ORIGINAL

MACE1338

IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND

THE QUEEN

JOHN CHRISTOPHER WALSH

MacDERMOIT LJ

The appellant (John Christopher Walsh) was convicted at Belfast Crown Court on 7

December 1992 of possession of a coffee jar bomb, with intent, contrary to Section 3(1)(b)

of the Explosive Substances Act 1883 and was sentenced by His Honour Judge Petrie QC to

a term of 14 years imprisonment. The appellant appeals against his conviction but does not,

understandably, challenge his sentence.

The background facts can be stated shortly:

1. The location

Suffolk Road, in West Belfast, lies in a roughly North-West direction from its

junction with the Stewartstown Road. At that junction is the Woodbourne Army and Police

base. Proceeding countrywards along Suffolk Road past factory premises the next street on

the right is Falcarragh Drive. Before coming to that street there is an entry or alleyway

leading to Kerrykeel Gardens which is roughly parallel to Falcarragh Drive on its southern

side. That laneway is clearly seen in the photographs in the exhibited album. At its mouth

with the pavement on Suffolk Road there is a fence and

 high tree hedge on the south side and on the other side the lane broadens into what could be

described as a "bell mouth". That northern side is bounded by a low wall surmounted by

railings. The wall bends at an elbow as it enters the lane.

2. The meeting of the appellant and soldiers at the mouth of the laneway

About 1.30 pm on 5 June 1991 several teams of soldiers left Woodbourne RUC Station.

Corporal Blacklock led his "brick" of four countrywards up the Suffolk Road. Approaching

the laneway he and Private Boyce were on that side of the road with two other soldiers across

the road. At the entrance to the laneway the Corporal saw a man (who turned out to be the

appellant) walking down the alley laneway towards him. His hands were in the pockets of his

jacket and the Corporal told him, or motioned to him, to take them out of his pockets. This he

did and his right hand emerged, the Corporal says, holding a glass jar. The Corporal says he

told the appellant to put it on the wall which he did. The appellant accepts that he was

stopped as he came out of the laneway but denies that the jar was in his pocket or that he put

it on the wall. His case was that the jar was on the wall when he arrived and that he was never

in possession of it.

3. The bomb

On examination the glass jar turned out to be an improvised grenade commonly

known as a "coffee jar bomb". According to Dr Murray of the Northern Ireland Forensic

Science Laboratory this was the first to be recovered intact though it was suspected that one

had been involved in an incident in May 1991. It is clearly a potentially lethal anti-personnel

weapon the explosive substance being approximately half a pound of semtex. This semtex is

placed in a tube which together with a timing device is inserted into the jar which is closed by

the replacement of its screw cap. A

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detonator is inserted into the semtex through a hole in the centre of the cap. Attached to

the side of the jar is a plastic holder in which the detonator can be placed until the device

is to be primed prior to use. When found this device was primed and all that was required

to cause an explosion was for the jar to be thrown so that it broke causing the detonating

mechanism to operate.

4. The forensic evidence

The bomb, the appellant's clothing and residue swabs taken from him were

submitted to the Northern Ireland Forensic Science Laboratory for examination. The

relevant findings were

(a) the core of the bomb was semtex which is formed of two explosive

compounds RDX and PETN and a' plasticiser;

(b) the outside of the jar was not examined for explosive residues;

(c) RDX was detected on the left hand swab in the appellant's swabbing kit.

The evidence of Dr Murray did not reveal how much RDX was on the

swabs but he explained how it is detected by the use of gas

chromotography which can pick up a nanogram me or less. As a

nano gram me is a thousand millionth of a gramme a very minute trace can

produce a positive reading;

(d) no traces of RDX or PETN were found on any part of the appellant's

clothing and as Mr Philip Mooney QC, who appeared on behalf of the

appellant, emphasised this meant that no traces were found in either the

pocket in which the Crown says the bomb was or in the left pocket in

which the appellant's residue contaminated hand had been;

(e) there were no fibre traces from the appellant's clothing on the bomb.

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 Mr Mooney before this Court advanced a twin proposition as he had at the

direction stage and at the conclusion of the Crown case in the Crown Court: namely:

(a) that the soldiers' evidence was unsatisfactory in that it contained various

inconsistencies and was not in the context of all the evidence sufficiently

cogent to sustain a conviction; and

(b) that the forensic evidence not only did not sustain the Crown case but

either proved the innocence of the accused or raised such a real possibility

of innocence that he should have been acquitted.

