Neutral Citation No.: [2009] NICC 21	Ref:     	GIL7339	
			
Judgment: approved by the Court for handing down	Delivered:	3/3/09	
(subject to editorial corrections)*			

IN THE CROWN COURT SITTING AT BELFAST
 ________

THE QUEEN

-v-

STEVEN LESLIE BROWN 
(ALSO KNOWN AS STEVEN LESLIE REVELS)
 ________ 

GILLEN J

The charges 

[1]	In this matter Steven Leslie Brown is charged with two counts of murder namely that of Andrew Robb and David McIlwaine on 19 February 2000 at Druminure Road, Tandragee.  The deceased Andrew David Robb was 19 years at the time of his death and David McIlwaine was 18.

Background facts

[2]	A number of the facts in this case are not in dispute.  On the morning of Saturday 19 February 2000 a passer-by along Druminure Road came upon the bodies of the two young men lying some distance apart.  I had before me a number of maps and photographs which depicted the horrific scene along Druminure Road containing the bodies of the two young men. Collette Quinn, Senior Scientific Officer at the Forensic Science Northern Ireland, had access to the scene photographs and also the post mortem reports.  Her conclusions were that the body of Mr Robb showed no indication of a struggle and there was no visible blood splatter.  With reference to the body of Mr McIlwaine, she concluded that the body appeared to have been turned over and moved slightly from its original position.  The injuries to the head and body indicated that a struggle had taken place where he was found.

[3]	The post mortem report on Andrew Robb carried out by Mr Michael Curtis the assistant state pathologist for N. Ireland revealed that Mr Robb had sustained a severe cut throat injury to the neck which was non-survivable. This was most readily envisaged as having been inflicted from behind.    In addition there was a penetrating wound to the abdomen which had injured the small intestine, mesentery and aorta with massive resulting haemorrhage.  The latter wound would, in itself, have proved fatal in all probability.  Additionally there were three penetrating wounds to the left thigh and a penetrating wound to the left buttock.  There were no obvious defence type injuries.  At the time of his death, the deceased was intoxicated with alcohol.  

[4]	A post mortem on Mr David McIlwaine revealed that he also had sustained a severe cut throat injury to the neck again inflicted probably from behind although he said it could have been when he was on his back and caused by a sawing motion.  7 penetrating wounds to the chest probably inflicted from the front with the attacker above him if he was on his back, penetrating wounds to the face and a penetrating wound to the left eye which entered the cranial cavity and sliced the under surface of the brain.  The stab wounds to the chest had produced injuries to both lungs, the heart and the great vessels.  In addition the trachea, larynx and oesophagus had been injured by the cut throat injury.  Death was attributed to the cut throat injury and the penetrating wounds to the chest. He also had bruising to the face which could have been caused by blows inflicted.  At the time of death he was also intoxicated with alcohol.  

[5]	When the scene at Druminure Road was examined by Scenes of Crimes Officers a number of significant findings were made which included bloodstaining consistent with the injuries sustained at each location where the bodies were recovered, recent tyre marks in the vicinity of a gate into a field on the north side of the road not far from the bodies of the two deceased (lending itself to a prosecution submission that a proper inference could be drawn that the parties had all arrived by car and that those involved in the murder had left the scene in that vehicle) and a number of pieces of green plastic close to  the location of Mr McIlwaine’s body.  One piece of plastic was found under his body, one piece found between his body and his outstretched arm, and three other pieces in close proximity.  In addition on the clothing of McIwaine 2 DNA traces of the accused Brown were found. 

[6]	There was not much dispute about the evidence of the movements of the deceased in the early evening of 18 February 2000.  It revealed that Andrew Robb had gone to Tandragee with friends in a taxi at about 10.00 pm.  The deceased with his girlfriend and others had spent the earlier part of the evening of 18 February 2000 in the Spot bar/nightclub where they met up with David McIlwaine and at the Paddock another pub in the town.   There, according to the evidence of Kim Topley who knew him and his girlfriend, Mr Robb had been speaking to Mark Burcombe for about 5-10 minutes when he had come into the Paddock.  Sometime shortly after closing time i.e. 1.25 am Robb and David McIlwaine had unsuccessfully attempted to board a taxi with their friends. 

[7] 	Later at about 2.00 am/2.15 am on Saturday 19 February 2000 Angela Gibson came across Andrew Robb outside the Spot where he asked her for a lift but again there was not enough room in the car for him.  He had asked her if she had known of any parties and she had indicated to him that a Debbie Maxwell’s house was a place he should try.  Debbie Maxwell lives in the house immediately beside that of the accused in Sinton Park in Tandragee.

[8]	Thereafter the movements of the deceased are a matter of dispute and I shall turn to those later in this judgment.

[9]	There was a sighting by a barman of the accused that night together with Noel Dillon at the Spot nightclub at about 11.30 pm.

[10]	The next objective piece of evidence is from a Mr Purdy, who was going to work about 4.20 am on Saturday morning 19 February 2000.  He recalled seeing a burgundy coloured Peugeot 205 sitting parallel with a phone box in Tandragee at the top of Church Street.  He observed one male person in the driver’s car who appeared to be of stocky build.  He thought there was somebody else present between the car and the nearby telephone box.  The accused owned a red burgundy Peugeot 205 car.

[11]	The bodies of the deceased were found by a passer by at about 9am on the 19 February 2009 at Druminure Road. 

[12] 	There was a sighting of Mark Burcombe, Brown and Noel Dillon in a burgundy red car along the old Gilford Road on Saturday 19 February in the afternoon between 2.00 and 2.40 pm by Mrs Pamela Moody. 

[13]	The accused was seen cleaning out his red Peugeot car with what was assumed to be a hoover at about 11.30 am on 21 February 2000 by his next door neighbour.  

[14]	The defendant was arrested at 15 Sinton Park on 23 February 2000 and the premises were searched.  Scenes of Crimes Officers and other police who were present at the house, alleged that at the front of those premises close to the door  a piece of green plastic was recovered.  In addition another piece of plastic was found at the rear of the premises inside the wooden fence.

[15]	Over the course of 4 days the accused was questioned by police.  He and Dillon (now deceased) were charged with the murders of the two victims and remanded in custody without bail until being granted bail in December.  The charges were subsequently withdrawn at the beginning of 2001.

[16]	In 2005 Brown and Burcombe were charged with the murders.   The charges of murder against Burcombe were subsequently withdrawn and he pleaded guilty to the offence of conspiracy to cause grievous bodily harm to Mr Robb.  He received 28 months imprisonment together with a further two months consecutive sentence for an offence of disorderly behaviour for which he had a suspended sentence on 25 March 1999.       

The evidence of Mark Burcombe

[17]	A major plank in the prosecution case was the evidence of Mark Burcombe who gave evidence before me over several days.  This witness was 19 years of age in February 2000.  He said that at that time he did not know Noel Dillon but that he did know Steven Brown as Steven Revels and had known him for approximately 1/1½ years from socialising in bars and on regular occasions going in and out of Jameson’s bar in Tandragee.  Prior to February 2000, he had last seen Brown when he had been briefly to his house in Tandragee in December 1999. He also knew the deceased Andrew Robb from about 12 years of age when he had socialised in his company as a teenager.  He knew David McIlwaine from some time back when they had gone to school together. His claim not to know Dillon was challenged by the accused on the basis that Dillon had often driven a vehicle transporting Burcombe and others to loyalist gatherings. I did not believe that Burcombe did know Dillon.  There would be no logic in him denying knowledge of Dillon – it added nothing at all to his account – and would have been so easily disproved by numerous people who would have seen him in the  company of Dillon if the accused’s version were true .  

[18]	Describing the events of the evening of 18 February 2000 the witness said he had been drinking throughout the evening in various public houses in Tandragee eventually going to the Paddock Bar at about 9.30 pm with some of his friends. He described himself as “drunk but jolly, not blitzed”.  At about midnight he had noticed the accused in the bar walking towards the dance floor from the bar and had spoken to him perfunctorily. During the course of that evening in the Paddock Bar a fight had occurred between two brothers called Lunt in whose company the witness had been.  

[19]	The witness had left the Paddock Bar after last orders at about 1.25 am.  He said that at that time in his life he would have regularly been drinking about 15-16 pints in the evening and was about 19-20 stones in weight.  

[20]	Standing outside the door of the Paddock Bar he had met the accused coming out.  He looked as if he had had a lot to drink.  They discussed the fighting and then the accused invited him to come to his house for a drink.  The accused had come out of the bar with two bottles of Buckfast wine and six tins of Tennents beer.  They set off for the accused’s house at Sinton Park nearby and on the way met Noel Dillon who appeared to the witness to be drunk and unsteady on his feet arriving at the accused’s house at about 1.45 am.  There was a car sitting outside but he was unsure if it was the accused’s car or not.  The three of them – the accused, Burcombe and Dillon drank and listened to music which included an “Armagh True Blues” tape.  He also recollected the accused receiving a telephone call to his mobile from his partner Alexia Dillon who was baby sitting elsewhere.

[21]	Burcombe then recalled that the two deceased young men arrived at the door.  The accused brought them into the house, saying that “they were a couple of boys looking for a party”.  During the conversation between the five of them, the accused had asked Robb where he had been and the deceased responded that he had been to the Spot nightclub, that they were coming down looking for Philip Donnelly’s house and saw the lights on in the accused’s house.  Mr Burcombe described Mr Robb as looking glazed as if he had taken drugs or was well intoxicated.  Mr McIlwaine looked as if he had been drinking but was not as drunk as Robb.

[22]	The witness described the accused asking the two deceased if they took drugs and where they obtained their drugs from.  Mr McIlwaine had allegedly said that he received his from a man called dirty Macker in Parkmore who was allegedly known as the LVF drug dealer. At that stage they were all drinking.

[23]	During the conversation, Dillon had asked Robb what he thought about the murder 6 weeks before of a Richard Jameson the brother of a Stuart Jameson who owned Jameson’s Bar and who was said to have been the UVF commander in Portadown.  The witness described Mr Robb responding in the following terms “So fucking what: it’s got fuck all to do with me”.  

[24]	According to the witness Noel Dillon then said that Richard Jameson was a good friend of his.  He looked shocked and surprised.  Mr Burcombe described Mr Robb sitting forward in his seat and saying “fuck him”.  It was said in an aggressive manner.  The accused then responded “fuck the LVF”.  The witness said that it was alleged that the LVF had murdered Richard Jameson.

[25]	Burcombe described tension then in the room and no one spoke for about ten seconds.  He thought there was going to be, to use his words “a digging match” in the room because of the comments between Robb and the accused.  

[26]	The witness then asked Mr McIlwaine to go outside with him for a cigarette and this they did and chatted about football and other things for about 10 minutes. When they returned to the kitchen of the house from outside, the accused and Noel Dillon seemed to be talking in the kitchen.  As McIlwaine went back into the living room closing the door, the accused called Burcombe back and, in the presence of Dillon said “I’m going to punch the fucking head of that cunt Robb”. Burcombe described him as looking determined and furious.  The witness said that he told Brown “Go for it, I’m saying fuck all”.  The witness said he was not bothered whether they fought or not as it did not involve him.  He thought that Mr Robb would not be slow to engage in a fight from his experience of him.

[27]	Burcombe then returned to the room and spoke to McIlwaine and Robb for about 5-10 minutes before the accused and Noel Dillon returned from the kitchen.  Dillon at that stage asked “If we can get some drink and some drugs sorted” were they up for it?  The witness said at that stage he thought that they were going to have a bit of a party with drink and drugs although there was no mention of where the party might be or where the drink or drugs would be obtained. There was no real atmosphere and no fighting had occurred.  This was approximately 2.45 am.

[28]	At that stage the accused and Dillon went off, the accused saying they would not be long.  They were away for about half an hour/forty minutes before they returned and said that everyone was then going for a run in the car.  At that they all got up and made their way to the Paddock Bar nearby where Burcombe noticed a Peugeot 205 parked outside.

[29]	The witness, McIlwaine and Robb got into the back, the accused was driving and Dillon sat beside him in the passenger seat.  They drove from the Paddock Bar up to a telephone box at the top of the street where Dillon got out of the car and went to the phone box.  The accused allegedly said that when he got the drinks sorted, they were going to a house up the road where they could get more drink and drugs.  Once Dillon returned they then set off down the Tandragee Main Street past the Paddock Bar.  

[30]	In the course of the journey the accused said that if this had only been three weeks prior, they would have been going to pick up £30,000 worth of drugs and could have split it up between them.  Dillon produced a bottle of vodka from between his feet.

[31]	The witness said he did not recognise where they were going but the car drove for some minutes at a steady pace.  He recalled the car then reversing into and stopping at a farm gateway on a road which was dark with bushes and trees and a stony feeling to it.

[32]	Both Dillon and the accused then exited from the car leaving the doors open.  One of them said “Everyone get out of the fucking car”.   It was said as an order.  At this stage Robb was sleeping at the back left hand side of the car.  McIlwaine pushed the driver seat forward and made his way out into the middle of the road as did Burcombe.  

[33]	Mr Burcombe said that he thought there was to be a “digging match” at that stage between Robb and the accused. Both he and Mr McIlwaine were then urinating at the side of the road. He recalled the accused Brown making a comment to Noel Dillon of “what the fuck is he doing” talking about Robb who was still in the car.  The witness said that he then invited McIlwaine to go for a walk down the road to see where the house was.  From the location however and the general area, he suspected that this was going to be the area where the accused Brown would commit an assault on Robb.  

[34]	The witness said that when he walked on down the road, he could not recall anything adding “but I don’t know if I have blocked that out”.  Further down the road McIlwaine had said that there was nothing down here and the witness claimed he had then told him that the other two were going to give Robb a beating for “slabbering” about Jameson but that he should not worry about it because it had nothing to do with him.  Mr McIlwaine had allegedly agreed about that. 

[35]	After a few minutes, the accused and Noel Dillon had walked down towards them with a swagger and a “hard man’s walk”.  The witness said that Noel Dillon had his jumper pulled up his from forearms and asked them if they were “right to go”.  At that stage the witness said that the accused threw a punch to the chest or stomach area of McIlwaine.  McIlwaine then ran back in the direction of the car but was pursued by the accused.  Mr Burcombe said that he was not sure if McIIwaine tripped or whether he was tripped by the accused. Burcombe claimed he said “fuck sake wise up”.  

[36]	He saw the accused start to kick and stamp on McIlwaine’s body and head.  McIlwaine was on the ground at this stage. Both he and Mr Dillon walked up to where the assault was taking place.  

[37]	Burcombe then said that Mr Dillon dropped to his knees, produced a large butcher’s knife from his sleeve which he had not seen before.  At this stage the witness said he was about five feet away.  Mr Burcombe said that the accused was standing over Mr McIlwaine shouting “kill the bastard.  Cut his fucking throat”.  He then described Dillon reaching out with his left hand on to Mr McIlwaine’s chest and with the knife in his right hand used a sawing motion around Mr McIlwaine’s throat area back and forward.  Mr Burcombe said that he felt faint, weak in the knees and just panicked.  He thought that if he had intervened the other two would have murdered him.  

[38]	The witness said that at that stage he considered the safest place was to hide away in the car and so he made his way back to the car approximately 60 metres away.  He was there a few minutes when the accused and Noel Dillon returned.  He could hear a wheezing noise and gasping for breath, coming from Mr McIlwaine.  

[39] 	Brown got into the driving seat and Dillon into the passenger side.  Dillon had the sleeves of his jumper pulled up to the top of his forearms, he took the long sleeved jumper off and was wiping his hands and arms down from the elbow with his jumper.  He had the knife in his hand which he then wrapped in his jumper and got into the passenger seat with a knife on his knee. 

[40]	Burcombe recounted then that the accused started up the car and said “I’m going to run over that bastard’s head”.  As the car drove down to where Mr McIlwaine was, Dillon said “Don’t be driving over his head”.  The witness went on to relate that the car then stopped and the accused reached across, took the knife from Dillon and alighted from the car.  The witness claimed he could see Mr McIlwaine’s leg through the gap in the door over the driver’s seat.  Mr McIlwaine was wheezing and gasping for breath.  

[41]	Burcombe then said he observed the accused hold this knife in his clenched fist above his head and bring it in a downward motion into Mr McIlwaine.  Each time it made a thud and he heard approximately 10-15 thuds.  It seemed to last for ever but in fact lasted about 30 seconds.  After the third thud, the noise of wheezing and gasping from the body stopped.

[42]	The accused then got back into the car and handed the knife to Dillon.  The witness described the accused as seeming “crazed” and breathing heavily.  As the car started to drive off the accused was pushing himself back in the seat with his arms outstretched on the steering wheel and the car was swerving in the road.  Dillon told him to calm down.  According to Burcombe, the accused said “Fuck sake, I’m buzzing.  That gave me some buzz.  I forgot what it was like to kill”.

[43]	Mr Burcombe said that the accused also said to Dillon that he had seen David McIlwaine looking at him and he struck him in his eye and had made the same noise as gutting a fish.  He said that when he pulled the knife out he thought McIlwaine’s head was going to come off on the knife.  Dillon said nothing.  The witness said that it seemed as if Brown was real proud of himself and that he had done something great.

[44]	Burcombe said that the car continued to be driven for about 10 minutes although it could have been longer.  It eventually reached a field where the car stopped about a metre away from the side of a building.  The accused reached across and took the knife off Dillon.  He said to the witness “if you open your mouth, I’ll cut your fucking throat”.  He had the handle of the knife and it was pointing in an upwards direction.  The witness said he could make out the blade and wooden handle.  The witness said that he replied “I’m saying nothing.  Fuck him.  Fuck sake, I’m no tout”.  

[45]	Burcombe went on to say that Brown turned in his seat and sat there for about 30 seconds.  He then got out of the driver’s seat and went down the right side with the knife in his hand.  When he got out of the car, Dillon turned into the back of the car with his left hand to shake the witness’s hand.  The witness said he refused the handshake and said “I am saying nothing”.  At that stage he could see blood on the arms and on the hands of Dillon.  He repeated the same threat.  

[46]	The accused returned to the car having been away for a few minutes.  He said to Dillon “Sorted”.  The witness understood this to mean that he had hid the weapon or disposed of it.  The car then drove off.  During the journey the accused pointed with his left hand and said to Noel Dillon something about his foster parents living in that direction.  It seemed to be a white building sitting by itself.

[47]	They returned back to Sinton Park although he was not sure of the route that was taken.  They all got out of the car.  Dillon had no top on and he was carrying a bottle of vodka.  They went into the living room of Brown’s house.  The witness walked into the living room and Noel Dillon walked through the hallway.  The witness could hear water being run like bath water. He did not see him again that morning. 

[48]	The accused came into the living room, stood in front of the fireplace and said “Such a buzz.  Forgot what it was like to kill.  The two bastards deserved it”.  Burcombe said that he looked pumped up full of adrenalin.  He went on to say “I’m going back to cut one of them open, don’t you be fucking off anywhere”.  The witness said that he had his head in his hands at that stage.  The accused had blood on the thigh of his blue jeans, the back of his hands and a few spots on his top.  He also had dark caterpillar boots.  He also had a navy fleece top.  The accused then left the house according to the witness.  

[49]	After the accused left the room, the witness said that he just sat there and did what he was told for approximately 10-15 minutes.  Brown then returned to the house.  He had changed his clothing.  There was no blood on his hands, he was wearing a white tee-shirt, black bottoms, and white Fila trainers.  The impression the witness formed was that he had washed and changed.  He then told Burcombe to get into the car as if nothing had happened.  The car outside was not the Peugeot 205 but a saloon car which the witness believed to be a Rover.  The witness got into the passenger side and Brown drove him to his house about five minutes away.  At the entrance to Sinton Park, the accused said to him “Andrew Robb will not be slabbering or telling any more of his wee stories.  The two bastards deserved it.  It was like gutting a fish”.  He said that he did the stomachs and Dillon had done the throats.  As the car drove to Burcombe’s home, Brown said to the witness “You’ll be okay if you keep your mouth shut.  There is something I want you to do.  I’ll be in touch with you tomorrow”.  The witness understood this to mean that he would be in contact with him later in the day.

[50]	Burcombe then made his way home. He contemplated telephoning the police but did not do anything because he thought that if he had done so he would have been murdered.  The following day he said that he telephoned Brown about midday from his mother’s landline phone to his mobile number.  An arrangement was made to meet at the end of his estate between the two of them.  The witness said it had been his intention to tell Brown that he had nothing to do with this.  He said he felt devastated.  He met Brown at the end of the estate in a rover car, burgundy colour.  Brown was in the passenger seat and Dillon was driving. 

[51]	They all drove to the Ballymore Inn. He had been to the Ballymore Inn before but had not been with Brown.  During the car journey the witness said Brown had discussed where they were going to be drinking, a football bet that he was putting on and that he was suffering from a hangover.  In the course of the journey an elderly man had been crossing the road rather slowly and Dillon had said “If he doesn’t hurry up, I’m going to cut his throat”.  Both Brown and Dillon laughed at this.  

[52]	In the Ballymore Inn Brown and Dillon ordered pints of Tennents or Harp but the witness refused their offer for a drink for him.  He said they only spent 2 or 3 minutes there and returned to the burgundy Rover.  During that journey Brown said to him “If anyone asks just say you were drinking with Noel and me.  You can give us an alibi.”  After a period the witness said that he remarked “Listen, at the end of the day I’d nothing to do with this.  This had nothing to do with me.  You mentioned nothing about a knife and nothing about a murder.  You said you were going to punch the head of Andrew Robb.  Nothing was mentioned about murder.”  Neither man made any reply right away to this.  The car drove to the entrance of the estate where he lived and he alleges he again said “This is fuck all to do with me.”  Brown replied “I don’t give a fuck.  The two bastards deserved it.  If you open your fucking mouth I told you I’d cut your throat and if I can’t get you I’ll get someone in your family.”  The witness replied “I’m saying nothing.”

[53]	The witness then made his way home and stayed a couple of hours in his mother’s house.  He then got a lift over to his sister’s house in Craigavon where he stayed until the beginning of March.  The clothing he had worn that night was left in his mother’s house.  The witness then said that thereafter he moved to England. 

[54]	In 2001 Burcombe spoke to a detective on the telephone and made arrangements to speak to the police on his return.  He believes that he returned in July 2001 to Northern Ireland and did speak to the police.  He said he did not give a truthful account to them of what happened on the evening in question because he feared for his life.

[55]	This tied in with other prosecution evidence.  Sergeant Lynas gave evidence that he had interviewed Burcombe in the course of the investigation of these murders.  They were interviewing him as a result of an action sheet raised as part of an investigation on a direction from a higher rank.  Asked for his movements Burcombe  said that he had taken a taxi to the Paddock Bar that evening with Wayne and Philip Lunt, had seen  Brown in the Paddock Bar, he had stayed there until about 10.30, had seen the two Lunts fighting and then walked home.  He said he had not seen Andrew Robb in the bar.  He gave an account of his movements for the next day saying that Philip Lunt had picked him up in Philip’s father’s car in order to play snooker for about 2½ hours.  Police officers said that they had been trying to contact him for some months and had called at his mother’s house and at Enniskeen.

[56] 	The witness was understandably questioned at great length by both counsel about the circumstances in which he went to the police in November 2005 and revealed the role of the accused in the murders.  The witness’s account was that he had left Tandragee in February 2000 and had gone to live with his sister in Enniskeen.  At that stage he had feared for his life from Brown and Dillon if he spoke about what had happened. 

[57]	In March 2000 he had gone to England returning to Northern Ireland in about October 2000 and stayed until the middle of 2001 in the Woodview area. He recalled in November 2000 Mr Paul McIlwaine, father of one of the deceased young men speaking to him in the street and asking “Did you murder my son?” which he denied.    This was therefore the first time anyone had suggested to him that he had been involved. He claimed he had no contacts with the UVF during 2000/2001.  

