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Northern Ireland Law Reports/1974/R v FOXFORD – [1974] NI 181

[1974] NI 181





28 29 30 31 MAY 3 4 6 7 21 JUNE 1974

Criminal law – Manslaughter – Boy shot by soldier – Whether unlawful and dangerous act – Whether gross negligence – Verdict of manslaughter – Failure of Crown to call certain witnesses at trial – Inadmissible statements put to accused in cross-examination – Whether trial proper – Whether verdict unsafe and unsatisfactory.


The accused, a soldier, was charged with the manslaughter of a twelve year old boy while on night patrol duty in a hostile area. There had been some disturbances in the area before the shooting and the accused’s defence was that he had fired in self-defence at a gunman who had just shot at his patrol.


In finding the accused guilty of manslaughter the trial judge held that there was no evidence to support the accused’s allegation that the boy had fired at the patrol and considered it doubtful if the accused saw the deceased at all. Firing a rifle at night, without proper aim, into a street where members of the public had been, constituted gross negligence.


The accused appealed on the grounds that, iner alia, witnesses should have been excluded from the court when not giving evidence; the Crown should have supplied certain statements to the defence; that the trial was irregular in that the Crown failed to call two witnesses, D and L, after stating, in opeing the case, that the Crown would rely on their evidence; and in that an inadmissible statement was tendered to the accused in cross-examination.


Held, by the Court of Criminal Appeal, that while there was evidence upon which the appellant could properly have been convicted, the conviction should be quashed because:


(i) by alluding in his opening speech to the evidence of witnesses D and L (whose names were on the back of the indictment and whose evidence was favourable to the accused) and then closing the Crown case without calling them, Crown counsel had indicated to the trial judge that those witnesses were, in the opinion of the Crown, unworthy of belief although that was not the opinion of the Crown or the reason for not calling them as witnesses. This course was bound to influence unfairly the trial judge not only to draw the inference that the witnesses were, in the opinion of the Crown, unworthy of belief, but also to give correspondingly greater credence to the evidence of the other Crown witnesses;


(ii) the trial judge treated witnesses D and L, when tendered by the Crown for cross-examination, as defense witnesses, and he allowed Crown counsel to cross-examine them during re-examination and to attack their veracity although they had not proved hostile;


(iii) to allow a statement made by the the accused, which had not been proved in evidence as part of the Crown case, to be put to him in cross-examination, constituted a material irregularity.


Per curiam, (i) the trial judge has a discretion to exclude witnesses from court when not giving evidence. In Northern Ireland the practice is that witnesses are not excluded unless special circumstances are shown;


(ii) the ordinary rule is that it is for the Crown to decide when to give a witness’s statement to the defense, although in unusual circumstances the judge may, at his discretion, direct that statements be so furnished.


Cases referred to

Moore v. Lambeth County Court Registrar [1969] 1 W.L.R. 141; [1969] 1 All E.R. 782.

R. v. Beezley (1830) 4 Car. & P. 220; 172 E.R. 678.

R. v. Harris & Woods (1836) 7 Car. & P. 581; 173 E.R. 256.

R. v. Oliva [1965] 1 W.L.R. 1028; [1965] 3 All E.R. 116; 109 S.J. 453; 49 Cr. App. R. 289.

R. v. Smith [1968] 1 W.L.R. 636; [1968] 2 All E.R. 115.

R. v. Rice [1963] 1 Q.B. 857; [1963] 2 W.L.R. 585; [1963] 1 All E.R. 832; 107 S.J. 117; 47 Cr. App. R. 79.

R. v. Treacy [1944] 2 All E.R. 229; 30 Cr. App. R. 93; 60 T.L.R. 544; 88 S.J. 367.

Benmax v. Austin Motor Co. Ltd. [1955] A.C. 370; [1955] 2 W.L.R. 418; 99 S.J. 129; [1955] 1 All E.R. 326.

Ginesi v. Ginesi [1948] P. 179; [1948] 2 All E.R. 373; 64 T.L.R. 167; 92 S.J. 140.

Hontestromm (Owners) v. Sagaporack (Owners) [1927] A.C. 37.

Hicks v. British Transport Commission [1958] 1 W.L.R. 193; [1958] 2 All E.R. 39; 102 S.J. 307.

Powell v. Streatham Manor Nursing Home [1935] A.C. 143; 51 T.L.R. 189.

