Neutral Citation No. [2008] NICC 47	Ref:     	GIL7189	
			
Judgment: approved by the Court for handing down	Delivered:	27/06/08	
(subject to editorial corrections)*			

IN THE CROWN COURT IN NORTHERN IRELAND
 _________

THE QUEEN

-v-

JAMES McCORMICK
 ________

GILLEN J

[1]	In this trial the accused James McCormick is charged with a count of affray contrary to common law on 30 January 2005, along with two other men.  This charge arises out of the events of the evening of 30 January 2005 when the prosecution allege that Robert McCartney was pursued along Market Street by a number of men armed with weapons who it is alleged included the accused McCormick.

[2]	In opening the case before me the prosecution claimed that it would rely on the evidence of a Mr Gowdy and a Mr Devine to establish that the accused was one of a number of persons some of whom had weapons who followed Mr McCartney into Market Street.  Mr Devine was held out as a witness who identified the accused as one of these persons  coming down Market Street in pursuit of Mr McCartney.  Mr Devine, who alleged he had accompanied Mr McCartney into Market Street was stabbed there.  He identified the accused as close to him at that time.  

[3]	Prior to this trial commencing I had taken the precaution of informing counsel at a preliminary hearing that I had not read any of the papers and that before I did so I wished to be assured that any redaction deemed necessary had been completed.  In due course I was so assured and a set of papers with evident redactions were provided to me.

[4]	On the fifth day of this trial Mr Brolly, who appeared on behalf of this accused with Ms McDermott QC, made two applications before me.  The first was to the effect that this accused should be given a separate trial from his two co-accused.  This was in light of information which counsel had received as to the nature of the cross-examination which counsel now anticipated was to be undertaken by Mr Pownall QC on behalf of another accused Davidson (who is also on a count of murder of Mr McCartney) of the witness Devine.  This apparently would suggest that Mr McCormick had stabbed Mr Devine not withstanding the fact that the accused was not charged with such an offence and that prosecution was not adducing evidence to that effect.  I refused that application for reasons I have set out in another ruling.

[5]	Immediately thereafter Mr Brolly mounted a second application to the effect that there had occurred what he described as a misunderstanding in the course of the redaction process which had been agreed with the prosecution.  He submitted that an extract from Mr Devine’s second witness statement made on 15 June 2006 ought to have been redacted but in the event had not been.  He sought my order now to exclude that extract and that the prosecution be prevented from leading this evidence.  The lines to be excluded were:

“I picked out no. 6 whom I identified as being the person who I describe in my interviews with the police as the person who I saw grinning at me, when I turned round after being stabbed.  He is also the person outside Magennis’s bar who was shouting and pointing at me telling me to fuck off after I was outside in the street with my throat cut.  Also I turned round immediately after I was stabbed and the person who I picked out no. 6 was standing grinning at me.”  (“the impugned extract”)

It is clear, according to the prosecution, that the person he had picked out at the identification parade no. 6 was the accused.  

[6]	Mr Brolly submitted, somewhat anecdotally at times, that there had been an agreement with the prosecution whereby evidence from Mr Devine was to be redacted where it was uncorroborated by other witnesses, the suggestion being that it was unreliable.  He relied on the fact that the accused’s name had been excised from the entire statement and earlier references to the incidents in the impugned extracts had been redacted.  Mr Brolly took the opportunity in the course of his submission, without invitation from me, to read out extracts from the excised portions to illustrate what he asserted were clear instances of uncertainty and of equivocation on the part of Devine as to his identification of the accused during these events.  Before I interrupted him, he read me extracts from interviews with Devine which had not yet been addressed in the trial to underline his suggestion that the evidence of Devine was riven without uncertainty and vagueness in relation to his purported identification of the accused in sharp contrast to the contents of the impugned extract.  Counsel relied on the fact that the accused was not charged with the stabbing of Devine as further indication of the complete unreliability of Devine.  

[7]	The burden of Mr Brolly’s submission was that I ought to exercise my discretion under Article 76 of the Police and Criminal Evidence (NI) Order 1989 (“PACE 1989”) to exclude the impugned extract from the trial.  That it had been permitted to come before me without earlier challenge was, according to Mr Brolly,  a pure oversight on the part of defence counsel.

[8]	Mr Kerr QC on behalf of the prosecution robustly denied that anything in the nature of the agreement asserted by Mr Brolly had been entered into by the prosecution on the issue of the redaction.  It was his case that the redactions had been agreed on the basis of what he described as a “liberal attitude” to the process by the prosecution in an attempt to narrow the content of what Devine had said and in order to prevent repetition.  He asserted however that at all stages it had been made clear to defence counsel that the identification of the accused by Mr Devine and the events recorded in the impugned extract were to be relied on by the prosecution whatever other redaction had been agreed.  In this regard he relied on the fact that this was in the event what had actually happened whatever may be now said about counsel oversight.  Hence the impugned extract had remained unredacted and in the papers before me.  

