Court of Appeal in Northern Ireland Decisions

Re-opening an application for leave to appeal

'What the authorities show is a more general inherent power to re-list for rehearing an appeal where (1) the previous hearing is regarded as a nullity, (2) there is a likelihood of injustice having been done because the court failed to follow the rules or well-established practice or was misinformed as to some relevant matter."

"The court clearly has jurisdiction within the ambit of the 1968 Act and rules to see that no injustice is done to any applicant or appellant. If in any particular case because of a failure of the court to follow the rules or the well-established practice there is a likelihood that injustice may have been done, then it seems to us right, despite the generality of what was said in R v Cross, that a case should be re-listed for hearing."

Factual background

The application for leave to appeal

1. The trial judge should have withdrawn the case from the jury at the close of the Crown case;

2. The jury ought to have been directed not to draw any adverse inference against the applicant in respect of his failure to give evidence;

3. The jury's verdict was against the weight of the evidence;

4. The verdict of the jury on Count 2 was inconsistent with the verdict of the jury on Count 3;

5. The manner in which the Crown conducted the swearing of the jury was unfair; and

6. The judge misdirected the jury as to the significance of the evidence and as to the law

The submission that the application for leave be re-opened

The first ground

"It was contended that the judge failed to take adequate account of the injured party's extreme state of drunkenness at the material time. There was plain evidence that he drank heavily on the Sunday night and drank heavily in the Oak Bar on the Monday morning before moving to the Colin Mill Lodge public house where he drank heavily for the rest of the day, apart from a short respite in the early part of the evening while he had something to eat at a café round the corner from the public house. According to his direct evidence he was away from the public house for 15 to 20 minutes (p 30 of the transcript). In cross-examination he said that he was not drinking constantly through the day. He did have a break, going out of the public house to a chip shop just round the corner for a fish supper which he ate on the street. It took him about 5, 10 minutes (pp 67, 68 of the transcript). He said that he was drinking in the public house on the Sunday evening, possibly from 6.30pm to closing time and was intoxicated when he left (p 65). He said that he had four pints in the Oak Bar on Monday morning "because I needed a cure" or "because I wanted a cure" (p 66) starting at 10.00am, and then went to the Colin Mill Lodge Bar where he remained drinking apart from the period when he had his fish supper, until he left at about 11.45pm (pp 68, 69). He agreed that he could have had 20 pints of beer on the Monday and was intoxicated, but was able to walk and make a telephone call to his son as he was leaving the bar (p 91). He said that he made a call to his son to collect him and then, as he started to walk to the taxi rank, told him "don't collect me, I will get a taxi" (p 92). He said that he then saw a car pull up beside him and that the driver, whom he claimed to identify as the applicant, shot him (pp 92-100).

We have read the whole transcript of the injured party's evidence, of the evidence of Michael Mongan, Michael Joseph Mongan and Martin Joseph Mongan Junior and the preliminary inquiry statements of Colin Dickson, a part-time barman at Colin Mill Lodge, Mark Hughes, the assistant manager of the public house, Patrick James Maughan who was in the public house during the course of 17 June, Terence Patrick Maughan who was in the public house that evening, Bernadette Maughan who was also there, Martin Gerard Maughan who left before the shooting incident, Patrick Joseph Cawley who was with Mr Mongan on Sunday 16 June and Monday 17 June but left the public house before the shooting and Brian Gerard Mongan who was outside the public house at relevant times. We have looked at the preliminary inquiry statements only in so far as they assist the submissions made on behalf of the applicant. We are confident that if the evidence of these witnesses had assisted the applicant's case beyond what is contained in their statements of evidence, transcripts of their evidence would have been sought and obtained and placed before this Court.

The judge, in the course of his ruling (p 197) referred to "the high alcohol" but said that this evidence on its own or combined with other points did not seem to him to be sufficiently poor to apply the principles set out in Turnbull because, whether right or wrong, Mr Martin Joseph Mongan Senior, the injured party, purported to recognise a man whom he had known, on his estimate, for 20 years. The judge stated that there were alternative estimates, but all of them involved knowing the applicant for a number of years. The two men were also known to each other as part of a group of people generally known as travellers. They were also known to each other from a very close physical proximity because it appeared to be common case that within a year and a half there was a physical confrontation between the two of them as a result of which it seemed likely that the injured party, Mr Mongan, delivered a beating to the accused. So there was, in his view, a strong recognition aspect that removed the case from the category of being a poor identification case (p 197). In our opinion there can be no valid criticism of the judge on these aspects of the case, based on the evidence.