[58]	In 2001 he was interviewed by anti-terrorist police during the course of the LVF/UVF feud.  In April 2001 a man called Marks had been killed, and an attempt had been made to murder a Mr Greenaway. Burcombe was questioned by police and accused in interview of being involved in the attempted murder of Mr Greenaway.  

[59]	He had gone back to England thereafter but returned to Northern Ireland in or about 2003 because of lack of work in England.  He denied at this stage the UVF were putting any pressure on him.   He said he was still in fear of Brown even during the course of 2004.

[60]	He suggested that from the time of the incident until he went to the police in 2005 he had attempted to block out the memory with drugs and drink.  He had always been a drinker but he now became a much heavier one.  

[61]	By 2005 Mr Dillon was dead having committed suicide.  Burcombe had married and his wife had become pregnant in late 2004 with the birth of a child in June 2005.  When his child was born in June 2005 he stopped drinking and taking drugs.  In 2005 in Northern Ireland Burcombe said he had come to a point in his life when he had to tell what happened.
  
[62]	I pause to observe that at the end of his evidence I asked him again about why he had decided to come forward so belatedly in 2005.   He said that before 2005 and the birth of his child in June 2005 he had been drinking and taking drugs.  He then stopped drinking and taking drugs.  Over that period he had realised the reality of the case.  That night came back to him.  When the murders came on the news again in 2005 in the context of mention of a Crimewatch programme, he needed to talk to someone although he had been thinking about going to the police before.  He said he could not live with it.  It was the mention of the programme on the radio that triggered in him that it was right thing to do.  He had not discussed it with anyone before this.

[63] 	Mr Burcombe said that between February 2000 and November 2005 he was neither arrested nor interviewed in relation to this offence.  He was interviewed about other terrorist type offences in approximately April/May 2001 without being charged but he was not  interviewed on any other occasion.  He was unaware of any basis for the police to connect him with the murders of the two young men in 2005 or of any facts known to the police that suggested his involvement. It is to be noted that Superintendent Hanley, who was in charge of the investigation, in evidence said it was not the intention of the police to arrest Mark Burcombe before he came forward in 2005 and he was not a suspect at the stage before he heard from McIlwaine that someone wished to come forward.  Burcombe said that there was no bad blood between himself and Brown and it is to be further noted that Brown agreed with this in his evidence.
 
[64]	The witness recalled being at work in 2005 when news came on the radio of a Crimewatch programme scheduled for that evening about the murders.  He spoke to his father and told him what had happened and that he was there.  At that stage he and his father packed up their tools and they went home.  When he told his father he was shocked.  They talked in general (in a conversation including his stepmother and from time to time his girlfriend) about how he was to give the information about what had happened.  He explained to them what had happened on the night in question although he did not go into full details.  During that piece of his evidence he recalled on one occasion when he had requested his mother-in-law to stop cutting meat because it reminded him of the deaths of the two young men. The witness said that he was going to have to confess and he had to do the right thing.  His father was not trying to push him out the door to do this and it was his decision. Burcombe claimed he did not watch the Crimewatch programme although his stepmother and father did.  He said the reason he did not watch it was because he had enough memories of the incident and he did not want to watch it again.

[65]	He made a telephone call to Christopher Hodgen who he described as a Christian man with loyalist connections because his brother-in-law was a man known as Swinger Fulton who was a commander in the LVF having previously been in the UVF.  He had previously met Mr Hodgen at Christmas when he had spoken to him about Christianity and being saved.  He denied he was under any pressure from the UVF to contact Mr Hodgen.  Burcombe asked him if he gave information to the police about this murder would his family be safe albeit he did not give him an account of what had happened and did not speak to him about seeing the murders. 

[66]	Driven by his father Burcombe met Hodgen at the roundabout at Moira at a time when he was distressed and emotional.  In the event he did not ask him about the murders because he could not express himself about them although he may have mentioned he had committed a crime during that meeting and that he wanted to speak to someone about it.  Rather he discussed the bible with him.  Mr Hodgens spoke to him about his sins being forgiven and about him being saved.   

 [67]	Mr Hodgen then drove him to the Y zone in Portadown which is a Christian youth club to meet an Alan Oliver.  He was a community worker and Christian who, Mr Burcombe believed, worked with mediation between paramilitaries.  Mr Hodgen had said Oliver had been already praying for him because of his heavy drinking that he had discussed with Mr Hodgen at Christmas.  I observe that Superintendent Hanley, without objection from the prosecution, gave evidence that whilst he was not aware that Mr Oliver was involved in these discussions, Mr Oliver was suspected of serious UVF involvement.  He was not aware of Mr Hodgens and did not recall if he was ever a suspect.  

[68] 	Burcombe went on to recall that he told Oliver what had happened on the night in question and that he was at the scene when Brown and Dillon committed the murder.  Mr Oliver told him that Brown and Dillon had been released having been arrested for this offence and that there was an internal UVF investigation going on into the matter which was being run by a Bunter Graham who was a top UVF man.  Mr Burcombe said that he had asked Mr Oliver would his family be safe if he gave the information to the police.

[69]	Mr Oliver then informed him that he would arrange a meeting with Mr Paul McIlwaine (the father of one of the deceased), Mrs Robb (mother of the other deceased), a Christian Pastor, a Christian CID man and a member of the UVF because the UVF were holding the internal inquiry.  Following this, Oliver telephoned him on the evening of Saturday to inform him that he did not believe any harm would come to his family.  Burcombe found this reassuring.  On that occasion Oliver said that Paul McIlwaine had said that a Mr Kincaid who was believed to be an assistant chief constable informed him that if Burcombe went to the police everything would be all right.  

[70]	The next day, Sunday, the witness met Mr Hodgen at a church in Portadown where he presumed Mr McIlwaine would be along with the other people earlier mentioned.  Leaving the church, Mr Oliver approached him, invited him into a room where there was a pastor and another man and told him “it is a set up” because there were police officers in the church. I pause at this stage to interpose that Superintendent Hanley who gave evidence on this matter said he knew nothing of this.  The witness said he was confused about what was going on and went home.  The next day he spoke to his solicitor.  At this stage in the hearing I ruled on the question of professional privilege in connection with the conversations he had with his solicitor. Having received advice from me that he could have an adjournment to speak to a solicitor on this discrete matter or invoke the right of privilege which I would then determine, the witness decided to waive any privilege and continued to relate that he approached his solicitor, told him what had happened and requested he set up a meeting with the police.  The witness then telephoned Mr Oliver to inform him of what had happened.  

[71]	Shortly thereafter Detective Constable Hill telephoned him at his father’s home.  The witness gave an account to him over the telephone of what he had observed on the night when the murders were committed.  In a brief time a call came from Superintendent Hanley who made arrangements for him to meet the police at Hillsborough Castle.  There he met Detective Constable Graham and Detective Constable Brown.  He was placed under arrest as he imagined he would be and was taken to Antrim Police Station.  Having spoken to his solicitor he had discussions with his solicitor and thereafter the interviews took place in November 2005.

[72]	Burcombe’s detailed evidence about contacting his solicitor, his solicitor contacting the police on his behalf and meeting police found objective support in the evidence of Detective Inspector Hill, Detective Sergeant Hillen and Superintendent Hanley.  Hanley gave evidence that he had already been told by Mr McIwaine that an individual wished to come forward with reference to the murders and had been present at the scene of the murder.  

[73]	Hanley’s concern was that this man had said he could not live with what he had done.  He felt that he was a “life at risk” from suicide and therefore authorised a live trace on his phone.  He did not know who he was.  The UVF had not entered his mind albeit he believed however that there were UVF links to the murder but he was not aware of who carried it out. 

[74]	Hanley then spoke to a man (who of course was Burcombe) on the telephone from the exercise yard in the police station where he was.  The man said his name was Sam and he asked him who he was. Hanley said he saw it as a chance to arrest the individual.  Burcombe was agitated and tearful and would not reveal his location.  Hanley advised him he would be arrested by the police because he said he had been present at the scene of the murder, his conduct, and the duration of time before he had come forward.  He emphasised that there were no guarantees or inducements available.  He told him his version would be vigorously tested and he would be asked why he had taken so long to come forward.

[75]	Burcombe then revealed his identity and said that he wanted to speak to a solicitor.  Hanley said he would telephone him back in half an hour and did so.  Burcombe agreed he would present himself at Hillsborough Castle to be arrested.  

[76]	Hanley said he asked him if he had watched the recent Crimewatch programme and Burcombe said “Yes.  It was the worst day of my life when it happened.  The second worst day was watching it again on Crimewatch.”  This is important because Burcombe denied this was ever said.  

[77] 	Detective Constable Graham and Detective Sergeant Brown gave evidence of meeting the witness Burcombe at Hillsborough Castle on 8 November 2005 when he attended there with his father.  Burcombe was anxious, nervous and very upset according to them.  Burcombe said that he had been present at the murders and at what had happened.  He was arrested at that stage on the basis that there was evidence he had been present at the scene.

[78]	I have taken some time to relate in detail the process of Burcombe coming to the police as outlined by him in order to illustrate that I had ample opportunity to observe him closely on this issue both in examination in chief and cross examination.  I found him completely consistent in the accounts he gave despite searching questioning.   

[79]	Burcombe’s first interview with the police in 2005 after his arrest was on 8 November 2005.  The police told him that they had spoken to a number of people and they would allow him to give his account and not interrupt him.  Mr Burcombe told the court that at that stage his account was not complete.  When he spoke to the police in 2005 he had not admitted knowing an assault was about to take place on Robb because he was afraid of the implications for himself and ashamed of himself.  He knew about it and did not want to have to speak about the boasting and bragging of Brown. 

[80]	After several days of interviews he was then charged, along with the accused, with the murders of Mr McIlwaine and Mr Robb.  He was subsequently committed for trial and received his committal papers.  Following being charged with murder and, according to Mr McCrudden having failed to obtain bail and having failed to succeed on an application of “No Bill”, in or about the month of January 2008 before the trial, he asked his solicitor to see the police in order to give a full account.  He had not admitted knowing of the assault, all the conversations he had with Brown during the events and also the blood on the clothing.

[81]	He had active contact with the police during February/March/April 2008 after the trial had been taken out of the list for hearing. 

[82]	He believed that the police came to see him at the prison at Maghaberry in February 2008.  There was a scoping interview and then on 26 February 2008 he signed a contract undertaking to plead guilty to offences he had committed after the debriefing process.  It is common case that Burcombe has now become a witness under the Serious Organised Crime and Police Act 2005(SOCPA) and has signed an agreement under Section 73 of that Act on 26 February 2008.  Paragraph 3A of that agreement includes an agreement by Burcombe “to fully admit and to give a truthful account of his own involvement in the above matters under investigation and any other crimes.” He claimed before me that in August 2008 he gave a full and truthful account to the police of the facts of these murders.  Shortly before his trial in the early part of 2008 he was charged with conspiracy to cause grievous bodily harm.

[83]	Burcombe said he understood the agreement under the SOCPA which he entered into on 26 February 2008 and that once he had given a full account he thought that he would have entered into the process and the court could decide how it was dealt with.  He recognised that if he told lies in court he would be returned to prison.  The police had explained the process to him.

[84]	Burcombe has pleaded guilty to the offence of conspiracy to cause grievous bodily harm to Mr Robb and received 28 months imprisonment together with a further two months consecutive sentence for an offence of disorderly behaviour for which he had a suspended sentence on 25 March 1999. 

[85]	At the conclusion of the prosecution case, after submissions for a direction had been refused and when I had given defence counsel a short time to consider their options, Mr McCrudden sought leave to recall Burcombe to put to him allegations which had not been previously raised.  Mr McCrudden assured me that this was through no fault of the accused and I acceded to the application.

[86]	It was then put to Burcombe that at the committal proceedings in Newry court in February 2007, after a rancorous exchange between Burcombe and a member of the family of one of the deceased, he and the accused had spoken at the door of the court whilst in the custody of the prison officers.  Burcombe was alleged to have said “Stevie I don’t want to be doing this.  I was told to go and blame you.”  Brown asked why and where and it was alleged that Burcombe named 2 people in the UVF who had lifted him twice.  The first time he was only asked questions and the second time a gun was put into his mouth. He was told to blame the accused and Dillon and that they would shoot his family if he did not.  It was further put to Burcombe that Brown told him to tell the truth, that he was on remand with protected prisoners and sex offenders and he could come and share a cell with Brown.

[87]	In response Burcombe denied this conversation.  He did recall a conversation with the accused on that occasion in the prison van after the court.  Burcombe claimed that the accused shouted out “This is nothing to do with me.  Say you were lifted by 2 men and say a gun was put in your mouth.  Tell the police and say they framed me for the murders”. 

The Defence Case in relation to Burcombe 

[88]	The defence attack on the evidence of Burcombe emerged, inter alia, largely in the cross examination of the witness, the evidence of the accused and the material brought forward on his behalf.  The theme of the cross-examination of the witness by Mr McCrudden QC on behalf of the accused was that it was Burcombe who had carried out the murder himself.  It was suggested that he knew Brown and Dillon had been out drinking that night, that he had met Brown in the Paddock Bar but had last seen him on that evening when he and Dillon had left the Paddock Bar together.  It was further suggested that the witness was fabricating the story in terms of the movements and involvement of Brown and Dillon, that the witness had been present at a safe house in Sinton Park from which the deceased men were abducted but that it was not No. 15 and that Dillon and Brown had not been involved.  Mr McCrudden’s suggestion was that the witness had made up this story at the behest of the UVF aided perhaps by extracts from Brown’s interviews, the committal papers, the Crimewatch programme and general talk around the environs of Tandrageee etc. 

[89]	Mr McCrudden elicited from the witness that there was a feud at that time going on between the UVF and the LVF in mid-Ulster.  It was Mr McCrudden’s suggestion to the witness, which he accepted was expressed in the local newspapers, that the murder of Mr Jameson had been part of that feud. 

[90] 	I was satisfied that the witness was a sympathiser with and supporter of the outlawed Ulster Volunteer Force.  Indeed he asserted that he had been invited to attend a number of UVF functions by the accused because he liked Loyalist music.  At these functions he heard Loyalist music and saw UVF paraphernalia.  He had also recollected attending a war memorial in Portadown although he said he said he did not know if the UVF had laid a wreath. 
 
[91]	Superintendent Hanley gave evidence, without objection from the prosecution, that Burcombe had been arrested in 2001 as a suspected UVF terrorist with reference to a murder.  Hanley said there was no evidence he was a UVF man but there was police intelligence to the effect he was a UVF member and that he would not have been questioned about membership and these crimes without reasonable grounds.  

[92]	Frankly it did not surprise me that Mr Burcombe had a murky background involving at the very least tacit support of the UVF.  His firm denial of membership in evidence before me may have entered that twilight and largely theoretical area where it is difficult to distinguish between close association with and actual membership of these criminal terrorist groups such as the UVF.  If his account of the events of the night when these young men were murdered was truthful, there had to be some reason why Dillon and Brown would have brought him along knowing what they intended to do and trusted him not to reveal what had happened.  Mr McCrudden put to him a document that the police allegedly had drawn up in 2001 showing a number of groupings in the UVF and mid-Ulster which included people he knew such as Fonz, a man called Trevor Buchanan, the Lunts, and others with whom he was familiar.  One of these groups of four people named on the document was a “Mark B”.  He said he did not know if this was him or not.  I was left with the impression it was at least possible that this man was being somewhat coy about the full extent of his association with and knowledge of the UVF in the mid-Ulster area.  Fear of repercussions of further revelations by him about this organisation may have been the reason for his reticence.  Certainly the accused had no hesitation in relying on the fear of this organisation to justify withholding names when he gave evidence.  Even  if, as I suspect, Burcombe may have known more about the UVF in this area than he was prepared to admit this did not persuade me that he was necessarily in the UVF as alleged by the accused  or that the gravamen of the account that he was giving about this event was untruthful. On the other hand it served to fuel my growing  belief formed  at an early stage in this trial that it was necessary to approach this man’s evidence with great caution and a need to look  for supportive evidence, subjects to which I shall return later in the review of the  evidence.   

[93]	In cross-examination Mr McCrudden dealt in detail with the witness’s concession in examination-in-chief that he had not given a full and honest account to the police in 2005.  Before me two lever arch files were provided containing interviews between Burcombe and the police in 2005 and, without objection from the Crown, Mr McCrudden drew the attention of the witness to various selected areas in the course of those interviews.

[94]	The witness frequently made the point that individually or collectively a combination of loss of memory, pressure, nerves and distaste about going through the details of the incident, shame, the fact that he had gone to the police  only intending to relate to the police his involvement in the murder and  did not consider many other details relevant and  his desire to conceal from the police his knowledge that Robb was to receive a beating were the reasons behind his lies and failure to accurately tell the whole truth of what happened that night during the course of the interviews in 2005 with the police.  It was his contention that he had told the full the truth in 2008 and that is what he had replicated in court before me. 

Legal principles with reference to Burcombe

[95]	I commence my review of the legal principles that have guided my approach to the evidence of Burcombe and indeed all the evidence in the case by reminding myself that in every case one starts from the proposition that the accused is and remains innocent unless and until the prosecution satisfies the tribunal of fact that his guilt has been established beyond all reasonable doubt. 

[96]	I had to consider in the first instance whether or not Burcombe was so lacking in credibility and thus so unworthy of belief that his evidence must be rejected.  If that was the case then no question of a Makanjuola warning (see paragraph 102 below) or supportive evidence would arise because no court could place any reliance on him.  I had to consider that issue during the course of my decision to admit the evidence in written form of witness F (a written decision I gave during the trial namely unreported GILF 7377) and at the end of the prosecution case. For reasons that will be clear from paragraphs 309-360 of this judgment I concluded that I was satisfied at those stages of the trial that the state of Burcombe’s evidence was not such that no court or notional jury properly directed could ever properly convict or place any reliance on it or come properly to the conclusion that the  accused was guilty based on one possible view of that evidence following the conventional principles set out in the well known cases of  R v Shippey, R v Galbraith and R v Courtney.

[97]	Thereafter having so concluded, I recognised the need to warn myself and any notional jury to be charged to be very cautious in looking at his evidence and of the wisdom of looking for supportive evidence for the reasons later set out in paragraphs 105, 200 and 201 of this judgment. With the forensic evidence and, quite separately, witness F’s statement, to both of which I shall shortly turn, as supporting evidence I concluded at the end of the prosecution case that there was no basis to withdraw the case from the notional jury.  I shall deal separately with my conclusions on the issue of count 1 re the death of Robb which was the subject of a separate application from Mr McCrudden (see paragraphs 397- 412 of this judgment). 

[98]	I revisited those conclusions of creditworthiness of Burcombe after hearing all the evidence in the case, especially the evidence called upon behalf of the accused including that of the defendant himself.  I asked myself on this occasion if I was satisfied, as a notional jury, beyond reasonable doubt that Burcombe’s evidence was creditworthy and whether I should reject Mr McCrudden’s submission that his evidence was “utterly lacking in credibility” before considering any question of a Makanjuola warning or supportive evidence.

[99]	Only if I was so satisfied could I turn to the principles governing any warning that I had to give myself before considering on the evidence as a whole whether I was satisfied beyond reasonable doubt of the guilt of the accused.  

[100]	It was common case in this case that Burcombe was to be treated as an accomplice. The general rule is that there is no requirement that accomplice evidence be corroborated and no requirement that the tribunal of fact warn itself of the danger of acting on uncorroborated evidence of an accomplice.  The old law on such matters was abrogated by the provisions of article 45 the Criminal Justice Order (NI) 1996 (“the 1996 Order”).

[101]	The judge however still retains the discretion to warn himself to exercise caution whenever he considers it appropriate to do so, whether in respect of an accomplice or a complainant or any other witness.

[102]	In R v Makanjuola (1995) 1 WLR 1348 (“Makanjuola”) Lord Taylor CJ summarised the relevant principles at p. 1351 as follows:

“(1)	Section 32(1) (of the Criminal Justice and Public Order Act 1994) abrogated the requirement to give a corroboration direction in respect of an alleged accomplice or a complainant of a sexual offence, simply because a witness falls into one of those categories. 

(2)	It is a matter for the judge’s discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case.  Whether he chooses to give a warning and on what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence.

(3)	In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness.  This will not be so simply because the witness is a complainant of a sexual offence nor would it necessarily be so because the witness is alleged to be an accomplice.  There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable.  An evidential basis does not include mere suggestion by cross-examining counsel.

(4)	If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of a jury before final speeches.

(5)	Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set piece legal direction.

(6)	Where some warning is required, it will be for the judge to decide the strength and terms of the warning.  It does not have to be invested with the whole florid regime of the old corroboration rules.  

(7)	It follows that we emphatically disagree with the tentative submission (that if a judge does give a warning, he should give a full warning and should tell the jury what corroboration is in a technical sense and identify the evidence capable of being corroborative.  Attempts to re-impose the straightjacket of the corroboration rules are strongly to be deprecated.

(a)	Finally, this court will be disinclined to interfere with a trial judge’s exercise of his discretion save in a case where the exercise is unreasonable in the Wednesbury sense.”

[103]	As to the circumstances in which it may be appropriate for the judge to give a warning, in Makanjuola Lord Taylor said:

“The judge will often consider that no special warning is required at all.  Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution.  In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence.  We stress that these observations are merely illustrative of some, not all, of the factors which the judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury.”

[104]	Blackstone’s Criminal Practice 2008 at paragraph F5.9 instances evidence of supporting material by any of the following:

“(a)	Evidence of an out of court confession by the accused.
  (b)	A damaging admission made by the accused in the course of giving evidence.
  (c)	Lies told by the accused, whether told in or out of court.  In order to constitute ‘supporting evidence’, however it is submitted that the lies should meet the criteria formerly employed to determine whether a lie amounted to corroboration in the technical sense, namely that –

(i)	the lie must relate to a material issue;
(ii)	the motive for the lie must be a realisation of guilt and a fear of the truth, as opposed to a lie told, for example, in an attempt to bolster up a just cause or out of shame or wish to conceal disgraceful behaviour from the family; and
(iii)	the lie must be shown to be such by evidence other than that of the witness whose evidence is to be supported.

(d)	Evidence of the silence of the accused, where the accusation is made by someone speaking to him on even terms, admissible at common law to show that he accepts the accusation.
(e)	Inferences properly drawn.
(f)	Evidence of refusal to consent to the taking of intimate samples.
(g)	Similar fact evidence.”

[105]	I must recognise that an accomplice may give false evidence out of spite, or he may exaggerate or invent an accused’s role in the crime in order to minimise the extent of his own culpability.  In this case, on his own admission, Mr Burcombe told a number of lies to the police in 2005 and had added a number of details to his account in 2008 which he had omitted in 2005.  As I will shortly set out Mr McCrudden argued that there were a number of other frailties in his evidence.  Notwithstanding having concluded as I did that Burcombe’s evidence was not unworthy of belief, I considered that there was  an evidential basis in this case for suggesting that the evidence of Mr Burcombe might be unreliable for the reasons set out in paragraphs 200 and 201 of this judgment. 

[106]	Accordingly I have warned myself in strong terms to approach  his evidence with great caution and that it was wise to look for supporting material before acting on his evidence.  In looking for that supporting evidence I did not consider it necessary to invest that search with the whole florid regime of the old corroboration rules.  It was not necessary to remind myself of what corroboration is in a technical sense and identify the evidence capable of being corroborative.  As per the exhortation of Lord Taylor in Makanjuola I resisted the attempts of Mr McCrudden to persuade me to re-impose the straightjacket of the corroboration rules.

