Neutral Citation No:  NICC 2
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"The victim in this case is James McDonagh. He was born on [..] of Hillhead Cottages, Castledawson. He was aged 28 when he died.
The Defendant is Finbar McCoy. He was born on [..] and he was aged 24 at the time of this incident. He lives at [..] Loughbeg Road, Toome.
This case relates to an altercation outside the Elk Bar, Toomebridge at approximately 2.30a.m. on 10 January 2016.
On the evening of Saturday 9 January 2016 a surprise retirement party had been organized at the Elk Bar, Toomebridge, for the father of the Defendant, Finbar McCoy Snr. Mr McCoy Snr. was well known having worked as a doorman in the Elk Bar for a long period of time. The Defendant attended with other members of his family for dinner at the Elk Bar prior to the commencement of the surprise party which took place in the public bar.
James McDonagh was drinking in the public bar of the Elk Bar during the evening of the 9 January 2016. He was with his 15 year old nephew, Daniel McDonagh. As the evening wore on Mr McDonagh became increasingly intoxicated with alcohol and was observed to be paying unwanted attention to a number of females in the McCoy party including the Defendant's sister.
The Defendant had been in attendance at this event throughout the evening along with other friends and family members. During the course of the evening he too had consumed alcohol.
Sometime after 2.00a.m. Finbar McCoy Snr. was observed to be involved in an altercation with James McDonagh in the car park of the Elk Bar. This appears to have arisen out of a confrontation between Daniel McDonagh aged 15 and Finbar McCoy Snr. close to a smoking area outside the premises and in relation to another incident in Toomebridge. During this altercation Mr McDonagh punched Mr McCoy Snr. The defendant was not present at this time.
Mr McCoy was observed to have blood on his forehead and his wife (the mother of the Defendant) was observed to be picking herself off the ground at one stage.
During this altercation James McDonagh was also observed swinging a punch which struck Sean Diamond causing a cut below his eye.
Finbar McCoy Snr. was restrained by members of his family and Mr McDonagh was gesturing to Mr McCoy Snr. that he wanted a fight.
Finbar McCoy Jnr. then arrived at the car park having returned home briefly. He made a remark to the effect that he believed Mr McDonagh had hit his mother. Mr McDonagh was observed by witnesses to be attempting to "rile" Finbar McCoy Jnr. A number of people attempted to hold Finbar Jnr. back but he struggled free and approached Mr McDonagh.
The Defendant threw one punch which struck Mr McDonagh in the face. Both the Defendant and the deceased fell to the ground. In doing so, Mr McDonagh fell backwards and became unconscious. He never regained consciousness.
Peter McErlane refers to Finbar Snr's daughter moving Jim slightly from lying on his left side to a propped up sitting position with his back leaning on the wall. There was blood coming from Jim's mouth and he was unconscious. Finbar Jnr. was sitting on the wall and seemed quite distraught; Dawn was screaming at him 'What have you done'.
Members of the McCoy family placed Mr McDonagh into the recovery position at the scene. Finbar McCoy Senior and his wife then moved Mr McDonagh and propped him against a wall. Mr McCoy Snr checked his breathing. Mr McDonagh was observed to be snoring loudly.
The Defendant's sister asked the manageress of the Elk Inn, Joan Belton, to phone for an ambulance. At that time a man named Jim Maguire arrived in a blue van. Ms Belton asked the man to take Mr McDonagh to hospital but he refused saying that he would return with guns.
Mr McDonagh was taken to his mother's house. He was still unconscious. Mrs McDonagh checked his head and found no lumps. He was placed on the living room floor with his head on a pillow and his body covered by a rug.
In the morning, when Mr McDonagh still had not regained consciousness, his family became concerned for his welfare and an ambulance was called.
James McOscar, a Paramedic attended [-] Hillhead Cottages, Castledawson, at approximately 8.20am. He noted that "when we found the patient he was lying on the ground in the sitting room." He transported Mr McDonagh to Antrim Area Hospital arriving at 9.03am. He was unconscious and unresponsive. He was breathing rapidly and his pupils were dilated. He was noted to have a swollen lip which had evidence of blood around his mouth and it was clear he had suffered a significant head injury. An emergency CT scan carried out which showed severe injuries to his head, including a right temporal parietal skull vault fracture (extensive fracture over the right side of the skull); a left occipital scalp haematoma (large bruise to the back of the head); evidence of bleeding into the lining of the brain (subarachnoid blood); right frontal lobe haemorrhagic contusion (bleeding and bruising into the right front side of the brain); right sided bleeding around the brain and significant evidence of swelling with midline shift towards the left hand side of this suggestive of recent severe traumatic event.
Mr McDonagh was transferred to intensive care in the Royal Victoria Hospital. At 11.27am on Monday 11 January, medical staff carried out a brain stem check to test for any activity in the brain; no activity had been detected. A second test was carried out at 2.38pm and again no activity was detected. Life was pronounced extinct at 2.38pm hours on Monday, 11 January 2016.
