Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 2	Ref:	COG8408
Judgment: approved by the Court for handing down
(subject to editorial corrections)*	Delivered:	17/02/12


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND _______ THE QUEEN -v- ROBERT JAMES BROOKE ALBERT CLARKE ________ Before: Morgan LCJ, Higgins LJ and Coghlin LJ ________

COGHLIN LJ (delivering the judgment of the court)

[1] This is an appeal from a judgment delivered by McLaughlin J on 28 February 2011 after a trial lasting from 13 to 21 December 2010. McLaughlin J convicted the appellant of the murder of Alfredo Fusco on 3 February 1973 and of possession of firearms and ammunition with intent to endanger life contrary to Section 14 of the Firearms Act (Northern Ireland) 1969. On 8 April 2011 the learned trial judge sentenced the appellant to life imprisonment for the murder together with a 20 year concurrent sentence of imprisonment for the firearms offence. Mr Frank O'Donoghue QC and Mr Peter Irvine appeared on behalf of the appellant while Mr Gordon Kerr QC and Mr Gary McCrudden represented the prosecution. We are grateful to both sets of counsel for their carefully prepared and succinctly delivered written and oral submissions.

The facts

[2] Alfredo Fusco, his wife and family lived above their fish and chip saloon and ice cream parlour at 19 York Road, Belfast. In February 1973 Mr Fusco was 56 years of age and had owned the business since 1949. The premises fronted onto York Road with windows to the right and left of the doorway. A customer entering the premises from York Road would walk through the public dining area which contained cubicles or boxes in order to reach the service counter. Behind the service counter there was a wall containing two doors. Each door gave access to separate parts of the premises. The door to the right hand side led to a kitchen containing a deep fat fryer beyond which was a scullery with a sink unit for cleaning up and washing the dishes, cutlery and crockery. To the rear of the kitchen there was an enclosed yard. The doorway behind the counter to the left led into a corridor immediately off which there was a stairway giving access to the living premises on the first floor. In a room beyond the stairway there was an ice cream preparation area containing two large refrigerators. The ice cream was prepared and mixed in a large cylindrical drum, pasteurised, cooled, put into a freezer and then removed into the shop area for sale. The large refrigerators or coolers occupied over half of the rear wall of this room and beside them was a small storage area separated from the rest of the premises by a plain door with a glass panel.

[3] On Saturday 3 February 1973 at approximately 6.50 pm Mr Fusco was working between the counter and the ice cream preparation area. His shop assistant Ms Nixon, subsequently to become Mrs Mawhinney, was working at the sink in the scullery as well as keeping an eye on the frying unit. At about that time two gunmen entered the premises. One carried a revolver and remained at the entrance door. The other carried a Sterling sub-machine gun. Mr Fusco, apprehending what was about to happen, ran from the ice cream area into the storage area at the rear of the premises. The man with the sub-machine gun followed, entered the area behind the counter and passed through the ice cream preparation area. Mr Fusco had taken refuge in the storage area and was attempting to use his body to keep the door shut. It appears that the sub-machine gun jammed when the gunman tried to use it and he then returned to his fellow gunman at the entrance door from whom he obtained the revolver. The gunman then returned to the storage area and discharged three shots killing Mr Fusco instantly. It seems that one or more of these shots may have passed through the door although the gunman may also have discharged a further shot into Mr Fusco as he lay dying in the storage area.

[4] A contemporaneous police investigation proved unproductive and no one was made amenable for the killing until a review was carried out in 2009 by the Historical Enquiries Team ("HET"). On 27 February 1976 the appellant pleaded guilty to a number of offences committed on the 14 June 1975 including murder and four counts of attempted murder together with counts relating to the possession of firearms with intent. In relation to those offences the appellant had admitted drinking with three other individuals in a club when he was approached by a man and told to go and do a shooting on the New Lodge Road. The four individuals were provided with firearms including a Sterling sub-machine gun, a Colt .45, a Belgian .38 revolver and a Harrington and Richardson revolver together with appropriate ammunition. The appellant was armed with the Sterling sub-machine gun. The car was then driven onto the New Lodge Road where the occupants fired at a family group, including a three year old child, killing a woman and injuring several others. In the course of his police statement the appellant maintained that he had fired the machine gun at walls and did not mean to hit anybody in particular. On 4 August 2009 a set of fingerprints were obtained from the appellant under controlled circumstances at Antrim Custody Suite. Using "live scan" equipment it was possible to compare those prints with a left palm and fingerprint lifted from the door of the storage area behind which Mr Fusco attempted to shelter in 1973. Mr Thompson, a highly experienced fingerprint expert, confirmed that as a result of that comparison he had no doubt that the imprints on the door had been made by the appellant.