[107]	Moreover it will be salutary if at this stage I openly remind myself of some of the other main principles which authority suggests I should observe in a case of this kind.  In distilling these principles I have drawn upon a number of authorities which predate the 1996 Order  including R v. Steenson and Others (unreported) Court of Appeal (Criminal Division) 23 December 1986 (“Steenson”), R v. Graham and Others [1984] 18 NIJB (“Graham”), R v. Gibney and Others [1983] 13 NIJB and [1986] No 4 NIJB, R v. Donnelly and Others Court of Appeal (Criminal Division) (unreported) 17 July 1986 and R v. Robson and Others (unreported) LTH CO 264 .  See also Archbold 2009 Edition at paragraph 4-404 I et seq and R v. Cairns, Zaida and Chaudhary [2003] 1 Cr App R 38.

[108]	From these cases I have distilled the following principles which in my view still are relevant despite the 1996 Order and which have assisted me inter alia, in coming to a conclusion in this case.

[109]	In Donnelly’s case Lowry LCJ cited Lord Abinger’s famous dictum in R v. Farler [1837] 8 C and P 106, 108:

“A man who has been guilty of a crime himself will always be able to relate the facts of the case and, if the confirmation be only in the truth of that history, without identifying the persons, there is really no corroboration at all”.

[110]	Whilst that principle was spoken of in the context of the former need for corroboration nonetheless I have reminded myself that Mr Burcombe should be treated as an accomplice who had on his own admission been present at the crime and would therefore know well the facts of the killing if he chose at the same time to wrongly implicate the accused.  That he may well have accurately and faithfully described the circumstances of the death of these victims has not been regarded by me as supportive evidence.  Thus I have not for example regarded as supportive evidence the fact that his account of the murder of Mr McIlwaine ties in with the post-mortem details in many respects.  See also the comment of Gibson LJ in Gibney’s case. 

[111]	Although I must not attempt to impose the straightjacket of the old common law rules on the need to seek corroboration of an accomplice, I cannot ignore the fact that experience over many years in the criminal courts has revealed to me that a person such as the witness Burcombe who comes to court to testify against his accomplices on behalf of the prosecution may have such motive as the hope or expectation of benefit to himself or gratification of revenge or other antipathy towards the accused.  At least in 2008, after the accused had been charged with murder and was now allegedly unburdening himself further to the police, I must remind myself of what Lord Lowry LCJ so compellingly said in Graham’s case at page 8:

“It can be readily appreciated that a man anxious to purchase immunity may attempt to curry favour with those in a position to secure such immunity for him.”

[112]	Lord Lowry added in Gibney’s case at page 15:

“There is an incentive to give good value if a bargain is contemplated”.

[113]	Experience has also revealed to me that it is often difficult to get inside the head of an accomplice.  Lord Lowry LCJ in Gibney’s case captured the essence of my experience when he said:

“A person who has been granted immunity . . . may fear (without foundation, it may be) that the immunity will be withdrawn or that the full terms of his bargain will not be implemented if he does not swear up his to proof.  Someone who has been sentenced may believe (possibly quite mistakenly) that his actual stay in prison depends on the evidence he gives.  It behoves judges to remember these points and juries must be warned about them”.

Whilst the nature of the process under SOCPA should reduce that possibility because he will be thoroughly appraised of what is to happen, nonetheless I still bore in mind the thrust of Lord Lowry’s comments.

[114]	In this context Mr McCrudden has argued in the course of this case that in 2008 the witness added detailed facts and comments which he had not included in 2005 to further condemn the participation of Brown in this murder and that an explanation could be that, having failed to convince the authorities of his innocence of murder in 2005, he felt that he could now do so by further blackening Brown.  

[115]	I have also drawn on what Lord Lowry LCJ said in Graham at page 17:

“Independent evidence which contradicts a Crown witness, even on an irrelevant point, has in fact much more probative value against the Crown than evidence which supports the witness could have in favour of the Crown”.

[116]	This has a resonance with what Lord Lowry said in Gibney’s case at page 14 albeit in a case where the evidence of the witness was unsupported:

“It is a mistake of law to say that one cannot, and of reason to say that one should not, ever be satisfied by the unsupported evidence of such a witness, but the need for care is obvious and his proved unreliability on one part of a case cannot be disregarded when assessing his evidence in respect of another.”

[117]	Steenson’s case is some authority for the proposition that at least in a case where a “supergrass” has given evidence, there is an onus on the judge to resolve contradictions and inconsistencies in the evidence, to give reasons for reaching conclusions where he has resolved such contradictions or inconsistencies and to apprehend the importance of demonstrable errors in evidence in an assessment of credibility.  Thus there is a need to advert to any weaknesses in his evidence.  In terms a judge must not unjustifiably discount discrepancies.  It is fair to expect the judge to attempt to resolve conflicts of fact which significantly bear on the credibility of the witness.  (See also Donnelly’s case).  Have there been so many palpable hits on Burcombe’s credibility that no verdict based on an assessment which fails to acknowledge that fact can realistically survive?  Was, as Mr McCrudden suggested, the evidence of Burcombe so unworthy of belief that I should dismiss it without embarking on any search for supporting evidence?

[118]	Finally, whilst I cannot hope in this judgment to rehearse every piece of evidence given or to advert specifically to every point made in argument if I am to avoid protracting the judgment to an inordinate and unacceptable length, nonetheless I have attempted to deal with the salient themes in the evidence and submissions made by counsel even though some were more worthy of analysis than others.  

Implausible Assertions

[119]	Mr McCrudden’s attack on Mr Burcombe’s credit worthiness fell into various categories in my view.  There were a number of assertions by Burcombe that Counsel argued were so implausible as to render them manifest lies.  Burcombe was cross-examined about his arrest in 2001 along with Philip and Wayne Lunt.  The police were questioning the three of them under the Terrorism Act concerning an attempted murder of a Mr Greenaway during which the police alleged the car purchased by them had been used.  Of this incident Mr Burcombe said that he told the police that he had taken the Lunts along with his girlfriend to pick up the car and he thought that Philip Lunt had then passed the car on.  He said he knew nothing about a balaclava which had been found in the car.  That car had been bought by Philip and Wayne Lunt.  Mr McCrudden elicited an assertion from Mr Burcombe that after his release he did not discuss the matter with the Lunts.  It is evident that he had been friendly with the Lunts, Philip having been with him in England and in Tandragee.  Mr McCrudden put to him that they had been questioned about the car being used in an assassination attempt in the Collins Bar in Tandragee.  

[120]	It was clear that Mr Burcombe had been involved in some way in the purchase of the car since he was present there with his girlfriend when the purchase took place  although he said he did not remember being approached to provide extra money to purchase the car.  He had been present in a car with his girlfriend when she had been asked if she had been involved in the purchase of the car and she had denied it.  His excuse for not challenging his girlfriend about that was because at that time Philip Lunt was well known for driving offences and he was not going to put him into trouble for buying the car.  I found this line of questioning on this issue of very peripheral value.  The incident had happened almost 8 years ago, the witness was being asked about it out of the blue without any real chance for careful reflection. In such circumstances it always difficult to extract true memory from frail or hazy recollection which may be entirely inaccurate without the historian realising it at the time.  Nonetheless the possibility that he was being less than fully frank under oath about even this peripheral matter added to the strength of my determination to approach his evidence on the murders with great caution.

[121]	Turning to the events of the night of the murders  Burcombe alleged he had met Brown and accompanied him to his home in Sinton Park, Mr McCrudden questioned him closely about his suggestion to the police that Brown had come out of the Paddock Bar with two bottles of Buckfast wine and six tins of Tennents.  A number of extracts from the interview in 2005 suggested that he did not remember at that time Brown leaving the bar with two bottles of Buckfast and six tins of Tennents.  

[122]	This seemed to differ from his memory when speaking later to the police in 2008 that he did remember Brown coming out of the bar with two bottles of Buckfast and six cans of Tennents.  The witness’s explanation for this was that this detail was not relevant.  He was there to tell the police who had committed the murder and he was not really focusing on this other detail.  He at this stage did mention that in the interviews in 2005 he was under pressure and was nervous.  He said that it was only in 2008 that he entered into the full process of revealing all detail.  He denied that he had read in Mr Brown’s interview notes that he had conceded to the police that he had bought two bottles of Buckfast and six tins of Tennents. 

[123] 	Once again I found this matter of very limited moment.  It is in my view a classic example of the kind of minute detail that Burcombe would never have anticipated he was to be questioned about when he went to see the police in 2005 but which may have come back to him later in the wake of being closely questioned about the matter and having had months to reflect on it.  The benefit to him or the contribution it made to his account of the incident was so minimal that it is difficult to see why he would have gone to the trouble of extracting it from Brown’s statement when, as I will indicate shortly, he did not trouble to do this in several other instances where he could have done so had he been so minded.  Why would he choose this incident to borrow from the accused’s statement? For example he told police that the accused had taken beer in the Ballymoney Inn whereas the accused had asserted in his interviews he had taken a non-alcoholic drink.  Why did Burcombe not borrow that assertion from Brown as allegedly he did about the Buckfast and cans of Tennents if he wanted his story to accord with Brown on such matters?  Since at the outset of the trial counsel had indicated the interview notes of the accused were to be edited before I could see them - a process that unaccountably took counsel several weeks - in the event I apparently only saw a fraction of the reportedly several hundred pages of interviews of Brown. 

[124]	The paucity of reference to extracts from those interviews where it was alleged Burcombe had borrowed material also served to dilute the strength of this allegation against him.  On the contrary one would have thought that if he was tailoring his account to meet the material in his committal papers he would have admitted speaking to Robb in the Paddock bar before the murder to reconcile his account with Ms Topley, he would never have alleged that Brown said he had cut the stomachs of the deceased when the autopsy report revealed no damage to McIwaine’s stomach and he would have tailored his timing of Brown leaving Sinton Park with Dillon to marry with Mr Purdy’s evidence who saw a dark coloured burgundy Peugeot at the phone box in Tandragee with perhaps 2 men in it  at 4.20am?

[125]	Counsel asserted that it was wholly implausible that the witness had not read the interviews the accused gave to the police even though Burcombe had the committal papers in his possession for many months when on remand.  Whilst one’s own experience of human nature would suggest it was curious not to have done so, nonetheless what purpose did he serve by lying about it?  Mr McCrudden suggested it was because he was using it as a source for his fabrications against Brown.  But if that was so why did he not use the papers as a source in other more obvious areas?  His assertion that he had not looked at the photographs even of Burcombe’s house or the scene of the murder seems curious if he was looking for source material yet it was clear from the evidence of his solicitor, which was unchallenged, that he had expressly refused to see the photographs. 

[126] 	Burcombe  also denied an assertion by counsel that he had introduced the concept of the two deceased men knocking on the door of Mr Brown’s house and thereafter informing him that they had been looking for a Philip Donnelly’s house on the basis that it was contained in a statement by Debbie Maxwell.  He said he had read that statement in his PE papers and had not read the reference in Brown’s statement to the police suggesting they had been in Sinton Park looking for Philip Donnelly.  He indicated however that he was unable to remember what Debbie Maxwell’s statement had said.  But this contrasted with the accused’s assertion that the two young men had been looking for Debbie Maxwell’s house.  It may be that the witness was simply telling the truth about the request made by the young men as he recalled several years ago.

[127] 	Mr McCrudden cross-examined the witness about the credibility of his account on other grounds.  He questioned him as to why if this account was true, he did not attempt to escape from the scene after he had witnessed McIlwaine being murdered.  Instead he had gone back to the car.  His answer to that was that he had seen McIlwaine run away, and that Brown had tracked him down.  If this account of events is true I have no difficulty understanding why he felt that if he tried to escape, thereby indicating his disapproval of the events, he might well have become the next victim.  It was as he described an isolated scene.  He had already witnessed the fate of the man who had tried to escape.  If he tried to flee and failed (according to him he was a heavily overweight individual in those days) what would be his fate.  I found nothing implausible about this.

[128]	Burcombe  said that he had not left the house at Sinton Park when Brown vacated the scene allegedly to go back to where the bodies were, because he was conscious of the threats that had been made to him, he was frightened and in shock.  Although it did occur to him that he could be the next one to be killed he simply did what he was told.  Brown warned him to remain and this he did.  I was of the view that this man did have grounds for fearing for his own fate if he disobeyed these two men.

[129]	Counsel contended that Burcombe’s account of the circumstances of his meeting in the Ballymore Inn with the accused and Dillon the following day was unworthy of belief.  He questioned why the witness would want to meet with the murderers merely to tell them that he had not been involved when, if he was telling the truth, they must have known that anyway.  Counsel put to the witness in cross-examination that he had indeed seen the accused the following day with Dillon but that it was at his request.  It was put to the witness that he had asked Brown to pick him up at the end of the estate and they went to the Ballymore Inn.  There they talked about football and the incident the previous night and the accused had asked Brown if he had heard what had happened last night.  He suggested that there was talk between the three of them in the pub about the murder, Philly McClean was mentioned but the witness had said he did not know who was involved.  It was also alleged that the witness had said that he was going to find out what happened.  He was, suggested counsel, pretending to have nothing to do with it.

[130]	I found nothing in the evidence of Burcombe on this matter that caused me concern.  I could well understand that he wished to clearly disassociate himself from the murders without causing the miscreants to fear he would go the police and perhaps visit their violence on him.  He had of course been aware of plans to assault Robb and been in the company of those who had committed this crime.  If he was not prepared to go to the police, as apparently he was not at this stage, it seems to me not to have been an unnatural thing to have wished to assert to someone, even if it was the miscreants themselves, that this matter had gone far beyond what he had anticipated.  He may have been wanting reassurance from them that they accepted he had played no part in the killings notwithstanding he knew that already.  Lengthy professional involvement in criminal trials has taught me that those who have engaged in shameful behaviour often congregate together after crimes if for no other reason than to share their fears about possible detection and achieve a joint reassurance by each others presence.  Burcombe knew that he had played a shameful role in so far as he knew of plans to beat Robb and thus he was an accomplice to some degree. His assertion therefore that he had telephoned Brown did not surprise me.

[131]	On the other hand I found completely implausible, even at the stage when Mr McCrudden was putting his case in cross examination, the defence suggestion that out of the blue Burcombe would have telephoned the accused –something the accused admitted when he gave evidence that Burcombe had never done before - and invited him to join him at a bar where he had never been before with Brown to engage in a short conversation about what Brown or Dillon knew about the murder.  The suggestion seemed to me to be risible. 

[132]	It was put to the witness that it was implausible to suggest he was in fear of Brown and Dillon if, as he did, he returned to N.I. and went to Jameson’s pub.  The history of the troubles in N.I. is littered with instances even of informers returning home – often to their deaths - because of the pull of home and friends/girl friends.  In this instance with the passage of time Burcombe had done nothing to incur their wrath, not having gone to the police, and so his reason to fear them must have been diluted at least.  I did not find this implausible.

[133]	Burcombe said that when he left his mother’s house the day after the murders, went to his sisters and then to England he did not take with him the clothing he had worn that night i.e. trainers and jeans etc.  His answer was that he had other jeans and trainers and left these with his mother.  I did not find this an unusual state of affairs with young men who can be characteristically profligate about such clothing. 

[134]	Burcombe was queried as to why it took him 5 years to come forward.  Initially he said that his fear was for his life and that of his family.  The twin fear of having seen what these men could do and the threat that they would do it to him in my view were, if true, some basis for his concern about coming forward although I have no doubt that at least his involvement may also have been a factor.  Thereafter he changed his mind in the circumstances set out in paragraph 62 of this judgment. 

[135]	 Experience reveals that the working of conscience on men and women can be a time consuming but remorseless process which has proved to be the handmaiden of justice in many instances in these courts. I found nothing inherently implausible in a man, now enjoying the priceless gift and responsibility of marriage and fatherhood, who wished to unburden himself of a dark secret.

Contradictions 

[136]	A further line of attack of Mr McCrudden on the witness was to tax him with a number of matters which counsel argued constituted contradictions between his accounts in 2005 and 2008. 

[137]	It was put to this witness was that he had been unequivocal in his evidence before me that Dillon had come out of the double doors at the front of the Paddock Bar on Main Street.   Counsel drew attention to the fact that on various occasions during the interviews over 4 days between the 8-11 November 2005 his account of where he had met Dillon was vague and uncertain.  At one interview he said “At that stage he said he was standing just outside the front of the bar.  Subsequently when asked where Noel Dillon came from or how he came to be there, the witness had replied “he could possibly have been in the bar but at that point then, I mean, he could have come out of the bar but as we were heading down he just came along then you know.”

[138] 	However in the course of a later interview in 2005, when he was again asked where Noel Dillon had joined them he said:

“I don’t remember where Noel Dillon joined us, I don’t remember that because I don’t just remember where he joined us. …  I still can’t remember fully what happened you know its possible that I did say to other people do you want to go for a drink, do you want to come down for a drink or you know.”  Later in the course of that interview he added “… I’m just telling you what I can remember and what happened in the bar and what happened outside the bar and I mean you know as, as much as I can remember.  And I have said before anything else that I do remember I will come forward and tell you now.  I have no reason to hold anything back.  As I said before I was asked for a drink and Steven Revels could have went, he could just have went into the bar and bought a bottle of Buckfast when I was outside talking to other people.  I could have asked other people to go for a drink you know but I, again that, that’s not things that I’m all recalling in my head I mean I just can’t, I just can’t close my eyes and picture myself back to that specific moment you know.”

[139]	In evidence the witness before me marked on the map close to the steps going down to Sinton Park where Brown had introduced him to Dillon.  He had seen him come from the front of the Paddock Bar although he could not definitely say if he had been in the bar.  

[140]	I was convinced that this was one of several  examples of how in 2005 Burcombe  was unprepared for this level of detailed questioning and at a time when he had not given careful consideration to such a detail he exhibited uncertainty about it.  I saw no reason why with time to reflect his recollection could not become clearer .

[141]	The fact of the matter of course is that although he is accused of fabricating the whole incident at Brown’s house, he has apparently “guessed” correctly not only that Dillon went to Brown’s house and stayed there for a considerable period  but that  even on the accused’s case the deceased at least called at the house. For all Burcombe  knew, if he was not present in Brown’s house, Dillon could have gone somewhere else which  could easily have been proved by some evidence  or the deceased could have been proved to have been somewhere else at the relevant time prior to the murder. Mr McCrudden’s suggestion that Burcombe could have guessed this by virtue of seeing Dillon leave the bar with Brown seemed to me rather unlikely.  Even if he is alleged to have found this out the next day in the Ballymoney Inn, how could he be certain that Dillon or for that matter Brown had not left for some period unaccounted for by Burcombe in his account. In the event it would have been the most fantastic coincidence for him to have guessed that Brown and Dillon left the house and Mr Purdy just happened to see a car resembling Brown’s in make and colour with what he believed were two men in it.  

[142]	How also could Burcombe have guessed, correctly as it turns out according to Brown’s own testimony, that Brown’s partner was babysitting and had telephoned him that night?  Brown’s assertion that he had mentioned this rather inconsequential detail to the accused in meetings in the town afterwards or, as Mr McCrudden suggested, he might have heard it from some other source seem to me highly unlikely.  Why would something as seemingly inconsequential as a telephone call from Brown’s partner have been the subject of discussion thereafter  and why would Burcombe have remembered it 5 /8 years later?  A telephone call could never have constituted an alibi for Brown so why would he even raise it in conversation a considerable period afterwards with Burcombe or why would others be talking about it?  Why would Burcombe bother to insert it into his account?  It added little or nothing to the chain of events of that night and yet could have been easily disproved by the evidence of Ms Dillon if it was fabricated.         

[143]	Mr McCrudden also cross-examined the witness about the allegation he had made that whilst in the car on the way to the murder  scene  there had been mention emanating from Brown about £30,000 being collected from drugs from a house some time before and that matter had been discussed subsequently in the car.  It emerged that in the interview of 2005, whilst Burcombe did say that there had been talk about drugs there was no specific mention by him of the £30,000 in the house in question even though a number of references were made in the course of that interview to the fact that they were looking for a particular house and he had been closely questioned about the conversations in the car.  Mr Burcombe indicated that he did not know why he had not mentioned the £30,000 in the context of the house at any stage.  Mr McCrudden suggested this was an embellishment later added. Burcombe’s general excuse was that he only focused on his intention to tell the police he had not committed a murder and he wasn’t sure whether he had forgotten or blocked out these other conversations.

[144]	He also did not mention that he had referred to this when speaking to McIlwaine in the laneway.  All he had mentioned to the police was that there had been a conversation about drink and drugs.  He said that he did not go into the specifics about the £30,000 drug deal or the full conversation when speaking to the police.  As he said on a number of occasions, in the course of the 2005 interview he had not been open and honest with the police. 

[145]	Listening to Burcombe’s evidence I formed the clear impression that he  lived in a twilight world sadly  perhaps not  unknown to a number of young  men of his age where abuse of alcohol and illegal drugs abound on a regular basis.  The drugs are plied by local men such as mentioned in this case or obtained from local houses. Overlooking in 2005 a conversation allegedly made 5 years before about £ 30,000 worth of drugs in a house and which may have been an idle boast that was not that out of the ordinary in men of that genre on a night when such other horrific deeds had occurred did not seem inherently implausible to me.  Once again given time to reflect his recollection of this detail could have come back to him.  What did it add to the account of the murder in any event?  Why bother to make such an account up?  Admission by Brown of this knowledge of this drug collection scarcely make his position much worse in light of the other allegations against him.     

 [146]	Of more potential significance was Burcombe’s contradictory evidence about the vehicle movements of Mr Brown’s red Peugeot or Mr Dillon’s Rover together with the movements of Dillon and Brown on the night/morning of the murder.

[147]	The witness did admit that in the course of interviews in 2005 he had initially told the police that after the murders had taken place, Brown had dropped off Dillon at Sinton Park and then had left Burcombe home in the Peugeot car.  That clearly differed from the version he later gave to the police and the one he gave to me in this trial namely  that after the murder, Brown, Dillon and he had all gone into 15 Sinton Park for a period before Brown had left him home in Dillon’s Rover.

[148] 	He had been specifically asked by the police if it was the same car that had taken him away from Sinton Park after the murder and he had clearly indicated that it was.  Opportunities in the questioning by the police had arisen on more than one occasion for him to explain that it was not the same car where as in fact he clearly said that it was.  He told me that he had not forgotten that it was a different car but he had just wanted to keep the matter simple.  Later he said that he did not have a reason why he had told lies about the differing cars.

[149]	The witness also told me that after the murder the car had been driven in the Poyntz Pass direction and had not  been driven through Poyntz Pass.  This did not tally precisely with his 2005 version. He added that Dillon had taken his top off at the scene of the murder and was naked from the top up with bloody hands and arms whilst being driven.  When they went back to Sinton Park the witness had heard him running bath water.  

[150]	Asked why he had initially told the police in November 2005 that Dillon had been dropped of at Sinton Park the witness said that he did not want to talk about the details.  He said he was scared of the whole process.  There is no doubt that he had gone into some detail in describing Dillon being dropped off at the house and him being driven home despite the fact that this sequence of events did not actually happen according to his later account. 

[151]	The witness however did  correct that account in a subsequent interview during the second day of interviews on 9 November 2005 between 4.00 and 4.30 pm. as the following extract from that interview  reveals:

“Police – And you told me last night that Noel Dillon got out of the car?
Burcombe – No.  Yes, but we all got out of the car.  We all got out of the car.  Steven said everybody we all go into the house you know he made it sound as if I was part of it you know and I certainly wasn’t part of it.  Whether (inaudible) yes whether I’m believed or not I wasn’t part of it and that’s what I know, I know that for a fact, we all went back into the house ehm I’m nearly sure ehm there was at that point a bath being run.”

 [152]	When it was drawn to his attention that that was different from what he had told the previous evening Burcombe said:

“That was the whole point of going up and sitting in my cell and going through everything in my head again.  Yes.  To find out what I had come to anything extra.  Yes.”