R. v. Abbott [1955] 2 Q.B. 497; [1955] 3 W.L.R. 369; [1955] 2 All E.R. 899; 99 S.J. 544; 39 Cr. App. R. 141.

R. v. Bookbinder (1931) 23 Cr. App. R. 59.

R. v. Brent [1973] Crim. L.R. 295.

R. v. Clarke (1930) 22 Cr. App. R. 58.

R. v. Cleghorn [1967] 2 Q.B. 584; [1967] 2 W.L.R. 1421; [1967] 1 All E.R. 996; 111 S.J. 175; 51 Cr. App. R. 291.

R. v. Cooper [1969] 1 Q.B. 267; [1968] 3 W.L.R. 1225; [1969] 1 All E.R. 32; 112 S.J. 904; 53 Cr. App. R. 82.

R. v. Hamilton [1969] Crim. L.R. 486.

R. v. McMenemy & Murray (Unreported) [1971] N.I.J.B. February.

R. v. Millar [1951] N.I. 54.

R. v. Murphy, Lillis & Burns [1971] N.I. 193.

R. v. Smith [1929] 3 W.W.R. 387; 1 D.L.R. 605; 52 Can. Crim. Cas. 174.

R. v. Sterk [1972] Crim. L.R. 391.

R. v. Tregear [1967] 2 Q.B. 574; [1967] 2 W.L.R. 1414; [1967] 1 All E.R. 989; 111 S.J. 175; 51 Cr. App. R. 180.

R. v. Wallace (1931) 23 Cr. App. R. 32; 75 S.J. 459.

Stafford v. D.P.P. [1974] A.C. 878; [1973] 3 W.L.R. 719; [1973] 3 All E.R. 762; 58 Cr. App. r. 256.

Watt (or Thomas) v. Thomas [1947] A.C. 484; [1947] 1 All E.R. 582; 63 T.L.R. 314; [1947] S.C. 45.

Yuill v. Yuill [1945] P. 15; [1945] 1 All E.R. 183; 61 T.L.R. 176.

J. A. Creaney Q.C. and B. Crossey for the appellant; J. B. E. Hutton Q.C. and M. J. Higgins for respondent.


Solicitors for the appellant (defendant): W. G. Maginess & Son; Solicitor for the respondent (Crown): Director of Public Prosecutions.

Cur. adv. vult.

21 June 1974


delivering the judgment of the Court: On 15 March, 1974, Corporal Francis William Foxford (hereinafter called “the appellant”) was convicted, after a trial which lasted seven days, of the manslaughter on 28 February 1973, of Kevin Heatley, a boy of twelve years of age, and was sentenced to three years’ imprisonment. The trial was conducted before a judge without a jury under the provisions of the Northern Ireland (Emergency Provisions) Act 1973. Against this conviction the appellant now appeals. The grounds of appeal are many, consisting as they do of eight grounds some of which contain several sub-headings. We shall, so far as is necessary, deal with the grounds in order, which will obviate the necessity of setting them out in detail at the start of this judgment.


The death of Kevin Heatley, out of which the case arose, was occasioned in the very early hours of 28 February 1973. On that night the appellant was in command of a section of nine soldiers operating in the Derrybeg housing estate in Newry. The section’s tour of duty commenced at 11 p.M. on 27 February and involved the carrying out of a patrol in Derrybeg where it arrived some time after 11 p.m. The precise conditions which obtained in the housing estate on the arrival of the patroal were the subject of dispute at the trial, but it does appear that when it reached the vicinity of certain shops near the junction of Main Avenue, First Avenue and Second Avenue in the estate there was a reaction to the presence of the troops which took the form of a commotion in the course of which the appellant found it necessary to arrest a civilian and sent for the assistance of a stand-by section to come and remove the arrested man. Having achieved this, the appellant, in view of the general situation, sought, by radio, permission to withdraw his section from the Derrybeg estate. Permission was granted and the section thereupon withdrew and, as instructed by radio, conducted a patrol of the nearby Meadow estate prior to returning, again as instructed, to Derrybeg in the hope that conditions in that area would by then have become calmer.


Having patrolled the Meadow estate, the appellant, as ordered, led his section, then consisting of himself and six others (two men having been detailed to escort the arrested person to R.U.C. headquarters) back into Derrybeg and proceeded to the area of the shops already refered to. Thereafter there was a conflict of evidence. The appellant said that his patrol was subject to cat calls, stoning and bottle throwing, though he did not put the number of civilians involved at more than fifteen at each of two locations, namely the area of the shops and the more northerly of two junctions of Main and Second Avenues,which were about 75 to 100 yards apart. There was, on the other hand, evidence for the Crown from a Mrs. Mary Mathers (who was, like most of the Crown witnesses, a resident of the estate adn whom the learned trial judge accepted as an impressive witness) to the effect that she did not see anyone either at the upper junction of Main and Second Avenue or at the shops. Miss Maria Magennis, a Crown witness whose evidence did not appeal so strongly to the learned trial judge, spoke of about 100 people being Main Avenue and its immediate vicinity while another Crown witness, Mrs. Rogers, put the figure at very much less. There was also considderable divergence in the evidence on the question of the attitude and actions of the crown. Mrs. Rogers said she saw no rioting that night while Mr. Todd spoke of shouting and yelling and another Crown witness, Mr. Hughes, spoke of u00 peole being in the area at abou tthe time of the arrest but stated that this crown had to a large extent dispersed before the time of the shooting when there was about i0 people left; he also strongly denied that any stoning or bottle throwing occurred or indeed that there was anything more than cat-calling and shouting. However that may be, Mr. Babington, in opening the case for the Crown, spoke of considerable hostility being evinced to the troops on their first entry into the estate when the arrest was effected and again on their second entry when the fatal shooting occurred and stated that on the second occasion bottles were thrown at the patrol.