The grounds of appeal

[5] Before this court Mr O'Donoghue advanced several grounds of appeal:

(i) Evidence of the 1976 convictions of the appellant had been wrongfully admitted as bad character evidence under the provisions of the Criminal Justice Evidence (Northern Ireland) Order 2004 (the "2004 Order").

(ii) The learned trial judge failed to give proper and adequate consideration to eye witness evidence inconsistent with the guilt of the appellant in a case that was founded primarily upon circumstantial evidence.

(iii) The trial judge erred in holding, to the criminal standard of proof, that the finger and palm print found on the storage door must have belonged to the gunman

(iv) The trial judge erred in drawing an adverse inference from the fact that the appellant did not give evidence at his trial.

(v) The trial judge erred in refusing the appellant's application for a stay of the criminal proceedings upon the basis that a fair trial was not possible.

The admissibility of bad character evidence

[6] In accordance with the procedure approved by the Strasbourg court in McKeown v UK (Application No. 6684/05) Hart J acted as a disclosure judge and was responsible for all pre-trial directions and hearings in order to preserve the independence and impartiality of the trial judge.

[7] The prosecution applied to Hart J for leave to introduce evidence of the 1976 convictions of the appellant as being relevant to:

(i) The identity of the murderer of Mr Fusco, and;

(ii) Whether the appellant had a propensity to commit these offences in accordance with Article 6(1)(d) and Article 8 of the 2004 Order. .

On behalf of the appellant, while he conceded that the 1976 convictions might be relevant to propensity, Mr O'Donoghue objected to the application on the basis that it was premature and also that such evidence was so prejudicial that it would inevitably render the appellant's trial unfair. The objection relating to prematurity of the application was based upon the impairment of function of the appellant's right hand resulting from a serious industrial accident in November 1971 when he was working a butchery business in the Manchester area. As a consequence of the accident the appellant had lost the terminal segment of his right index finger and the terminal 1½ segments of his adjacent middle finger. Mr O'Donoghue argued that such a disability would have effectively prevented the appellant from discharging the .455 Webley revolver which was used to murder Mr Fusco and that Hart J should not have determined the prosecution's application without making a factual finding with regard to that submission. In support of his argument before Hart J Mr O'Donoghue submitted a report from Dr Derek Carson, forensic expert, who had conducted an experiment with the appellant using a Smith and Wesson .38 revolver and, as a consequence, who had concluded that it was "unlikely that Mr Clarke could have discharged a Webley revolver with this hand and even less likely that he could have fired the four aimed shots which struck Mr Fusco."

[8] It is clear that Hart J considered and gave weight to the report from Dr Carson but he ruled against the objection based on prematurity on the basis that the appellant's ability to fire a Webley .455 revolver would be a matter for the trial judge to determine. At paragraph [7] of his ruling he stated:

"(1) Significant through Dr Carson's evidence will undoubtedly be at the trial, he does not say that it was impossible for the defendant to fire such a weapon.

(2) It is clear that notwithstanding his disability the defendant was able to fire a Sterling submachine gun in 1975."

In our view this was a ruling that could not be faulted. The appellant's ability to discharge a .455 Webley revolver in 1973 constituted a significant factor in his defence before McLaughlin J who heard experts retained on behalf of both the prosecution and the defendant examined and cross-examined. He also had the benefit of a personal demonstration by the appellant himself. It was clearly a matter for the learned trial judge to consider and weigh that evidence in the context of all the other relevant evidence called at the trial.

[9] In considering whether the convictions should be admitted under Article 6(1)(d) and Article 8(1)(a) of the 2004 Order Hart J referred to the three essential questions identified by the Court of Appeal in R v Hanson [2005] 1 WLR 3169 and dealt with them as follows at paragraph [13] of his ruling:

"(1) Does the history of 1975 involving as it did a Sterling sub-machine gun establish that Clarke had a propensity to commit the sectarian murder of Mr Fusco, a murder in which a Sterling was also used although the murder weapon was probably a Webley .455? I have no doubt that the answer to that question is yes.

