Neutral Citation no. [2001] NICA 12	Ref:     	MCLF3350	
 	 	 	
Judgment: approved by the Court for handing down	Delivered:	16.03.2001	
(subject to editorial corrections)	 	 	

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______
 
THE QUEEN
 
-v-
 
PATRICK HAUGHEY, ANTHONY GERARD HAUGHEY AND 
EDWARD ANTHONY CATTERSON
 
 ________ 
 
McLAUGHLIN J
 
	 Each of the accused stood trial at Enniskillen Crown Court between 18‑27 May 1999.  They were charged as follows:
Patrick Haughey        (i)       Causing grievous bodily harm with intent to John Francis Kelly with intent to do him grievous bodily harm, contrary to Section 18 of the Offences Against the Person Act 1861.
 
(ii)      Unlawfully and maliciously inflicting grievous bodily harm on John Francis Kelly, contrary to Section     of the 1861 Act.
 
(iii)    Possession of an offensive weapon contrary to Article 22(1) of the Public Order (NI) Order 1987.
 
Anthony Haughey     (i)       Causing grievous bodily harm with intent to John Francis Kelly.
 
(ii)      Inflicting grievous bodily harm on John Francis Kelly.
 
(iii)    Assault occasioning actual bodily harm to Martin Kelly.
 
(iv)     Assault occasioning actual bodily harm to Jacqueline Kelly.
Edward Catterson     (i)       Causing grievous bodily harm with intent to John Francis Kelly.
 
(ii)      Inflicting grievous bodily harm on John Francis Kelly.
 
(iii)    Possession of an offensive weapon.
 
(iv)     Common assault on Martin Kelly.
 
Introduction
 
	 Each of the accused was charged jointly in respect of the offences of causing grievous bodily harm and inflicting grievous bodily harm on John Francis Kelly, Patrick Haughey was convicted of inflicting grievous bodily harm, Anthony Haughey was convicted of assault occasioning actual bodily harm to Jacqueline Kelly and Edward Catterson was convicted of possessing an offensive weapon.  The jury either brought back verdicts of not guilty in respect of the other charges, or, not having  reached agreement the learned trial judge directed them that they need not bring back verdicts in respect of the remaining counts.
	 Anthony Haughey withdrew his appeal against both conviction and sentence.  Counsel for neither Patrick Haughey nor Edward Catterson made any point about the propriety of the sentences imposed and the task of this court was to consider whether the convictions are unsafe in the circumstances.
Background
The events leading to these convictions commenced when members of the Kelly family from Castlederg went out to a local pub for a Saturday evening drink.  After an hour or so they left the pub and went to the Border Inn which is about four miles from Castlederg.  They encountered Patrick Haughey and his wife at the Inn.  Undoubtedly an altercation took place between members of the two groups.  Mr Catterson was not present at that stage.  He was asked later by Mrs Haughey to come to the Border Inn in order to bring them home.  As with so many cases of this kind the course of events is the subject of much dispute.  Indeed the learned trial judge in summing up the matter to the jury referred to ‘the Kelly version’ and ‘the Haughey version of events’.
Essentially the Kellys said that after the altercation in the Border Inn they left and went to Martin Kelly’s house via a fish and chip shop where they bought a carry-out meal.  Once at home two of the ladies went into the kitchen to prepare the food, Francis Kelly went up stairs and the others went into the front room of the house.  The Haugheys then arrived in Mr Catterson’s car and Patrick Haughey had a hammer and Catterson a rake.  A fight developed which was started by the Haugheys in which injuries were inflicted on members of the Kelly group.
The Haughey version was to the effect that after the row in the Border Inn they left and returned to their family home where Mrs Haughey was dropped off.  The two Haugheys then went to the Kelly house accompanied by Mr Catterson and a fourth man who was not charged.  Their explanation for doing this was that they wanted to make up the row and avoid any future unpleasantness.  When they arrived outside the house they claimed that Martin and Francis Kelly came running out with hammers and attacked them. 
There is little doubt that a vicious fight did take place outside the Kelly home that evening during which a hammer or hammers were used.  John Francis Kelly received a very serious injury to his jaw and the count upon which he was convicted refers to grievous harm.  The conviction of Patrick Haughey on Count 1 and Mr Catterson on Count 6 together with the various acquittals shows how the jury viewed their respective involvement.
 
