Crown Court for Northern Ireland Decisions

Neutral Citation No: [2009] NICC 54	Ref:	HAR7573
Judgment: approved by the Court for handing down	Delivered:	2/7/2009
(subject to editorial corrections)


 


IN THE CROWN COURT IN NORTHERN IRELAND BELFAST CROWN COURT ________ THE QUEEN v NIGEL JAMES BROWN AND GARY RYAN TAYLOR ________

HART J

[1] On 10 August 2006 Thomas Devlin, Jonathan McKee and Fintan Maguire were attacked by two men as they walked along Somerton Road in North Belfast. Thomas Devlin died from stab wounds inflicted by one of the men. Jonathan McKee was attacked by both men, and a stab wound was also inflicted upon him by the man who attacked Thomas Devlin. Brown has earlier been sent for trial on a charge of attempting to unlawfully and maliciously cause grievous bodily harm to Jonathan McKee with intent to do him grievous bodily harm, contrary to Section 18 of the Offences Against the Person Act 1861. Brown has pleaded guilty to that charge. The prosecution allege that Taylor was the man who stabbed both Thomas Devlin and Jonathan McKee.

[2] Both defendants are now jointly charged with –

(1) the murder of Thomas Devlin,

(2) the attempted murder of Jonathan McKee,

(3) unlawfully and maliciously wounding Jonathan McKee with intent to do him grievous bodily harm contrary to Section 18 of the Offences Against the Person Act 1861.

Taylor is also charged on a fourth count with attempting to unlawfully and maliciously cause grievous bodily harm to Jonathan McKee, contrary to Section 18 of the Offences Against the Person Act 1861, the same charge to which Brown has already pleaded guilty.

[3] The defendants have each applied for the entry of a No Bill on each of the charges against them on this indictment under the provisions of Section 2(3) of the Grand Jury (Abolition) Act (Northern Ireland) 1969 on the basis that the committal papers do not disclose a case sufficient to justify putting them on trial on these charges. Their applications give rise to quite different issues. As Brown has already admitted assaulting Jonathan McKee the issue in his case is whether there is sufficient evidence that he was engaged in a joint enterprise with the other man, and as a result had the necessary intent to commit the other offences with which he is charged on this indictment. In Taylor's case, the issue is whether there is sufficient evidence to establish that he was the man who attacked Thomas Devlin and then attacked Jonathan McKee after Brown had done so.

[4] It is common case that at this stage of the proceedings the principles to be applied are those stated in R v. McCartan and Skinner [2005] NICC 20. Section 2(3) of the Grand Jury Abolition Act (Northern Ireland) 1969 provides that the judge may enter a No Bill if the committal papers "do not disclose a case sufficient to justify putting upon trial for an indictable offence the person against whom the indictment is presented." From R v Adams [1978] 5 NIJB and Re Macklin's Application [1999] NI 106 the following principles can be extracted.

(i) The trial ought to proceed unless the judge is satisfied that the evidence does not disclose a case sufficient to justify putting the accused on trial.

(ii) The evidence for the Crown must be taken at its best at this stage.

(iii) The court has to decide whether on the evidence adduced a reasonable jury properly directed could find the defendant guilty, and in doing so should apply the test formulated by Lord Parker CJ when considering applications for a direction set out in Practice Note [1962] 1 All ER 448.

[5] These principles establish that it is only necessary at this stage of the proceedings to show that a jury could, not would, convict the defendants on these charges. The decision has to be made upon the evidence contained in the committal papers, and Mrs McKay for the prosecution conceded that at this stage the evidence relied upon by the prosecution which is the subject of hearsay and bad character applications should be excluded from consideration. It is therefore unnecessary, for example, at this stage of the proceedings to consider the difficult issues relating to the admissibility of the multiple hearsay referred to by David Crozier in his witness statement.

[6] The committal papers show that Thomas Devlin, Jonathan McKee and Fintan Maguire were walking along the Somerton Road when they saw two men with a dog walking on the opposite side of the road about 100 metres away. At first they thought that there was nothing unusual about this and they walked on. However, just as they reached the junction of Lisbreen Park Jonathan McKee heard Thomas Devlin shout "run", and he saw that the two men were now only two to three metres from them. Fintan Maguire turned on hearing the sound of quick footsteps and saw the two men running at their group. He saw that one of the two men "was carrying what looked like a wooden bat in his hand, which was between 18-24 inches long".