So much for the general conditions. But the central issue in the case was more clear-cut and is concerned with what precisely occurred when the fatal shot was fired during the patrol’s second visit to the estate. There were two distinct and conflicting versions of which the only point in common was that a shot fired along Main Avenue by the appellant struck and killed Kevin Heatley. On the one hand Mrs. Mary Mathers, Mrs. Haughey, and other Crown witnesses stated that the appellant advanced by himself up the footpath on the west or left-hand side of Main Avenue as far as, or just past, No. 2 Second Avenue and, in a period, according to them, of complete calm, fired from the hip a single shot up Main Avenue and withdrew to the main body of the patrol which was then near the shops. All these witnesses deposed to hearing the sound of one shot, and not two. The appellant, on the other hand, maintained that he had advanced up the right-hand side of Main Avenue as far as No. 30 (just north of the souther entrance to Second Avenue) at which point he was fired on from the corner of Main and Third Avenues by a low velocity weapon and heard the bullet passing close to the left of his head. He also said that the person who fired was small and that, as well as hearing the noice of the discharge, he saw the muzzle flash of the weapon which seemed to be about the middle of the firer’s body. He then, from the standing position, fired an aimed shot from his shoulder at the firer the effect of which he could not see. The foregoing is merely a short precis of the evidence which was very lengthy and contained considerable divergencies and conflict and was investigated in great detail in cross-examination, as can be readily seen from the voluminous transcript of the evidence. But the ultimate issue was whether the appellant’s shot which killed the deceased boy had been an unaimed and unprovoked shot fired straight up the left-hand footpath or, as he maintained, had been an aimed shot fired diagonally from the right-hand footpath in response to a shot apparently aimed at him or his patrol. Both sides accepted that the question of guilt or innocence depended quite simply on which version was correct.


At the hearing before this Court Mr. Creaney, for the appellant, examined the evidence at length and drew our attention to various, and, as he contended, numerous, inconsistencies in the evidence of the civilian Crown witnesses. We do not find it necessary to examine these inconsistencies in detail. There is no doubt that they did exist and that some of them were hard to explain, but conditions in the Derrybeg estate were confused on the occasion in question, and it would be surprising if the witnesses had not differed in points of detail, even including some important matters. But the learned trial judge had the opportunity, denied to us, of seeing and hearing the witnesses and, were the inconsistencies the only matter for consideration, we would take the view that there was evidence on which the judge, as the tribunal of fact, could have reached the conclusion which he did. Accordingly, in our opinion, the first ground of appeal, namely that the verdict was against the evidence and the weight of the evidence, could not be sustained if it stood alone and if the case were not affected by other considerations.


The notice of appeal goes on to challenge the verdict on the ground that the learned trial judge “precluded himself from arriving at the correct verdict, and from a proper and satisfactory assessment of the evidence and witnesses in the case,” by making certain rulings and taking certain steps all of which are specified. In the first place it is contended (see ground of appeal (b)(i)) that the learned trial judge was wrong in refusing an application by the defence that the witnesses as to facts be excluded from the court prior to giving their evidence. On this point it is our view that the matter is one for the discretion of the trial judge. We were referred by Mr. Creaney to a passage in Hayes’s Criminal Law of Ireland (1842) vol. 2, wherein it is stated (at p. 873) that, though the exclusion of witnesses is a matter of discretion with the court, yet it is a discretion which is usually exercised at the prayer of either party and which, at the prayer of the prisoner, the judge is almost bound to exercise. But the normal practice in Northern Ireland, and indeed, we believe, in Ireland generally, has long been that witnesses are not excluded from the court unless special circumstances are shown. In England the practice favours exclusion: see R. v. Smith [1968] 2 All E.R. 115; but in Moore v. Registrar of Lambeth County Court [1969] 1 All E.R. 782, Edmund Davies L.J. made it clear that it is a matter for the discretion of the judge and went on to say that, although he personally preferred witnesses to remain out of court until they are called, yet other judges – and he was referring to English judges – take exactly the opposite view. Without presuming to criticise the English practice, there are in fact good reasons to support the practice normally adopted in Northern Ireland – not only that given by Edmund Davies L.J. but also the possibility that an honest witness may quite properly have his recollection corrected after he has heard the evidence of a witness called before him. But the matter is one for the discretion of the trial judge and we cannot see any ground for saying that the learned trial judge, at the time he made this ruling, exercised his discretion wrongly, particularly when we consider that no special ground was advanced in support of the application.