THE APPEAL OF PATRICK HAUGHEY
(i)        Evidence of Caroline Bradley
 
	 Caroline Bradley was working as the manageress of The Border Inn on the evening in question.  It was said that she was a witness to the altercation which took place there between the members of the two families.  It was argued by counsel on behalf of both appellants that she was a witness who could say that the Kellys had caused the trouble and that she had asked them to leave the premises.  This would have contradicted the assertions of the Kelly side that they had left the pub voluntarily to avoid trouble and escape the aggressive behaviour of the Haugheys.  It was argued that her evidence would be relevant to the issue of the credibility of the Crown witnesses.  It was argued that since the Crown had suggested that the Haugheys went to the Kelly house to seek revenge it was important to know what, if anything, might have brought that about.  It was asserted also that this evidence could help demonstrate that the Haugheys went to the Kelly house in order to make peace and avoid future ill-feeling.  The strength of the last point is difficult to assess in that if they had been victims of aggression by the Kellys at the Border Inn it is difficult to see why they would go to the Kelly house shortly afterwards in order to make peace, or why the Kellys would be waiting for them with hammers when they got there.  The learned trial judge in the exercise of his discretion refused leave to the defence to call this witness and ruled that her evidence was inadmissible as it went to a collateral issue only, namely the credibility of some of the prosecution witnesses.  It is of significance that the events outside the Kelly house occurred almost one hour after those in the Border Inn and some considerable distance away in Castlederg.
The applicable legal principle is clear, even if it is sometimes difficult to apply in practice.  The underlying justification for the rule is set out in Murphy on Evidence, 7th Edition at page 527 where the learned author states:
Because cross-examination may be directed to matters going solely to the credit or the character of the witness, and because cross-examination may illicit evidence which was not elicited in chief, and even evidence that would not have been admissible in chief, it is apparent that the course of cross-examination may result in some proliferation of the issues aired before the court.  If this were wholly unrestrained, the time and attention of the court might be devoted, in a measure disproportionate to their importance, to a series of facts not directly relevant to the issues between the parties in the proceedings.  There is, therefore, a sensible rule, that a cross-examiner must accept as final answers given in response to questions dealing with ‘collateral’ matters.  Acceptance as final means that the cross-examiner cannot seek to contradict the answer by calling further evidence in rebuttal on his own behalf, and not that he himself cannot continue to challenge it in cross-examination, or is obliged to admit its truth.
 
	 A statement to similar effect is contained in Cross and Tapper On Evidence, 9th Edition, page 297.  The learned authors then set out three exceptions to the rule, viz, that the witness has in fact been convicted of a crime which he has denied, that the witness is biased in favour of the party calling him and that the witness has made a previous inconsistent statement.  (Professor Murphy indicates at page 529 of the his text that there may be other minor exceptions).
	 Ultimately it is for the trial judge to seek to apply these principles to the actual case before him as the evidence unfolds.  He is usually in the best position to assess that matter since he can assess the real issues and who should be in a position to give evidence relevant to their resolution.  It is clear that there was a major conflict between the parties as to what happened at the Border Inn.  Even if the Haugheys were in the right completely and, despite injury and insult inflicted on them by the Kellys, they left the Bar and followed the Kellys across the border to Castlederg in order to make peace, the fact is that a major fight with weapons occurred at the Kelly house and injuries were sustained by members of the Kelly family.  Those events were central to the issues to be determined by the jury.  We are satisfied that the learned trial judge by insisting that the evidence be confined in the way that he did helped the jury to concentrate on the real issues to be decided by them and prevented a fruitless inquiry into peripheral events which would have burdened them further unnecessarily.  We consider that the learned trial judge was entitled to conclude that this was a collateral issue and to exclude the evidence as he did.  
(ii)       Adverse inferences from the silence of Patrick Haughey
	 When he was held in custody after arrest and before he was charged, Patrick Haughey was interviewed on three occasions.  The first interview took place between 15.56 and 16.22 hours on 11 January 1998 and was conducted by D/C Mochan and D/C Bennett.  The accused was accompanied by his solicitor, Mr Frank Collins, throughout this and the two subsequent interviews.  After formal introductions at the first interview an explanation of the system of recording the interview took place followed by the administration of the caution.  The interviewing detective then asked him when he went to The Border Inn.  Mr Collins interjected at once and asked “Can you put whatever allegations you have against him?”  He asked also if they were in a position to put the witnesses statements to the accused.  The officer explained that the injured party was still in hospital and was not in a position to speak to them because of his injuries.  He said also that they did not intend to state all the evidence they had at that time as inquiries were still going on.
	 Mr Collins then advised his client not to answer any questions until the evidence was put to him.  For the remainder of the interview the accused failed to answer questions put except to say that he was doing so on the advice of his solicitor.  At the second and third interviews however Mr Haughey did answer questions.  He gave his version of events and denied suggestions put to him in a routine manner.  
	 In his charge to the jury the learned trial judge dealt with the possibility that they might draw inferences from Haughey’s failure to answer questions in the course of the first interview or mention any matters relevant to his defence relied upon at the trial.  This issue has also arisen in respect of the appeal of Mr Catterson, although the circumstances are somewhat different in his case.  It is appropriate to set out in full the relevant passages from the learned judge’s charge.
“Now I want to say something about the caution which was administered to the defendants and the Crown witnesses during interview.  It appears they were interviewed under caution, and I take issue to a certain extent with what Mr Orr said to you because the law is that if a person is cautioned under the new caution, he is warned that if he fails to say something that he is going to rely on later that can be taken into consideration and that is what happened in this case.  They did fail to answer questions at times.
 
