Crown Court for Northern Ireland Decisions

On the first count they are charged with attempted murder contrary to Article 3(1) of the Criminal Attempts and Conspiracy (Northern Ireland) Order 1983 and common law, the particulars of offence being that they on 6^th June 2005 attempted to murder David Waring.

On the second count they are charged with causing grievous bodily harm with intent contrary to Section 18 of the Offences Against the Person Act 1861, the particular of offence being that on 6^th June 2005 they unlawfully and maliciously caused grievous bodily harm to David Waring with intent to do him grievous bodily harm.

On the third count they are charged with possession of a firearm with intent contrary to Article 58(1) of the Firearms (Northern Ireland) Order 2004, the particulars of offence being that they on 6^th June 2005 had in their possession a firearm namely a hand gun with intent by that means to endanger life or cause serious damage to property or to enable any other person by that means to endanger life or cause serious damage to property.

Mr Kerr QC and Mr Magill appeared for the Public Prosecution Service, Mr McDonald QC SC and Mr Brown appeared for Black, Mr Rodgers and Mr Cairns appeared for Smyth and Mr Magee SC and Mr Shields appeared for Hill.

The evidence of Waring as to events on 5 and 6 June 2005.

[4} Waring stated in evidence that on Sunday 5^th June 2005 at about 6.00pm he left home and went to see his girlfriend at 5C West Green, Holywood. He drove there in his Peugeot 306. Waring arrived at the flat at about 6.15 pm and stayed in the flat until about 8.30pm. At that time he had consumed two tins of beer, one before he went to the flat and one while he was at the flat. He then decided to drive down to the off licence in Holywood to purchase more alcohol. When he left the flat he heard music from another flat, which he described as "Black's flat", which was in the next block. He went to Black's flat and the door was opened by Smyth who also lived there. Waring went into the flat. Those present were the defendants Black, Smyth and Hill and another man whose name was not known to Waring but who was described as being "a baldy headed guy from Garnerville". On leaving his girlfriend's flat Waring had noticed that his Peugeot had a flat tyre and he asked Hill if he could borrow Hill's motor vehicle to go to the off licence and Hill agreed. He asked the men in the flat whether anyone wanted any drink and Black ordered three bottles of Bacardi Breezer and gave him £5. Waring then went to the off licence where he bought a bottle of Buckfast Wine and a bottle of Old English Cider for himself and three Bacardi Breezers for Black. He then returned to Black's flat. Waring stayed in the flat drinking his wine and cider and talking to Hill.

[10] Black got out of the front passenger seat of the vehicle. Smyth got out of the rear seat on the driver's side by crossing in front of Waring and getting out the same door as Black. This suggested that this was a two door vehicle although Waring could not remember. Waring got into the front passenger seat and Hill remained in the driver's seat. After some minutes, which Waring estimated as 5 minutes but accepted the possibility of it being 10 minutes, Hill suggested that Waring should go and see what the other two men were doing. Waring had walked about 8 yards from the car when he saw Black holding up his right hand and Waring saw the point of a gun. Smyth was standing behind Black and to his right as Waring looked at them. Waring was shot in the chest by Black from about 5 or 6 feet. Waring heard the shot and he heard the sound of Hill's car screeching as it drove off. Waring stumbled and ran in the opposite direction. He then alerted some residents who came to his assistance.

The evidence of those attending Waring at the scene.

The evidence of those in the vicinity of the cemetery.

Waring in hospital.

The criminal injury compensation claim.

"Applicant was abducted at West Green and shot at Holywood Graveyard, Redburn, Holywood.

"I had been at a small house party at West Green in Holywood. No trouble at all. I had drink taken. I left just after 1.00 am. I left by myself. I couldn't get a taxi so I was going to walk home.

I got about 100 - 200 yds when a car pulled up. I think 4 masked men got out. I was bundled into the car and driven to the grave yard. I was taken out of the car and then saw the gun. I was then shot once in the chest.

I wasn't beaten or threatened or told why this was happening. After the men left I think a local resident rang for the emergency services and I was taken to hospital. I was lucky to survive."