The notice of appeal next complains in ground (b)(ii), that the learned trial judge “refused to intervene to direct the Crown to furnish to the defence certain statements in the possession of the Crown, which had allegedly been made by witnesses called by the Crown, which could have materially assisted defence counsel in the conduct of the defence, when it was appreciated that these statements formed the basis on which the Crown had presented its case at the preliminary hearing before a magistrate, that they were made to a person or persons acting without police authority to take such statements, that they were made when the witnesses were present together in a room or rooms, that the witnesses making the statements had refused to make statements to any police officer and that the police officer in charge of the investigation of the case regarded them as inconsistent and unsatisfactory.”


The facts on which the application at the trial and this ground of appeal were based are unusual. Many of the civilian Crown witnesses, including Mrs. Mary Mathers and Mrs. Haughey on whose evidence the learned trial judge placed much reliance, did not make their initial statements to the police, although others did so, including Mrs. Rogers, Mr. McAteer and Mr. Hughes. Mrs. Mathers said that, as requested by Detective Inspector Mitchell, she was about to go to the police station when a certain Mr. O’Hanlon contacted her and said that all the witnesses should go to the Community Centre in Newry and make statements there, not to the police. Mrs. Haughey said that Mr. O’Hanlon told her not to go initially to the police station. They and others complied with his request. We do not know the conditions under which those statements were taken save that time had elapsed since the date of the shooting, but suggestions were made in cross-examination that all the witnesses had been interviewed together, that television cameras had been present and that statements had been later made to officials of a political party. Ultimately Mrs. Mathers and others, did go to the police, who had received copies of their statements as made to Mr. O’Hanlon or those assisting him, but the makers of those statements, while confirming them to the police, did not alter or add to them in any way and expressed their unwillingness to answer questions or make further statements. Detective Inspector Mitchell appears to have acquiesced in the procedure but did not consider it satisfactory. We endorse that view. The police are the persons trained to investigate suspected crimes and any derogation from the exercise by the police of their duties in that respect is to be avoided. We would add that evidence taken in the manner adopted in the present case runs the risk of being treated with reserve, particularly if time has been allowed to run before the witnesses are asked to tax their memories.


The preliminary statements of many of the civilian witnesses were not the only ones taken by an unorthodox procedure. We learnt that from September 1970 until September 1973 an R.U.C. Force Order was in operation whereby if an offence against the ordinary criminal law was alleged against military personnel in Northern Ireland the interviewing of military witnesses and of the alleged offender himself was conducted exclusively by military investigation. This practice has been discontinued, but we deprecate this curtailment of the functions of the police and hope that the practice will not be revived.


Where in the ordinary course a person gives a statement to the police and later comes to give evidence forthe Crown, the defence cannot inspect in advance such statement. We disapprove of the practice which has recently grown up of asking the prosecution to furnish the defence with all statements made by witnesses to the police, since we feel that such requests are made more in the hope of embarrassing the prosecution than in the expectation of receiving the statements. The defence can call in court for the statement but, if it does, it may make the statement evidence, possibly to the detriment of the accused. The Crown ought of course to offer the statement to the defence if the statement is materially at variance with the maker’s evidence in court, but in this regard the trial judge has to rely on the Crown’s discretion and propriety. In certain circumstances the trial judge might feel that the facts relating to the making of statements such as those made in this case to Mr. O’Hanlon were so unsual as to justify him in directing the prosecution to furnish them to the defence, but this must be a matter within the discretion of the trial judge. In the present case the statements were made to Mr. O’Hanlon and his assistants; they were then passed on to the police; the witnesses confirmed them to the police and later gave evidence in court. The learned trial judge regarded the case as falling within the ordinary rule that it was for the Crown to decide whether a situation had arisen which made it proper to hand a witness’s statement to the defence. Mr. Creaney’s application at the trial was, in our view, quite proper in the unusual circumstances, but the learned trial judge was entitled in his discretion to refuse it.


Grounds (b)(iii) and (iv) are that the learned trial judge “precluded himself from arriving at the correct verdict, and from a proper and satisfactory assessment of the evidence and witnesses in the case, by: –


. . . (iii) “intervening, during the course of the trial, in the examination and cross-examination of witnesses, in such a way as to indicate that he was biassed against the accused, and was seeking to establish in evidence facts which would point to the guilt of the accused. Having heard certain of the crown witnesses at an early stage in the trial, and having expressed himself at this time as impressed by these witnesses (although in the contention of the defence their evidence was unreliable and in conflict with many of the other Crown witnesses and although they were established as prejudiced and unsatisfactory persons) throughout the remainder of the trial, he repeatedly sought to find support for their evidence, ignored the true purport and effect of the remaining Crown evidence, and the weight and substance of the evidence for the defence, and appeared to close his mind to any suggestion or argument that the evidence of these witnesses should or could beopen to criticism.


