Allison & Anor, R v

Factual and Procedural Background

Counsel for both accused applied to the Court under Section 2(3) of the Grand Jury (Abolition) (N.I.) Act 1969 to enter a No Bill in respect of three counts contained in an indictment. This application was made prior to the arraignment of the accused on 2nd September 2009. Arguments were heard on 15th September 2009, and the presiding judge entered a No Bill on all three counts on 22nd September 2009.

The charges arose from a police search conducted on 22nd October 2008 at the residence of one accused, where a firearm and ammunition were found in a cloth bag near the other accused. Additionally, a quantity of white powder and credit-type cards were discovered nearby. Both accused were questioned and made statements denying knowledge or control of the firearm and denying use or possession of cocaine. The prosecution indicated that further forensic evidence could be available but such evidence was not included in the committal papers before the court.

Legal Issues Presented

1. Whether the evidence disclosed in the committal papers was sufficient to justify putting the accused on trial for the indictable offences charged.
2. Whether the presiding judge should exercise the power under Section 2(3) of the Grand Jury (Abolition) (N.I.) Act 1969 to enter a No Bill when the evidence presented does not disclose a sufficient case.
3. How to apply the test for a No Bill in the context of incomplete or missing forensic evidence and alleged procedural defects in the prosecution case.

Arguments of the Parties

Prosecution's Arguments

• Additional forensic evidence linking the accused to the firearm, cartridges, and the white powder could be served.
• The prosecution contended that the white powder was cocaine and that forensic analysis would confirm this.
• The prosecution argued that the accused had knowledge and control of the firearm and cartridges based on their presence and proximity at the scene.

Defendants' Arguments

• Denial of knowledge or control of the firearm and ammunition by the accused.
• Denial of possession or use of cocaine, and denial that the white powder was cocaine.
• Assertions that the co-accused might have brought the firearm or that the accused were being set up.
• Reliance on the absence of forensic evidence in the committal papers to argue insufficiency of the case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the evidence disclosed in the committal papers and applied the statutory power under Section 2(3) of the Grand Jury (Abolition) (N.I.) Act 1969, which permits the judge to enter a No Bill if the statements do not disclose a sufficient case to justify trial. The court emphasized that this power is a protective measure for the accused and must be strictly interpreted.

The judge considered the test analogous to the no case submission at the close of the prosecution case, as established in R v Galbraith, requiring that there be evidence upon which a reasonable jury could convict if accepted.

Regarding the charge of possession of cocaine, the court found a fundamental evidential gap: the white powder had not been conclusively identified as cocaine through forensic analysis in the committal papers. Although the prosecution indicated that such evidence existed and could be served, it was not before the court at the time of decision. The court held that this basic proof was necessary and, in its absence, a No Bill was appropriate for this count as to each accused.

For the firearm and ammunition counts, the court acknowledged the seriousness of the charges and the prosecution's need to prove knowledge, potential control, and assent by each accused. The absence of forensic evidence linking the accused to the cloth bag containing the firearm and cartridges at the time of the committal hearing was a fundamental deficiency. Unlike formal defects that could be remedied by additional evidence, these were essential elements of the prosecution case. The late provision of additional evidence after the arraignment date did not assist the court in denying the No Bill application.

On considering the evidence against each accused separately and the presence of "cut throat allegations," the court concluded the evidence did not disclose a sufficient case to justify trial on any of the counts and thus entered a No Bill.

Holding and Implications

The court entered a No Bill on all three counts against both accused.

This decision means that, based on the evidence before the court at the time, there was insufficient evidence to proceed to trial. The ruling does not preclude the prosecution from presenting additional evidence in future proceedings, but no trial will occur on the current indictment as it stands. The court’s decision adheres strictly to the statutory protections afforded to the accused and does not establish new precedent beyond the application of existing principles to the facts.