Waring's account to police.

The police interviews of the defendants.

Medical evidence.

Forensic evidence.

Objective evidence.

Application for directions of no case to answer.

The first limb of Galbraith applies if there is no evidence that the crime alleged has been committed by the defendant, in which event the Judge will stop the case.

The second limb of Galbraith arises where "there is some evidence but it is of a tenuous character, for example, because of inherent weaknesses or vagueness or because it is inconsistent with other evidence." Lord Lane CJ at page 127 stated that, in that event -

"(a) Where the Judge concludes that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case.

(b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty."

Defence evidence.

[43] Black gave evidence. He was 37 years old at the date of the hearing and lived in east Belfast. He did not have a flat in West Green although he had stayed occasionally in the flat referred to by Waring. The flat was occupied by Black's niece who was a girlfriend of the defendant Smyth. He denied knowing Waring and denied being with Waring on 5^th or 6^th June 2005 and denied any involvement in any attempted murder of Waring. He declared that he had no reason to harm Waring. Black had not answered questions during police interview and gave the explanation that he was scared to answer questions because of the allegations that he was involved in the attempted murder. He denied that Waring would have been in the West Green flat as Smyth would have told him had that been the case. Smyth had told him that he did not know Waring. Black did not know where he had been on 5^th or 6^th June 2005. Hill had told Black that Waring had been a life long friend but Hill did not have a clue why Waring had involving them in the shooting. Black agreed that Smyth was a good friend of his but that Hill was not a friend. It was possible that he had asked Hill where Hill was on 5^th and 6^th June 2005 but he could not remember and questioned why he would have asked him where he had been on those dates.

[44] On being informed by Counsel for Smyth that it was not intended that he should give evidence, I inquired of Counsel in the terms of the Practice Direction issued by the Lord Chief Justice on 11 April 1997 for the purposes of the Criminal Evidence (Northern Ireland) Order 1988 Article 4 –

"Have you advised your client that the stage has not been reached at which he may give evidence, and if he chooses not to do so, having been sworn, without good cause refuses to answer any question, the court may draw such inferences as appear proper from his failure to do so?"

Counsel for the defendant replied that the defendant had been so advised. Smyth did not give evidence.

The challenge to the prosecution case.

The evidence against the defendants.

[58] Waring had an uneven recollection of events. There were instances where Waring's description of events varied from time to time or was incomplete but I am satisfied that each was an instance of faulty recollection or inability to recollect. However the position in relation to his evidence as to his conversations at the scene is more complicated. At first his evidence was that he had no recollection of the contents of the conversations with those who came to his aid at the scene. Later in evidence he agreed that he had given the abduction account to those at the scene. His explanation for an initial lack of memory of events at the scene was "it's coming back to me a bit". It would be understandable that in the aftermath of the trauma of the shooting Waring could not recall the details of what occurred at the scene. However, if the version of events given by him in evidence is true, he can have been in no doubt that he had given what he regarded as a false account in the weeks after the event, including that given at the scene and later maintained to police and to the solicitor. Waring was aware that what he described as his false account during the weeks after the event was known. There was no need to deny any memory of his account at the scene as it was essentially the account repeated on later occasions and in respect of which he had an explanation to offer. I am satisfied that Waring was not being untruthful when he stated initially that he had no recollection of his conversations at the scene and later stated that he had a recollection of the conversations.

{77] If I had concluded that Waring might deliberately have misstated his recollection of his sighting of the gunman in order to bolster what he might have considered was a weakness in his identification of his assailant, which I am satisfied was not the case, I would have had added grounds for caution in accepting any of his evidence. However in that event I would have remained satisfied with Waring's evidence, despite that untruthful and misguided attempt to overstate his recollection of his assailant.

I find the second defendant, Jonathan James Smyth, guilty of attempted murder on the first count, guilty of causing grievous bodily harm with intent on the second count and guilty of possession of a firearm with intent on the third count.

I find the third defendant, William Hill, not guilty of attempted murder on the first count, not guilty of causing grievous bodily harm with intent on the second count and not guilty of possession of a firearm with intent on the third count.