(iv) “permitting Crown counsel to conduct the trial in a manner which was irregular, oppressive and unfair. In particular, in opening the case Crown counsel stated that they would rely, as part of the Crown case, on the evidence of certain Crown witnesses, namely, two soldiers who had made depositions but whose evidence would appear to be at variance with other Crown witnesses. Subsequently, and without notice to the defence or reasons advanced in court, Crown counsel closed the Crown case without calling or tendering these witnesses. Despite the submission by defence counsel that there was a duty, in these circumstances, on the Crown to call and examine these witnesses, the trial judge merely indicated that they should be tendered, and despite protest by defence counsel, after they had been cross-examined by him, permitted the Crown to re-examine the witnesses in such a manner as to show that the Crown regarded their evidence as suspect and unreliable. At a later stage the trial judge permitted the Crown to put to the accused a written statement alleged to have been made by him some hours after the incident in question, which was never proved, and which had never been produced or shown to the accused or his representatives at any time prior to his commencing to give evidence.”


The latter ground, as we shall explain, goes, in our opinion, to the heart of the case, and we proceed to deal with it now. It deals first with the failure of the Crown to call two witnesses, soldiers D and LM and with what followed from that failure, and secondly with the putting to the accused of a statement allegedly made by him shortly after the shooting, which had not been made part of the Crown case.


As to the first point, Crown counsel stated in opening that he would call the two soldiers referred to:


“The other two members of the patrol who are on the depositions both say that they heard this first shot (that is the low velocity shot on which the appellant’s case depended) which is in each case described by them and Foxford as being a low velocity shot, something like a revolver shot and your Lordship will remember that none of the other (sic) civilian witnesses who will give evidence heard any such shot. So there is a complete issue on that point. That is the evidence without going into greater detail and your Lordship will hear these various persons.”


Thus it is clear that Crown counsel said that he would call these two army witnesses. Instead the Crown case was closed, to the surprise of defending counsel and without any prior notice to him, at the end of Detective Inspector Mitchell’s evidence, by reading a short and formal deposition of a Mr. Costa. It was only after Mr. Creaney had protested and had asked that the Crown should call and examine the witnesses D and L that Mr. Babington offered merely to tender them for cross-examination. He gave no reason for not calling them other than that he had not said he intended to rely on them and that the Crown case was based on the evidence of the civilian witnesses. In fact, however, as we have stated, he had said in the opening that they would be called. Mr. Creaney persisted in his submission that, having regard to the opening, the Crown were obliged not only to tender but to examine witnesses D and L and pointed out that Crown counsel had not said that those witnesses were unreliable. We shall come back to the importance of this point. The judge indicated that he was not going to direct Crown counsel to examine the witnesses and indicated that for the Crown to tender the witnesses for cross-examination and, if necessary, re-examination would be satisfactory. He concluded:


“. . . I assure you that no prejudice would be suffered either (sic) by your client in anything done by Mr. Babington. Could we get on with the case and Mr. Babington will tender these two witnesses.”


Witness D was then called and we refer to the opening sentences of Mr. Creaney’s cross-examination:


“Q.I. With your Lordship’s permission what I propose to do before your Lordship is to read to witness D his deposition. Witness D, did you make a statement at a Crown Magistrates’ court at Newry on 2nd . . . 1973?


A. I did, my Lord.


Q. 2. Were you examined by counsel for the Crown?


A. I was, my Lord.


Q.3. Did he ask questions and did you give your evidence in court?


A. I did.


Q. 4. Was it true?


A. It was.


Q. 5. Did you say in that court, ‘on the 27th February, 1973 at 23.00 hours I commenced duty on a foot patrol . . .’?


JUDGE: Before you go any further, one of the things you must bear in mind is that I have to consider and evaluate this evidence and look at the weight of it. I take it you have considered it?


Mr. CREANEY: I have, my Lord, I propose to cross-examine, not examine-in-chief. My friend has declined as Crown counsel to ask these matters in examination-in-chief.”


The tenor of the evidence of witnesses D and L was to confirm the version given by the appellant in his statements (already put in evidence by the Crown) and in the evidence which he was presently to give on his own behalf.


Another passage in the cross-examination of witness D illustrates the atmosphere, which had, it seems to us, been created that he and his colleague were really defence witnesses:


“Q. 80. Did you ask [the appellant] where that shooting came from, that is the first shot?


A. He just said it came from up the top.


JUDGE: Is that evidence?

The interchange between judge and counsel which followed indicates that the former was for the purpose of the rules of evidence treating witness D as a witness called for the defence.


After Mr. Creaney had cross-examined witnesses D and L in turn, Mr. Babington, not without objection by Mr. Creaney, re-examined each of them at length. The re-examination of D occupied eleven pages of the transcript and of L six and was in each case directed to testing or querying the correctness of the witness’s evidence given in cross-examination. We consider that the re-examination was irregular on four counts:


(1) the only proper object of re-examinaion is to clear up points which have arisen in cross-examination and new material may not be introduced: see, in relation to the situation which arose here, R. v. Beezley 4 C & P 220, R. v. Harris & Woods 7 C & P 587, and generally Cockle’s Cases and Statutes on Evidence 11th ed., p. 305;


(2) leading questions may not be asked in re-examination except to direct the witness’s mind to a topic;


(3) cross-examination isnot permissible;


(4) (and this was the fundamental objection to the entire operation) unless the witness has proved hostile and the judge has granted leave, a party may not attack his own witness’s version of what happened.