(2) Does that propensity make it more likely that Clarke was the gunman who shot Mr Fusco? Again I have no doubt that the answer is yes because it is highly relevant;

(a) To his willingness to take part in such an attack;

(b) To his willingness to press the attack home; and

(c) To show that he was physically capable of firing a weapon in 1973 despite his physical disability.

(3) Is it unjust to rely on the 1975 convictions and will the proceedings be unfair if they are admitted? I am quite satisfied that it is not unjust to admit the evidence relating to each of the convictions relating to the 1975 murder, nor will the proceedings be unfair if they are admitted because for the reasons given at (2) above they are highly probative."

In our view Hart J adopted the correct approach to admissibility and his conclusion cannot be criticised.

The eye-witness evidence of identification

[10] Three witnesses gave evidence of being present at the time of the murder of Mr Fusco. They were Mrs Mawhinney, who was at that time employed by Mr Fusco, a Mr Kirkham and a Mr Kernoghan. Mr Kirkham and Mr Kernoghan were both very young men in 1973 and, at the time of the murder, they had been sitting in one of the boxes/cubicles as customers of the fish and chip saloon. All three witnesses made contemporary statements and were re-interviewed by the HET. Mr Kernoghan was called on behalf of the defence after a decision by the Director of Public Prosecution that he could not be presented to the court as a witness of truth. For the reasons set out in paragraphs [13] to [16] of the judgment of McLaughlin J we discounted his evidence as being wholly lacking in credibility and Mr O'Donoghue focused upon the evidence of Mrs Mawhinney and Mr Kirkham.

[11] In her original 1973 statement Mrs Mawhinney had described the man with the machine gun in the following terms:

"….about 30 years, long fair dirty hair, looked greasy, he was very thin, his face was thin and sharp featured. He was wearing a blue raincoat, light colour brown trousers."

It seems that she exchanged a few words with the gunman whom she described as carrying something like a Sten gun. She saw Mr Fusco take refuge in the cupboard with his back against the wall of the store and his feet against the door. The gunman was pushing the door to get it opened while Mr Fusco tried to resist. She said that the gunman was definitely pushing at the door with his hand but she could not say which hand. In her evidence to McLaughlin J she described the gunman as a lot younger than the one who was at the door of the premises stating that he was in early twenties, thin with longish dark coloured hair and a brown coat. In cross-examination by Mr O'Donoghue she conceded that in her original statement she had said that he was about 30 years old.

[12] In his original 1973 statement Thomas Kirkham described the man who shot Mr Fusco as "about 20 years of age with long fair hair and wearing a light fawn jacket, medium build" and he subsequently confirmed the accuracy of that statement to the HET. However Mr Kirkham also made it clear that he had political objections to the work of the HET and it was very difficult to persuade him to attend court for the purposes of the trial. Despite being served with a witness summons, he failed on two occasions to attend and only did so eventually after receiving a clear warning from McLaughlin J that if he did not attend voluntarily he would be arrested. He made it clear that he was attending with obvious reluctance and under protest. He confirmed in cross-examination that, at the time of Mr Fusco's murder, he had been released on bail on a charge of possession of ammunition without a certificate to which he later pleaded guilty. He also confirmed that he had been a former member of the DUP, an Independent Unionist and a member on occasions of "other organisations" although he specifically denied membership of any paramilitary group.

[13] Mr O'Donoghue drew the attention of the court to the fact that a prison photograph of the appellant taken in 1975 clearly showed him to have dark hair. He argued that in a case in which the evidence was primarily circumstantial, the trial judge ought to have specifically dealt with the apparent inconsistencies in the descriptive evidence given by Mrs Mawhinney and Mr Kirkham.

[14] It is clear that McLaughlin J was aware of the inconsistencies between the original statement made by Mrs Mawhinney and her evidence in court as well as the apparent inconsistency between both the statements made by Mrs Mawhinney and Mr Kirkham and the colour of the appellant's hair in 1975. He set out his approach to circumstantial evidence at paragraph [77] of his judgment emphasising that:

"Such evidence should be considered very carefully because one must look to see if there is any factor, even a single factor, which may reasonably be considered to point away from a conclusion of guilt. A single circumstance which is inconsistent with such a conclusion would preclude a finding of guilt. In this case the defence has not pointed to any factor which it claims has that effect."

