his guilt. In particular, an innocent explanation, if one existed, might have been provided for the conversation with Lynn Greene and why he mentioned the "McGoldrick weapon", the circumstances of his return to his house in the early hours of the morning and the evidence of Paul Camlin on that issue, his visit to the Greene household and his decision to place the green jacket and the black ski mask in the washing machine the following morning. We consider that the learned trial judge was quite entitled to draw such an inference and, having done so, to come to the conclusion that the Crown case against the appellant had been established beyond a reasonable doubt.

Accordingly, we dismiss the appeal.


 
IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ------------ THE QUEEN v TREVOR JAMES LESLIE McKEOWN ------------ JUDGMENT OF COGHLIN J ------------