Tony Catterson, when he was stopped at his car first of all is an example, and Pat Haughey during most of his first interview, having been cautioned they did not answer and you are, in law, entitled to take that into consideration.  You may ask yourselves, or say to yourselves, well he has only taking his solicitor’s advice, and I am not going to place very much or any emphasis on that, but on this point the law is that you are entitled to take that into consideration.”
 
	 The judge returned to this topic at a later stage when dealing with the case against Catterson and stated the following:
“Did Tony Catterson have the rake with him in the car or in the boot?  If it was in the boot did he have time to get it out of the boot and go and confront Martin Kelly in the way he says?  Why did Tony Catterson not immediately tell the police that he had the hammer in the boot of his car?  The evidence was, you will remember, that he didn’t say anything and that the police had to search his car and find the hammer in his car.  Did the defendants take a long time coming up with the name of the other man in the car ….  If they were slow in telling the police why was that?”
 
	 Mr Orr QC, who appeared for Mr Patrick Haughey, argued that the charge of the learned trial judge was inadequate in several respects so as to render the conviction unsafe and that he failed to put before the jury the explanation of his client for remaining silent, namely that he was refusing to answer questions on the advice of his solicitor.
	 The relevant statutory provision applicable in Northern Ireland is Article 3(1)(a) of the Criminal Evidence (Northern Ireland) Order 1988 which, as amended, reads as follows:
“Circumstances in which inferences may be drawn from accused’s failure to mention particular facts when questioned, charged, etc.
 
3.-(1)   Where, in any proceedings against a person for an offence, evidence is given that the accused –
 
(a)        at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; or
 
(b)       on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact,
 
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questions charged or informed, as the case may be, paragraph (2) applies.
 
(2)        Where this paragraph applies –
 
(c)        the court or jury, in determining whether the accused is guilty of the offence charged,
 
may –
 
(i)        draw such inferences from the failure as appear proper.”
 