Witnesses D and L, it is true, were giving evidence which contradicted the Crown case, but they were merely testifying on the lines opened to the judge by Crown counsel and consistently with what they had said all along. The learned trial judge, apart from checking a few obvious examples of cross-examination and leading questions, did not interfere with the course that Crown counsel took.


To judge by the transcript (and no adverse comment on the demeanour of witnesses D and L was made in the judgment) Crown counsel achieved little by way of shaking their evidence. The Crown have therefore argued in this court that no damage or prejudice to the appellant flowed from the irregularities we have described.


We must reject this contention and, in order to explain why, it is necessary to go back to the point at which the Crown purported to close their case by calling no more witnesses. The names of D and L appeared on the back of the indictment and thus the relevant guiding principles were those enumerated by Lord Parker L.C.J. in R. v. Oliva [1965] 3 All E.R. 116 where he said (at p. 122):


“Accordingly, as it seems to this court, the principles are plain. The proecution must of course have in court the witnesses whose names are on the back of the indictment, but there is a wide discretion in the prosecution whether they should call them, either calling and examining them, or calling and tendering them for cross-examination. The prosecution do not, of course, put forward every witness as a witness of truth, but where the witness’s evidence is capable of belief then it is their duty, well recognised, that he should be called, even though the evidence that he is going to give is inconsistent with the case sought to be proved. Their (sic) discretion must be exercised in a manner which is calculated to further the interest of justice, and at the same time be fair to the defence.”


This states the law as we have always respectfully understood it to be. Hayes at vol. 2, p. 875 states the law more favourably to the accused, but we consider that his view, although supported by authority, does not represent the modern practice. It follows that, if the Crown deliberately refrain from calling a witness, their omission to do so means, in default of any other reason being given, that they regard the witness’s evidence as unworthy of belief. And that construction of the Crown’s conduct was reinforced here by the statement in counsel’s opening that witnesses D and L would be called by the Crown, which would lead to the inevitable conclusion that something must have occurred since the opening of the case to cause the Crown to form an adverse view as to their worthiness of belief. If the case had been tried with a jury, this might have mattered little, since the jury would have been out of court while the matter was debated and would be most unlikely to have appreciated the significance of what the Crown had done. But the Crown’s initial failure to call or tender witnesses D and L would, having regard to their depositions, inevitably convey to a judge well-versed in criminal procedure, as was the learned trial judge, the Crown’s view that those witnesses were unworthy of credit and, in the circumstances, that that view had been formed as a result of something which had happened or come to light during the trial. There is, in fact, no need for us to speculate as to the impression which was gathered by the learned trial judge, since he was the first person in court to refer to the paragraph in Archbold which covers the situation where the Crown omit to call a witness on the ground that he is incapable of belief, and he intervened again of his own motion to refer to the same paragraph. This court has now been informed by Mr. Hutton that Mr. Babington decided to refrain from calling D and L, not on the ground that they were unworthy of belief, but because he had decided that the appropriate coure was to wait and see how the civilian Crown witnesses (whose evidence was the foundation of the Crown case) fared before making up his mind whether to call D and L.


Such a course was quite irregular and was, besides, so unprecedented that it would never have occurred to the judge as an alternative explanation for not calling the military witnesses, unless counsel had disclosed the reason for it. The endeavour by Crown counsel to break down witnesses D and L in re-examination merely confirmed the impression already given that they were regarded as unworthy of belief.


One is compelled to sympathise with the learned trial judge, because the action of closing the Crown case without even tendering witnesses D and L introduced an impurity into the stream of justice which no procedural step could thereafter extract. The judge was bound to know that Crown counsel, with opportunities for consultation and deliberation, were ideally placed to form a value judgment concerning the reliability of D and L and was also bound to be struck by the fact that they did not propose even to tender for cross-examination two witnesses whom they had opened.


Before pursuing further the question of the effect of the Crown’s irregularity on the trial judge as the tribunal of fact, we would direct attention to another aspect of the matter, and that is the effect on the conduct of the defence. It would have been open to the Crown, before the trial started, to have informed the defence that D and L would not be called for the prosecution. If this had been done a number of consequences for the defence would have ensued:


(1) They could have consulted with witnesses D and L.


(2) They could have decided in the altered circumstances whether it might be advisable to call other members of the patrol: this course might have seemed both foolish and unnecessary if one could rely on D and L, who had made depositions, being called by the Crown.


(3) They could, and no doubt would, have called the appellant first, followed by the other witnesses, including D and L.


(4) They would have re-planned their approach to the Crown case in the knowledge that D and L would not be called as part of it.


Not only did defence counsel lose the possible advantages in preparing and conducting his case which we have outlined, but his embarrassment was aggravated by the fact that the Crown gave no notice of their intention. This cannot be readily excused since, according to the explanation given to us, the Crown were in a position to decide on their course of action well before the end of the Crown case. It is true that Mr. Creaney might have sought an adjournment, but this would have solved few of the problems we have mentioned and any application, short of a successful attempt to have the trial abandoned, might only have highlighted the unenviable situation of the defence.