[7] Fintan Maguire ran off pursued by one of the men. He saw that Jonathan McKee was being repeatedly struck by the man with the bat. Jonathan McKee described his attacker as the smaller of the two men, and said that he was struck by what he described as a piece of wood or baton, "It may even have been a small baseball bat but looked like varnished wood". He was struck on the head, shoulders, arms and upper body, and was also punched on the face with the attacker's left fist, although surprisingly there is no evidence of his sustaining any significant injury. Dazed by the blows, he thinks that he stumbled to the ground. He says that at this stage his attacker may have stamped on his side and kicked him on the hip. His attacker then ran off after the dog in the direction of Somerton Park, and Jonathan McKee says that after he got up he saw his attacker walk away, and as the attacker did so he put the weapon into his back pocket and pulled down the hoodie he was wearing to conceal the weapon.

[8] Fintan Maguire saw McKee being struck with what he described as "the bat", and he also saw that the other man who had been chasing him was now attacking Thomas Devlin, having pulled Thomas Devlin off the wall of St Patrick's School. As Fintan Maguire escaped by climbing over the gates into the grounds of St Patrick's School, what then happened to Thomas Devlin has to be inferred from the stab wounds inflicted upon him. In his post mortem report Dr Ingram, the Assistant State Pathologist for Northern Ireland, concluded that death was due to stab wounds of the chest. Dr Ingram found that there were four stab wounds to the left side of the back of the chest, two of which transfixed the left lung, and one of them transfixed the aorta. Neither of the other two wounds would have been immediately life threatening. There were further stab wounds on the right side of the front of the abdomen; on the back of the right upper arm; on the outer side of the right upper arm, and on the outer side of the front of the hip. There were also relatively superficial incised wounds of the left upper and lower eyelids. It is therefore apparent that the man who attacked Thomas Devlin stabbed him repeatedly in the chest, abdomen, right upper arm, in the hip and in the face. Two of these wounds were deep and brought about the bleeding which was responsible for his rapid death.

[9] Jonathan McKee then described how Thomas Devlin's attacker turned his attention to him, striking him several times. Jonathan McKee was carrying Thomas Devlin's back pack which contained a number of aerosol cans of spray paint. The first blow was to his stomach and winded him, and it seems probable that it was this blow that inflicted the frontal abdominal wound with fatty tissue hanging out of the wound found by Edwin Taylor, one of the ambulance men called to the scene. His attacker then grabbed Jonathan McKee at his back and took three or four swings at the bag. Smelling paint, Jonathan McKee concluded that his attacker must have punctured the cans of paint and so been stabbing at the bag. After the attack this man jogged off and joined the man who had attacked Jonathan McKee first, and both men strolled off along Somerton Road.

[10] Lawrence Kelly was walking along Somerton Road when he saw someone run across the road and climb over the gates into the grounds of St Patrick's School. This would appear to have been Fintan Maguire escaping from the attack. Mr Kelly continued to walk down the road, and was then overtaken by two youths and a dog running loose. He thought both were about 17. As they passed he heard the taller man say, "cover your face", and the smaller man then covered his face with a white object. Both were wearing "hoodies" with the hoods up. As they passed him the taller man said to Mr Kelly "we'll do you too", then said to his companion "start running", and both ran up towards Lansdowne Road. Mr Kelly then glanced across the road, and saw two bodies lying on the ground near the first entrance to St Patrick's School. Realising that they had probably been assaulted he rang '999'. He made the call at 23.45. He then went to the aid of the two people who he found to be Thomas Devlin and Jonathan McKee.

[11] In interview Taylor admitted that –

(1) he and Brown both live in flats at Ross House,

(2) they had been drinking and smoking cannabis together earlier that day, and

(3) he and Brown left Ross House with Brown and Brown's dog.

[12] CCTV evidence shows that Brown went up in the lift to Ross House with his dog from the 10^th floor where he lives to the 12^th floor where he met Taylor, and both are then seen on CCTV going down together in the lift to the ground floor, where they are seen leaving the building with Brown's dog at 11.28 pm.

[13] By his plea to the charge of attempting to unlawfully and maliciously cause grievous bodily harm to Jonathan McKee with intent to cause him grievous bodily harm Brown accepts that it was he who attacked McKee with the weapon described as being like a wooden bat, but Mr Harvey QC (who appears for Brown with Mr Charles McCreanor) submitted that the evidence was insufficient to show that Brown and his companion were engaged in a joint enterprise to commit murder. He pointed out that the prosecution accept that there was a chance meeting between the attackers and their victims, and that the prosecution argue that Brown was aware that Taylor was armed with a knife before they went out that night.