In his argument before us, which followed naturally the helpful skeleton

argument which had been submitted to us, Mr Mooney focused his argument on the

forensic aspects of the case. He realistically recognised that his criticisms of the soldiers

reliability was very much a matter for the trial judge who had adverted to these points.

We have looked afresh at the relevant portions of the transcript and are entirely satisfied

that the judge was entitled to find that these matters of criticism did not discredit the

soldiers' evidence. Mr Mooney's argument however centred on the proposition that the

forensic evidence did fatally undermine the soldiers' evidence.

In this connection Mr Mooney wove together several propositions:

1. If the appellant had got RDX onto his left hand before being stopped by the

Corporal one would have expected traces of RDX on the inside of his left pocket.

2. There is an acceptable explanation for the left hand residue finding - namely that

when the appellant was brought over to the wall by the soldiers to view the bomb

he placed his left hand on the wall close to the bomb and his hand could

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 thereby have been contaminated. Further, if there was semtex on the wall from

the bomb it shows that there was some semtex on the surface of the jar.

3. If the bomb had been in the appellant's right hand pocket one would have

expected traces of explosive to have been found (a) on the inside fabric of the

pocket and (b) on the right hand of the appellant.

4. The absence of fibres from the appellant's jacket on the bomb confirmed that

it had not been in his pocket.

5. The fingerprints of the appellant were not found on the jar.

In the light of these propositions Mr Mooney argued that the judge was in error

in concluding (page 13) that the forensic evidence was "neutral" and he was

particularly critical of the following passage in the judgment claiming that the judge

had not appreciated his point that the forensic evidence in fact supported his, the

appellant's, case. That passage reads:

"For completeness I would say that I have not taken into

account the fact that traces of one of the major components
of the device were registered as being found on the sides of
the defendant's left hand. There is no explanation as to that
and I have left it out of account. "

Before looking at Mr Mooney's inter-related propositions it is well to pause and

remember what expert evidence is. An expert, and Dr Murray was clearly an expert

within his field of expertise, can give evidence (i) of fact e.g. the characteristics of a

fingerprint, or the group of some blood or the presence of some explosive residue and

(ii) of opinion i.e. inferences drawn from certain facts. Needless to say it is easier to

draw inferences from positive facts than from the absence of facts (sometimes referred

to as non-facts). Thus the absence of an accused's fingerprint on an object does not

justify the inference that he has not handled the object as he may have done so but left

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no identifiable print or he may have done so. when wearing gloves. A court will

appreciate objective evidence of opinion given by an expert but the weight to be given

to an expression of opinion is always a matter for the tribunal of fact. Thus in Davie

v Edinburgh Magistrates [1953] SC 34 at 40 Lord President Cooper said:

"[The duty of the expert witness] is to furnish the Judge or

jury with the necessary scientific criteria for testing the
accuracy of their conclusions, so as to enable the Judge or
jury to form their own independent judgment by the
application of these criteria to the facts proved by the
evidence. The scientific opinion evidence, if intelligible,
convincing and tested, becomes a factor (and often an
important factor) for consideration along with the whole
other evidence in the case. "

We return to Mr Mooney's propositions:

1. The left-hand pocket

We do not know how much explosive residue was on the appellant's left-hand

swab or where it was on his hand before swabbing. We do know that RDX was

identified but not PETN. We also know from Dr Murray that semtex is non-volatile,

is very persistent but will transfer. Thus it was not surprising to find him saying (page

370, Question 1244) "that transfer of the explosive will occur if the surface of the hand

comes into contact with the inside of the pocket". But as he immediately makes clear,

Q.1248, it is the contaminated surface of the hand which is available to transfer to the

inside of the pocket.

The appellant's explanation of this residue on his left hand is that when he was

being pushed forwards by the soldiers to view the bomb he put out his left hand to

support himself and must have got semtex on his hands then - the suggestion being that

someone moved the bomb from its original position and some semtex was left on the

wall having come from the base of the jar. We have carefully read this portion of the

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 appellant's evidence and are far from impressed by it. Our incredulity is confirmed

when we find that on one of the occasions when he was talking to his interviewers and

describing this incident he did not claim to have put his hand on the wall. Thus at the

interview on 7 June (7.30 to 9.50 pm) he was asked:

" Are you sure your fingerprints or fibres from your coat
pocket will not be found on this coffee jar/blast bomb?"

and replied:

"I went very close to it the soldier was holding me but I

didn't touch it and my clothes were nowhere near it. It was
sitting on the wall and the soldier asked me what it was, I
looked at it but that's all."