The third ground

"Apart from the issue of identification with which we have dealt, this [that is the claim that the verdict was against the weight of the evidence] appears to rest on the evidence of Mrs Faloon which was read to the jury with the consent of the defence and is to be found in the preliminary inquiry papers at pp 28 to 31. She was proprietor of Oakfield Guest House Lower Ballinderry, and stated that there was one main entrance to the guest area at the front of the house although there was a fire exit through the disabled room. She described the arrival between 8.00 pm and 8.30 pm on 17 June of four persons, one of whom was the applicant. About an hour later it is highly likely that one of them left with the applicant and returned about 9.45 pm. About an hour later she heard a male voice in Room 4. Two of the persons were female; one was a male child and the other was the applicant. About midnight she locked the front doors but she stated, "the door can be easily opened from the inside. It is locked with the turn of a knob". She did not hear any sounds of movement during the night but she indicated that the guesthouse had "my own side and a guest side" and also stated that "the property is double glazed and one would not hear noises from outside". Moreover she said that when the party left the next morning about 10.30 am she discovered a fault in the lock to the door to the disabled room which gives access to the fire-exit. She could not open the door. The lock did not work. She had to get a joiner to open it. Prior to the arrival of the four persons "it worked fine". In a second statement she stated that on arrival "the two girls paid me in cash at the door". The male (ie the applicant) and one of the females went into Room 2, the other female and the male child went into Room 4. At 10.45 pm she heard no sound from Room 2. The male voice was heard in Room 4. In interviews with the police the applicant said that with the door closed it would not be possible to tell whether a male voice was his or the boy's voice.

Independent evidence established that it would take ten to fifteen minutes to drive from Mrs Faloon's guesthouse to the scene of the crime. Undoubtedly, if the applicant was the gunman, he changed cars because the four persons arrived and left in a red Audi whereas the evidence was that Mr Mongan was shot by the driver of a red Renault.

All of this evidence was dealt with fairly and properly by the judge. We can find nothing in it which provides the applicant with an alibi. On the contrary it places him ten to fifteen minutes from the scene of the crime on the evening of 17 June.

In the course of interviews with the police the applicant referred to the fact that he stayed in a guesthouse on 17 June and, undoubtedly, this was Mrs Faloon's guesthouse. He was able to name it and he had given his solicitor a card from it, it would appear (interviews, p 7). He said that he paid in cash for staying in the guesthouse but he was not too sure how much he paid. The unchallenged evidence of Mrs Faloon was that the girls paid when they arrived. He told the police that he left the guesthouse that evening twice or maybe three times, but that he went to bed not later than 11.15 pm. At another stage of the interviews he said that he had owned a red Renault 19 but got the red Audi in its place.

The evidence of Mrs Brown

"[10] By agreement a statement of evidence of a lady who was the proprietor of a bed and breakfast establishment was put in as "fresh evidence". This had been in the possession of the applicant's solicitor and was known to the applicant but had not been disclosed to counsel for the applicant in this case and counsel indicated that, if he had been aware of it, the lady would have been called as a witness for the defence. On the night of 18 June it would appear that the applicant and the other three persons stayed at her establishment and left the next day without paying.

One of the females had signed the applicant in at Mrs Faloon's guesthouse under a false name for which he gave an explanation to the police. counsel indicated that the lady at whose establishment the group had stayed on 18 June would have been called by the defence because the same false name was given there and the jury might not have attached any significance to the giving of a false name on 17 June since the group might have hoped to leave without paying after staying at Mrs Faloon's guesthouse, if given the chance. But, as has been pointed out, Mrs Faloon's unchallenged evidence was that the girls paid in cash when they arrived on the evening of 17 June.

We are satisfied that if such evidence had been called, it would certainly not have assisted the applicant and could have harmed him, as inviting the comment that the prompt payment on 17 June was to set up an alibi, as contrasted with the behaviour at the next establishment where they stayed."