The learned trial judge did not specifically refer to the inconsistencies of the evidence of Mrs Mawhinney and Mr Kirkham in this paragraph. However, it is notoriously difficult to make an accurate assessment of age particularly under stressful circumstances. In addition, in this case, the conflict between the colour of the hair attributed to the gunman by Mrs Mawhinney in her original statement and her evidence in court was obvious. Neither Mr Kirkham nor Mrs Mawhinney purported to make a positive identification of the appellant as the learned trial judge confirmed at paragraph [75] of his judgment. Furthermore, in our view, a number of factors recorded about Mr Kirkham by McLaughlin J had the potential to give rise to concerns about his credibility. It is important to remember that, in order to be inconsistent, a circumstance must be something that would weaken or destroy the inference of guilt drawn from the other evidence – see the well-known remarks of Lord Normand in Teper v The Queen (1952) AC 480. Such a circumstance must be established as such in evidence. A trial judge is not to be criticised for omitting to refer to every specific aspect of the evidence and, in the circumstances we are not persuaded that the learned trial judge erred in omitting to refer to the inconsistencies in the context of an otherwise unimpeachable approach to circumstantial evidence or that his omission to do so in any way rendered the conviction unsafe.

The fingerprint/handprint evidence

[15] During the course of the crime scene investigation by the police in 1973 Constable McCrum, a Scenes of Crime Officer (SOCO) attended the scene together with Constable Emerson from the Fingerprint Branch. At the time of the trial before McLaughlin J neither officer could specifically recollect their attendance at the scene but Mr McCrum was able to rely on his report on the forensic examination of the scene of the crime which he had forwarded to the Chief Inspector of Fingerprint Branch. McLaughlin J regarded this as a very important document and quoted verbatim from it at paragraph [18] of his judgment. Mr McCrum confirmed that the door of the store within which Mr Fusco had sought refuge was removed from the scene and taken by him to the Fingerprint Department. Unfortunately, it had subsequently been lost and therefore was no longer available for examination by experts on behalf of the defence and prosecution during the HET investigation or prior to the trial. Mr Emerson was able to refer to his worksheet upon which he had logged the fact that he had recovered prints from the door of the store considered by him to refer to a palm and left forefinger. He told McLaughlin J that he would have recorded the side of the door upon which the prints had been found and their precise location in his notebook but, after he had retired when he was arranging for his house to be rewired, that document, together with other notebooks, had been destroyed in the interests of security

[16] Mr Mario Fusco, the eldest son of Alfredo Fusco gave evidence at the trial and confirmed that he had lived on the premises at York Road until November 1972 when he was about 14 years old. He was not present at the time of the murder and it appears that his family had taken the prudent precaution of having him moved out of the area due to sectarian attacks. Mario Fusco worked in the fish and chip saloon from time to time and was familiar with the daily routines although he was not a regular employee. He explained that the nature of the process for manufacturing ice cream meant that cultures were present in the mix and proper cleaning and hygienic practices were required so as to inhibit any growth of fungus. He said that the floors, walls and doors, together with the machinery, were cleaned every day, since ice cream was made every day. He was cross-examined by Mr O'Donoghue on the basis that photographs of the premises appeared to show areas that were not particularly clean but he refuted such suggestions maintaining that the areas in questions showed wear and tear rather than the presence of any impurities.

[17] Mr O'Donoghue criticised the prosecution case on the basis that the evidence of Mario Fusco, who was only 14 years of age at the material time, was inconclusive and unreliable. In the absence of the door upon which the prints were deposited, Mr O'Donoghue submitted that there was no evidence of the precise location from which they had been taken. Neither of the expert officers who carried out the original investigation could recollect the circumstances of their attendance and Mrs Mawhinney had been unable to say definitively which hand the gunman had used when trying to force the door. Mr O'Donoughue conceded that the appellant had not put forward any explanation as to how his finger/palm print might have been innocently deposited on the door but submitted that, overall, the evidence was too vague and imprecise to satisfy the criminal standard of proof.