On Wednesday 13 January 2016, Dr. Peter Ingram, the Assistant State Pathologist conducted a post-mortem. There were areas of abrasion on the scalp on the left side at the back and on the right side towards the back consistent with contact with a rough surface. There was extensive bruising of the underlying scalp at the back as well as a bruise on the right side which also involved the right temporalis muscle. A large fracture was situated on the right side of the skull and was associated with considerable bleeding over the surface of the brain which also showed extensive surface bruising, particularly on the right side. As a result of the head injuries the brain had undergone cerebral oedema (reactive swelling) with the development of small secondary haemorrhages in the brain stem. He concluded that the cause of death was a bruising and oedema (swelling) of the brain associated with a fracture of skull and secondary brain stem haemorrhage.
Dr Ingram indicated that Mr McDonagh had sustained bruising and laceration to the left side of his lower lip consistent with having been struck on the mouth probably as a result of a punch. There was also a bruise on the underside of the chin consistent with a blow such as punch. Whilst those injuries were of themselves quite trivial, Dr. Ingram concluded that they could have resulted in his falling and striking his head on the ground. There were no other injuries to his face.
At the time of his admission to hospital Mr McDonagh had a blood alcohol concentration of 148 mg per 100 ml of blood. This sample producing this reading was taken approximately 7 hours after the incident during which time alcohol would have eliminated from the blood. The level of alcohol in the blood stream would have been considerably higher earlier that morning and his level of intoxication would have been significantly greater.
The nature of the fall described by the witnesses was entirely consistent with the injuries found. Dr. Ingram considered it was "unlikely that he was struck in the face with any significant degree of force more than twice". In Dr Ingram's opinion, Mr McDonagh was struck in the face, fell backwards, as described by the witnesses, struck his head of the ground resulting in injury, fracture of the skull, internal bleeding and ultimately death.
Finbar McCoy (the Defendant) was examined by Helen McNeely (Nurse Practitioner) at 10.15 a.m. on 10 January 2016. He had an injury to his right hand; he said he had hit a wall. X-rays showed that he had fractured a knuckle. Mr McCoy also had an injury to his knee consistent with a fall.
Just after midnight on Monday 11 January 2016, Constable Brendan Agnew arrested Finbar McCoy in respect of the incident. Finbar McCoy made no reply to caution. He was then taken to Musgrave Street Police Station where he was interviewed by police.
During interview, Finbar McCoy said he had left the Elk Bar to go home. He had received a call from his sister to return and get his parents home. He came back driven by Dermot Gribbon. When he came back he saw a commotion and considered his parents and sister had been assaulted. His father had blood on his face. He heard someone shout, 'It was him over there' and the Deceased was identified to him wearing a white shirt. He said one of the bar staff was holding him back. He said McDonagh was taunting, laughing, shouting and roaring, looking to fight. He broke free and went to McDonagh punching him with his right fist once on the head around the chin (consistent with the medical evidence). They both fell to the ground. He said he got up immediately and walked towards a fence that he punched. At this point he noticed that his hand was cut and he felt pain in his right hand/wrist. He then claimed that he noticed 2 or 3 persons sitting on McDonagh and "beating the life out of him". He said McDonagh's head was bouncing as though there was a drum beneath it. In light of the reports from Dr. Ingram and ultimately his guilty plea, this account is neither supported nor maintained. Mr McCoy denied knocking Mr McDonagh out although he accepted he punched him. He said his father pushed these people away and helped McDonagh into a Transit van.
On the evening of 13 January 2016 Finbar McCoy was charged with murder. He replied, "I can't bring words together to say how sorry I am. I feel so sad for the family, but I did not murder James McDonagh."
I have also had the benefit of hearing evidence from witnesses about the demeanour of the deceased and the defendant on the night in question.
The pre-sentence report
1. The absence of a relevant criminal record
2. The manner in which the defendant has met these charges
3. The defendant's excellent employment record
4. The support provided within the defendants immediate family circle
5. The salutary lesson already experienced by the defendant from this situation
6. The significant level of remorse demonstrated by the defendant.
The report repeats these factors in assessing that "despite the very concerning nature of the current offence the defendant has not been assessed as presenting a significant risk of serious harm at this time."
The probation report also states that;" given the salutary lesson already experienced by the defendant and the fact he has been assessed as low risk of reoffending and not a significant risk of serious harm to others at this time, the court may wish to give consideration to suspending such a sentence for a protracted period."
Submissions on behalf of the prosecution
Victim impact reports
"Whilst attending Court, I felt sorry for Finbar's mother and father and his family, I didn't care if Finbar Junior did not see the inside of a prison, as a family we just wanted the recognition for what he had done and caused Jim's death. I also recognise and respect that Finbar Junior done a big thing in pleading guilty, I don't want the boy to be punished. We are so glad that we were not put through another trial. I don't believe that we could have coped as a family. I feel sorry for Finbar's mother and father, it's an awful thing to see your child go to jail."
Submissions on behalf of the defence