[153]	Whilst this was a troubling contradiction I became convinced as I listened to him that there was merit in his original suggestion that to the police that  he perceived initially that admitting  going into the house would have given the appearance of being closely linked with these men and the murder that had occurred. He readily admitted that he was attempting to conceal at these interviews in 2005 any involvement on his part with the incident including his belief that Robb was to be beaten.  It must be remembered that his admission the next day in the 2005 interviews that his account of this aspect of his story had been wrong was voluntarily admitted by him and did not emerge as a result of some slip or oversight in his interrogation.  Why would he change his story, admit he had been lying and volunteer this new account if he was making the whole thing up?  What possible gain was it for him to do so other than to create more problems for himself?  Whilst of course it furnished another opportunity to further blacken the two alleged murderers it would obviously provide, as he suspected it would, more material for the police to suspect he was more approvingly involved with these men than he had asserted. 

[154]	Similarly what did it benefit him to change his story about the 2 cars if it was another fabrication? Contrary to Mr McCrudden’s assertion that this man was cunning and devious, I found him to be someone who was not intellectually very bright and he may well have decided, as he said, to “keep it simple” in his mind and not go into the detail about the change of cars when admitting to police he had not been telling the truth the previous evening. Alternatively, albeit he did not volunteer this, he did not want to admit yet another lie he had told the night before to police. Obviously if he was telling the police initially that he had been dropped off without stopping in at Brown’s house there was no reason to mention a change of cars.   What other possible advantage could he have gained by not mentioning this?  This matter did not add to the hideous detail of the murder, did not further implicate Brown or for that matter Dillon and if factually correct was of little consequence in the scale of the events he purports to have witnessed.

[155]	I pause to observe in this context a feature that characterised Burcombe’s evidence before me on a number of occasions.  Whilst initially he explained his failure to account for these omissions e.g. because he wished to keep himself clear of close attachment to these men or that he wanted to keep it simple etc when he was pursued relentlessly by counsel in cross-examination and was asked for an explanation again and again, he resorted to saying he had no reason for saying this.  Far from being cunning or clever, I formed the impression that he did not have the intellectual ability to withstand this questioning and the refusal to accept his explanations  and he felt he could only stop it by resorting to saying he had no reason.  It has to be recalled that the witness was being asked to recollect explanations for answers he had given over 3 years ago in the course of close interrogation by the police over 4 days. This therefore was not a witness who was regularly and cleverly thinking ahead of the questioner or who had prepared astute answers to obvious questions. 

[156]	Mr Burcombe was further questioned about an apparently contradictory  account of incidents in the house at Sinton Park before the five of them left to go to Tandragee.  In the course of his evidence before me he had said that he had gone out to the back of the house with McIlwaine for a cigarette.  

[157]	His account to the police in 2005 in parts did not back this up.  He mentioned in the course of an interview that he had gone out to the back of the house for a smoke but at that stage did not mention McIlwaine.  In a further interview on 8 November he again mentioned going outside for a smoke but once more did not mention McIlwaine being with him.  Indeed in an interview on 10 November, when describing going outside for a smoke, he had been specifically asked if he had gone out on his own and he replied, “Yes” although when asked how many times he added:-

 “I went out once by myself and I’m sitting, I sat and I went through and went through it and went through it.  It’s possible at one point I could have went out the back and David McIlwaine could have come out with me, has stood and had a smoke too you know.”

[158]	In a further interview on 10 November the same point arose when he said:-

“I think I might have went out at one point and stood and had a smoke and David McIlwaine might have come out behind me but just stood and chatted about you know.   I am not too sure what we even stood and chatted about.”

[159]	I go into this matter in some detail because the witness made the point at this stage that he was being cross examined by Mr McCrudden on a strict interpretation of his language e.g. that he had simply said here that David McIlwaine “might have come out” whereas he was not someone who used appropriate use of grammar all the time and that he was not too clever anyway.  This is a theme to which he returned when dealing with a further matter namely the failure to mention specific reference to a drug deal allegedly made by the accused in the car being driven out to the scene of the murder.  In my view too close an analysis of his use of language by counsel in this case was liable to overlook the idiomatic and ungrammatical content of much of this witness’s speech.  It is clear to me that his everyday use of language did not lend itself to such an analytical approach if the truth of what he was saying was to be assessed.  In the event I found this equivocation about whether he had or had not been out for a smoke with McIlwaine to be precisely the kind of relatively unimportant minutiae that may fade over a period of time though may return after several revisits in the memory bank to the matter.  

[160]	Another area where there was apparent conflict with his 2005 interviews with the police arose over the clothing that Brown had been wearing on the evening in question and the state of it in the aftermath of the murder.  His evidence before me was that the accused had been wearing a white tee-shirt with a navy blue fleece top over it and blue jeans.  He described the fleecy blue jacket in great detail indicating elasticised sleeves, loose arms, a cord on the side of the waist where it could be tightened like a draw string.  

[161]	Burcombe’s evidence was that in the aftermath of the murder at the house he saw blood on the jeans as if he had rubbed his hands down the front of his thighs on the jeans.  It was red colour of the blood.  He described spots on the top area of the fleece which had a zip half way down.  He saw no blood on the tee-shirt.  He also indicated that the boots looked as if they had dried blood on them.

[162]	However when he was interviewed by the police in 2005, they asked him about Brown when he had left the house after they had returned to Sinton Park in the aftermath of the murder.  The exchange was as follows:-

“Police – 	Did you see blood on him at that time?

Burcombe -	I can’t remember, I don’t know, I don’t think that at that stage anything in my head was working.  I don’t think my, I just think I was completely blank just at that point.  I had I don’t know what I was thinking or anything to be honest you know.  That’s the truth.  I don’t know if I saw blood on him so I don’t.”

[163]	The evidence of the witness before me was that after they had returned to Sinton Park in the aftermath of the murder, Brown had left the house and had returned in different clothing.  Burcombe described these as baggy shell type bottom trousers, Fila trainers with a small badge on the side and what looked like the same tee-shirt. 

[164]	However in 2005 when being interviewed by the police and being asked about the state of Revels when he returned to the house after 15 minutes the exchange was as follows:-

“Police -	Was there anything different about him?

Burcombe -	Not that I was aware of, not I hadn’t saw any change because I hadn’t, I wasn’t focussing on what he was wearing or you know as if, what he had on before or anything you know it wasn’t you know just that nothing had changed I just know”.

[165]	Burcombe’s explanation for this was that he didn’t want to remember seeing Brown in front of him with blood on his clothes in the first place.  He added that he had gone to the police to tell him that he was not involved in the murder and he didn’t want to go into all the details.  

[166]	In cross examination he accepted that he had no reason for concealing that information from the police save that he did not want to talk about seeing the blood of these men on someone’s clothing.  

[167] 	Questioned about blood on the accused after the murder, the witness said that he saw no blood on his face but just on his clothes and hands.  However it was put to him that when he was interviewed in the debriefing interview on 27 March 2008, he had told the police that he could see specks of blood on the top of Brown and a speck of blood on his face.  His answer was that he was not too sure about the speck of blood being on his face and that is why it was not in his statement.  However he had said that Dillon was caked with blood.  He did not know if it was a fear of Brown saying that he would cut his throat or his family which blocked out his recollection of blood on his face.

[168]	I believe the failure of Burcombe to describe the blood on the clothing and person of Brown in 2005 was part of the pattern of oversight or flawed recollection of specific details which characterised the account given in 2005.  I consider the witness was quite unprepared for the detail that would be asked of him of events 5 years previously when questioned by police especially if he had been trying to block some recollections out of his memory over that period.  He specifically made the point in his evidence that from the time of the incident until he went to the police in 2005 he had attempted to block out the memory with drugs and drink.  He had always been a drinker but he now became a much heavier drinker.  

[169]	This must be coupled with the pressure of being by inference at least implicated by police in the murders in their questioning and his desire to wrongfully deny any involvement even with a beating to Robb at that time. It is a common experience that under pressure even the most noteworthy detail can temporarily escape the memory especially when there is a lot to remember.  As with other incidents the opportunity afforded by time to reflect on the police questioning and the freedom to reflect on all of this over the lengthy time on remand not unsurprisingly was used to refresh his memory bank.  The whole tenor of his responses in this part of his interview reflects the vagueness and uncertainty of his recollection at that time. His explanation that he wished to avoid dealing with the blood sodden details because they were anathema to him was in my view conceivable but he may have been genuinely mistaken even in his recollection of the reason for this omission now several years on.  Once again I asked myself what purpose it served him to fabricate this detail rather than stick to his original story that he could not remember if he was making this whole thing up?          

Evidence of Burcombe in direct conflict other prosecution evidence

[170]	Mr McCrudden highlighted a number of areas where he submitted Burcombe’s evidence was in such conflict with other prosecuting evidence that this court could only conclude that he was lying. 

[171]	Burcombe said he  had no recollection of the meeting in the Paddock Bar with Andrew Robb as described by Ms Topley (see paragraph 6 of this judgment).  Mr McCrudden suggested that this was yet another example of him telling lies and that his denial of recollecting this meeting was implausible? Why did he not fit this into his story if he had been looking for source material as was suggested by the defence? What benefit did he secure by taking issue with Ms Topley and asserting that he did not remember that conversation other perhaps than some vague attempt to distance himself from an early contact with one of the deceased? I did not consider this had any influence on my assessment of his credibility. He had clearly taken a great deal to drink that night and a casual conversation with someone, including even the deceased, may have escaped his memory bank when asked about it 5 years later.

[172]	Of potentially more significance was the issue of the Crimewatch programme. The witness said that he had not seen the Crimewatch programme. In cross-examination he was shown a video clip with a man walking away from the telephone box.  He said he had never seen this film before and he had never watched the Crimewatch programme.  It was put to him that he had had a conversation with Superintendent Hanley the senior investigating officer on 7 November 2005. Before his arrest and that he told him that he did watch the Crimewatch programme saying “The worst day of my life was when it happened.  The second worst day was when I watched it on Crimewatch.”  This coincided with Hanley’s evidence before me.  The witness asserted that this was wrong.

[173]	It is relevant at this stage for completeness sake that I record that during the defence presentation of evidence after the accused had given his testimony Mr McCrudden agreed with Mr Kerr to read into the evidence extracts from a note that Burcombe’s counsel had spoken during a bail application by Burcombe in November 2005 whilst he was on remand in prison for the murder of the two victims in this case.  Counsel on behalf of Burcombe had said:

“After watching a TV programme the applicant decided through a certain route, namely an approach to a church leader, that he would wish to present himself to the police to acknowledge he had information which was relevant to the murders of Mr Robb and Mr McIlwaine.”

The immediately succeeding words are these:

“The applicant spoke to his solicitor conscious he may well be charged with a very serious offence.  Notwithstanding the exculpatory statement, he presented himself to the police and underwent what my friend has described as vigorous interviewing.”

[174]	Burcombe in cross-examination said he did not recall his barrister saying that and he was not thinking of what was being said in the bail application. 

[175] 	The father of Mark Burcombe gave evidence that he had been at work at the beginning of November 2005 and he had mentioned to his son about the Crimewatch programme that night.  His son said he knew who had murdered the boys in Tandragee.  They then went home. As they drove home from work his son had said he needed to discuss this with someone.  He thinks they may have discussed this for about 10 minutes outside his house when they got back to Crossgar.  His son did not tell him he witnessed any crime when he discussed the matter but he felt that he must have said to him before the Crimewatch programme that he had been in the car.  He said that his son did not watch the Crimewatch programme and was adamant he would not watch it. The father said he discussed the issue with his son again after the programme and told him that the events were different to what he had told him.  Burcombe had told his father that he had seen the fight outside the bar in Tandragee, met up with two lads, went out in the car to get drink and drugs.  He got out to do a pee and that is when the attack took place.  He did not say he had seen it.  Five people had been in the car.  Up to the point where he took him to a solicitor Mr Burcombe senr had no idea that his son had witnessed the killing of McIlwaine.

[176]	I found this witness a very impressive man and I believed his account.  If he had been of a mind to falsely bolster up his son’s account he could have gone about it in a much more positive way.  On the contrary his account was that his son had withheld from him the details he subsequently gave to the police. I did not perceive any attempt to dissemble on his part and in particular I believed his strong assertion that his son had not watched the Crimewatch programme.

[177]	Equally I believed that Superintendent Hanley was telling the truth as he recalled it of the conversation with Burcombe.  His account tied in with the version that Burcombe’s barrister had apparently given to the court.

[178]	The fact of the matter is that irrespective of whether he watched the programme or not, if the thrust of Burcombe’s account is accurate about how he came to reveal his account to the police in 2005, the advent of this programme was a pivotal event.  It was at least the hearing about it in work that triggered his decision to leave work, discuss it with his father and set off the trail of events that led to him approaching the police to reveal his startling information. Whether it was his characteristic loose use of language, his tendency to attempt to over simplify what he may not have regarded as crucial matters  at the expense of total accuracy or a deliberate  misstatement by him so as to avoid a complicated explanation which may have misled Superintendent Hanley or his counsel, I do not know.  However having heard him and his father closely questioned on this matter I was satisfied that he had not seen that programme.  What purpose was served by his denial of having seen it? Neither counsel introduced the contents of that programme before me in evidence other than a brief sequence of a man going into a telephone booth in Tandragee.

[179]	Save for this, no suggestion was made that he had borrowed from that programme.  On the contrary, the evidence was that the programme was factually different from his account including reference for example to there being two cars at the scene of the murder which was directly opposed to his account. If no purpose was served by the denial why would he have lied about it?  Indeed his refusal to watch it carried a resonance with his assertion, supported  by his solicitor, that he had refused to see the photographs when he had access to his committal papers and his claim not to have read Brown’s interviews.  As he asserted in the course of his interviews when explaining why he had not relayed the hideous details of some of the alleged comments by Brown to police in 2005 there were aspects of this crime that he did not want to revisit.  I believe a possible rerun of the events on Crimewatch was one such example. 

[180]	Although neither counsel thought it significant enough to mention in closing submissions to me, another possible example of this genre was the evidence of Dr Curtis.  He said that the difference in widths of the wounds to McIlwaine – ranging from 3.1 cms to 3.9cms-compared to the different range of wound widths to Robb – ranging from 1.7cms to 3.2 cms (albeit there was very little difference in lengths of the wounds) suggested there may have been 2 knives used.  However in answer to me he said much would depend on the angle of insertion and the movement of the victim or the blade.  He therefore found it very difficult to say if there was one blade or two used. In the event I found nothing in this evidence that undermined Burcombe’s credibility.   
           
Allegations of utterances ascribed to Brown by Burcombe made in 2008 but not in 2005  

[181]	The defence case founded a strong attack based on a number of assertions made in 2008 by Burcombe in his statement and in his evidence before me which he had not made in 2005 over the course of his 4 days of interviews.  Mr McCrudden contended that not only had he been given plenty of opportunity by police to come up with these allegations but that they were of such serious import  that they could not have been overlooked by Burcombe.  It was the defence case that these were manifest embellishments - an attempt “to beef up the case”-- introduced by the witness to strengthen the case he was making against Brown to ensure that this time the authorities would give Burcombe a means of escaping a murder charge.  This submission by counsel fitted into his assertion that whereas Burcombe could readily recall the events of the murder itself because, according to the defence he was in fact one of the murderers, it was material such as this - “bookends “- which he was fabricating which would catch out his lies.  Counsel asserted that Burcombe had religiously followed in his evidence before me the course of his 2008 statement having faithfully learnt that off.  I shall deal with the some of these examples.

[182]	Burcombe  did not tell the police in 2005 that he had shouted, “Fuck sake wise up” after McIlwaine had initially been punched by Brown who then pursued him as he ran away.  Mr Burcombe’s account was that he told the police what he did but not all the conversations surrounding it.

[183]	Mr Burcombe in 2008 alleged that Brown had shouted out “kill the bastard, cut his fucking throat” when Dillon was attacking McIwaine.  It was clear however that when he was describing the incident to the police in 2005, he did not refer to these particular outbursts from Brown.  He said that he could not explain why he had not mentioned them but it was something that he did not want to say.  Now that he had “entered into the process,” he was telling everything.

[184]	Similarly, he was questioned about why, in the interviews of 2005 he had failed to mention a number of comments by Brown in the car after the murders and which he now asserted both in his statement of 2008 and before me had been said by Brown.  He had not told the police that Brown had said, “I am going to run over that bastard’s head”.  His explanation was that this was something he didn’t wish to talk about, that he was prepared to point out the facts but not to express all the comments made and in any event he felt nervous about saying that sort of thing and held it back from the police.

[185]	Burcombe had not made reference to Brown swerving all over the road and saying in the car journey after the murder that he was “buzzing, that he had forgot what it was like to kill”.  He did not mention about Brown saying that McIlwaine had been looking him in the eye or that he struck him in the eye because it was too grisly. The explanation of the witness was that he was giving a “roundabout way of what happened” and didn’t go into detail.  Other than that he did not know why he had not mentioned it to the police.  He said that he had lied to the police in not revealing this in 2005 but that someone describing how it gave him a buzz about killing was just something he didn’t want to talk about. In answers to me he said that he found such comments sickening and disturbing.  He contrasted that with being able to relate to the police the horrific scenes he had actually seen. 

[186]	Burcombe made no mention in 2005 of similar comments about the buzz Brown had experienced which he alleged the accused Brown made boastfully when they were back in the house in Sinton Park and accompanied them with the statement that the “two bastards deserved it “.  His reasons for not doing so were the same as before.  I.e. it wasn’t something he wanted to talk to the police about because of the way it made him feel.  It was sickening and disturbing.

[187]	In the course of a number of interviews in 2005 he had not  mentioned that Brown had said to him in the house when they had returned after the murders that he was going to go back to the scene  to cut the body up.  Of that he told the police:

“He said that at that point … I’m going to go back up and the only place I thought he was going to go back up to where was he had done the murder.”

[188]	Counsel questioned him as to why he had not added that Brown had specifically said that he was going to cut the bodies up.  Once again his answer was that this was so sickening that he did not say it.

[189] 	It is right to say however that in the later interview of 11 November   2005 he did specifically mention this to the police.  The relevant extract is as follows.
         
“Police ---- Ok ,so you’re sitting in the living room and Revels into the kitchen and back in to the living room …… what did he say to you.
Burcombe -----He just said, I’m going back up there.            Police-----Uh huh.
Burcombe -----He just said, I’m going to go up and cut one of them open.

[190]  When I drew to his attention that he had not made this point on his own behalf when being cross-examined by counsel, he said to me that he had not mentioned it before because he had forgotten it.  I observe at this stage that this was yet another example of where I remained unconvinced that this was a cunning or devious witness who had come to court well prepared to mislead me or fabricate a mendacious account.  Not only does it lend weight to the proposition that memory of these matters can be initially faulty but can be repaired with time albeit sporadically and not at one time, but it also revealed the obvious point that the witness in 2008 had difficulty remembering what he had said to the police in 2005 even when it was advantageous to him it recall it.    
	
[191]	Burcombe also omitted in 2005 to tell the police that in the car journey to Burcombe’s estate after leaving Sinton Park in the early hours of the morning after the murders Brown had said that Robb would not be “slabbering “anymore or telling him any more wee stories and that he, Brown, had done the stomachs and Dillon had done the throats. The explanation of the witness was that he had gone to tell the police what had happened and he did not go into all the conversations.    

[192]	Burcombe did not tell the police in 2005 that Brown had threatened to cut his throat or someone in his family.  He alleged in 2008 that threats had been made on three occasions by Brown to him.  First in the car in the immediate aftermath of the murders where, with the knife in his hand Brown had said to Burcombe that if he opened his mouth he would cut his throat. Secondly when Brown had left him off at the entrance to his estate and told him that if he kept his mouth shut he would be ok.  Thirdly when he was dropped off after the trip to the Ballymore Inn the following day when it is alleged Brown said to Burcombe that if he opened his mouth he would cut his throat and if he could not get him he would get someone in his family.     Burcombe said that there was no reason why he did not tell these threats to police in 2005 although he also added that it was because he feared Brown.  He said, as he did on many occasions, that he had gone into tell the police about what had happened and not all the details in the conversation.

[193]	He was asked why he had been prepared to say to the police that Dillon had told him to keep his mouth shut but that he did not mention about the threat given by Brown.  He said that it could be the complete fear he had of Brown and that that could be one of the reasons.  He repeated that he did not go in to all the conversations with the police at that time.  At one stage he was not clear whether he had forgotten these things or whether he had deliberately withheld them.  He said he blocked out a lot of things through drinking and drugs over the years.  He said that he did not surface for five years because of his fear of Brown that he would cut his throat.  He did not want to speak about it.  He again repeated that he went in to tell the police about the events of the murder and not about the conversations. 

[194]	One final instance of this aspect of the defence case was that Burcombe   did not tell the police in 2005 that Brown had said to him in the car after leaving the Ballymore Inn that if anyone asked what they were doing he was to say they were drinking in his house.  Burcombe said there was no reason why he did not tell this to the police and he simply did not go into the conversations. I pause to observe that in the event it emerged that Brown did not make such a case by way of alibi when arrested. With the express consent of the prosecution Mr McCrudden indicated during the defence case that it was agreed that Dillon in his interviews with police did not say that he was with Burcombe at any stage and that Dillon did not give an alibi of being with  Burcombe. I confess that the latter point carried little weight with me because I had no evidence whatsoever about Dillon’s interviews with which I could contextualise this agreed statement.  Did Dillon give any account of his movements?  If so did it marry with either Brown’s or Burcombe’s account in any respect?  Could reliability be given to anything Dillon said if indeed he said anything at all material about the evening in question?

 [195]	I had to bear in mind that Burcombe was being asked in 2008/2009 to remember interviews and reasons for answers given then that had occurred over 4 days in 2005 about matters that had occurred almost 9 years ago now and almost 6 years ago in November 2005.  Accurately recalling without genuine mistake or confusion such matters would tax the memory of anyone. 

[196]	I did not find it foreign to my experience that people often forget even important matters that have been spoken or that have happened some long time before particularly if they are, as he alleged, unprepared for questions about them, have not thought about them for some time or have even attempted to shut them out of their memory if it involves some shameful or distress provoking recollection.  It is not at all unusual in human experience to come across instances where people have either blocked out horrific memories or find it anathema to talk about them.  Such difficulties might be exacerbated by being in a pressurised situation questioned by the police where, by his own admission, Burcombe was deliberately keeping back from the police any hint of close connection to the accused e.g. being asked back to the house after the murders  and his  knowledge that something in the nature of a beating  was going to happen to one of these young men before the murders occurred.

[197]	Experience over many years in the courts has also revealed that witnesses who have been living the kind of dissolute life of drink or drugs that allegedly Burcombe had been living are often not the best historians on matters that do not touch on the main event they are describing.

[198]	On the other hand when time is afforded for a less pressurised and more concentrated reflection – an opportunity he undoubtedly had whilst on remand in prison-aided by an in depth process of questioning under the terms of SOCPA, details previously overlooked or deliberately omitted can resurface. I have no doubt that he must have whiled away the hours/days/months on remand revisiting again and again the events of February 2000 in a manner that he may not have done prior to his decision in November 2005 to speak to the police. Hence his recollecting more details of conversations of events or a decision to reveal more in 2008 did not surprise me. He may even have attempted to rationalise some of his earlier oversights by convincing himself that the original oversight must have been because the memory was so horrific he must not have wished to recall or relate it to the police.

[199]	Accordingly when I came to consider the application to admit the statement of witness F I was satisfied  that there was evidence from Burcombe  fit to go before the notional jury and that his account was not so lacking in creditworthiness that I should hold her evidence was the sole or primary evidence on which the prosecution were relying. I looked again at these matters when coming to decide if I could be satisfied beyond reasonable doubt that he was creditworthy.  