[18] Mario Fusco was both examined and cross-examined during the trial and, in the circumstances, we are satisfied that the learned trial judge was entitled to accept his evidence as to the cleaning system in operation at the time of his father's murder. McLaughlin J dealt with the crime scene investigation by the police in 1973 between paragraph [17] and [29] of his judgment. At paragraph [26] he referred to the evidence of Mr Thompson the fingerprint expert who had confirmed that, as a result of the comparison, he had no doubt that the prints were made by the appellant. Having given careful consideration to all of the forensic evidence McLaughlin J concluded that:

"The defendant has not sought to challenge that opinion (the opinion of? Mr Thompson) and therefore I am satisfied beyond a reasonable doubt that the fingerprints recovered from the door removed from the small store in 19 York Road on 3 February 1973 are the finger and palm prints respectively identified above and were put there by the defendant."

[19] However, the learned trial judge recognised that such a conclusion did not answer the questions:

(a) When were the relevant imprints placed upon the door?

(b) Was there a reasonable possibility that the imprints were deposited by the defendant in "innocent" circumstances?

He referred to the importance of the contemporaneous documents contained in Exhibit 18 confirming the investigation carried out by Mr Emerson and concluded at paragraph [29]:

"[29] The effect of this evidence is that the examination of the door produced 3 imprints which he 'lifted' from it. These were the marks 'lifted' by cellotape and put on to white card which were re-examined in 2009 by Mr Thompson and given the new numbering, i.e. 1A and 1C, remained as before, and 1B which was divided to become 1D-1H inclusive. No other marks were recorded as they would have been had any others been found and so the overwhelming inference is that only these imprints were on the door (save for Item 1a)."

We are satisfied that he was entitled to reach that conclusion on the basis of the evidence.

The physical disability of the appellant in February 1973

[20] As noted earlier in this judgment an important element of the defence was the contention that, as a consequence of the impaired function of his right hand resulting from the industrial accident of 1971, the appellant could not have been physically capable of discharging a .455 Webley revolver in February 1973. Professor Burke, called on behalf of the prosecution, and Dr Carson, called on behalf of the defence, gave expert evidence and were examined and cross-examined during the course of the trial. In the course of cross-examination by Mr O'Donoghue Professor Burke conceded that, while it was possible to express an opinion as to the current condition and function of the appellant's right hand, it was much more difficult to estimate the extent of recovery that he had achieved by the date of the murder. In cross-examination by Mr O'Donoghue he estimated the cycle of wound recovery and scar maturation to have been in the region of six months, but accepted that some people would continue to experience problems at 18 months while others would not. Much depended on the patient and how he or she rehabilitated. He agreed that it was difficult to know the extent of recovery actually achieved by the appellant and conceded that there was a possibility that the appellant might not have been able to pull the trigger in the compromised position that he demonstrated with his right hand in 1973.

[21] The learned trial judge accepted that he required to be satisfied beyond a reasonable doubt that the appellant could have discharged the Webley revolver in a manner necessary to kill Mr Fusco in February 1973 and, at paragraph [41] of his judgment he considered the matter in some detail:

"It is clear that the defendant did not require any detailed follow up after this significant injury. A well-motivated person was capable of regaining the power and function present in his hand today within a period of six months, and comfortably within the 15 month period involved. Dr Carson stated that the passage of time means that we can say what the state of his hand actually is today but not so in 1973. He acknowledged fully that the accused could fire the shots now but said 'it is a possibility he could not do so in 1973?' I have considered the evidence of Dr Carson in this regard. The possibility that he refers to exists, however I am satisfied that it is not a reasonable possibility having regard to the factors which I have just outlined. The rapid recovery of the accused is demonstrated by the absence of any requirement for follow up surgery, extended medical treatment, other forms of assistance or therapy. No doubt he went through a very difficult and traumatic time in the months following the injury but it is clear he maximised his recovery. It is also clear from the evidence that he was strong physically and at 22 years of age, which he was at the time of Mr Fusco's death, he was in a position to achieve optimal recovery. This is further demonstrated by his ability to do heavy work as a stager in the shipyard and, prior to that, but after his return from England, in Ballylumford, which he described doing in his police interviews. I am satisfied beyond a reasonable doubt that, given the degree of rehabilitation he had achieved and the heavy manual work he engaged in that he would have been capable also of gripping a revolver one handed with minimum adjustment, or two handed, just as he can do today and could have so used a Webley revolver to kill Mr Fusco in 1973."