[14] Mrs McKay accepted that the prosecution case is that there was a joint enterprise, and that when they left Ross House both Brown and Taylor were armed. As she put it in her written submissions:

"Having left Ross House armed, both accused came across the path of Thomas Devlin, Jonathan McKee and Fintan Maguire. The compelling inference is that this chance meeting led to the formation of a common plan to attack and kill or cause serious injury to the three youths. Each was aware of the other being armed. Each contemplated that the other may kill or seriously injure one or more of the youths. Each of the weapons was in its own way potentially lethal".

[15] What evidence is there to support an inference that Brown knew, or suspected, that Taylor (and for reasons I give later in this judgment I am satisfied that there is sufficient evidence that would justify a jury concluding that Taylor was Brown's companion in this attack) had a knife when they left Ross House? It can only be that because Brown was armed with a baton it can therefore be inferred that he knew or suspected that Taylor was armed with a knife. In the absence of evidence that Taylor had a knife at this point this would be mere conjecture, although it might be permissible to argue that because Brown was armed with a baton, and they both took part in an attack in which Brown used a weapon, it could therefore be inferred that when Brown and Taylor left Ross House Brown knew that Taylor had a weapon of some sort as well, even if he did not know that it was a knife. However, whilst violent and unprovoked attacks on defenceless victims are regrettably a common feature of life in certain parts of Belfast and Northern Ireland, as elsewhere in the United Kingdom, it by no means follows that weapons other than fists or boots will be used in such an attack.

[16] Were this the only basis upon which the prosecution case could be advanced Mr Harvey's argument would have considerable force. However, the most serious charge against Brown is that he murdered Thomas Devlin, and in order to prove the charge of murder the prosecution must show that Brown was a party to a joint enterprise to kill Thomas Devlin or to cause grievous bodily harm (that is serious injury) to him. In my opinion it would be open to the jury to conclude that as Brown clearly intended to inflict grievous bodily harm upon Jonathan McKee as shown by his plea of guilty, he must also have contemplated that Taylor would at the very least inflict grievous bodily harm on any other member of the group that they decided to attack, because there is ample evidence that Brown and Taylor were acting in concert throughout these events, as seen for example by the remark made by one of them to Lawrence Kelly "we'll do you too". As a participant in a joint enterprise to inflict grievous bodily harm Brown may be guilty of murder if the victim of the attack dies.

[17] The principle governing the liability of secondary parties to a joint enterprise to inflict grievous bodily harm where death results from the use by the murderer of a weapon of which another participant in the attack says he was unaware has been formulated by Lord Brown in R v. Rahman [2008] 4 All ER at 357 [68]:

"'If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless continues to participate with A in the venture, that will amount to a sufficient mental element for B to be guilty of murder if A, with the requisite intent, kills in the course of the venture unless (i) A suddenly produces and uses a weapon of which B knows nothing and which is more lethal than any weapon which B contemplates that A or any other participant may be carrying and (ii) for that reason A's act is to be regarded as fundamentally different from anything foreseen by B.'

Applying these principles to the evidence at this stage of the case I am satisfied that the jury could convict Brown of murder and I refuse a No Bill against Brown on count 1, the count of murder.

[18] Counts 2 and 3 in effect allege that Brown was a participant in a joint enterprise to stab Jonathan McKee. Brown had gone away from Jonathan McKee after attacking him, but remained nearby according to McKee, who says that after he had been attacked by the man who had already attacked Thomas Devlin, his attacker "then jogged after his mate and met him on the middle of the road a few feet from me". Therefore it could be inferred that Brown was close by throughout Taylor's attack upon Jonathan McKee and in a position to see what Taylor was doing in the course of the attack on Jonathan McKee. There is no evidence that Brown tried to dissuade or prevent Taylor from attacking McKee. In the absence of any evidence to that effect I consider that it would be open to the jury to conclude that by his presence whilst Taylor was attacking McKee Brown was a participant in a joint enterprise to stab McKee because it could be properly inferred that Brown knew by then that Taylor was armed with a knife, and by his presence was encouraging Taylor in his attack. The repeated stabbing of McKee with a knife, including inflicting a stab wound in the abdomen, could be inferred as a clear intention on the part of the attacker to kill Jonathan McKee. For Taylor to do this in Brown's presence, without any attempt by Brown to prevent or protest against it, or to dissociate himself from Taylor's action, is, in my opinion, sufficient to justify Brown being put on trial on both charges as it would be open to the jury to conclude that by his presence Brown was encouraging Taylor to stab McKee, or content that Taylor should stab McKee. Whether the jury would so decide will be a matter for them having considered all of the evidence, including any explanation advanced by Brown. I therefore refuse a No Bill on counts 2 and 3 in respect of Brown.

