Crown Court for Northern Ireland Decisions

Neutral Citation No. [2009] NICC 65	Ref:
Judgment: approved by the Court for handing down	Delivered:	02/10/09
(subject to editorial corrections)*


 


IN THE CROWN COURT IN NORTHERN IRELAND _______ Sitting at Antrim ________ The Queen -v- Clifford Allison and David Dawson ________ RULING ON 'NO BILL' APPLICATIONS ________

HIS HONOUR JUDGE SMYTH QC

[1] Counsel, for both accused, applied to the Court to consider exercising its power under Section 2(3) of the Grand Jury (Abolition) (N.I.) Act 1969 to enter a no Bill in respect of the three counts contained in this indictment. This was on 2nd September 2009, prior to the arraignment of the accused. Arguments were heard on 15^th September 2009 and I entered a No Bill in respect of all three counts against the accused on 22^nd September 2009.

[2] The following are my reasons for doing so. I asked that they be circulated to the PPS and to the Defendants' solicitors on 2^nd October 2009. Mr Weir QC appeared with Mr Connor for the PPS, Mr John McCrudden appeared with Mr McConkey for Clifford Allison and Mr Berry QC appeared with Mr Cairns for David Dawson.

[3] The relevant section of the Grand Jury (Abolition) Act (N.I.) 1969 is:

"2 (3) The Judge presiding at the Crown Court shall, in addition to any other powers exercisable by him, have power to order an entry of "No Bill" in the Crown Book in respect of any indictment presented to that court after the commencement of this Act if he is satisfied that the depositions or, as the case may be, the statements mentioned subsection 2(i), do not disclose a case sufficient to justify putting upon trial for an indictable offence the person against whom the indictment is presented."

[4] The Court was referred to the following authorities and also had regard to the following: R v Campbell and Others (1985) NI 354; R v Whelan (1972) NI 153; Re Macklin's Application (1999) NI 106 and the unreported cases of R v Adams (1978) 5 NIJB; R v Hyde and Hyde (2004) NICC 29; R v Shoukri and Others (2007) NICC 22 and R v Brady, a Crown Court Ruling which can be found at ICOS No. 06/100913.

[5] The following are the factual matters described in the statements of evidence as contained in the committal papers: On 22^nd October 2008 at 01.25 police carried out a search of 81 Bush Park Antrim, the home of the accused David Dawson. Present at the time of the search was the accused Clifford Allison whose address is at 59 Garden Village Antrim. At the time of entry Mr Allison was sitting on a large settee. Close to him and contained in a cloth bag was a Walther pistol and 27 cartridges. On a pouffe, close to the settee, were a "Next Directory" catalogue and, on top of this, a Grosvenor Casino credit type card and a quantity of white powder. There was a second card on the armrest of the large settee in the name of the accused Dawson's partner, Mrs Rodgers. Mr Dawson was stopped by police as he attempted to leave through the back of the house. He was earlier seen at a door of the living room by police entering the front of the house.

[6] The coloured cloth bag that was found by the police on the settee where Mr Allison was sitting and which contained the pistol and cartridges was of the type used for containing money for bank deposits. Although I was told that there would be additional evidence of a forensic nature that would link this with the accused and that there also could be additional evidence that would establish that the white powder was cocaine none of this appeared on the committal papers.

[7] Mr Dawson made comments after various cautions administered at the scene. The first was when he was stopped by the police as he went out of the back door. He was also questioned over a number of interviews. Much of this was taken up with the contents of mobile phones but nothing has been brought to my attention as being relevant. He maintained he did not see the bag. He knew Mr Allison and agreed he had contact with him on his mobile. He alleged Allison sniffed cocaine in his presence but without his participation. He accepted that the substance was cocaine. He denied any use of cocaine. He also denied that there would be any forensic finding that connected him with the bag or the contents. He alleged, variously, that Mr Allison must have brought the gun or that he was being set up. He conceded he had been threatened but denied this had any connection with the gun. One comment I had regard to was that he did not remember handling the bag but he said this in the context of having a similar bag in the kitchen.

[8] Allison was also cautioned and questioned. His comments after cautions under the Criminal Justice (Evidence) Order 1988 do not assist. In several interviews with the police he gave an account of how he got to the Dawson house. He denied any sight of the cloth bag but accepted he was present for 2 hours. It was his card that was found on the catalogue. He denied sniffing any cocaine or using this card to handle cocaine. It was put to him that a "drugs field test" had been carried out and this was positive for cocaine. However no evidence of analysis of the powder found was present in the papers.

[9] To my mind the issue is not complex. The judge, before an arraignment, has to assess the evidence as disclosed on the papers and must do so taking this "at its height". It appears now to be well established that the test he has to apply is similar to, if not identical to, the test he applies to the evidence at the conclusion of the prosecution case. In brief this is that a submission of no case should be allowed when there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury, properly directed, could convict. Guidance was given as to how this should be properly approached in R v Galbraith 73 Cr. App. R. 124. I do not repeat this here. It is however the wording of the section that determines the way in which the court must approach this test.

[10] R v Campbell is the most relevant of the cases cited above. Much of that case is concerned with the issue of jurisdiction and whether the inadmissibility of unendorsed statements at committal was an error of law in the exercise of jurisdiction as opposed to the absence of or excess of jurisdiction. It therefore does not concern this case. According to the head note the Court of Appeal held, per curiam, that it would be open to a presiding judge faced with irregularly admitted statements to refrain from ordering a "No Bill", if that was the sole defect, as the judge could see that when the hearing commenced, the Crown would be able to present a case.. Alternatively the Crown could serve notice, when the defect was discovered, of intention to give evidence in the terms of the statements.