[200]	However on the other hand rogues may make up plausible stories and the witness sounding convincing is no guarantee of his reliability. I was acutely aware  of the risk of  injustice where a  witness  appears  plausible despite warning signs to the contrary.  As I have already set out in paragraph 105 of this judgment he had admitted to not being open and honest with the police in 2005, he had lied to them on occasions, he had deliberately minimised his role initially, there were a large number of omissions from his 2005 account which he had added to in 2008 including a number of damning admissions by Brown and in 2008 he was facing a murder charge when he returned again to the police. I was conscious of the need not to unjustifiably discount discrepancies and not to approach such a witness with benevolent credulity when the need was for guarded suspicion. 

[201]	Accordingly whilst I was satisfied that his evidence was far from being so unworthy of belief that I should dismiss it without further ado, I was satisfied that I should follow the Makanjuola principles, that this was a case where a strong warning was appropriate and it would be wise to look for some supporting material before acting on the impugned witness’s evidence.  I add that before coming finally to a conclusion on this issue at the end of the trial I discussed the matter with counsel before their closing speeches and thereafter informed them that I intended to treat this case as one of the extreme cases adumbrated by Lord Taylor in Makanjuola.

The Forensic Evidence

[202]	Before commencing my search for supportive evidence I commence by stating that I recognise that I am not bound by any of the experts’ opinions in this matter and the issues in this case are entirely for me to decide.  In each instance where I have considered the evidence of experts, I have sought to ascertain the facts upon which their opinions were based and the reasons for their conclusions.  I did not regard any of their evidence as fundamental to the prosecution case but rather as supportive material.

[203]	In looking at this forensic evidence, Ms McColgan suggested to the court that it was circumstantial evidence. Circumstantial evidence means the prosecution relies on this evidence of various circumstances relating to the crime which when taken together provide what counsel described as compelling supportive evidence of the account of Burcombe.  Taken together the only conclusion to be drawn is that the accused committed these murders.  Counsel drew on the often repeated analogy of the rope comprising several cords where one strand might be insufficient to sustain the weight but three together may be of quite sufficient strength.

[204]	Equally I recognised that such circumstantial evidence had to be examined with great care.  First of all it could have been fabricated or was so flawed that it could not be relied on.  Secondly I had to see whether or not there existed one or more circumstances which were not merely neutral in character but would be inconsistent with any other conclusion, taken together with Burcombe’s evidence, that the accused was guilty.  I had to consider if there were circumstances where this forensic evidence could be inconsistent with the guilt of the accused and take this into account. 

1.   Blood

[205]	 Mr McIlwaine had been wearing at Druminure Road a cream jacket with footwear marks upon it.  This was a zipped jacket.  According to the forensic evidence the jacket was heavily bloodstained, particularly around the neck.  Comparison of the jacket with the photographs from the scene indicated that most of the smearing on the jacket may have resulted from handling after the body was removed from the scene.

[206]	I was satisfied that the forensic/police evidence did reveal that the clothing of McIlwaine namely the jacket and his other clothing had been transferred by the police to the forensic laboratory and then back to the police.  I was satisfied with the continuity evidence.  I was also satisfied that there had been a genuine mistake in the FSNI documentation about item 124 which had been mistakenly recorded as items 1,2 and 4.  I have accepted that there was nothing untoward about this and it was a simple oversight.
	
[207]	Collette Quinn was the Senior Scientific Officer at Forensic Science Northern Ireland.  She had reviewed work already performed in this case and had carried out her own assessment on various aspects of the case between August-October 2005.  She had been asked to review the files and see if any additional work should be done in October 2000.

[208] She said that throughout her examination she wore protective equipment namely a coat, hat, mask and gloves.  She said that was standard procedure involving items that could yield DNA in order to minimise contamination.  The hat is worn so that she would not leave hairs behind including dandruff or skin from her head.  Very small elements of skin can fall from the head and provide some risk of contamination.  So far as hands are concerned, oils or skin may come off.  It is not best practice to examine it without gloves nowadays.  The mask she wore prevents salvia sputum and breath and is best practice.

[209] She had looked at the clothing to see if there was anything of significance.  On the cream zipped jacket which had belonged to Mr McIlwaine, this witness swabbed ten stains that appeared to be bloodstains.  The jacket was heavily bloodstained.  She took her samples from two areas from the front for DNA analysis.  She had looked for very small bloodstains that could have been projected blood.

[210]	In the left chest area, she looked at five stains which she lettered A,B,D,E and F.  B, E and D were found of a profile unique to McIlwaine.  She described how there were ten loci in a typical DNA sample.  These three samples were unique to McIlwaine.

[211]	Of the other two samples – A and F – the major DNA contributor was the accused.  A was a mixed profile with the minor contribution from Mr McIlwaine.  A full profile of the accused with ten loci and a sex characteristic were found.  There was a partial profile of McIlwaine.  Hence the major contributor was the accused. 

[212]	So far as F is concerned, the only contributor found was the accused.

[213]	The other stains, namely C (from the front of the right sleeve) G, from the lining of the jacket inside, H from the back of the left sleeve, I, from the back of the right sleeve and J from the cuff of the back of the left sleeve were also commented on by her but did not reveal any DNA of the accused.

[214]	Thus of the ten samples, four had yielded no profile, a fifth had yielded only one allele, three had yielded the profile of Mr McIlwaine and A and F were the two which yielded a profile of the accused albeit one was a mixed profile.

[215]	The witness said that the SGM plus system of DNA, which is accepted throughout the UK, was invoked in this instance.  The samples were analysed at ten areas of the DNA and also at the area that determines the sex of the DNA. 

[216]	Insofar as there were DNA samples found matching the accused on the upper front of McIlwaine’s jacket, the likelihood that an unrelated man from Northern Ireland would have one of these genetic combinations is less than one in a billion.

[217]	It was suggested to the witness that the pockets of the jacket had been searched at the scene and that this could have contributed to the dispersal of blood on the jacket.  She said that it would account for additional smearing on the jacket but it would not cause the projection.  If blood is wet and in considerable quantities there is more likely to be smearing.  It is very unlikely to lead to projected blood.  

[218]	She was shown a photograph of the jacket being held up.  She said that blood might drip down which would give the impression of drips of blood.  It would not give the impression of projection.

[219]	The defence case was really not to question the issues of the profiles found but to question the source of the profiles.  The core of the accused’s case was found in the fact that the witness accepted that it was possible that it was the accused’s saliva that had produced his DNA.  On bloodstain A, which was the mixed bloodstain, she found three alleles at three of the ten areas i.e. one of each of Mr McIlwaine.  It was enough to say that it came from Mr McIlwaine.  She agreed that the proposition that the bloodspot she had detected, albeit it only yielded three alleles, was that of McIlwaine and that the profile of Brown had come from his saliva or some other DNA source could not be eliminated.  It was put to her that for example if Brown had been some fair distance away from the deceased when he was speaking to him, one single spot could have been deposited depending on the proximity, speed of turn of his head etc.  So far as specimen F was concerned, Ms Quinn could not entirely eliminate the possibility that the bloodstain revealed no DNA and the DNA she found was saliva covering it.

[220]	She did indicate that to detect saliva there is a presumptive test which was not carried out because her understanding had been that the deceased had been in the presence of the accused prior to his death and therefore it would not have provided any assistance.  

[221]	Her view however was that both marks were discrete bloodstains and she would have expected blood to be the primary source.  It was more likely in her opinion however that the DNA of the major profile in each instance originated in blood because the majority of the visible component was blood.  In F there was no other contributor and she would have expected that if it was saliva there should have been a mixed yield.  So far as stain F was concerned, with only one contributor, that particular spot was bloodstained.

[222]	It was the witness’s evidence that she thought it was very unlikely that sample F would have revealed a blood spot with no DNA sample of McIlwaine and simply a saliva profile of the defendant.  The blood was there and visible.  Thus she would have expected to have found DNA from a contributor.  Her expectation in the case of F was because of the size.  In her experience of the bloodstain if it is more than 1 cm, as this was, one would expect to find a profile although it did not always happen.  Although she was pressed on the matter relentlessly by counsel she remained unmoved in her view that the DNA of Brown found in specimen F had been yielded up from the bloodstain.  Again and again in her evidence she asserted her view that it was highly unlikely that the stain arose solely from saliva.

[223]	Therefore whilst the bottom line was that while she could not say where the DNA profile had come from, she still thought it was highly unlikely that F was a saliva DNA because the sample area she considered to be a sample of blood.  In her opinion if the stain was from blood, she would have expected some indication of a foreign DNA and she found no such indication.  It had all the appearance of a natural bloodstain.

[224]	So far as specimen A was concerned, the mixed profile, the witness remained in my view completely wedded to the view that it was more likely that the DNA major profile originated from the blood in circumstances where the major visible component was the blood.  Whilst she could not eliminate a background combination of DNA from saliva, she summarised her position thus:

“I sampled an area that I considered to be a quantity of blood.  The fact that I got a major profile that matched Mr Revels and a very minor component that matched Mr McIlwaine indicates one, that source was most likely Mr Revels and secondly, that because there was a decent sized stain the most likely source of it was probably the blood but I cannot rule out the fact that it could have been from another material.”
	
[225]	In addition, DNA from a spot of blood from the rear of jeans worn by Mr McIlwaine, matched the DNA from Mr Robb.  According to Dr Quinn, this finding indicates that Robb was bleeding prior to McIlwaine being attacked and that blood had been transferred from the weapon or attacker.  

[226]	No DNA, blood, fibres or hairs were found to link Robb or McIlwaine to the Peugeot 205 which there was evidence before me the defendant Brown had driven.  The evidence of Ms Quinn was that the absence of fibres and hairs from the Peugeot car and the rear of the jeans from Robb and McIlwaine may be due to a number of factors such as the length of time they were in contact with the seats, the movement of the bodies after leaving the vehicle, the absence of the tartan rug or sheet covers at the time of the incident or the involvement of a second vehicle. 

2.	Tyre/Tread Marks 

[227]	When the police had carried out a search of 15 Sinton Park, Tandragee, the home of the accused, a red Peugeot 205 car, vehicle registration mark F667PHY had been found there. 

[228] 	Scenes of crime officers found recent tyre marks in the vicinity of a gate into a field on the north side of the Druminure road not far from the bodies of the two deceased. 

[229]	The evidence of Walter James McCorkell, a Chartered Chemist and Principal Scientific Officer and Lead Scientist at Forensic Science Northern Ireland  with 20 years experience at the laboratory was that he had received in the laboratory two casts of tyre prints from the Druminure Road.  He received these on 21 February 2000.  On 23 February 2000 he received the red Peugeot car earlier referring to the registration number F667PHY.  That car was fitted with Hankook radial tyres on the front of side and near side and G.T. tread radial tyres on the rear off side and near side.  He prepared test prints of the tread on each type for comparison purposes.

[230]	Comparing the plaster casts to the tyres on the Peugeot, Mr McCorkell found that they matched in terms of pattern elements.  The blocks, which are small raised areas on the head, and are the portion where a tyre makes contact with the road, matched.  The grooves on the tyres on the casts coincided.  He was unable to compare the slips i.e. where the tyre block is separated because the casts were too poor and there were no circles on the tyres or casts.  These elements were therefore spatially present on the casts on the tyres.  Thus the results of this examination by Mr McCorkell indicated that the tyres which had left the detail at the scene were a Hankook and G.T. tread radial tyres or facsimiles.  The vehicle examined, the red Peugeot 205, bore Hankook radial tyres in the front and G.T. radial tyres on the rear.   

[231]	He also found that tyres come in different sizes as well as different tread patterns.  The sizes vary from a normal domestic car right through to a small van or vehicle.  In this instance the tyres which left the detail at the scene were of the same width as the Peugeot car he examined.  He therefore concluded that these factors provided support for the proposition that the marks at the scene were made by the tyres on the Peugeot.

[232]	The defence case on this aspect of the matter was centred on the acceptance of the witness that there was a possibility that different tyres e.g. Dunlop or Michelin from a different vehicle could have made these marks.  He was not able to produce any statistical likelihood other than to say that there was a level of support for the proposition that the cast marks were the same as the Peugeot’s.  i.e. there is a level of support that the tyres on the Peugeot could have left the marks of which a cast was made at the scene.  There was still a reasonable possibility that another vehicle with the same tyres could have made these marks.

[233]	In coming to his conclusion however he did add that he took into account that there were two different tyres found on the Peugeot and on the casts.  

[234] 	I had also to bear in mind that Brown volunteered to the police at the start of the second day of his interviews that the car doors had been unlocked when he went out on Saturday morning.  He did not know if he had locked them because he was drunk.  

3.   Plastic 

[235]	Constable Beattie gave evidence of being part of the search team that went to the accused’s house on 23 February 2000.  He noticed a piece of green coloured plastic close to the gate post at the back of the house.  He agreed that police had not been wearing anything other than regulation uniform when the plastic was found.  When he found this he drew it to the attention of Scenes of Crime Officer Kyle.  

[236]	Scenes of Crime Officer Kyle then gave evidence of also attending at 15 Sinton Park on 20 February 2000.  Lying on the front door step close to the upright he saw a small piece of green coloured plastic at the front of the house.  He made a white chalk mark around this.  He also observed the piece of green plastic at the back of the house beside a makeshift gate at the top of the path of the rear garden.  It was bagged at the scene after he had carried out some blood tests.  Continuity evidence of the transfer of these items to the Northern Ireland Forensic Laboratory was given. 

[237]	On these findings the defence case centred on the fact  that  this witness  accepted that a number of police had been assembled at the front door as evidenced by the boot mark thereon and that it was possible that the plastic had come off the boots of the police and had been knocked sideways. These pieces of plastic were light and could be blown in the wind.  

[238]	The defence case was that so far as the piece of plastic in the back garden was concerned the wind could catch this and displace it.  It was found at a makeshift gatepost which was at a slatted fence open to the back alley.  It was put to Kyle that if something jammed in the slat, having been blown around the alley, it could then drop into the back garden once the gate was open.  His evidence was however he did not think that it could be carried by the wind into one of the slats.  He was not sure if the back alley had been searched by police although the note of the search did record that the search team had gone into the rear entry to search bins. 

[239]	In closing counsel suggested that the plastic could also have been brought there by the deceased on their footwear or clothing who, even on the accused’s case, had called at the house.  Counsel also suggested that bearing in mind that the general area of Sinton Park had not been a crime scene until some time after the murder, and that Debbie Maxwell’s next door house was a possible venue for the deceased and/or the killers, there was ample opportunity for the elements of wind and weather to have transferred plastic from elsewhere to the accused’s house.  Counsel emphasised that the plastic was not in the house itself but rather in the garden and outside the front door and there was no evidence that the accused owned the plastic.

[240]	The fragment of plastic from the front step (JK2) and the piece of green plastic lying in the garden beside a makeshift gate at the top of the garden (JK42) were forensically compared to plastic found at the murder scene at Druminure Road (JRJ5) by the Scenes of Crimes Officer James Richard Johnston.  At the scene he found small pieces of green plastic close to the right hand side of the body of Mr McIlwaine as well as a small piece of green plastic on the road close to the feet of the body.  He also observed when the body was moved that there was a piece of green plastic under it.  These were all collected, bagged and labelled by him as JRJ5 (subsequently labelled as LM1).  They were found forensically to have likely originated from the same source as the items of plastic found at Sinton Park, the home of the accused.

[241]	The provenance of the plastic at the scene was criticised by the defence and so it is necessary to delve into the detail of the finding.	

[242]	The defence emphasised that Mr Johnston’s evidence had a number of unsatisfactory elements. First as to the number of pieces of plastic found at the murder scene. The plastic pieces as recorded on the map B prepared by Cons Horan were at points F1, F2 and F3.  The evidence of Mr Horan who had taken the photographs at the scene was to the effect that that there were three pieces (F2) near the hand of Mr McIlwaine, one some distance away from the feet of the deceased McIwaine at F1 and one, F3, which had been found immediately under the body of the deceased and which had not been photographed.  This account tied in with that of Sergeant Walker who described lifting the body with Mr Johnston into the body bag.  Mr Walker then saw a piece of plastic under the body.  He was adamant that it could not have been that piece referred to between the outstretched arm and the body because, as seen in photograph 30, that piece was extremely small.  The piece he saw under the body was much more obvious than that and was much larger than that piece in photograph 30.  That would have made five pieces in all. 

[243]	After initial confusion when Constable Johnston could only find 3 pieces of plastic in the exhibit, four were found by the next witness Sgt Walker in my presence . 

[244]	Constable Johnston attended the scene on 19 February 2000 at 10.35 am.  He made a note in the following terms about the plastic:

“Small fragments of broken green plastic lying near hand.  One piece of plastic under body.”  

[245]	His evidence was that he made pink marks around the fragments and there were only two pink marks at F2 in the area of the right hand.  A close perusal of photographs 28 and 29 might have revealed a third piece between the body and the outreached arm as depicted in map B but certainly no reference was made to this in the course of his evidence by Mr Johnston.  He had made no reference in his notes on his own admission to the piece of plastic found at F1.

[246]	Mr Johnston’s evidence was also unsatisfactory on the issue of the wearing of protective clothing.  Mr Johnston gave evidence that before entering the scene he donned a white disposal suit which covered him from his ankles to his neck and down to his wrists i.e. a one-piece suit which also had a hood which could be pulled over his head to stop him contaminating the crime scene. He also would have had overshoes but very often the shoes would be “walked out” and he did not replace them.  He recognised that shoes can pick up material and bring it to the scene or take it away from the scene.   

[247]	There was disparity in the evidence about the nature of good practice in the wearing of these suits in the year 2000. Whilst Johnston indicated that he thought it was bad practice not to wear a hood when close to a body,  Sergeant Walker indicated that he thought the appropriate practice in 2000 was to wear such a hood only when in confined or indoor spaces and that it was unnecessary to do so outdoors.  He also indicated that the covering of the feet would not be practicable at a crime scene such as this where it was a long road to be walked.    For my own part I consider that whatever the practice may have been, it would have been preferable had hoods been used by these two officers when close to the body and also those at the scene should have worn appropriate footwear.

[248]	It was clear from a photograph published in the Sunday World shortly after the discovery of the bodies showing Mr Johnston and Detective Sergeant Walker kneeling beside the body of one of the deceased  that neither Johnston nor Walker were wearing head covers and they did not have shoe protection.  

[249]	There was also evidence that the photographer taking photographs of the body of Mr McIlwaine had been very close to the body at a time when the pink marks identifying the plastic had not been laid out, the clear inference being that people at the scene including the photographer and police had been close to the body before the plastic materials had been identified and at a time when they would not have been wearing protective footwear.  Indeed Mr Johnson accepted that it was possible that the photographer could have been standing precisely where some of the green pieces were found.  However he was adamant that he had not walked over them before he noticed them.

[250]	I pause to observe that I admitted in evidence the photograph from the Sunday World on the basis of the authority of R v Murphy and Another 1990 NIR 336.  Although the photograph had not been proven by the photographer, I consider that it was relevant, and pointed to the issue of whether or not the officers had been wearing protective clothing.  Prima facie it was therefore admissible.  The next question I had to ask was whether or not it was authentic.  Such photographs may of course be proved circumstantially.  Both Sergeant Clarke and Mr Johnston identified themselves in the photograph and were able to point out Mr Horan as well.  I consider that there was a sufficient foundation here for showing that this photograph exhibited what it represented to be namely a photograph of the scene when Mr Johnston and Sergeant Walker were close to the body of Mr McIlwaine.  I considered that the videos which were also shown to me of news broadcasts from Sky television news and BBC news were similarly admissible.

[251]	Mr Johnston also conceded that there should have been no interference with the bodies at the crime scene until they were moved into the body bags but it would be necessary to at least adjust the clothing of the deceased in order that the police would take steps to identify who they were. However Mr Johnston said that when he would have searched the clothing of Mr Robb and Mr McIlwaine he would have definitely used gloved hands because of the amount of blood in the area. 

[252]	Whilst I do not consider the police at the scene observed best practice in the wearing of protective clothing at all relevant times, I am satisfied that this had no adverse  impact whatsoever on the exhibits obtained.  It would be wholly implausible to suggest that police officers brought plastic to the scene of the murder and that coincidentally a completely different team who had gone to the accused’s house brought matching pieces.  In any event one piece of the plastic was found under the body of the deceased before it was moved by police so that could not have been brought to the scene by the police.  Self-evidently the tyre marks found were uninfluenced by the protective clothing issue.  I do not believe that the DNA of the accused found on the clothing of McIlwaine was influenced by the lack of protective hood or footwear and there was no case made that the DNA had been transferred as a result.  

[253]	Collette Quinn examined five pieces of plastic found at the scene of the murder and in addition two pieces of plastic found at the house of the  accused when she carried out her examination in 2005.  She found four pieces in exhibit JRJ5 and a further piece extracted from JRJ5 namely exhibit LM1 i.e. making five pieces in total which had come from Druminure Road.  In addition she also examined separately the two pieces of plastic found at the house of the accused.  The dimensions, texture, appearance and colour matched those of an aerosol can top similar to that found at the accused’s house albeit she could not say definitively that they came from one particular piece or from the same aerosol can.  

[254]	Mr Marshall is a Senior Scientific Officer in Northern Ireland Forensic Agency.  He has been so employed for 25 years. On 23 February 2000 he examined three pieces of plastic (JRJ5) which had allegedly come from the scene of the murder at Druminure Road.  He also examined JK2 which was the piece of plastic which came from the front step of the accused’s home.  Thirdly he examined JK42 which was the piece of plastic which emanated from the rear garden of the accused’s house. 

[255]	JRJ5 therefore had three pieces of plastic when he came to examine it.  He was not sure how it came to be three instead of the five which had been found at the scene.

[256]	His evidence established that the large piece from the rear garden fitted with the piece taken from the front step, but, more importantly, a piece taken from JRJ5, found at the scene of the murder, namely LM1 fitted with JK42 that is the piece found at the rear of the accused’s garden. He concluded they were originally one piece of plastic.  In his opinion whilst it was a remote possibility that some other fragment might have fitted that particular notch, it was a very remote possibility.  

[257]	He also examined a tin of aerosol graffiti remover with a green plastic cap which had been found in the accused’s house.  The cap was of the same dimensions and colour visually as the plastic pieces when tested by a technique which measures the way a coloured object reacts with light.

[258]	He recognised that so far as JK42 was concerned i.e. the item found in the rear garden, on a windy day it could have been moved by wind or by animals but he found no evidence of bite marks or scratches on it. 

[259]	I was satisfied that the continuity trail of the exhibits from the scene of the murder and from the accused’s home had been proven to the appropriate standard by the prosecution.  There was absolutely no evidence of any mix up or cross-contamination between the exhibits found at the two separate venues i.e. the accused’s house and the scene of the murder.  Different officers were involved in gathering them and transporting them to the Northern Ireland Forensic Laboratory.  The exhibit number and packets containing the exhibits from the house were entirely separate from those found at the scene of the murder.  Whilst the evidence of Constable Johnston and Sergeant Clarke was less than satisfactory in giving me the precise number of exhibits found at the murder scene, I was satisfied that five pieces of plastic were transferred to the laboratory and were examined by Ms Quinn.  Although Mr Marshall deposed in 2000 that he found only three pieces, he acknowledged to me that he may have missed out on the other two pieces because of their size.

The evidence of witness F

[260]	There was before me a committal statement from F containing the usual statutory declaration. Hereafter where I refer to her evidence I mean by that her statement as obviously she did not give evidence in front of me. The statement of witness F was admitted by me as a statement under the provisions of the Criminal Justice (Evidence) (NI) Order 2004.  She had commenced to give evidence in this case for a short period but had been unable to continue.  She was examined by a general practitioner and by Dr F Brown, Consultant Forensic psychiatrist during a break in the trial.  It was his view that if she continued to attempt to give evidence in the current trial she would become acutely anxious, emotionally distressed and would be unable to give effective evidence during her evidence in chief or during cross-examination.  He did not consider that her condition was readily amenable to any form of treatment such as medication or psychological therapy.  I gave judgment admitting her statement in an unreported judgment GIL7377 which has been placed with the file of papers in this case.