[22] Mr O'Donoghue criticised paragraph [41] of the judgment on the basis that the evidence relating to "heavy work" subsequent to the appellant's return from England was too vague and for the omission to mention that Professor Burke had also conceded the possibility that the appellant might not have been sufficiently recovered to discharge the Webley in 1973. The learned trial judge clearly recognised that he would have to consider whether the possibility raised by Dr Carson was reasonable and, in the circumstances, we do not consider that the omission to mention that Professor Burke had also agreed the existence of such a possibility was of any real significance. While it is clear that during his interviews with the police, some 36 years after the murder, the appellant did have some difficulties in recalling his movements we note that, during his first interview with the police on 4 August 2009, the appellant described how he had left school at aged 15 and entered into an apprenticeship as a wood machinist in Duncrue Street. After a couple of years he had gone to England from where, subsequent to his accident, he returned to take up employment in Ballylumford. After Ballylumford he had worked as a stager or scaffolder in the Harland and Wolff Shipyard. In later interviews he said that he thought that his fingers might have been healed when he returned to Ireland and he denied that he received any further treatment when he came back. In the circumstances we consider that it was open to the learned trial judge to reach the conclusions set out in paragraph [41] of the judgment and we reject the criticisms advanced by Mr O'Donoghue.

Adverse inference

[23] As was his right, the appellant did not give evidence at the trial and, consequently, the learned trial judge was invited to draw an adverse inference from his silence in accordance with Article 4 of the Criminal Evidence (Northern Ireland) Order 1988 ("the 1988 Order"). At paragraph [85] the learned trial judge made the following observations in relation to the silence of the appellant:

"The consequence however is that no explanation, or possible explanation, on oath is available from him to undermine or contradict the inference contended for by the prosecution that his fingerprints were found on the store door because he was the gunman. Nor is there any such explanation why he cannot give an innocent explanation."

The learned trial judge cautioned himself that he should not draw such an inference unless it was fair and proper to do so and, therefore, he should only do so if the prosecution case clearly called for an answer and that the only sensible explanation for the silence of appellant was that he had no answer to give or none which would withstand proper testing in cross-examination. McLaughlin J also recognised that such an inference could not, of itself, establish guilt but could be taken into account by way of additional support for the prosecution case or in deciding if any element of that case might be true. Ultimately he concluded that it was entirely fair and reasonable to draw the inference that the appellant was not prepared to give evidence on oath because he had no innocent explanation to give to account for the presence of his finger and palm prints on the store door which could withstand cross-examination, or no credible account to give to explain his inability to give an innocent explanation for their presence or to enable him to maintain a convincing denial of a complete lack of recall of pertinent events from the relevant time.

[24] Mr O'Donoghue submitted that, particularly in paragraphs [97] and [98] of the judgment, the learned trial judge had permitted the drawing of an adverse inference to be elevated in importance to such an extent as to cast a reverse burden of proof upon the appellant to prove his innocence. He pointed out that, in the course of his police interviews, while he accepted that he could not put forward a specific innocent explanation for the presence of his finger and palm prints on the door, the appellant had consistently maintained that there must have been such an explanation which he could no longer remember. He argued that it was unfair for the learned trial judge to contrast the appellant's ability to remember other events of the early to mid-1970s on the basis that such general recollections as the appellant was able to manage were very different from his ability to recall a specific innocent reason why his prints might have been present on the store door in Mr Fusco's premises. Mr O'Donoghue made the comparison between the appellant's inability to recollect an innocent explanation for the presence of the prints with the complete lack of recollection on the part of Mr McCrum and Mr Emerson as to the circumstances in which they attended the murder scene. He contended that the fact that they were entirely dependent upon their contemporary notes provided significant independent support for the corrosive effect upon memory of the passage of time.

[25] In our view the learned trial judge approached the invitation by the prosecution to draw an adverse inference from the failure of the appellant to give evidence in a careful and measured manner reminding himself of the appropriate test which the prosecution had to meet and that any inference drawn could only be taken into account as additional support for the remainder of the prosecution case and could not of itself establish guilt. In the circumstances, we reject the submissions advanced by Mr O'Donoghue in relation to this ground of appeal.