[11] However when one looks at the reference to this in the text, it does not mean that the Lord Chief Justice was permitting fundamental, as opposed to procedural, gaps in evidence to be filled by this means. A Criminal statute must be strictly interpreted. The margin of appreciation left to a judge is limited to the terms of the section and the section is clearly a protection for the individual. The requirement is in addition to those in England and Wales and presumably is of importance. While the terms of the section are not mandatory, since the word "power" is used rather than the word "shall", the section has the effect of permitting the judge, once he is satisfied that the statements before him do not disclose a case sufficient to justify putting a person on trial for the indictable offence charged to enter a No Bill. I quote from Lord Lowry in R v Campbell:

Finally, if a presiding judge is in the future confronted with irregularly admitted statements, it would, in our opinion, be open to him, if that is the sole defect, to refrain from entering a "No Bill", because he can see that, when the hearing commences, the Crown will be able to present a case: admittedly, as we have seen, the defectively completed written statements could not themselves be put in evidence. Alternatively the Crown could serve notice when the defect is discovered, of intention to give evidence in the terms of the statements. The repeal of the endorsement provision should also be considered. Even before arraignment a defence application based on this defect ought to be pointless, since the Crown could counter this move with an application under section 2(2)(e) of the 1969 Act or an indictment under section 2(2) (f), provided the requirements as to delivery of the statements and the indictment to the office of the Chief Clerk and service to the accused have been dealt with.

[12] Section 2(2)(e) refers to an application made to present an indictment with the leave of either a Judge of the Supreme Court or a county court judge, granted upon application made to him in that regard and section 2(2)(f) refers to the Attorney General.

[13] Hart J encountered this in the case of R v Brady, unreported, and he referred to R v Campbell. Mr Justice Hart's case concerned the absence of amplification by the forensic expert, in his statement of evidence, of his reference to the technicians who had examined DNA swabs and made comparisons with the accused.

I am satisfied from this (the passage cited above of R v Campbell) that where there is a purely formal defect in the Crown case the judge has a discretion to refrain from ordering a No Bill, if that defect is one which can simply be corrected when the hearing commences by delivering a statement of additional evidence I am satisfied that the proper exercise of my discretion in this case is not to order a No Bill when the matter can be put right, if required, by the service of a short statement of additional evidence from the relevant witness or witnesses, and where all of this material is, I have no doubt, available to the defence experts for examination. I therefore decline to enter a No Bill on this ground also.

[14] Here there are two separate matters. I take the count alleging possession of cocaine first. This had not been pressed initially by defence counsel but I regard it as significant. There is a failure to establish on the evidence before the Court that the white substance was in fact cocaine. This appears to me to be so basic a proof that even the very strong suspicions attaching to the facts I have described above would not entitle a jury to hold that this was in fact cocaine. Responses to police in interview by the accused are, in this regard, self-serving but in so far as these are allegations against a co-accused this is not evidence that the court can, certainly at this stage, take into account against the other accused.

[15] In relation to the powder found, although there was reference in the interview of one of the accused to a positive field test being carried out by the police, there is no evidence before the court that the powder was examined and the presence of cocaine found. I am told by Mr Weir that the powder has been analysed and the powder established to be cocaine and that additional evidence could be served to this effect. This however has not been done. The circumstances, what is shown by the photographs, the descriptions by the officers, the presence of the cards and the existence of powder, are strongly suspicious that cocaine was being sniffed, but I am of the view that forensic examination of the powder is a basic proof and that, in the absence of this, a No Bill should be entered in respect of Count 3. This should be done in respect of each accused. I bear in mind that each person's case has to be looked at separately, that the comments made in interview by one accused are not evidence against the other accused and also that, where there are "cut throat allegations" it would not be in the interests of justice to distinguish between the two accused.

[16] The position is different in relation to the firearm and cartridges. This clearly is looked upon, and also is, the more serious matter. In relation to the Counts alleging possession of the cartridges and the gun, the actions and the position of the two accused in the house and the proximate, but concealed, presence of the cartridges and gun have to be assessed in relation to the three elements that the Crown has to prove. These are knowledge (at least in general terms) of presence of the firearms, potential for control of the same, and a degree of assent to presence. I also must take into account what was said by each of the accused (against the person making the comment). These comments do not advance the case made by the Prosecution.

[17] Mr Weir told the court that additional evidence can be served of forensic examination of the cloth bag in which the weapon and cartridges were found. I am told that this additional evidence will connect, or at least tends to support, contact between each of the accused and the bag. I have not assessed this evidence as I am of the view that, given the authority of R v Whelan and the accepted requirement of the Crown to prove knowledge, potential for control and an element of assent on the part of each of the accused, that these were matters that should form part of the Crown case and are matters of fundamental proof rather than a matter that can "be put right, if required, by the service of a short statement of additional evidence from the relevant witness". They have not been available to the Defence since the Statement of Additional evidence was not received by the court until the end of August, being dated 27^th August 2009. This came before me for arraignment on 2^nd September 2009.

[18] After considering all of the above and looking at the evidence against each of the accused separately on each of the counts I was of the view that, on the state of the evidence before me on the papers and the exhibits, this did not disclose a case sufficient to justify putting either of the accused on trial. I therefore caused a No Bill to be entered on 22^nd September 2009. Clearly from what I was told by Mr Weir there may be additional evidence available that would affect or alter this view both in respect of Count Three and also of Counts One and Two. These are two separate matters but the circumstances make it absolutely clear that they should be considered together.