We now come back to the question what adverse effect this turn of events was likely to have had on the learned trial judge in his capacity as the tribunal of fact and whether any such effect can be deduced from the transcript, always remembering that it is to the position after the first attempt to close the Crown case that regard must be had. When the Crown case really did close, Mr. Creaney made a submission that his client had no case to meet and it is of assistance to consider the exchanges, including the observations of the learned trial judge, which passed on that application. On a close examination of those exchanges it does seem to us that the judge had by that time gone a long way to accept completely, so far as was material, the evidence of Mrs. Mary Mathers, Mrs. Haughey and to a lesser extent Mrs. Larkin. Thus, for example, he said that th ere was no evidence that Mrs. Mary Mathers or Mrs. Haughey was prejudiced or biassed in any way and his observations during Mr. Creaney’s submission leave us with the impression that he had, even at that stage, accepted their evidence not provisionally, but almost without reserve, despite the fact that, on the central issue as to whether one or two shots were fired, two Crown witnesses (the two soldiers D and L) contradicted them and that the appellant had not yet given evidence. Again at page 334E the learned trial judge in saying that neither of the soldier Crown witnesses “shows or proves” that Kevin Heatley fired the gun might well appear to be seeking a ground on which to disregard the evidence of the soldiers D and L when, on the run of the case, the crucial issue was as to whether two shots (the alleged low velocity shot and the appellant’s high velocity shot) were fired, as indeed Mr. Creaney observed in answer to the trial judge’s remark “Strictly speaking, you see, there is no evidence at all before me going to the truth of your defence other than those two pieces of evidence by the soldiers that a second shot was fired”, which seems to us a curious and revealing way in which to comment on two Crown witnesses whose evidence on that poit was crucial to the defence. We realise, of course, that these exchanges took place on the application for what may be termed a “direction”, but if one goes forward to page 402 of the transcript it appears that the appellant was closely questioned by the trial judge. We are far from saying that a judge has not got great latitude in questioning an accused person and we feel that the learned trial judge, generally speaking, did so in this case in a perfectly proper way and at an appropriate stage, but the overall tenor of those questions gives us the impression of their being directed to a person in respect of whose conduct the learned judge had already made up his mind though the defence case was then not yet concluded and, as it turned out, material evidence was yet to come.


We come finally to the judgment. And here, of course, we must remember that the learned trial judge had the opportunity, denied to us, of seeing and hearing the witnesses, but, even allowing for that an admitting the obvious care which was taken, it seems to us that there is room for some criticism of the learned judge’s approach to and evaluation of the facts. He seems to have treated D and L as defence, rather than Crown, witnesses. Secondly, we cannot understand, in its relation to the question of guilt or innocence, the judge’s finding that the appellant’s reason for ordering the patrol to load and cock their rifles was unreliable and unacceptable, having regard to his earlier finding that “clearly whenever any soldier entered Derrybeg he faced the risk of death or serious injury” and to the evidence of Major Wright (whom the judge found to be an honest witness) that the accused had full authority to order his patrol to load and cock their rifles. Mr. Hutton frankly stated that he would not seek to stand over this finding. Thirdly, the judge’s finding that the soldiers who supported the appellant’s evidence (two being Crown witnesses) did so from motives of loyalty and sympathy when that suggestion was not put to them may be contrasted with his approach to certain of the civilian Crown witnesses. A fourth and, in our view, reasonably important point is the omission to notice (even if only to extenuate) the unconventional manner in which much of the Crown evidence was initially recorded. Again, we consider that too much was made of the appellant’s confusion over his whereabouts as pointed out on the street map.


We come now to the second main head of ground (b)(iv), which refers to the putting in of the appellant’s statement for the first time during his cross-examination. It appears that the statement in question, presumably suggested to have been made at 4.40 a.m. on 28 February, very shortly after the appellant came off duty from this eventful patrol, was not capable of proof as part of the Crown case because the taker of the statement was not known. It was not very damaging, but it did contain one of the supposed inconsistencies – it was accepted by the Crown that there were only three – in the appellant’s written statements, which the learned trial judge listed among his reasons for finding the appellant’s evidence unreliable and unacceptable.


Humphreys J. had something to say on a similar point in R. v. Treacey [1944] 2 All E.R. 229, at page 236:


“In our view, a statement made by a prisoner under arrest is either admissible or it is not admissible. If it is admissible, the proper course is for the prosecution to prove it, give it in evidence, let the statement if it is in writing be made an exhibit, so that everybody knows what it is and everybody can inquire into it and do what they think right about it. If it is not admissible, nothing more ought to be heard of it, and it is quite a mistake to think that a document can be made admissible in evidence which is otherwise inadmissible simply because it is put to a person in cross-examination.”


