“If the judge had adopted what we consider to be the proper approach..”

Following the decision of Mr Justice McLaughlin to throw out the charges against William Courtney, who was accused of the murder of Alan McCullough in a UDA feud, the Crown – via the DPP – appealed the decision. Today the Appeal Court ruled that Courtney must stand trial on the charge of murder in “the interests of justice”. The ruling, delivered by Lord Chief Justice Sir Brian Kerr along with Lord Justice Campbell and Mr Justice Coghlin, also reveales that the case relies on circumstantial evidence. Also of note, and in contrast to other recent cases, “The Crown had not sought a retrial on a second charge of UDA/UFF membership.”From the Appeal Court ruling

Was there an error of law or principle?

[31] We can quite understand how the judge came to focus on the evidence of the McCulloughs and Mr Hagan since the claim that they made was the centrepiece of the Crown case. But we consider that he was wrong to isolate this evidence from the remainder of the Crown case. In a case depending on circumstantial evidence, it is essential that the evidence be dealt with as a whole because it is the overall strength or weakness of the complete case rather than the frailties or potency of individual elements by which it must be judged. A globalised approach is required not only to test the overall strength of the case but also to obtain an appropriate insight into the interdependence of the various elements of the prosecution case.

[32] If the judge had adopted what we consider to be the proper approach, he would have had to review the following aspects of the evidence: –

During the period from the deceased’s return to Northern Ireland until his death he was in regular contact by telephone with the defendant.

The defendant had presented himself as someone who wanted to help the deceased in circumstances where Mr McCullough was clearly at risk from members of a paramilitary group.

After the deceased’s disappearance, despite the regularity of contact between the defendant and the deceased, there is prima facie evidence that the defendant refused to accept telephone calls from Mrs McCullough.

There was prima facie evidence that the defendant owned a Mitsubishi car that was blue in colour.

The deceased left his mother’s home in Denmark Street within a very short time of receiving a call from a mobile telephone owned by the defendant.

Mr McCullough had been collected from the house on 26 May by the defendant after receiving a telephone call from him at a similar time on that date.

Evidence was given by the McCulloughs and Mr Hagan that, on leaving the house in Denmark Street on 28 May, the deceased was collected by the defendant.

Witness A was prompted to return to the Aughnabrack Road after reading an article in the Irish News which suggested that Alan McCullough had been taken from his mother’s home by a blue Mitsubishi car.

The witness had made a connection between the article that he had read and the experience that he had had on the Aughnabrack Road on 28 May. This was at least indicative of his having recalled that one of the cars that he had seen was consistent in appearance with a blue Mitsubishi.

The discovery by witness A of the body on his return to the Aughnabrack Road provided prima facie evidence that he had seen those who had been involved in the murder leaving the scene.

One of the cars observed by witness A at the scene was blue.

A car (or cars) can be detected in CCTV footage whose appearance is not dissimilar to the Mitsubishi car with which the defendant was associated. It was observed over a route that would have travelled between Denmark Street and the body deposition site.

A scientific connection had been established between clothing and footwear belonging to the defendant and the body deposition site. Staining on the knees of a pair of trousers provided prima facie evidence that the defendant had been at that site in the recent past.

The defendant had given what were at best inconsistent and unsatisfactory accounts of his movements on 28 May. He refused to answer questions about the accounts given by Mrs McCullough regarding his movements on 26 and 28 May. When he was interviewed on 1 June 2003 he said that he had been watching television at ‘the house’ in Glenbryn, leaving at 6.15pm with one passenger who was not the deceased. He refused to answer questions about his ownership of the Mitsubishi car. During interviews on 12 and 13 June in a prepared statement read by his solicitor during interview he said that he had been in Ihab Shoukri’s house from about 5pm on 28 May. He left shortly after 6pm with a Gary McKenzie to meet a man called ‘Geordie Mack’. There had been a prior arrangement for the meeting for the purpose of selling the Mitsubishi car. When asked why he had not given this account to the police on 1 June he made no reply.

[33] We consider that if the judge had taken all this evidence into account on an all-encompassing basis he would have found that there was sufficient evidence to raise a prima facie case against the defendant, notwithstanding the frailties of the testimony of the McCulloughs and Mr Hagan. The failure to approach the case in this way constituted, in our opinion, an error both in law and in principle. In the circumstances it is unnecessary to address the question whether the ruling that the judge made was one that could not reasonably have been made.

Is it in the interests of justice that a fresh trial take place?

[34] It is necessary to consider whether it is in the interests of justice that the defendant be tried again. We have concluded that it is. We recognise that the McCulloughs and Mr Hagan will now be prepared for the attack on their reliability that was made on the first trial but we believe that any apprehension about the effect that this might have on the fairness of a new trial can be adequately catered for by the availability of records of their evidence on the trial before McLaughlin J.

[35] We are satisfied that the interests of justice require that the defendant stand trial on the first count of the indictment that has been preferred against him. We will therefore grant leave to appeal, allow the appeal against the judge’s order and direct that the defendant stand trial again on the charge of the murder of Alan McCullough. [added emphasis throughout]

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