Prejudice resulting from delay

[26] In advance of the trial Mr O'Donoghue applied, on behalf of the appellant, to stay the proceedings upon the basis that they constituted an abuse of process and that a fair trial was not possible as a consequence of the passage of time. In addition to the general prejudice arising from delay Mr O'Donoghue also focused on three specific matters, namely,

(i) The loss of the door upon which the finger/palm prints of the appellant were said to have been deposited.

(ii) The loss of the notebook retained by Mr Emerson, the RUC fingerprint officer.

(iii) The inability of the appellant to recall the innocent explanation that he insisted must have existed for the presence of his prints on the door.

Mr O'Donoghue did not take issue with the approach of the learned trial judge to the legal authorities relating to an application to stay proceedings, which McLaughlin J dealt with in some considerable detail between paragraphs [45] and [55] of his judgment, but he challenged his conclusion that, in the circumstances, the appellant had not sustained such a serious degree of prejudice as to render a fair trial impossible.

[27] McLaughlin J accepted that, by any standard, the delay between the murder in February 1973 and the trial in December 2010 had been significant. However, in our view correctly, he excluded any suggestion that the prosecution had in any respect manipulated or misused the process of the court so as to create undue delay or to take unfair advantage of a technicality or in any way to deprive the appellant of the protection provided by law. The procedure correctly adopted by the learned trial judge was to deal with the stay application after all of the evidence had been concluded, including the defence case. Comprehensive written submissions were prepared by both the prosecution and the defence which included submissions relating to the application to stay the proceedings. The learned trial judge accepted without reservation that the delay had been caused due to technological deficits which reflected the state of forensic knowledge and the availability of resources during the period 1973 to 2000. He noted that the work of the HET had been continuous from approximately 2006 and was carried out on a chronological basis. The computer technology enabling a comparison to be made between historical prints and the entire database of prints in Northern Ireland had only been available since approximately July 2001. The work of building the database had been completed by September/October 2005 when 80,000 palm prints were uploaded and made available for comparison in anticipation of the establishment of the HET. When the technology was applied in the instant case in 2009 the accused had been identified as a suspect. In such circumstances, McLaughlin J refused to accede to the application for a stay since he did not consider that the delay could sensibly be categorised as "unjustifiable".

[28] With regard to the more specific issues of prejudice identified by Mr O'Donoghue the learned trial judge held:

(i) That the failure to preserve the door and the consequent difficulty in identifying the position on the door from which the prints had be uplifted could not be categorised as giving rise to "serious prejudice to the extent that no fair trial can be held" but, rather, constituted matters for consideration within the trial process and, if necessary, for appropriate directions to the jury. He took into account the fact that there had been a detailed examination of the door carried out by Mr Emerson and that the absence of evidence as to the precise position of the prints, from which side of the door they had been uplifted and whether there had been any other prints on the door had all been explored in examination-in-chief and cross-examination at the trial. McLaughlin J referred to the decision of the Court of Appeal in England and Wales in R v Medway [2000] Crim L R 415 in which the court in dismissing a ground of appeal based on the loss of taped images stated:

"We recognise that in cases where evidence has been tampered with, lost or destroyed it may well be that a defendant may be disadvantaged. It does not follow necessarily that … the defendant cannot have a fair trial or that it would be unfair for him to be tried. We would think that there would need to be something wholly exceptional about the circumstances … to justify a stay on the ground that evidence had been lost or destroyed. One such circumstance might be if the interference with the evidence was malicious."

The learned trial judge noted that there was no suggestion of any deliberate or malicious concealment or destruction of the door which might well have been destroyed in the bomb attack after it had been sent to the Forensic Science Laboratory.

(ii) That there was nothing sinister or malicious about the loss of Mr Emerson's notebook which he had destroyed in or about 2000 for security reasons when renovations were being conducted at his house. At that time, Mr Emerson had retired from the police and it would have been normal practice to allow officers to retain their notebooks it being considered that such documents were the personal property of the officer. The loss was a simple fact brought about by the very sensible consideration that Mr Emerson was concerned about his personal security knowing that electricians were going to be moving through all parts of his house in order to have it rewired. The learned trial judge also took into account that Mr Emerson's original material had been preserved and was still capable of analysis in 2009/10.