	 It is clear from the Order that it is for the jury to decide whether to draw an inference at all and that they may do so only where the various tests set out therein have been satisfied.  The equivalent provision applicable in England and Wales is found in Section 34(2)(d) of the Criminal Justice and Public Order Act 1994.  This provision has been considered in a number of cases and in particular in R –v- Argent [1997] 2 Cr App R 27.  Lord Bingham LCJ, as he then was, identified six statutory requirements to be met before the discretion to draw any such inferences could arise (pages 32c-33c) and these may be summarised as follows:
(i)        there must be proceedings against a person for an offence,
(ii)       the failure to mention a fact relied on in his defence must occur before a person is charged,
(iii)      the failure must occur during questioning under caution by a constable (a term which has an extended meaning not applicable in this case),
(iv)      the constable’s questions must be directed to trying to discover whether or by whom an offence has been committed,
(v)       the defendant must have failed at the relevant time to mention a fact relied on in his defence in the proceedings,
(vi)      the defendant must have failed to mention a fact which in the circumstances which existed at the time of his failure, he could reasonably have been expected to mention when questioned.
	 In respect of point (v) two matters must be confirmed.  Firstly, a fact must have been raised by way of defence and it is irrelevant if it was raised in relation to a peripheral matter not connected with his defence.  Secondly, the failure must occur at a time when he is being questioned in accordance with the article – for example, it will be irrelevant if the failure arose before he was cautioned or after he was charged or informed officially that he might be prosecuted.
	 Point six necessitates considering what facts existed at the time of his alleged failure so as to enable a decision to be made whether he failed to mention something and whether it was reasonable to expect him to mention it.  Mr Orr argued that the fact that his solicitor had advised him to remain silent was such a relevant fact and that his silence during the first interview should be due to an alleged lack of information as to the nature of the evidence at that time.  
	 It is not for the jury to decide whether the solicitor was right or wrong to give such advice, but where such advice is actually given and proved to have been so, then it may or may not constitute a circumstance that existed at the time of the failure to mention a relevant fact now relied on in his defence and it will be for the jury to determine that matter.  This will then be considered along with the other possibilities, such that he failed to mention the fact because there was no proper explanation or none that could withstand cross-examination and to decide whether to draw an adverse inference or not. 
	 Most often these matters can be put before the jury succinctly and without any great problem, less often they may present complicated problems.  Either way it is the duty of the trial judge to set the evidence before the jury so as to assist them in their deliberations and enable them to decide if the six criteria have been met before considering whether any adverse inference should be drawn.  They must be reminded then that they are not bound to draw any such inference but may do so.  Finally, they must be warned that adverse inferences alone cannot prove the guilt of an accused, but may be considered by them along with the other properly admissible evidence in determining whether they are sure of the guilt of the accused or not.
	 Without going into a detailed analysis of the charge, the relevant parts of which I have already set out in full, it is clear that the jury did not receive adequate assistance to enable them to decide these issues properly.  They were not warned that they should not act on any such inferences alone and that they should act upon them only if, in combination with other evidence, they were thereby satisfied of the guilt of the accused to the requisite standard.  In addition the learned trial judge did not identify the matters now said to be relied upon in his defence which were not mentioned at the time of the questioning.  On that basis the conviction of Patrick Haughey on Count 2 of the indictment must be quashed.
(iii)      Submission of ‘No case’
	 Mr Orr argued that the learned trial judge should have acceded to an application for a direction at the end of the Crown case based on the principles set out in R –v- Galbraith [1981] 1 WLR 1039.  The gist of his argument was that the evidence judged by that standard was inherently weak and vague.  We are satisfied that in spite of the major conflicts in the evidence of the witnesses there was sufficient evidence led before the jury to conclude that this was a matter properly left to them as the tribunal of fact to determine.  We do not regard this as a ground on which the conviction ought to be quashed.
 
THE APPEAL OF CATTERSON
	 Mr Catterson was convicted by the jury on Count 6 which alleged possession of an offensive weapon, namely a garden rake, in a public place without lawful authority or reasonable excuse.  Some of his grounds of appeal are the same or very similar to those relied upon by Patrick Haughey and can be dealt with briefly.  
(i)        The evidence of Caroline Bradley 
	 Mr Ferriss QC adopted the submissions of Mr Orr on this issue and did not advance any argument to distinguish the position of his client.  In those circumstances we do not regard this ground of appeal as made out, for the reasons given already in the case of Patrick Haughey.
(ii)       The drawing of adverse inferences
	 The charge of the learned trial judge has already been set out in full in so far as it related to both appellants.  The factual circumstances in relation to Mr Catterson are different in important respects and lead to a determination of the matter upon a different basis from that of Mr Haughey.  
	 Some time after the events at the Kelly house Mr Catterson was stopped at a vehicle check point.  A police officer spoke to him and told him that they were looking for a rake and a hammer and wanted to search his car.  No questions were asked of him, he was not cautioned at that point and he made no reply.  In the course of the search the police officer found the offending articles.  The appellant was arrested and taken to the local station in a police vehicle.  In the course of the journey he was cautioned, but again no questions were asked of him, no allegations were put to him and he made no reply to the caution.  Apart from the references to his silences in his charge the learned trial judge emphasised the matter further by questioning this appellant on the topic when he was in the witness box.
	 Since Mr Catterson was not asked any questions by the police either when his car was stopped at the vehicle checkpoint, or later when he was cautioned in the police car, it was not open to the jury to consider drawing any inferences at all from his silence pursuant to Article 3 of the 1988 Order as amended.  The six statutory conditions, which have been set out earlier, and which must be satisfied to enable them to do so, had not been met.  Neither did the charge contain any warning to the jury not to act on inferences alone, nor were they warned not to draw inferences unless they were satisfied that his silence about matters now relied on in his defence could be excused only on the basis that he had no explanation to give or none that would withstand cross-examination.
	 Notwithstanding these matters, the judge issued a clear invitation to the jury to consider drawing adverse inferences from his silence.  We consider that on this ground the conviction must be quashed.
(iii)      The offensive weapon charge
	 Although the above ruling has the effect that the appeal succeeds, there was an important matter raised as a further ground of appeal by Mr Ferriss.  The essence of the prosecution case on the charge of possessing an offensive weapon was that Mr Catterson had a garden rake during the course of the fight at the Kelly household and that he swung it around his head in a manner which was threatening and potentially dangerous.  This appellant argued that he had done so in order to fend off attacks on him and that he did not intend to injury anyone.  Article 22(1) of the Public Order (NI) Order 1987 provides as follows:
Carrying of offensive weapon in public place
22.-(1)A person who, without lawful authority or reasonable excuse (proof of which lies on him), has with him in any public place any offensive weapon shall be guilty of an offence.
 