[261]	In a further written judgment during the course of this trial, which is unreported GIL7382, I rejected an application by Mr McCrudden QC under the Criminal Evidence (Witnesses Anonymity) Act 2008 which would have refused to authorise her statement to be admitted as anonymous hearsay evidence.  That judgment has also been placed with the papers in this case.

[262]	I commence my assessment of this statement by warning myself of the dangers and weaknesses inherent in relying on an unchallenged statement.  I have carefully read the judgment of Lord Griffiths in Scott v R (1989) AC 1242 especially at p.1258 and Lord Bingham in Grant v the State (2006)2 WLR especially at paragraph 21(4).

[263]	Recognising as I do that the statement is disputed, in assessing the weight of the evidence I have taken into account the fact that unlike evidence given orally in court, this evidence has not been given on oath or affirmation before me, it had not been subject to cross-examination and it has been made for the purposes of criminal investigation. I am conscious of looking for the particular features of the evidence which conflict with other evidence and which could have been explored in cross examination.

[264]	In light of the evidence of the accused about the break up of his relationship with F and the statement of witness G to which I shall shortly turn [paragraphs 295 - 308] I considered that F’s evidence had to be looked at in the context of those instances which are regarded as analogous to cases involving accomplices and where the guidance of the Court of Appeal in R v Makanjuola; R v Easton has to be applied.  

[265]	In particular, those principles apply to cases where a witness may be tainted by improper motive.  In R v Beck 74 Cr App R 221, Ackner LJ referred to “the obligation upon a trial judge to advise a jury to proceed with caution where there is material to suggest that a witness’s evidence may be tainted by an improper motive and the strength of that advice may vary according to the facts of the case”.  

[266]	I considered that the author of Archbold 2009 at para 4-4040 is correct in suggesting that this should extend to a motive such as jealously or spite.  Therefore I have approached her statement with great caution on the basis that there is material to suggest that this statement may be tainted through her motives of jealousy and spite by virtue of the fact that the accused had left her with a young child and had behaved at least in the manner that he described i.e. excessive drinking and womanising. I considered that her evidence came within the extreme genre of case referred to by Taylor CJ in Makanjuola as requiring a stronger warning than usual and that it was wise to look for supporting evidence before relying on it.

[267]	The salient issues in witness F’s statement can be summarised as follows.  She met the accused in April 2004 and shortly afterwards went to live with him.  Everything was great for a while but then people began asking how did she know Steven Revels or Steven Rivers.  She said she did not know that he had a different name.  She then started “poking about” and alleges she found a newspaper cutting from years ago in his wallet.  It was about him being in court and criminal charges being sensationally dropped against him for murder. 

[268]	I interject to record that Russell Grant, a reserve constable, who was part of the search team in November 2005 at the accused’s address in Coalisland, found in his wallet a newspaper cutting headed “Murder charges dropped” which dealt with the fact that the accused had had charges of murder in this instance withdrawn against him. 

[269]	In attacking the reliability of F’s statement the defence further relied upon the evidence of Constable Cairns who was a female police officer with the PSNI.  She recalled meeting witness F at a courthouse in Northern Ireland on 11 October 2005 with reference to matrimonial proceedings being instituted by witness F against the accused.  She had asked witness F if Brown was still taxi driving whereupon F had said that he had points on his licence.  Constable Cairns had asked if he had any other convictions and she said that she did not know except that he had murdered someone.  She told Constable Cairns that one day some bits of paper had fallen out of his wallet.  When she looked at them it was about a court case.  Constable Cairns understood it to be small articles out of a newspaper.  They were in a public place at that time with other people around and witness F instantly said “Don’t tell anyone I told you that”.  Constable Cairns made a note of this when she returned to the police station although she did not ask her to verify the contents of the note or to sign it. Mr McCrudden asserted that the version she gave to Cairns was different from that depicted in her statement.  I considered the apparent disparity to be of little moment given that if she was “poking” about in Brown’s wallet the articles could easily fall out in any event.
 
[270] 	It was the accused’s evidence that he took out from his wallet the newspaper cutting of the charges being dropped and showed it to her. Which ever version of the advent of the newspaper cutting is true it is common case that it triggered some discussion abut the murders.  The real issue is as to the nature of the conversations that ensued between Brown and F.   

[271]	F’s statement was to the effect she approached Brown about the newspaper cutting one evening.  She claimed that he said that two boys had come into the flat one night and were having a drink.  The two boys had knocked on the door and he was there when they arrived.  The statement went on to record:

“I don’t know if Noel Dillon was with him but they came in and they were talking about Richard Jameson who was killed ten days before.  Steven knew Noel Dillon as he used to go out with his sister Alexia Dillon.  Steven said this man who had been killed was a friend and the boys had slagged him of.  They said he had deserved to die and he was an oul bastard and deserved it.  Noel Dillon was either there in Steven’s flat drinking with him or Steven phoned him and told him what they had said and that he was going to do them in.  Steven said them two took them away or drove them away.  Steven said he was drunk at the time.  Steven talked to me about the one that tried to get away.  I don’t know which boy this was but one of them, after he saw the other one die tried to run to get away and Steven said to me, that he nearly got away, but he got him and he cut his throat and stabbed him.  There was a struggle of some sort and the boy tried to defend himself.  I don’t know how he tried to defend himself.  This boy was begging for his life but Steven said he stabbed him and stabbed and stabbed him till he was dead.  I don’t know which boy this was.  Steven didn’t tell me about the other boy or at least I don’t think he did.  I don’t think he said that he had any involvement in the other one, but I’m not sure.  Steven said that they left him there but I don’t know where he was talking about but he said he drove them out into the middle of nowhere.  Steven said different things at different times and that’s why I have difficulty in remembering exactly what was said and when.  There was something about the knife, he told me something about the knife but I can’t remember what he said about this knife.  Steven told me he had cleaned up his car and that he was arrested the next day or a few days later.  Steven told me that they didn’t have enough evidence to charge him.  He told me that there was an aerosol can or lid, half of it found at the scene and half of it either found in his car or near his car and that was all they had to tie him into it and it wasn’t enough.  He told me on another occasion there was a tyre print found at the scene from his car, he said it wasn’t enough evidence.  He also told me about something of his clothes was found.  Steven told me this one night whenever he was drunk.”

[272]	It was the accused’s assertion, through counsel and in evidence before me  that F was merely  relaying the detail that he had told her the police had given to him. He answered her questions about the matter informing her that the police had lifted him along with a number of other young men in the area.  In particular he claimed  that he told her all the details of what the police had put to him including that the police had alleged that at the scene he had run after McIlwaine, cut his throat and had looked into his eyes.  He said that she kept going over and over the same questions for over an hour when they were sitting at the kitchen table.  It is clear from the cross examination by counsel of Constable Lilley, one of the officers who interviewed Brown , that much of what Brown allegedly confessed to F had been put to the accused by police (see paragraph 320 of this judgment).  

[273]	Turning to the events of the evening of the murder, Brown alleged he had told her about the two boys knocking at the door.  He then set out a number of things that he asserted the police had put to him and which in turn he had told her;

•	 that the deceased had come into his house.
•	 that this murder had been part of the feud involving Richard Jameson who was a friend of his.  
•	that he had carried this out with Dillon.  
•	he had taken his car to the scene.   
•	 that he had stabbed and stabbed the deceased until he was dead, that a knife had been used and so on.
•	 that he had tried to clean his car out.
•	that pieces of plastic from an aerosol top had been found at the scene at his house and that his tyre marks were there.
•	 that one of the deceased must have run away and asked did he catch him and attack him.

[274] 	However it soon emerged that if what he was saying was true she must have added in a number of other details which the police could not have told him and which, if he was right, she was simply manufacturing. He denied that he told her that the boys had slagged off Jameson or that he was ”an oul bastard and deserved it.”  He said that she had made these allegations up.  Why would she have made up this degree of minute detail when, as was clear from her statement she did not make up potentially  more damning lies such as that Brown had admitted to murdering Robb? 

[275]	It is also clear that in so far as she said “Noel Dillon was either there in Steven’s flat drinking with him or Steven phoned him and told him what they had said and that he was going to do them in” this was again something that the police did not tell her.  The accused said he had told her Noel Dillon was with him.  If so one wonders why she entered into this uncertainty about whether Dillon was there or not.

[276]	Brown  also claimed that she knew the identity of Noel Dillon because of the photographs of Noel Dillon with his two children in the house despite her assertion she did not.  This carried a resonance with his allegation that Burcombe also knew Dillon and was manufacturing a lack of knowledge.

[277]	Brown testified that he told F that he had received a telephone call that Noel Dillon had died and he showed her the newspaper articles about his death.  She asked him what would happen now and what way did that leave him and he said it had nothing to do with him.  He denied ever saying that something could out about it or that he was going to be all right now because Noel was dead. Once again this was minute detail which it was curious for her to have manufactured given the omission in her statement to blame him for Robb’s death. 

[278]	The accused testified  that F knew he had a previous name to a foster family because she collected his mail when she called to see him in the house on a daily basis when he worked nightshift and she also had made payment on his behalf to the Credit Union in Armagh under the name of Revels.  Revels was the name which his foster family had given him.  He also had a Ford Escort car under the name of Revels and she had placed the postal orders in the envelope for payment. I simply could not see any logical reason why she would have lied about this.  Any one of a number of reasons could have been thought up for seeing the newspaper cutting – including that the accused simply told her about it as he alleges – without manufacturing an ignorance that might easily have been disproved.  

[279] As I watched the accused in the witness box I formed the clear impression that  he had determined to charge his accusers including F  with every lie imaginable even when it would have been of no assistance whatsoever to the witness to have manufactured something such as lack of knowledge of Dillon or ignorance of his foster name.

[280]	Mr Kerr asked Brown why he had gone into all this gruesome detail with her in any event.  He said it was to help her understand that he had nothing to do with it. Since they were now contemplating a more permanent relationship, Brown felt he should reveal to her the background to him having been charged with the murders of the two deceased.  I found this inexplicable given the horrific detail that allegedly he told her the police had outlined to him.  How would this degree of gruesome detail have helped her to understand he had nothing to do with it?  On the other hand if Burcombe’s evidence was correct that Brown was given to boasting and bragging about the murder in the immediate aftermath of the murder was true, it did not surprise me in the slightest that he  would similarly brag to this witness about the gruesome  details of what had  been done to McIwaine.  

[281]	Brown was asked why she did not know the names of the dead boys according to the statement if he had told them to her what the police had said.  He said he did not know if he mentioned their names.

[282]	Whilst the accused asserted that he had told her that the police had said that one of them must have run away and asked did he catch him and attack him, he could not remember the police saying that “this boy was begging for his life but Steven said he stabbed him and stabbed him and stabbed until he was dead.  I do not know which boy this was.”  It is clear that the police had not said to him that he had been begging for his life – how would they have known – and his account was that she had simply added to this.  Once again this sadistic detail smacked more of Brown’s boasting propensity according to Burcombe rather than some detail manufactured by a woman who had left more obvious allegations out if she was falsely trying to implicate the accused.  F would have had no way of knowing that Burcombe was to make an independent allegation of this accused boasting about what he had done.  

[283]	F returned to this theme again at the end of her statement. The statement concluded:

“There was another occasion when Steven again talked about cutting this boy’s throat.  He said I was the one that cut his throat.  I cut his throat.  He repeated this to me.  He also said his face was the last face this boy saw.  I don’t know which boy he was referring.”

[284]	I found at least an echo of the buzz that Burcombe instanced him saying in the suggestion F made that Brown repeated to her that he had cut his throat with the sadistic addendum that the accused’s face was the last one he had seen before dying.  Once again I had to ask why witness F would be cunning and vindictive enough to have manufactured this detail yet was prepared to say that he may not have been involved in the murder of Robb?

[285] 	The accused accepted that the police had accused him of being involved in both murders although they concentrated on McIlwaine.  Why then did witness F say “Steven did not tell me about the other boy or at least I don’t think he did.  I don’t think he said that he had any involvement in the other one but I am not sure.”  To that the accused said that she was either confused or vindictive.

[286]	Brown went on to say that he had told F that the police had mentioned a knife.  She said “There was something about the knife.  He told me there was something about the knife but I can’t remember what he said about this knife”.   Such uncertainty did not smack of someone who coldly had set out to frame him by relying on what the police had told him.  Why leave out such details about the knife?  

[287]	F then described in her statement violent acts of domestic violence by the accused against her and threats to her family. With reference to witness F, I observe that in support of her suggestion that she had been beaten by the accused, she obtained a non-molestation order and a non-occupancy order against the accused.  In his evidence Brown admitted he had not contested her court order in September 2005 on the basis he had been advised it was a waste of time to defend it. He also claimed that she was seeking £100 per week against him as well as other ancillary matters which he could not afford.   He denied ever punching her grasping her by the throat or threatening her family. As in the case of much of his evidence, I found the accused to have been lying about this matter.  Not only do I fully accept that there is evidence that he had beaten her by virtue of a court non molestation order (which will only be granted after close perusal by a very experienced family magistrate) but it is another indication of where the truth lies in their conflicting accounts.

[288]	I am conscious that whenever lies are relied on by the prosecution or might be used by a jury to support evidence of guilt as opposed to merely reflecting on the defendant’s credibility, a judge should give a full direction in accordance with R v Lucas (R) (1981) QB 720 (“the Lucas principles”) to the effect that a lie told by a defendant can only strengthen or support evidence against that defendant if the jury are satisfied that (a) the lie was deliberate (b) it relates to a material issue, and (c) there is no innocent explanation for it.  I must remind myself that people sometimes lie, for example, in an attempt to bolster up a just cause or out of shame or out of a wish to conceal disgraceful behaviour. I bore this in mind when considering all aspects of Brown’s evidence.  That of course could be appropriate in this instance of domestic violence where the accused might wish to conceal that he had beaten his girlfriend and I did take this into account before concluding he was lying to me.  I did so because I did not believe it was likely that having retained a solicitor to have contested this matter, after advice from his solicitor he did not oppose the order.  This is unlikely if there was no substance to witness F’s account of the violence. He did not give me the slightest impression that this was something he might be ashamed of or that he considered it disgraceful behaviour to beat his partner. 

[289]	F referred to a subsequent date when news about the families of the deceased young men wanting a re-trial came on television when the accused came home from work.  The statement continues:

“I was just sitting watching the news and these two boys faces flashed up on the television screen.  Steven came home and I said to him that the family want a re-trial and I started going crazy around the house.  I just wanted him out of my life but I couldn’t get rid of him.  Steven asked me if it was the judges or the police or something.  I can’t recall.  I said no it was the family.  He said auck well then it’s all right sure they’re not going to get it.  I remember another time he said to me when we were talking about it whenever he was drinking.  Steven said there is something else that could tie him to the murders and that it could come back on him.  He said it might not be over, something could come out.  I don’t know what it was Steven meant when he said it’s not over.  He said something could come out about it and then Noel Dillon killed himself.  It was after this he told me he was going to be all right now because Noel was dead.  Steven said they’re going to pin it on him and that’s it all over.”

[290]	Whilst the accused accepted there had been discussion between them about the reference on the news to the murders, he denied any admissions of guilt made by him. As before I had to ask why witness F would be cunning and vindictive enough to have manufactured this detail yet was prepared to say that he may not have been involved in the murder of Robb?  Why bother with this detail if all she had to do was manufacture some clearer admission? 

[291]	In considering the weight if any to be given to her statement it is apposite that I review in some detail at this stage the direct testimony  of the accused when he dealt with the subject of their relationship.  He described their early relationship in 2004 and the fact that they eventually started to live together with her family i.e. her two sisters.  He said they got on well at the start and she became pregnant.  He said he had been thinking of breaking off their relationship but when she told him she was pregnant he said that he would stand by her.  
	
[292]	Having moved in with her in July 2004 their child was born in 2005.  Unfortunately however her family were there and this caused problems.  Her mother was an alcoholic addicted to anti-depressants according to the accused and she made nasty and sectarian remarks to him and the child.

[293]	However they soon started to argue over where the child was to be christened and her family became involved in this.  He started not coming home especially if the family were there and he claimed he went to stay at a friend’s house.  F then started to accuse him in or about June or July 2005 that he was going with some other girl.  At this stage the accused said he was drinking and staying out and at the end started going out with other girls.  He claims that on occasions she caught him with other girls.

[294]	Eventually on 14 August 2005 he walked out after more arguments about his behaviour.  On the night he left he started going with a different girl namely witness G who lived about seven miles away.  He then described a number of instances when F allegedly behaved in a spiteful and rancorous manner:  

•	after about two weeks F came with their child down to the house where they were living and kicked the door.  She said that he had better come with her and she would never leave him alone.  He claimed that on that occasion when she went out of the house she kicked his car.
•	 when he subsequently went to F’s house to pick his clothes up, F came out with a hammer and struck his car.  He had grabbed the hammer off her and threw it into a garden.  His clothes were in bags and had been cut to pieces.
•	 in August 2005 F, her aunt and some friends came into the bar where he was.  She came towards him with a glass in her left hand which he managed to extract from her but she scrabbed him with the other hand.
•	 during this period F was texting and telephoning him in abusive terms.
•	she was also “torturing his girlfriend witness G on the telephone so that he in fact went to the police station to complain.” 
•	 F had also cut out something in the newspaper about the murders and had been telling people in a bar about him.  He claimed he went to the police to make a complaint about her some time in September 2005 and a female police officer agreed to have a word with her.
•	she had sent a text to meet him at a nearby lake.  This occurred after the police visited her.  When he arrived there, she gave him a bag with half a dozen pictures of the child and said she wanted him back.  He told her he was with witness G and wanted to support the child.  She said “What about that whole thing in Tandragee” and then she said that she would get him put out of the Dungannon area.  She also threatened that if he left her now, he would never see the child again.  He said this was the first time that the incident of Tandragree had been mentioned since they had parted.
•	 the sister of witness F had a relationship with witness G’s boyfriend and  F thought that witness G had taken him away from her in order to spite her ex-boyfriend and F’s sister.  He said he found this out in the course of text messages from her.

[295]	It is also pertinent at this stage that in the context of witness F I deal with a statement in evidence from witness G who had been a former partner of the accused.  For the reasons I outlined in my ex tempore judgment during the trial, I granted this witness anonymity and also a lifetime ban of anything that would identify her name or circumstances under section 46(6) Youth Justice and Criminal Evidence Act 1999 provisions on the basis of her assertion that she wanted a new life with her child untrammelled by any publicity or influence of this trial.  Not without some misgivings as to the strength of the legal basis for so doing but for the reasons that I outlined during the course of the trial, I decided that it was in the interests of justice pursuant to Article 18(1)(d) of the Criminal Justice (Evidence) Northern Ireland Order 2004 (having considered the criteria under article 18(2)) that I should admit her hearsay evidence even though she was not prepared to give oral evidence before me.

[296]	The primary reason I considered it was in the interests of justice to allow her statement to be admitted was because I felt it would be unfair to the accused to allow the statement of witness F to be admitted but to exclude a statement which potentially might permit the defendant to challenge F in circumstances where he could not put witness G’s evidence to her.  Hence the following paragraphs dealing with G’s evidence should not be published.

[Paras 297-308 redacted] 

The interviews of the accused and his evidence before me  

[309]	The accused gave evidence that he was born on 31 July 1980 and in February 2000 was 19 years of age.  He had a somewhat insignificant criminal record with convictions for disorderly behaviour in December 1999 and was bound over to keep the peace in May 2003 for disorderly behaviour apart from some instances of criminal damage and road traffic offences.  I found nothing in his criminal record therefore which was relevant to these charges. 

[310]	I commence my review of the accused‘s evidence by indicating that I have treated him in an analogous position to someone who has a good previous character.  Whilst this by itself does not provide a defence, nonetheless when deciding whether the prosecution had proved the charges against him beyond reasonable doubt I have taken it into account in two ways.  First I took it into account as a support to his credibility when deciding if I believed his evidence. Secondly that it may mean he is less likely than otherwise might have been the case to have committed these crimes. 

[311]	Before dealing with his testimony before me I shall set out some of the salient points in his interviews with the police in February 2000 and November 2005.  It was apparent that the prosecution and the defendant had agreed to edit out from my consideration substantial elements of the interviews between the police and the accused.  However from interviews that were before me between the accused and Detective Constable Lilley and Detective Constable English which occurred in February 2000, the following emerged.

[312]	The accused was asked about his movements on Friday 19 February 2000.  He said that:
 
•	 he had left work at about 8.00 pm, had gone to Jameson’s bar for about one hour, had collected his girlfriend Alexia Dillon, had taken her to a babysitting commitment and had then gone to the Paddock bar where he consumed a pint of beer with a man called Johnny.
•	 he then telephoned Alexia’s brother Noel Dillon who was in Sydney’s bar where Brown joined him for a drink, the pair of them then going on to the Talk of the Town pub.
•	 both he and Noel Dillon had then gone back to his house so that Dillon could change into a tee shirt to enable them to go to the Paddock bar where the accused had 4 - 5 pints and two glasses of Buckfast.  The bouncers then spoke to them and they left with the accused taking a carry out of two bottles of Buckfast and six cans of Tennents beer.
•	  the two of them returned to the accused’s house.  At some stage the accused went out for about 10 minutes into the town to try to find some cigarettes.  Noel Dillon had stayed in the house lest his sister Alexia should return.

[313]	The accused in a subsequent interview said that after he and Dillon had come back to the house, two men aged about 21 had come to the door and asked for Debbie Maxwell’s house.   He pointed them to Debbie Maxwell’s house and went back in and closed the door.  He said he had never seen them before. They did not look like the dead men depicted in the photographs he had seen.  One had a skinhead but in his view none of the boys in the photographs had skinheads. He said that he had patted one of the two men who had called to his house on the back as he walked away albeit he did not know which one it was.  They had never been in his car.  

[314]	At the time that Brown said he spoken to these two young men, Noel Dillon was sleeping in the house.  He was adamant that Noel Dillon had been the only person that went back to his house with him.  

[315]	The accused said that he knew the murder had occurred in Clare Glen because someone had described it to him.  The police told him that this was about 3 or 4 miles away from the scene of the murder.  He said that his car had never been up the road which was described to him as the road where the murders had occurred and he was the only person who had driven his Peugeot car over the 24 hour period between Friday and Saturday.  The keys were in the house on the bench in the kitchen.  

[316]	At a subsequent interview on 23 February 2000 at 7.20 pm, he volunteered to the police at the start of the interview that the car doors had been unlocked when he went out on Saturday morning.  He did not know if he had locked them because he was drunk.  

[317]	Brown said that he had vacuumed his car on the Monday and that he cleaned his car out possibly twice per month, polished it and gave the seats a wipe over.  

[318]	Accounting for his movements on Saturday 20 February 2000, he said that when Alexia had come home with his brother Graham, Noel and Graham had then walked up the town and he had gone to bed with Alexia.  The following morning he got up about 10.30 am and had heard about the murder and had read it on Teletext.

[319] 	About 2.00 pm he and Noel Dillon went into the Ballymore Inn.   Thereafter he took Alexia to Sainsburys in Craigavon. I pause to observe that his failure to mention the presence of Burcombe in the Ballymore Inn in this interview was a matter of some importance in the case.  