[29] The learned trial judge dealt with the appellant's inability to recall any innocent explanation for the presence of his fingerprints on the door between paragraphs [68] and [71] of his judgment. He began by referring to the historical right of a defendant to make an unsworn statement from the dock which was effectively abolished by Article 78 of PACE in 1989. He continued in the following terms:

"It would be an extraordinary state of affairs if, when unable to make an unsworn statement from the dock or elsewhere without being sworn, the court should in effect permit a defendant to make an unsworn statement from the interview room asserting that he has suffered prejudice, because he is no longer able to recall an innocent explanation. … Evidence of what he said at interview is proof only of what was said not that what was said is or might be true where it is purely exculpatory or to his advantage."

He expressed the view that the appellant should not be permitted to make such a claim without giving sworn evidence which would be subject to cross-examination. At paragraph [70] the learned trial judge conceded that there might be some circumstances in which a defendant might be able to show serious prejudice without giving evidence himself but then went on to make the following remarks:

"In this instance however the claimed prejudice is said to arise from his inability to recall the true and innocent explanation for the presence of his prints at the crime scene. The defendant is the only person who could give that evidence and since he has chosen not to attempt to do so there is no such evidence before the court and accordingly prejudice cannot be established on that ground; neither can it be inferred merely by reason of the efflux ion of time given that he can recall other contemporaneous events. To permit such unsworn evidence to be taken into account on this issue would further deprive the prosecution of the opportunity to cross-examine, an essential element of a fair trial, and the jury of the chance to observe his demeanour when making the claim and giving his explanation for the difficulty whether in chief or cross-examination."

[30] We do not consider that a useful analogy can be made between the historical right to make an unsworn statement from the dock and answers given by an accused during the course of a police interview conducted subject to PACE conditions. In R v Sharp [1988] 1 WLR 7 the House of Lords expressed approval of the law as stated in R v Duncan [1981] 73 Cr. App. R. 395 by Lord Lane CJ who said, at page 365:

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and, therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies. It is … not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state. Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminatory parts are likely to be true (otherwise why say them?) whereas the excuses do not have the same weight. Nor is there is any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks about the election of the accused not to give evidence."

The content of the police interviews formed part of the prosecution evidence against the appellant which the court was obliged to take into consideration in determining whether the appellant had suffered serious prejudice. The interviews constituted evidence of what was said by the appellant in response to police questions and the court was obliged to evaluate that evidence and reach a conclusion about the reliability of the appellant's answers. While it was a matter for the trial judge to take into account the failure of the appellant to give sworn evidence when assessing the strength of his argument, Mr O'Donoghue was perfectly entitled to make the submission that the evidence confirmed that the appellant had made the case that he was unable to recall the innocent explanation for the presence of his prints on the door because of the effluxion of time since the police interview. Accordingly, we do not consider that the learned trial judge was correct in holding that there was no evidence before the court that the appellant was unable to recall the true and innocent explanation for the presence of his prints at the crime scene.

[31] In dealing with the application for a stay of proceedings it is common case that the learned trial judge properly reviewed and analysed all the relevant authorities. The loss of the physical evidence of the door and the destruction of Mr Emerson's notebook were properly made the subject of examination and cross-examination and the absence of those items of evidence was carefully weighed by the learned trial judge in the context of all of the available evidence. The passage of time itself was also the subject of careful consideration in terms of potential prejudice to the appellant. As indicated above, we do not consider that the learned trial judge was correct in holding that the appellant's assertion during police interview that there must have been an innocent explanation for the presence of his prints on the door but that, as a consequence of the passage of time, he was able to recall that explanation was of no evidential value. We note that, despite this error, the learned trial judge gave detailed consideration to the appellant's claim at paragraphs [96] and [97] in his judgment. At paragraph [97] he recorded that:

"It is a fact that the accused claimed he could recall a number of contemporaneous and earlier events."

He then referred in detail to a number of matters that the appellant had recalled during the course of his police interviews. Accordingly, after giving the matter careful consideration, we do not consider that the error to which we have referred vitiated the rejection by McLaughlin J of the application to stay the proceedings. We have not been persuaded by that error or by any other matter relied upon by the appellant that this conviction is in any respect unsafe and, accordingly, the appeal will be dismissed.