[9]	In short it was Mr Kerr’s submission that it was completely unfounded to suggest that the criteria for the redactions had been to meet those areas where the evidence of Mr Devine was unreliable and uncorroborated or where he was deemed by the prosecution to be unreliable.  

[10]	It seems to me that there may well have been an element of confusion and misunderstanding between counsel as to the basis on which redactions were being proposed or accepted.  Conceivably both sides may have been at cross-purposes.  It was a matter of regret to the court that this dispute had arisen.  I was left with a measure of concern that inadequate care may have been invested at least in the process of oral exchange during the redaction exercise.  In future more caution in checking and completing this task will be necessary if the confidence of the court is to be maintained in the current procedures adopted by counsel and solicitors on each side.  It may be that in circumstances such as this, where it is being asserted that defined criteria are to be the standard against which redactions are to be made, a note to this effect signed by counsel at the outset would avoid any misunderstanding such as has arisen before me.

[11]	In the final analysis I have to determine if admission of the impugned extract would have such an adverse effect on the fairness of the trial of this accused that the court ought not to admit it having regard to all the circumstances (see Article 76 of PACE 1989).  I have come to the conclusion that admission of the impugned extract would not have such an effect for the following reasons.

[12]	First it will be clear from what I have earlier said that I am not satisfied that the prosecution have acted improperly in this manner albeit that my concerns expressed in paragraph 10 above apply to both prosecution and defence in this instance.  I find no evidence of bad faith, executive manipulation or breach of professional duty.  Clearly the power under Article 76 is not confined to instances of impropriety but insofar as there was any hint of that aspect in the submissions before me I have excluded it as a factor.

[13]	Secondly I find nothing in the impugned extract which points to the accused being guilty of any offence outside that with which he his charged.  He is not prejudiced in this regard by the admission of the impugned extract.

[14]	Thirdly I consider the evidence is relevant to the count of affray as charged and therefore appropriate to be put before me in a witness statement and given in evidence provided the witness bears it out.

[15]	Fourthly I find nothing in the statement as a whole or the evidence currently before me in the papers which renders the impugned extract so inherently weak, implausible, unreliable, inconsistent or vague that it would be unfair to the accused to let it be heard or given.  Frailties or weaknesses that may be evident on the face of the papers are not sufficient to lead to exclusion of this extract.  That may not remain the position as the case unfolds but I can only judge the matter as it currently stands.  It would be improper for me to rely at this stage on evidence that may be given or which may emerge in the course of the trial.  

[16]	The prosecutor is the primary judge of whether or not a witness to the material events is incredible or unworthy of belief at this stage.  “It goes without saying that the prosecutor could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a large number of witnesses” (see Archbold 2008 edition at paragraph 4-275).  Moreover whilst the prosecution has not invoked the principle in this case, I observe that there is no rule inhibiting the prosecution from calling a particular witness if they do not regard the whole of his evidence as reliable; if they consider that part of his evidence is capable of belief then, even though they might not rely on other parts of his evidence, it is a proper exercise of their discretion to call the witness albeit special caution would need to be exercised by the court in respect of the reliability of the witness.  See R v Cairns and Others (2003) 1 Cr App R 38 CA.  At that juncture I find nothing to conclude that in calling the witness Devine to give the impugned extract the prosecution are in breach of such principles. 

[17] 	Turning generally to the exercise of my discretion under Article 76 I adopt the words of Lord Lane CJ in R v Quinn (1990) Crim L R where he said:

“The function of the judge is therefore to protect the fairness  of the proceedings.  Normally proceedings are fair if a jury hears all relevant evidence which either side wishes to place before it, but proceedings may become unfair if, for example, one side is allowed to advance evidence which, for one reason or another, the other side cannot properly challenge or meet.”

I can conceive of no reason why the accused in this instance cannot meet or challenge the evidence contained in the impugned extract.

[18]	In all the circumstances therefore I see nothing in the facts of this statement and the impugned extract which should direct its exclusion.  I must strike a balance between that which is fair to the prosecution and that which is fair to the defence.  I do not consider that its admission would have an adverse impact on the fairness of the trial of the accused.

[19]	I conclude by confirming that in this instance I consider the right to a fair trial under Article 6 of the European Convention of Human Rights and Fundamental Freedoms involves the same criteria as I have applied under Article 76 of PACE 1989.  I find therefore no breach of Article 6 of the Convention in admitting this evidence.

[20]	I therefore reject the defence application.