[19] I now turn to consider the evidence against Taylor. It is not disputed that there is sufficient evidence to justify putting the man on trial who stabbed Thomas Devlin and then stabbed Jonathan McKee, the question is whether there is sufficient evidence at this stage upon which a jury could properly conclude that the man was Taylor.

[20] In interview Taylor denied any involvement in this attack, but admitted that he had been in Brown's flat earlier that day drinking and smoking cannabis, and that he and Brown left Ross House with Brown's dog Zola at 11.28 pm. Taylor claims that he intended to visit his grandmother, but then changed his mind and met two friends in their car. He got and smoked two joints, then returned to Ross House shortly after midnight. His account of where he intended to go, and where he in fact went and the alibi he alleges is a self serving account and of no evidential significance at this stage to displace any other inference of guilt that may be drawn against him.

[21] In order to establish a prima facie case that Taylor was the other man the prosecution have to rely on the inference that Taylor and Brown remained together after they left Ross House at 11.28 pm, an inference which must be based upon the following.

(1) Taylor admits that he and Brown had been together in Brown's flat in Ross House earlier that day when they were drinking and smoking cannabis.

(2) Later that night Brown sought out Taylor's company because he is seen on CCTV going up in the lift from the 10^th floor where Brown lives to the 12^th floor where Taylor's flat is.

(3) Brown therefore obviously seeks out Taylor and they are then seen on CCTV going back down in the lift and leaving Ross House together with Brown's dog.

(4) As Brown has admitted attacking Jonathan McKee, and that attack took place a matter of moments before 11.45 pm it can be inferred that it took Brown about 15 minutes to get from Ross House to the scene of the attack.

(5) Although Mr Farrell (who appears with Mr John Orr QC for Taylor) pointed to significant contradictions in the descriptions of the clothing and appearance of the two attackers given by Jonathan McKee, Fintan Maguire and Lawrence Kelly, a very important feature common to each of their descriptions is that one of the attackers was appreciably taller than the other. Lawrence Kelly says that he was about 6 feet, Jonathan McKee said he was 6 foot 1 inch, Fintan Maguire said that he was about 6 feet to 6 feet 1 inch. The other man, who we know from his plea of guilty was Brown, was described by Jonathan McKee as 5 foot 10 inches and Fintan Maguire as about 5 foot 7 inches to 5 foot 8 inches. Observing both defendants in the dock it is obvious that Taylor is noticeably taller than Brown.

(6) Taylor is seen on CCTV returning to Ross House at about midnight. He walks into view backwards with his back towards the CCTV in a posture that is consistent with his attempting to conceal something. The inference that the prosecution invite the jury to draw is that he is trying to hide something from the CCTV, an inference strengthened by his taking 12 flights of stairs to his flat rather than use the lift which has CCTV in it. Taylor admitted that he later disposed of the jacket he had been wearing that night.

[22] From these facts I am satisfied that the jury could conclude that Brown and Taylor went out together to walk Brown's dog, that they remained together, and that Taylor was the man with Brown when Brown attacked Jonathan McKee about 15 minutes after Brown and Taylor left Ross House together. If the man was not Taylor then Brown had to meet another friend of the same height as Taylor within 15 minutes of leaving Ross House, an explanation which the jury would be entitled to reject in view of Taylor's returning to Ross House about 15 minutes after the attackers left the scene and behaving as if he had something to hide by turning his back to the CCTV, avoiding the lift and then disposing of his jacket. I am satisfied that there is sufficient evidence from which a jury could infer that Taylor was Brown's companion and the man who first attacked Thomas Devlin and then attacked Jonathan McKee, and that there is therefore sufficient evidence to justify his being put on trial on these charges and I refuse to enter a No Bill against him also. These applications are accordingly refused.