[320]	In cross-examination Mr McCrudden elicited from Detective Constable Lilley a number of questions/assertions which had been put to the accused during his questioning in the course of interviews which had not been disclosed before me.  The aim of counsel was to indicate certain themes that he submitted were put to the accused by police. These included:  

•	that the accused had not given Mr Burcombe as an alibi in the context of the accused drinking with him and Dillon.
•	that, amongst other possibilities it was put to the accused it was clear that the deceased had been murdered by or on behalf of the UVF in retaliation for the murder of Mr Jameson.
•	that the killing had occurred because one of the deceased had been shooting his mouth off.
•	that it was a case of Robb becoming “lippy”, that he went on about the LVF and that that upset the accused.  
•	that these men had commenced to talk about the LVF or “slabber” about the LVF “and this made someone decide to cut their throats”.  It was suggested that Robb had come into the house, was talking about the LVF, had no fear of the UVF and that is why he ended up getting knifed.
•	that the deceased had been taken out on the pretence of looking for drugs or a party and they were then murdered.
•	that McIlwaine had run down the road to escape, was caught and was killed.  Detective Constable Lilley accepted that it appeared to the police from intelligence that one had been killed on the spot and it looked as if the other had made a run for it and was caught.  The police had been briefed that that was likely to be one of the scenarios.
•	that the deceased had been looking into his eyes when he had committed the murder and that that is why he had stuck the knife into the eyes.  One of the questions to the accused had been “close your eyes and look at eyes looking up at [you] when you cut his throat”.

[321]	Over the course of the remaining interviews during 2005, there were largely no comment interviews apart from the short extract contained in my papers.  When he was asked about the newspaper cutting entitled “Murder Charges Dropped” dated 9 February 2001, he made no reply.  

[322]	When the accused was questioned about the statement of witness F in 2005 he explained to the police that when she found out that she was pregnant he wanted to let her know about his past.  He showed her the extract from the newspaper, and explained to her in detail what the police had put to him.  He explained to her about the tyre prints, the bodies left apart, what happened to the bodies and about the green plastic.  He had refused to answer a number of questions initially on the advice of his solicitor until the identity of witness F was revealed.  I see no significance in this. 

[323]	Before turning to the account of the accused before me it is convenient to interject here that it was part of his case, as put through counsel, that others may have been suspected by the police of involvement in this crime.  An illustration of this was the recall to the witness box of Angela Gibson by the defence.

[324]	Angela Gibson was recalled to give evidence after initially testifying to seeing Robb on the morning of 19 February 2000 at about 1.30am.  She said that she had made statements for the police on 24 October 2000 in addition to the two statements that had earlier been before me.  It was suggested to her that she had told the police on that date that she had been in Patricia Wylie’s home in early hours of 19 February between 1.00 am and 3.00 am and that Pablo Doag and Clifford McKeown had been in the kitchen, the tumble dryer had been going, and she had seen blood on McKeown’s jeans.  She asserted initially that this was untrue, indicating either that she had been put under pressure by Robb’s family to say this or alternatively that she was stupid and young.  Her account was that she went that evening to a flat in Parkmore Road in Tandragee and did not go to Pat Wylie’s home until the next day.  She said she had seen Pablo Doag at Parkmore Road for about half an hour.  He was at Ewing McDowell’s house after 3.00 am.  Mr McKeown was not in the flat despite what she had told the police.  She said she saw McKeown in his car after 2.00 am going in the opposite direction.  Superintendent Hanley confirmed that Mr Clifford McKeown had been arrested for the murder but released.  He was aware that McKeown was high ranking in the UVF.

[325]	It was also suggested to Ms Gibson  that she had seen her erstwhile partner and father of her son Mr Ramsey and had said to him “I’ll do to you what I did to Robb.  I was there and enjoyed every moment” and made stabbing movements.  She denied that this was true saying she had only been to see Ramsey to see her son.

[326]	She admitted she had been arrested and cautioned and told she was suspected of being involved in the murders.  She was arrested again in 2002 on suspicion of murder.  However Superintendent Hanley gave evidence that over 20 people were arrested for this offence and as is usual in the early stages of a crime such as this a large number of people were arrested and questioned.

[327]	I found this woman an extremely evasive and unreliable witness.  Her account had obviously varied over time for no apparent good reason.  I concluded that I could repose no confidence in anything she said and her evidence played no part in my conclusions.

[328]	Brown gave evidence before me over 2 days.  Dealing with Burcombe he said that he had known him about 1½ years prior to February 2000. They had common interests, they knew the same people, they went to the same bars and lived in the same area. Burcombe had no reason to hold anything against him. He had seen him in pubs most weekends in mid-Ulster and, along with others had accompanied him  on a bus to a “platoon do” in Cookstown which I understand from Brown’s evidence is a Loyalist gathering where music etc. is played.  Noel Dillon, the brother of Brown’s girlfriend at that time, was regularly on such jaunts driving the bus and Burcombe would have known him. In December 1999 he confirmed he had met Burcombe near a chip shop in Tandragee as described by Burcombe and they both had gone to Brown’s house. 

[329]	The accused described Burcombe’s suggestion that he had been introduced to Dillon on the evening before the murders as nonsense.  I much preferred Burcombe’s account because apart from the convincing manner in which Burcombe gave his evidence on this subject, I could conceive of no reason for Burcombe to lie about this. It added absolutely nothing to his account whereas the accused was motivated to say Burcombe was lying at every available opportunity. As with his attack on witness F, I formed the impression that Brown was determined to challenge the veracity of virtually anything that his accusers said no matter how implausible or illogical his assertion might be.      

[330]	Turning to the incident of 18 February 2000 the accused’s evidence was similar to that which he had set out in his earlier interviews.  After work he had travelled to Jameson’s Bar where he had consumed about 2 pints of beer, drove to Tandragee and took his girlfriend Alexia to her sister’s house to baby sit, returned to Sinton Park for two minutes, left his car there and went to the Paddock Bar after 9.00 pm.  He telephoned Dillon and joined him in Sydney Simpson’s Bar where they had about 3-4 drinks.  Thereafter they went to the Paddock Bar via the Talk of the Town Bar (where the Spot nightclub is upstairs).  Prior to going to the Paddock Bar they had returned to the accused’s house to change clothing and then return to the Paddock Bar at about 11.15pm. The front door of the Paddock Bar was closed at about 11.00 pm and that thereafter the side door was open.

[331]	There he had met Mark Burcombe and the Lunts when they came in together and he had simply said hello to them.  He then heard mention of a fight outside the Paddock Bar.  Burcombe had said to him that the Lunt brothers were fighting at the side door.

[332]	The accused said that he and Dillon left by the side door.  He said it was ridiculous for Burcombe to have mentioned that Dillon came out through the front door.  He and Dillon had obtained a carry out of two bottles of Buckfast and 6 cans of Tennents.  They were both very drunk.  They then crossed the street and went down a back alley to Sinton Park.  He denied Burcombe being with him or that he introduced Dillon to him as Alexia’s brother.

[333]	Brown recalled being in the house in Sinton Park about 1 hour when there was a knock at the door.  One man was standing at the step and another was at the gate.  The man at the door asked “is this Debbie’s house” and he told him it was the wrong house.  He patted him on the back and off he went.  There was no reference to a Donnelly who lived opposite him. He was a matter of minutes with the two men. He never saw them again.  They had definitely not come into his house.  

[334]	He then said that he and Dillon continued to drink until his girlfriend came home at about 5.10 am with her brother Graham who was aged about 16.

[335]	The accused had been out once to his car to go back towards the town to see if he could find cigarettes but could not get any.  He could not remember how he left the car but it was unlocked the following morning when he went out.  

[336]	When his girlfriend arrived he had gone up to bed and he did not see Noel and her brother Graham after that.  They went off about 5.30 am and Alexia had joined him in bed.

[337]	The next day he was suffering from a hangover when he got up.  Mark Burcombe had telephoned him on his mobile when he was with Dillon in Tandragee.  Burcombe asked what they were doing and they agreed to meet.  He and Dillon then went up to Woodview and met him. This was an addition to what he had told the police in his earlier interviews when there had been no mention of Burcombe at this stage. 
	
[338]	The accused said he was aware that two bodies had been found when Burcombe telephoned.  Burcombe did not mention this on the telephone.  They then picked up Burcombe at the front of the estate at Woodview.  The three of them then went to the Ballymore Inn. The accused denied on the car journey to the Balllymore seeing an elderly man crossing the road and Dillon saying “If he doesn’t hurry up we will cut his throat” and laughing.

[339] In the Ballymore there was a conversation between the three of them about what had been heard about last night.  It was Burcombe who first asked this.  The accused alleged he told him that he had seen it on Teletext and he and Dillon had been talking about it.  The accused said the rumour mill had already started and everyone was giving the name of Philly McClean. He said Burcombe was fishing about to see what they had heard.  They had a quick drink in the Ballymoney Inn and then dropped Burcombe off at the housing estate where he lived. 

[340]	Brown accepted that he had never been telephoned before by Burcombe, had never picked him up in his car on a Saturday before and indeed he could not remember if he had been in the Ballymore Inn before.  If Burcombe was one of the murderers, as was suggested to him, and Brown and Dillon were not involved and indeed had not been in his company the previous evening, why would Burcombe out of the blue decide to speak to him by telephone?  He had only been in his house once for 15 minutes some weeks before and the night before he had a brief greeting with him in the Paddock Bar. The whole idea seemed to me to be completely incongruous and most unlikely to be true.  

[341]	The accused denied that Burcombe had said anything about an alibi to him or that he threatened him in any way.  

[342]	Brown did recall cleaning his car on 21 February as related by Mrs Brown who was a neighbour.  The accused was then arrested on 23 February 2000.  He did not see Burcombe between 19 February (Saturday) and his arrest.  

[343]	He was interviewed by the police for 4 days from 23 February 2000 onwards at Gough Barracks.  The accused admitted that in his interviews with police he did not mention about Burcombe being with himself and Dillon in the Ballymore Inn.  He omitted this because he believed Burcombe was a UVF man and that if the UVF man had been arrested, people had been shot for less.  He said he was in fear of his life.  It seemed to me inherently implausible that merely telling police that he had a drink the following day in the Ballymore Inn with Burcombe was going to lead to Burcombe being arrested or Brown being shot by the UVF for having said so.  Apart from that he claimed he told no lies to the police.  

[344]	After being released he was then re-arrested on 6 November 2005.  Burcombe and himself were charged.  

[345]	He then described being at the preliminary inquiry hearing in 2007 in Newry with Burcombe.  He said the two of them were conveyed to Newry Courthouse in a prison bus.  He said that when the proceedings were over, Burcombe had given some abuse to the families and an argument had started.  An officer had pulled Burcombe away.  The accused told him to calm down as he was not doing himself any favours.

[346]	Brown claimed that the prison officers put him in a cell in the vehicle with Burcombe in another cubicle beside him.  The accused said he knocked a partition and asked Burcombe was he all right.  He said that Burcombe said “I don’t want to be doing this”.  The accused allegedly said “You know I didn’t do this.”  Burcombe replied “I was told to make a statement against you.”   The accused asserted that Burcombe then informed him that he had been told to do this by two men whom he named.  The accused said he was afraid to name the two persons because it was not worth his life to do so.  The accused allegedly said to Burcombe “You have to stand up and tell the truth.  You’re looking at this and I am looking at that.  You’re sitting over there in the VPU on your own.  Why not tell the truth and come to Laganside where I am.”  This was apparently a reference to wings in the prison 

[347]	  The accused said that Burcombe told him he had been lifted by the UVF in 2000.  The accused allegedly told Burcombe that he too had been lifted and asked questions.  Burcombe then related that he had been lifted a second time and a gun shoved in his mouth and he was told to go and blame Brown for the murders or they would shoot his family.  

[348]	It was self-evident that Brown  had now given a different version of the location of this conversation than that put to Burcombe by Mr McCrudden barely two days before.  Mr McCrudden had put to the witness that a conversation had occurred whilst they were at the door ready to go out of the court. According to Brown in his evidence before me no such conversation took place in the courthouse but Brown had spoken to him in the prison van exhorting him to tell police that he had been lifted by two individuals and a gun put in his mouth, though he had not mentioned any names. In addition Brown mentioned for the first time that he too had allegedly been lifted and questioned. 

[349]	The accused when cross-examined by Mr Kerr refused to name the two men who allegedly had been mentioned.  He said that he had been lifted some time in late October 2004 when he was in the Halliday’s Bar in Dungannon and was taken to Brownstown.  He was interviewed with a hood over his head and the men seemed satisfied.  This had happened in 2004.  He was arrested in November 2005.  They said they might want to speak to him again. I was left to wonder why if they seemed satisfied with his account they would then go to the trouble of duressing Burcombe into framing him over a year later.  Brown said that at some stage he will have to return to his local area and therefore he could not name the men involved.  He said that his solicitor knew about his because he had told him.  

[350]	Brown denied that the conversation with Burcombe had happened at the door of the court.  Significantly not only was a different version of the location of the  conversation put to Burcombe by counsel on behalf of the accused but  it had not been  put to Burcombe that the accused had said that he had been lifted by the UVF.  The conclusion I came to was that the accused was lying about this account at Newry courthouse and had been tailoring his evidence according to how he saw Burcombe’s evidence developing. Realising that it was highly improbable that such a conversation had occurred in the presence of prison officers at the door of the court he changed his story.  I suspected that he had added in the story of his questioning by the UVF on the spur of the moment to add strength to his assertions. 

 [351]	The accused said that Jameson the deceased man was a friend of his with whom he had been to “platoon dos”.  He had read speculation that Jameson was associated with the UVF in newspapers.  He admitted that if anyone said anything derogatory about a friend of his he would be annoyed.  He did associate with people who he believed were in the UVF and he drank in Jameson’s Bar which he described as “a protestant bar”.  All of this carried a resonance with the account of Burcombe that the two victims had been murdered because of what Robb had said about Jameson.  

[352]	Of the incident of the two young men coming to his door, he denied that they ever came into his house.  Burcombe’s case was that they came in and listened to music.  The accused admitted that he had been playing music and it could have included “Armagh True Blues”.  He suggested that Burcombe had never heard it being played in his house. Was it therefore an inspired guess on the part of Burcombe when he referred to this in his statement?  This was in my opinion another straw in the wind indicating the basic truth of Burcombe’s account. 

[353]	Dealing with the tyre marks similar to his car, he denied that they were his tyre tracks. He was questioned about his change of story to the police concerning his car being left outside his house all night.  The first thing he wanted to tell the police when he saw them on second interview on 23 February was that the car had been open the next day.  Counsel suggested to him that he had told the police in the course of his second interview that he had left the car door of his Peugeot open because he thought that that might cover the movement of the car to the scene.  He said the police had told him to tell them after the interview if he remembered anything and he just was doing that.  He admitted that even if the car had been left open, he had the keys to the car and they were kept in the kitchen. They were still there when he got up the next morning.  There was no evidence of anyone having “hotwired” the car.  Watching Brown give this evidence I was convinced that here was a resourceful witness who was prepared to tailor his story to meet each eventuality as it came along. It carried a resonance with the evident change of story about the location of the discussion with Burcombe at the Newry courthouse.    

[354]	In relation to the piece of plastic found at his  house that fitted together with plastic at the scene, he said he had no explanation.  However he said that it had been found 4 days later and it could have arrived there from anywhere.

[355]	Turning to  the DNA found on Mr McIlwaine, he said the only time he had been in contact with the deceased would have been in pubs with him and they could have been to his house that night.  

[356]	Brown was cross examined about his timings in terms of leaving the house in the early hours of the 19/20 February.  He said he had gone up the town to get some cigarettes hoping to see someone coming out of the pub.  He had told the police that the two men had come to his door about 3.00 am - 3.30 am.  He said that Alexia had come home about 5.10 am.  He told the police that about one hour before she came home he had been out looking for cigarettes.  If so that would have placed him in the town about 4.00 am - 4.15 am which  would of course tie in largely with Mr Purdy’s suggestion that 2 men may have  been in a burgundy Peugeot at the telephone box.  Apart from the time it would lend support to Burcombe’s suggestion that Dillon and he had left the house for some time.   The accused asserted to me that he was not clear about the times and had not been looking at the clock.  The only time keeper he had was his mobile phone.  He had also however told the police that Noel Dillon had stayed in the house because Alexia had no key.  This suggested that it was fairly late and obviously close to the time she might be coming home.  Brown’s interview with the police suggested that it was shortly after he returned that she come home.  He said in the course of the interview of 23 February 2000:

“I ran out of fags.  Then when I come back to the house my girlfriend she came home from babysitting.”

[357]	I was satisfied that this was another instance where this man was prepared to change his evidence at any point where he thought it was damaging to him to do otherwise.   He was now trying to make the case that he had gone for cigarettes much earlier to avoid the implications of Purdy’s evidence. 

[358]	The accused was asked how Burcombe would have known that Brown had received a call from Alexia as he himself had admitted occurred.  His answer was that at some stage in 2001-2003 he may have told him this on one of the numerous occasions they had met after the murders in the context of indicating that he had an alibi for the time of the murder.  That struck me as yet another lie as no one could have seriously believed that a call on a mobile would have provided an alibi for a murder. 

[359]  	I have already dealt with his evidence re witness F at paragraphs 272 et seq   in this judgment.

[360]	By the end of his evidence I was convinced that he had told so many lies that my treating him as a man of previous good character could not avail him in placing any reliance on his account 

Conclusions 

[361]	I had the priceless advantage of carefully watching Burcombe giving evidence over 5/6 days in this case.  He was relentlessly and unsparingly tested in cross-examination by a very experienced counsel for most of that period. His reasons for statements made or omitted were ridiculed and challenged throughout.  I did not form the impression he was cunning, devious or clever.  He did not see difficulties before they broke on him.  He did not prevaricate to shore up crumbling positions.  He displayed no bitterness or antipathy in his manner or words.  His manner and demeanour of giving evidence manifested a strong conviction that he had been present and had seen what occurred.  Far from being resourceful or prepared, on occasions when his explanations continued to meet expressions of disbelief from counsel particularly after he had been repeatedly asked about the same topic, I formed the impression at times he abandoned his earlier explanation for his action or omission and resorted to saying he could give no reason perhaps because he wanted the repetitious questioning to stop.

[362]	Burcombe was not in my view a very intelligent man.  I would be very surprised having watched him over several days if he would have the ability to add false verisimilitude to his account by cleverly weaving in such minutiae as the telephone call from Alexis to the accused, the reference to the white house where Brown had lived on the way back from the scene, the reference to the old man crossing the street  whose throat Dillon jocularly said would be cut if he did not hurry up on the way to the Ballymore Inn etc. 

[363]	Without wishing to repeat what I have already said in earlier paragraphs of this judgment in the context of my conviction beyond reasonable doubt that the evidence of Burcombe was creditworthy, I simply add this.  I did not find it unfathomable that he could remember actions – especially where these actions were of an horrific nature and likely to be indelibly etched on his memory – more easily and reliably than conversations.  I had thus no difficulty in accepting that Burcombe could remember the actions of Brown on that night consistently whilst having a more defective recollection of what had been said.  Indeed my experience is that not only do memories fade of conversations heard but subsequent recollection, even with time to reflect, can be inaccurate, misplaced in terms of sequence and time or even identity of a speaker or even entirely wrong  in the most honest of witnesses. The passage of time can take a terrible toll on reliable recollection of both the minutiae and the substance of important conversations.  I was aware  therefore that searching  one’s memory bank over 5-8 years can lead even  genuine people to mistake the number of times  an assertion has been made – for example how many times the accused said he was buzzing, how people were dressed - for example whether  Dillon was dressed or undressed at particular times locations - did the car go to Poyntzpass or simply in the direction of Poyntzpass, how often the threats were made to him by the accused etc in the  aftermath of the murder –or the precise location where they were uttered.  Experience of horrific road traffic accident cases reveals many instances where genuinely honest witnesses make mistakes about even important details in recollection over much shorter periods than in the instant case.  That of course would not have any effect in the present case on his ability to remember the salient facts of the murder itself if he is telling the truth about that albeit that I reminded myself of  Lord Abinger’s cautionary remarks about accomplices and their knowledge of the facts of the crime.       

[364]	The reality of the matter is that unlike all of the super grass authorities explored in this case in argument, this man volunteered to come forward to the police in 2005 at a time when there was no evidence against him, when the police did not have him under suspicion, when 5 years had passed since the murder and the police trail had gone cold.  I believe Superintendent Hanley when he said that Burcombe was told that there were no undertakings or guarantees being offered to him and he would be arrested and his account rigorously tested.  This dilutes the effect of the strictures adumbrated by Lord Lowry about the false hopes of accomplices in the authorities to which I had earlier referred.  What was in it for Burcombe to make this up?  There was no evidence of bad feeling between himself and Brown or Dillon. Indeed they were no more than acquaintances.

[365]	The defence case as put to Brown of a conversation about threats to Burcombe by the UVF to frame the accused coming out of the court house when prison officers would have been within hearing seemed pretty improbable and indeed the accused was to change that version to a conversation in the prison van itself when he gave evidence.  One had to immediately ask why, if Burcombe was told to frame the accused and Dillon, he did not to give any details of the murder of Robb but confined his description largely to the killing of McIwaine.  Why did he not make up a scene depicting the murder of Robb? In truth apart from the alleged conversation between Burcombe and Brown there was not a shred of evidence of a UVF motivated frame up of Brown and Dillon.  When the accused gave evidence the different version he gave of that conversation – put to Burcombe a very short time before - further served to illustrate to me that he was a man quite prepared to shift his story when he felt it needed strengthening.  I was convinced that realising that it was preposterous to suggest such a conversation had taken place in the hearing of a prison officer with them at the door of the court he shifted it into the prison van adding, for good value at the eleventh hour, that he too had been interrogated by the UVF.  It added to the whole atmosphere of mendacity which characterised his account. 

[366]	By the end of Burcombe’s evidence, conscious as I was that great deal of evidence was yet to come, I had formed the preliminary view that this was a man who a notional jury could well conclude was a impressive witness who despite the frailties asserted by Mr McCrudden was someone who had come forward to the police at a time when, other than conscience, there was no pressure on him to do so and who had no motive to dissemble.  This was not a case in my view where in 2005 he had come forward to testify in return for immunity being given for crimes he had confessed to. Despite the strong warning I had administered to myself to be cautious about his evidence, as the trial progressed his credibility became progressively more enhanced as the compelling supporting evidence unfolded first  from the forensic point of view and then from  the statement of witness F. 

[367]	A test of credibility is coherence of a witness’s story and his demeanour.  The test of coherence is whether the story is consistent and credible against the background of human experience.  A fundamental difficulty that the defence faced from the start of this trial and which they never overcame was to give a plausible explanation based on human experience why Burcombe came forward to implicate the accused in circumstances where he had nothing to gain by so doing and where he ran the risk of implicating himself.  The test of demeanour involves considering how convincing the witness sounds. On both these criteria I found this witness impressive. By the end of the case, armed with the supporting evidence I was certain and had no doubt at all that he had told me the truth about the murders and the involvement of Brown. 

[368]	Nonetheless for the reason I set out in paragraphs 105 and 199-200 of this judgment I did give myself a strong Makanjuola warning to be very cautious about his evidence  and I considered it wise to look for supporting evidence before relying on it.  I found such supporting evidence firstly in the forensic material before me.

[369]	I found Ms Collette Quinn a most impressive witness who gave cogent reasons for her conclusions.  She was a very experienced and highly qualified expert in her field.  Not only is she academically well qualified but she has worked in the forensic laboratory for 24 years and for the past 10 years in the biology section carrying out examinations in relation to fibres and body fluids.

[370]	Having heard her evidence I was fully satisfied that indeed it was highly unlikely that sample F of the DNA of the accused found on the clothing of McIIwaine was a DNA saliva sample from the accused.  On the contrary it was highly likely in my view that it was a blood DNA sample of the accused for the reasons she gave.  I also consider that it was probable that the DNA sample in specimen A was from the blood of the accused.  Whilst this evidence of the blood of the accused on the clothing of the deceased man McIlwaine on its own would not have been sufficient to convict the accused, I was of the opinion that it provided strong supportive evidence of the presence of the accused at the scene of the murder of McIlwaine and of the allegations made against him by Burcombe when combined with the other forensic evidence. 