In this context two other pieces of evidence given by the plaintiff can be

mentioned. Firstly he claimed that another man had gone down the entry ahead of

him. This was denied by the soldiers and is clearly a matter which undermined his

credibility in the eyes of the judge. Secondly, he claims that he saw soldiers standing

close to and looking at the bomb and then he noticed that the detonator was in the clip.

This was clearly false evidence as the ATO found the detonator in the bomb so that it

was primed. In the context of all the evidence it seems to us that the first allegation

(about a third man) was an attempt to found the suggestion that this man might have

heen carrying the bomb and left it on the wall when he saw the soldiers. This scenario

fell out of the case, however, when the appellant said that this man passed to the

soldiers' right: that is the side away from the wall. The second allegation also seems

to have been an attempt to lay a factual basis for the claim that residues could have

been transferred to the appellant from the hands of the soldier who had been interfering

with the detonator.

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 2. The right hand pocket

This point centres on the proposition that there must have been residues on the

outside of the jar and Mr Mooney argues that if the appellant got his left-hand residue

from the jar there must have been residues on the jar. He also submitted that Dr

Murray's evidence supported his claim that in the course of making up the bomb some

residues are likely to have got onto the jar. Mr Mooney argued that Dr Murray had

amended his opinion on this point in the course of his evidence. At page 389

(Question 57) the judge said:

"The impression that one gets is that it would be difficult

to assemble this without some contamination being on the
outside. "

and Dr Murray responded:

"I was thinking about that since your honour rose

yesterday. It probably would not be all that difficult if a
conscious effort was made to make sure that there was no
contamination on the outside. "

Mr Mooney pointed out that this formulation differed from that at page 374 (Question

1272) when Dr Murray said "You could conceivably assemble the device with no

contamination to the outside or minimal contamination". If there is any distinction

between these two answers we much prefer that which he gave to the judge as it

accords with common sense. This bomb will have been assembled by a terrorist or

terrorists: terrorism has, sadly, been ongoing for many years and terrorists must be

well aware that forensic evidence may lead to their detection and conviction. Thus it

is highly likely that every safeguard will be taken to ensure that the bomb carrier or

bomb thrower will not be contaminated by residues. Thus we do not share Mr

Mooney's surprise that the bomb would have been clean. The fact that there was

residue on the appellant's left hand does not deflect us from this view - how he got

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 such a residue on his hand will remain unresolved but to secure a conviction the Crown

does not have to resolve every issue which arises in the course of the trial. This is

very much one of those cases where it is appropriate to repeat the observation noted

in Cowan and Others (1987) 1 NUB 15 at 37 and approved in Murray (p.39 of the

transcript judgment):

"In order to convict an accused of a crime the Court does not

have to be satisfied beyond all reasonable doubt that every
point of detail in the case presented by the Crown is correct,
but the Court has to be satisfied beyond all reasonable doubt
that the accused committed the crime with which he is
charged."

The fact that there was a residue on his left hand is a factor in this case: neither it, nor

; the absence of residues in either pocket or the absence of fibres from that pocket on

the jar prove or sustain the case- of the appellant. They are all factors in the case

which the judge in the context of this case was entitled to describe as "neutral".

3. Lack of fingerprints

This point highlights the dangers of seeking to draw positive inferences from

negative facts. We have already touched on this point - it is of no assistance to the

appellant and we would add that it is not surprising that there were no prints on the jar

after it had been handled and dealt with by the' ATO.

The question for our consideration is whether or not this conviction is unsafe

or unsatisfactory and Mr Mooney reminded us of the "lurking doubt" principle. If the

appellant's case is right it means that a terrorist group (and the coffee jar bomb is an

IRA favoured weapon) caused or permitted one of its new devices to be sitting on a

wall alongside a busy street, in the middle of a June day and on a route that security

forces would regularly take going to or coming from the Woodbourne base. This

seems a wholly unlikely scenario. Turning back to the all important facts of this case

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we have no doubt that the judge was fully entitled to accept the evidence of the soldiers and

conclude that the appellant had this bomb in his pocket, and we share that conclusion.

Accordingly the appeal is dismissed.

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