| NICC 4||Ref:||TRE10289|
|Judgment: approved by the Court for handing down||Delivered:||05/05/2017|
|(subject to editorial corrections)*|
"… about 5'10" tall aged between 42 and 48, skinny build with a thin face which was pale/yellowish in colour … he was clean shaven … his hair was short…"
"I have made a statement in relation to trying to identify the gunman in which I name him. I attended an identity viper parade. There were photographs shown to me for 15 seconds each. I went through it four or five times, then I asked to see numbers 1 and 3 again and watched them closely. I decided that I wouldn't choose either as I wasn't sure and I didn't want to choose the wrong one and make a mistake. So when it was over I asked to see the serious crime officer and tell him the name of the gunman. I told him everything that I know and how I know the gunman."
"The person I seen in the entry is not on the DVD unless he looks different but I would recognize this person."
He goes on to state:
"Some people that I'd been walking with said that's Malachy Goodman."
He later says:
"I have never spoken to Malachy Goodman Snr. I have never called him by his name and I have never heard him being called by his name.
"I have only ever seen Malachy Goodman Snr once or twice prior to the murder."
"A. It was Tony and Edward, Tony Benson and Edward Gibson".
The police say:
"Q. Why didn't you tell us that before, that those were the two people who pointed him out?"
"A. Because I just didn't want to mention their names basically, I didn't want to bring their names into it".
"A. I just didn't feel it was necessary to mention the names, basically no reason really."
So two dead people pointed him out. On page six when the police say:
"Well we would like to speak to Tony Benson." He says: "He is deceased."
Admissibility of hearsay evidence
18.-(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if –
(a) any provision of this Part or any other statutory provision makes it admissible,
(b) any rule of law preserved by Article 22 makes it admissible,
(c) all parties to the proceedings agree to it being admissible, or
(d) the court is satisfied that it is in the interests of justice for it to be admissible.
(2) In deciding whether a statement not made in oral evidence should be admitted under paragraph (1)(d), the court must have regard to the following factors (and to any others it considers relevant) –
(a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case;
(b) what other evidence has been, or can be, given on the matter or evidence mentioned in sub-paragraph (a);
(c) how important the matter or evidence mentioned in sub-paragraph (a) is in the context of the case as a whole;
(d) the circumstances in which the statement was made;
(e) how reliable the maker of the statement appears to be;
(f) how reliable the evidence of the making of the statement appears to be;
(g) whether oral evidence of the matter stated can be given and, if not, why it cannot;
(h) the amount of difficulty involved in challenging the statement;
(i) the extent to which that difficulty would be likely to prejudice the party facing it.
Statements and matters stated
19.—(1) In this Part references to a statement or to a matter stated are to be read as follows.
(2) A statement is any representation of fact or opinion made by a person by whatever means; and it includes a representation made in a sketch, photofit or other pictorial form.
(3) A matter stated is one to which this Part applies if (and only if) the purpose, or one of the purposes, of the person making the statement appears to the court to have been—
(a) to cause another person to believe the matter, or
(b) to cause another person to act or a machine to operate on the basis that the matter is as stated.
Cases where a witness is unavailable
20.—(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if—
(c) any of the five conditions mentioned in paragraph (2) is satisfied.
(2) The conditions are—
(a) that the relevant person is dead;
Preservation of certain common law rules in relation to hearsay
22.—(1) The following rules of law are preserved.
Reputation or family tradition
(3) Any rule of law under which in criminal proceedings evidence of reputation or family tradition is admissible for the purpose of proving or disproving—
(c) the identity of any person or thing.
The rule is preserved only so far as it allows the court to treat such evidence as proving or disproving the matter concerned.