To the same effect, in regard to admissible statements, is R. v. Rice [1963] 1 Q.B. 857, 867. In the light of the authorities Mr. Hutton candidly admitted that the Crown’s use of the statement constituted a material irregularity. We fully accept that Crown counsel disclosed the statement and its contents to the defence as soon as they themselves learnt of its existence; it appears that it emanated almost by chance from military custody at a late stage of the trial. But it is the objective irregularity of the procedure and its effect on the defence which we have to look at.


On the score of admissibility, as distinct from proveability, the present case may resemble Treacey’s case more closely than was supposed. As we have seen, the prosecution cannot introduce in cross-examination a statement which would have been held inadmissible if tendered as part of the Crown case. There was no proof of the circumstances in which the statement at 4.40 a.m. on 28 February was taken, and therefore, even when allowance is made for the relaxation of the requirement that the statement should be voluntary (see section 6 of the 1973 Act) there was no opportunity of considering how the trial judge might have exercised his discretion on the fairness of admitting a statement taken, as it would appear, without caution from a man who was exposed to the danger of a serious charge and may have been very tired as well as upset.


Without overstressing that point, two others are clear. One is that defence counsel had no chance of consulting with his client about possible discrepancies between the statement and other statements; and the other is that, for lack of a Crown witness, the defence could not elicit evidence as to the circumstances in which the statement was taken and the condition of the appellant.


The learned trial judge’s immediate and very clear reaction to Mr. Creaney’s objection was that without doubt the statement could be put to the accused and, once the signature was acknowedged, became evidence against him. We cannot escape the feeling that by reason of what we held to be Mr. Creaney’s proper objection and in consequence of the dramatic emergence of the statement at the eleventh hour, it assumed an unwarranted importance against the interests of the appellant.


Against the background of two material irregulatiries we note again the contents of ground (b)(iii) and come for the first time to ground (c), cthat the analysis of the evidence in reaching his decision was defective and inadequate and not in accordance with the evidence.” Four heads of complaint are stated.


We are of opinion that Mr. Creaney made four cogent points on this part of the case –


(1) The inconsistencies about whether there was a riot situation were not seriously tackled;


(2) The discrepancies in the evidence of the civilian Crown witnesses internally and inter se were treated as rather unimportant;


(3) The criticisms of the appellant’s evidence and that of the other military witnesses, including D andl L were not, and could not seriously have been, based on internal or mutual inconsistencies;


(4) In questioning the vlidity of the conclusion one had to remember that the standard was one of proof beyond reasonable doubt.


We are against the contention advanced under ground (d) that there was no case to answer, and the other grounds are variants of the points already considered. The grounds of appeal begin with the general contention that the verdict was unsafe and unsatisfactory and, by reason of the matters which we have oserved upon, we would find ourselves bound to accede to that contention.


It would have been easy for the learned trial judge to take refuge in the equivocations created by the sharply conflicting evidence of two contending groups of witnesses nearly all of whom, however righteous and reliable they may in reality have been, had strong motives, springing from outlook, environment or personal loyalty, to misrepresent the facts. Instead, he courageously endeavoured to reach a conclusion which, if it were to be a valid conclusion adverse to the appellant, had to be reached beyond reasonable doubt. His treatment of the evidence, like his conduct of the trial, revealed an anxious care to achieve a just result and was characterised by an urgent desire somehow to lay bare the truth in relation to his very grave charge.


But a difficult task was made immeasurebly more difficult by the irregularities in procedure of which the Crown, in good faith but none the less regrettably, were guilty and which, as we find, upset the scales of justice, finely balanced as they were. In this situation the advantage enjoyed by the trial judge of seeing and hearing the witnesses was whittled down and things which in other circumsntaces would have been of small moment assume greater importance in relation to the question of setting aside a result arrived at after such obvious and praiseworthy deliveration. Once a material irregularity occurs in so finely balanced a trial – and we have found two – it is impossible to say that the conviction would inevitably have followed had the irregularities not occurred.


This trial perfectly exemplifies the difficulty attendant on a procedure whre the judge of law is also the tribunal of fact. According to one theory, if an irregularity occurs or inadmissible evidence is given and has to be ignored, the trained mind of a judge is less vunerable to its harmful effects than that of a juror. This may not always be true when one considers that, if there is a jury, the judge assumes the duty of warning them as to what they may take into account, and that the content and significance of an irregulaority may fade from the lay mind when it had ceased to be part of the case but stick firmly in the mind of the judge, who is trained to marshal and evaluate evidence. One may also mention the discussions which if there were a jury might be held in their absence and, as specially relevnt to this case, the nuances and overtones, which would be lost on the jury, not for wnat of intelligence but for lack of specialised knowledge, and which at the same time might speak volumes to the judge. Magistrates, of course, and county court judges sitting on appeal from them, as well as judges sitting without a jury in civil cases, are tribunals of fact as well as judges of law, but rarely do these jurisdictions throw up problems so numerous and important as are encountered in a long and hard-fought trial on indictment.


We quash the conviction and allow the appeal.

Appeal Allowed.



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