[371]	I found the evidence of Mr McCorkell on the tyre marks found at the scene of the murder measured and impressive.  His qualifications and experience lent weight to his opinion.  Once again, whilst this evidence on its own would not have been sufficient to convict the accused and there does remain the possibility that different tyres from a different vehicle could have made these marks, it was in my view very significant evidence.  It supported Burcombe’s account.  He would have had no way of knowing that his account of the accused’s car being at the scene would find the measure of support given to it by Mr McCorkell’s evidence.  Had the tyre pattern found not fitted his account, it could have provided a fatal blow to his credibility.  This was not simply a case where a common set of tyres matched the accused’s Peugeot.  The tyre marks matched the different sets of tyres – front and back – on the Peugeot of the accused both in terms of the tyre pattern, width and tyre size.  It is yet another strand, which when added to the strands of DNA and the plastic material found, provides a compelling combination of supportive evidence of Burcombe’s account and connect the accused to the scene of the murder.

[372]	On the issue of the matching plastic pieces found at the scene of  the murder and at Brown’s house I am satisfied that the failure to find consensus on the number of items removed from the Druminure Road did not diminish at all the stark fact that one piece of plastic from the murder scene at  Druminure Road fitted with a piece of plastic found in a wholly separate venue at the accused’s home and that the two pieces of plastic found at the house i.e. one at the front door and one at the rear garden fitted together.  It seemed to me to constitute a highly unlikely sequence of events that would, as Mr McCrudden speculated, lead the deceased or someone else to bring one piece of plastic to the accused’s front door and coincidentally the elements would have somehow brought a connecting piece to the back of his garden. 

[373]	Once again this evidence on its own would not have been sufficient to convict the accused but when added to the DNA evidence and the tyre marks, they jointly constituted compelling supporting evidence for the account given by Burcombe and connected the accused to the scene of the murder.  This is again evidence which would have been completely unknown to Burcombe when giving his account.

[374]	I make it clear that I found the forensic evidence so compelling as supportive evidence for the account of Burcombe that that combination was enough to have satisfied me of the guilt of the accused beyond reasonable doubt. 

[375]	If I had entertained any such doubt at that stage the evidence of witness F as supporting evidence for Burcombe would in combination with the other evidence have removed it. 

[376]	Notwithstanding having exercised caution about her evidence and having warned myself in the terms set out above, I came to the conclusion that witness F’s account provided additional supporting evidence to the account of Burcombe.  It too found support in the forensic evidence.  I was of this view for the following reasons.

[377]	Witness F had not walked into the police station and volunteered to give evidence against the accused as one might have expected from a spiteful and malevolently disposed jealous woman.  The circumstances described by Constable Cairns where the allegation came out were far removed from such circumstances and were in answer to an unsolicited query posed by the police officer.  Moreover having given the statement that he had murdered someone, and referred to the newspaper cutting, she had instantly said “don’t tell anyone I told you that”.  Constable Cairns impression was that as soon as she said it she realised the importance of it.  That does not paint the picture to me of someone who was motivated to spitefully blame her former partner despite the unhappy nature of the family proceedings.

[376]	I found the account given by the accused as to how she came to know about the details of the murders to be inherently implausible. It is difficult to conceive of any reason why the accused would have gone into the hideous detail of the allegations he claimed the police were making against him if it was, as he said, “to help her understand that he had nothing to with it”.  I cannot understand why he would have told her that the police had said for example that he had “stabbed him and stabbed him and stabbed him until he was dead”.  Why would he have told her that the police had said that the face of McIlwaine was the last face the boy saw if all he was doing was to help her understand that he had nothing to do with the crime?  

[377]	If this woman was spitefully manufacturing allegations of murder against him, what possible explanation could there be for her saying “Steven didn’t tell me about the other boy or at least I don’t think he did.  I don’t think he said he had any involvement in the other one, but I am not sure.”  The police had clearly accused him of being involved in both murders albeit they may have concentrated more on McIlwaine’s death.  Why would she have fabricated the evidence only in relation to McIlwaine but exculpated him in relation to Robb?  Far from attempting to implicate him in the murder of Robb she was almost exculpatory. In my view such a suggestion defies logic and belies any suggestion that she was vindictively trying to involve him in the two murders.  Confining her allegations to McIlwaine seems to me to expressly contradict any suggestion that she was fabricating allegations of murder against him.

[378]	The failure to implicate him in the murder of Robb, becomes all the more incongruous in light of the accused’s allegation that she was not only repeating what the police had said to him but making up other material as she went along.  For example he accepted the police had never said that “this boy was begging for his life” and that the victims had said of Jameson “He had deserved to die and was an oul bastard and deserved it.”  If she was clever and scheming enough to add in this measure of fabricated detail to add verisimilitude to her account, why would she have expressly avoided implicating him in the murder of Robb?  The failure to implicate him in this murder carried with it the stamp of truth and constituted powerful testimony that she was not simply rehearsing what he had related to her the police had said to him.  It served to dispel much of the caution with which I had approached her evidence on the Makanjuola principle.  

[379]	Mr McCrudden attacked her credibility on a number of fronts.  He drew my attention to the statement of witness G to fuel his assertion that she was a violent person who was ill-disposed to witness G and the accused and was therefore more likely to be spiteful.  [Redacted]

[380]	The defence also drew in aide the apparent disparity between the account F had given to woman Constable Cairns of how she had come across the newspaper cutting – namely that one day some bits of paper had fallen out of his wallet – with the account in her statement that she had found the newspaper cutting when she started poking about in his wallet.  I found this apparent disparity inconsequential and certainly did not merit Mr McCrudden’s suggestion that this illustrated she was “a proven liar”.  Poking about in his wallet could well have caused the newspaper cuttings to fall out and simply because she did not mention this specific detail in her statement it does not serve to illustrate to me some difference of significance.  

[381]	Counsel also urged on me that she had not given evidence at the committal proceedings and now had “baulked” in giving evidence before this court at the very point where her evidence differed from that of the accused.  The fact of the matter is that I was satisfied that there was good medical evidence why this woman was unable to continue giving evidence in this case and I do not believe there is any basis for the suggestion that her inability to give evidence was because she was not prepared to lie on oath about the accused.

[382]	Similarly I do not accept that she was illustrated to be a “proven liar” because of the fact that in her statement she indicated she had not known the accused was also known as Steven Revels or Steven Rivers.  The detailed analysis by the accused of the various circumstances in which she would have seen his name may only have dawned on her as time went on and at the stage in the relationship when she found the newspaper cutting she may not have been aware of his name.  What purpose in any event would it have served her to deny that she knew that he was called Steven Revels?

[383]	Mr McCrudden attacked the credibility of her statement on the basis that it did not name Burcombe.  In other words the point was made that if she was simply indicating what the accused had told her, why would he have left Burcombe’s name out of the account of events?  The accused’s version, namely that they were accusing him and Dillon of committing these murders would fit in with such an omission argued counsel. It was therefore contended that her version was at odds with Burcombe’s account and did not support it.  In this context counsel drew attention to the fact that Burcombe’s assertion that the accused had told him to provide an alibi for himself and Dillon – and alibi which neither the accused nor Dillon used to the police – illustrated again the importance of the omission of the reference to Burcombe in F’s statement.

[384]	I did not find this a convincing point.  On the contrary, given that the accused had concealed from the police any reference to Burcombe whatsoever, including even his own admitted meeting with him on the day following the murder, it did not surprise me that he would have equally concealed Burcombe’s involvement from witness F.  For whatever reason – perhaps because he was determined not to reveal that Burcombe could be a witness against him because he felt he would be vulnerable if people knew that Burcombe had been there – the accused has kept Burcombe completely out of any conversations he has had about the murder either with the police or witness F.  His account of why he had not mentioned Burcombe’s  presence at the Ballymore Inn the following day to the police I consider to be wholly implausible and betrayed to me that for whatever reason he was determined to keep Burcombe out of the evidential frame.  Far from damaging F’s credibility, the absence of a reference to Burcombe in her account potentially strengthened the case against Brown. 

[385]	On the issue of the absence of Dillon’s involvement in the crime counsel suggested that this contradicted Burcombe’s account where he had said that the accused told him Dillon cut the throats and he did the stomachs i.e. clearly indicating that he had been involved in the murder of Robb.  One has to recall that the accused, if one accepts Burcombe’s account, was in the immediate aftermath of a dastardly murder where, according to Burcombe, the accused was “buzzing”.  In those circumstances whether one can take literally what the accused said as being accurate or whether Burcombe may have misconstrued what he has said with  the passage of time five years on it is impossible to say.  Suffice to say I found nothing in this matter which served to undermine F’s account. 

[386]	It is true of course that some of what she said Brown had confessed to would have been put to the accused by police.  However this would have been because it was true in any event and therefore no coincidence.  Whilst the police did not have a confession from Brown when interviewing him they obviously had a pretty good idea what had happened on this evening and it did not take an intellectual giant to work out or make an informed guess at  much of what they did not know definitively.  It did not surprise me therefore that Brown would confess to witness F much of what the police had put to him as elicited by Mr McCrudden from Constable Lilley.

[387] 	Whilst my strong caution about F’s statement in light of the fact that she was not cross-examined and my belief that she undoubtedly was very upset at Brown’s behaviour would have prevented me relying on F’s statement had she been the sole or decisive evidence in this case, I am satisfied that it is sufficiently supported by the forensic evidence so as to constitute her account as one more strand in the overall supporting evidence of Burcombe’s account.  For the removal of doubt I make it clear that even without her evidence,  I consider that the forensic evidence already adverted to would have been sufficient to give the necessary support to Burcombe’s account to convince me beyond a reasonable doubt.  Her account serves to strengthen that conclusion and is a valuable strand in the supporting structure of evidence. 

[388]	Before coming to my conclusions finally in this matter I again read in full the transcript of the entirety of the accused’s examination in chief and cross examination to ensure that I had considered his evidence as a whole as well as the individual assessment I have given it during the course of this judgment.  It confirmed my view that Brown was a completely unconvincing and manifestly untruthful witness.  Resourceful and cunning, he was quite prepared to alter his story when it suited.  He was a man for whom the concept of truth carried no weight.  

[389]	 Having reminded myself of the Lucas principles and in order to tie the conclusions together in a composite framework the following were some instances-already referred to earlier in this judgment in paragraphs 328-360  where I was satisfied Brown was deliberately lying on issues related to a material matter and where there was no innocent explanation.

[390]	His explanation for having withheld from the police the presence of Burcombe in the Ballymore Inn i.e. that it might have led to Burcombe’s arrest and the disapproval of the UVF was pure fabrication.  It is inconceivable in my view that he could have thought that an entirely innocent drink with a friend the day after the murder could have had either of those consequences. However if it is put in the context of him having committed the murders in  presence of Burcombe and thus not wishing to risk such a bystander being exposed to police questioning it is wholly understandable.  It also ties in with his withholding Burcombe’s involvement when speaking to witness F. An alternative explanation may have been a misguided sense of loyalty to Burcombe so as not to involve him.

[391]	It was clear to me that he had fundamentally altered his whole approach to the meeting in the Ballymore Inn after he had considered the evidence of Pamela Moody who had made a deposition at the magistrates’ court to the effect she had seen him, Dillon and Burcombe together in Dillon’s car along the Gilford road between 2pm and 2.40pm.  Had he accepted from the outset  that  this had occurred the cross examination of that witness along the lines conducted by his solicitor at the committal hearing e.g. pressing the witness as to whether her view of the men had been fleeting etc would have been quite unnecessary.  I have no doubt he tailored his evidence to account for Ms Moody’s evidence and that required him belatedly to give some reason why he had kept Burcombe out of the frame when discussing the Ballymoney Inn meeting with police.  His explanation was risible but his options were narrow once he embarked on this lie. 

[392]	I was satisfied that his account of the alleged Newry courthouse conversation with  Burcombe and which  differed from that put to Burcombe by counsel – both in the location of the conversation and the additional assertion that he too had been held by the UVF - was not only fabricated but a clear instance of where even within the short time between counsel cross examining the recalled Burcombe and his giving evidence he was prepared to alter his story because he realised the frailties of the account he had given. He was confronted by Burcombe having come forward without motive and so he fabricated this story about the UVF but was unable to maintain a consistent line in telling it. 

[393]	He also clearly altered his account before me of the time he had gone up to town to get cigarettes in the period before the murder in order to attempt to escape the force of the evidence of Mr Purdy.  Not realising that there was such a witness he told the police he had been up the town at a time that coincided with the time Purdy was to relate.  Realising thereafter that Purdy’s account of believing 2 men were at the telephone box at Tandragee around 4.20am tied in with Burcombe’s account of him and Dillon having gone out together for some time before the murder, he attempted to change his timings in evidence before me. 

[394]	His attempts to meet some of the strengths of Burcombe’s evidence seemed to me to be implausible and mendacious.  How could Burcombe have known that his girlfriend telephoned him during his period in the accused’s house? His answer was that he had mentioned it to Burcombe in the months succeeding the event because this had somehow provided an alibi for him.  It was obviously not an alibi - he could have been anywhere when he received this short call – and I do not believe there was the slightest chance of him having mentioned such an inconsequential matter to someone who was not even a close friend in the aftermath of the arrests.  Why would  Burcombe, not having been with him the night before, or indeed since December 1999, have telephoned him out of the blue, never having done it before, and arranged to go to the Ballymore Inn which he had never been to with Brown before?  I had no doubt that Brown had made up such a fanciful scenario.  

[395]	Similarly Brown’s answer to Burcombe correctly guessing that he had been playing the “Armagh True Blues” in the house that evening before the murder – that it was easy to guess he would have such music given the common interest in loyalist music -- to Burcombe correctly knowing that he had lived in a white house in the country with his foster family when he claimed Brown pointed this out on the journey back from the scene - that everyone knew this about him and in any event it  was not in the location described by Burcombe albeit this had never been put to Burcombe in cross examination  – all smacked of implausible  improvisation on his part.

[396]	Brown’s performance in the witness box left me with no doubt whatsoever but that I had observed  the man whose hand had been engaged in the execution of these two young victims.

The First Count – Murder of Robb

[397]	Before concluding my judgment I must deal with a different issue raised by Mr McCrudden on the first count. 

The defence case 

[398]	It was Mr McCrudden’s contention at the end of the Crown case that Burcombe’s evidence on this matter was so inherently unreliable and   contradictory that I should not admit his evidence.  Even accepting the  Crown case at its height on count 1 he submitted that Burcombe’s evidence merely placed the accused at the scene in the aftermath of having threatened to “punch the head of Robb” in a conversation at his house prior to going to the scene.  Counsel submitted that Burcombe’s evidence was that it was perceived that Robb was going to get a beating and there was no evidence that the accused had a knife.  This was underlined by the fact that Brown had to take it from Dillon to finish off McIlwaine according to Burcombe.  It was contended that before the attack on McIlwaine, the only evidence was of two people going off with Robb and Robb being murdered.  There was no evidence of the intention of Brown to murder Robb. Robb had not been killed as a result of grievous bodily harm by punching as previously threatened by Brown and in fact he was murdered by a completely different mechanism namely a knife.  There was no evidence that Brown knew that Mr Dillon had a knife or intended to kill either Robb or McIlwaine.  Mr McCrudden argued that it was a matter of pure conjecture whether Robb had for example beaten off Brown and at that stage Dillon produced a knife.  There were therefore, contended counsel, many possible combinations which would not make Brown a party to the murder of Robb.

[399]	Mr McCrudden pointed out that the alleged statement of Brown to Burcombe that “he had done the stomachs and Dillon had done the throats”  had been only made in 2008 by Burcombe and had not been previously volunteered during the 2005 conversation.  This contrasted with the situation in 2005 when, argued Mr McCrudden, Burcombe had indicated that he had worked out Robb was murdered by a process of deduction supplemented by news on Teletext the following day.  In short he submitted that Burcombe had made it clear that he only knew Robb was dead because he had driven away from the scene without him and surmised he had been murdered.  This he submitted was irreconcilable with the confession which in 2008 he alleged Brown had made.

[400]	Of the alleged admissions made to witness F, counsel argued that the assertion in her statement that  “Noel Dillon was either there in Steven’s flat drinking with him or Steven phoned him and told him what they had said and that he was going to do them in” was ambiguous and lent itself to an interpretation that witness F was saying either Noel Dillon was there in Steven’s flat drinking with him or, as a complete alternative, Brown had telephoned Dillon and told him what they had said and that he was going to do them in.

[401]	F had gone on to say that Brown did not tell her about the other boy i.e. Robb or that he had any involvement with the “other one” i.e. Robb

The legal principles governing this matter

Joint enterprise

[402]	Where two or more persons embark on a joint enterprise each is liable for the acts done in pursuance of that joint enterprise.  That includes liability for unusual consequences if they arise from the execution or the agreed joint enterprise.  However if a participant in the venture goes beyond what has been tacitly agreed as part of the common enterprise the other participants are not liable for the consequences of that unauthorised act.  It is for the jury to decide whether what was done was part of the joint enterprise or was or may have been an authorised act and therefore outside the scope of the joint enterprise.  (See R v Powell; R v English (1999) AC 1).

[403]	To establish aiding and abetting on the basis of encouragement it must be proved that the defendant intended to encourage and wilfully did encourage the crime committed.  Mere continued presence at the scene of a crime, even though it was not accidental, does not of itself necessarily amount to encouragement: but the fact that a person was voluntarily and purposely present witnessing the commission of a crime and offered no opposition, though he might reasonably be expected to prevent it and had the power to do so, or at least express his dissent, might in some circumstances afford cogent evidence upon which a jury would be satisfied in finding that he wilfully encouraged and so aided and abetted but it would be purely a question of fact for the jury whether he did so or not (see R v Clarkson 55 Cr. App. R. 445).

[404]	Knowledge of the principal’s offence, plus an ability to control his actions, coupled with a deliberate decision not to exercise such control, may constitute aiding and abetting (see R v Alford Transport Limited (1997) 2 Cr. App. R. 326.

[405]	At the end of the prosecution case I was not convinced that there were no circumstances in which I could properly convict on this count.  The evidence on count 1 was not so weak or so discredited that it could not conceivably support a guilty verdict.  The background evidence of Robb and McIlwaine having been in Brown’s house with the accused allegedly threatening to punch his head in and according to F “going to do them in” was highly significant. At that stage I considered that the ambiguity suggested by counsel (see paragraph 400 of this judgment) was not so clear that it could not support a conclusion that F was indicating that Brown had stated he was going to “do them in”.  The two young men were then taken to a remote area by Dillon and Brown.  Robb was directed out of the car and Brown with Dillon took him towards an area where his body was subsequently recovered.  The extensive nature of the fatal injuries to Robb was evidence that Brown and Dillon were both aware of what was happening to Robb especially in light of the evidence that both came “swaggering” back from the scene together “with a hardman’s walk” as depicted by Burcombe.  That gave no reason to suggest that Brown had opposed, attempted to prevent or expressed dissent at the attack on Robb.   Brown then, on the evidence of Burcombe, initiated the attack on McIlwaine and in Brown’s presence and with Brown’s encouragement, Dillon commenced an attack on McIlwaine whilst Brown remained at the scene.  Thereafter Brown engaged in a further savage attack on the prone McIlwaine.  Accordingly I considered that there was evidence that the two men had acted on a joint enterprise to murder Robb and McIIwaine.  There was evidence that both were voluntarily and purposely present witnessing the commission of the crime, that neither offered any opposition or had attempted to prevent the murder taking place or to express dissent.  That amounted to circumstances in which I could convict Brown of the murder. 

[406]	I have already dealt with the circumstances in which I concluded that it was plausible for Burcombe to have overlooked material in 2005 and recollected it in 2008.  Hence I did not consider that his omission of the reference to Brown “doing the stomachs “in 2005 but asserted in 2008 so discredited him that there were no circumstances in which I could believe it had been said.  Adding that evidence of admission to the other material already mentioned by me I determined that the cumulative evidence was not so weak or discredited that I could not conceivably find a guilty verdict.  

[407]	Having now heard the entire case, I am satisfied beyond reasonable doubt that Brown was guilty of the murder of Robb for the following reasons.  First as I have already indicated, the combination of Burcombe’s evidence with the supportive evidence from the forensic material, apart altogether from the contents of witness F’s statement, satisfies me beyond reasonable doubt that Burcombe is telling the truth when he said he saw Dillon and Brown participate in this murderous attack on McIlwaine.  Why would these two young men have been taken to this remote and isolated spot where the two of them were almost immediately savagely murdered if it had not been part of a joint enterprise?  The injuries to Robb which I have earlier outlined in paragraph 3 of this judgment revealed the ferocity of the attack upon him.  Brown and Dillon had both taken Robb to the area where his body was recovered.  I consider that it would have been inconceivable that the extent of this attack upon Robb could have been carried out in the presence of Brown by Dillon with Brown merely maintaining a voluntary presence not amounting to encouragement.  The ferocity of this must have been expected to have elicited dissent and attempts to prevent from Brown if he was not intending to encourage the crime committed.  His subsequent behaviour in the attack upon McIlwaine belies any speculative suggestion that he did not have murderous intent for both these young men.  Far from attempting to control Dillon’s actions, he positively encouraged him in the case of McIlwaine.  That does not smack in the slightest way of someone who was taken by surprise by the violence of Dillon or who was not intending to encourage and wilfully did encourage the crime committed. 

[408] Burcombe described the two of them returning from Robb “in a marching stride with arms swinging.  It was like a hard man’s swagger”.  This is not the gait of someone who had been an involuntary spectator to an horrific attack on Robb which he had not anticipated. The accused then initiated the attack on McIlwaine who tried to escape but the accused caught up with him and was kicking and stamping on his head and body.  The accused encouraged Dillon to cut the throat of McIlwaine.  I do not believe that this was the action of someone who had not encouraged or had expressed dissent at the attack on Robb since it was a similar type of attack.  Burcombe described seeing Brown with the knife in his hand with the blade pointing downwards towards McIlwaine.  He made repeated stabbing motions with thuds into the body of McIlwaine. It seems to me inconceivable that such a person carrying out such an act on McIwaine would not have been part of the joint enterprise to kill Robb.

[409]	The comments that Brown made in the car to the effect that “I’m buzzing, that gave me some buzz, I forgot what it was like to kill” is the very antithesis of someone who had not intended the venture against Robb to go beyond a beating. On the contrary I believe that he did boast about what had happened.  His leading role in disposing of the knife in the way that Brown did in this instance again lent weight to a joint enterprise between the two miscreants  

[410]	I also am satisfied that Brown told Burcombe in the car when he was leaving him home “that Andrew Robb will not be slabbering and telling me anymore of his wee stores, the two bastards deserve it.  It was easy it was like gutting a fish.”  And he added that “He had done the stomachs and Noel Dillon had done the throats”.  I consider this to be an unequivocal confession to his involvement in the murder of Robb.  For the reasons I have already outlined I accept the evidence of Burcombe in this regard notwithstanding his failure to mention this in the interviews in 2005.

[411]	Even had I not been satisfied that Burcombe finds supportive evidence in the forensic evidence, witness F is further supportive evidence of his account.  Having carefully considered her statement, I find nothing ambiguous whatsoever in her assertion that the accused told her “Noel Dillon was either there in Steven’s flat drinking with him or Steven phoned him and told him what they had said and that he was going to do them in”.  To suggest that she was posing these two alternatives i.e. either Noel Dillon was sitting in the flat drinking or as a quite separate alternative that Steven telephoned him and told him what the two young men  had said and that he was going to do them in” is fanciful.  Given the context in which this is set I have no doubt that the only realistic interpretation was that she was posing only an alternative of location where Brown had spoken to Dillon.  I do not consider there is any evidence whatsoever to suggest that she was making this up.  Why would she have deliberately thereafter refrained from inserting any admission about the murder of Robb?  On the contrary she made it clear that Brown did not tell her about Robb and that she did not think he said he had any involvement in it. 

[412]	I have no doubt whatsoever therefore that the accused was involved in a joint enterprise to murder both Mr Robb and Mr McIlwaine.

[413]	In all the circumstances therefore I find the accused guilty on both counts 1 and 2.