(2)        In paragraph (1) ‘offensive weapon’ means any article made or adapted for use for causing injury to the person, or intended by the person having it with him for such use by him or by some other person.
 
	 To prove the offence the first fact to be established is which category the weapon or alleged weapon falls into, whether it is made for causing injury, or adapted in some way so as to be capable of causing injury, or intended by the person possessing it to cause injury.  This rake was not adapted in any manner and it was clearly made for gardening purposes.  It could only be an offensive weapon if Mr Catterson intended to cause injury with it and he failed to show he had it with lawful authority or reasonable excuse.  The jury had to consider the evidence to decide what the intention of the accused was.  If it was intended to fend off an attack only it may not have constituted an offensive weapon at all, for even if it was his intention to cause injury it might be in his possession at a time when he had a reasonable excuse in the circumstances he alleged to exist.  The jury must also be directed to be sure that the true purpose for which he had the rake was to cause injury, it being insufficient to establish that he had it to assault someone since an assault may be committed by using it to push or hold back someone without having an intention of causing injury.
	 In his charge to the jury the learned trial judge dealt with the issue as follows:
Count 6 is possession of an offensive weapon in relation to Tony Catterson and the rake.  It is a different situation here because here there is no issue that Mr Catterson had a rake in his hand at some time during these events.  The issues here is was he using it in an offensive way, which in this case means was he using it to stop Martin Kelly going to help his father, as Martin says, or was he using it as Mr Catterson says, to prevent Martin Kelly doing damage with the hammer which Tony Catterson said he had and was welding in his hand at that time.  That is the issue …
 
It is plain that the charge of the learned trial judge did not direct the jury to consider whether he possessed the rake with the intention of causing injury.  By saying that he was using the rake in an offensive way he failed to direct the jury to the proper question to be answered.  Further, giving examples of an ‘offensive’ use of the rake, namely to stop Martin Kelly going to help his father or to prevent Martin Kelly doing damage with the hammer, was to misdirect the jury, since neither of these instances would necessarily involve an intent to injure and may, if the latter circumstances was correct, have constituted a reasonable excuse for having it in the first place.  
	 In view of these deficiencies in the charge the conviction must be quashed on this ground also as being unsafe.
(iv)      Inconsistent verdicts
	 Finally Mr Ferriss argued that the conviction on Count 6 was inconsistent with his acquittal on the other counts.  We consider that it would be inappropriate to comment further on this point in view of our ruling on the substantive aspects of Count 6 above since the matter is now hypothetical.  
	 We do not consider it appropriate to order a retrial in the case of either appellant.  Accordingly we shall grant leave to appeal to each of the appellants, treat the applications for leave as the substantive appeals and quash the convictions against the appellants on Counts 2 and 6 of the indictment.

 
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
 
 _______
 
THE QUEEN
 
-v-
 
PATRICK HAUGHEY, ANTHONY GERARD HAUGHEY AND 
EDWARD ANTHONY CATTERSON
 
 ________ 

J U D G M E N T
 
O F
 
McLAUGHLIN J
 
 ________ 

 
 
Counsel:
 
K R M McMahon QC         for the prosecution
and
Charles McKay

 
John Orr QC		   for Patrick Haughey
and
Anne McGuinness

 
T T Ferriss QC	          for Anthony Edward Cattersons
Rory Murphy