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[1] The defendant has been arraigned and has pleaded not guilty to a single count of assisting in managing a meeting on 23 March 2008 which he knew was to be addressed by persons who professed to belong to a proscribed organisation, contrary to Section 12(2)(c) of the Terrorism Act 2000.
[2] At the start of the trial the defendant applied to the learned trial judge for a voir dire to determine the admissibility of two pieces of video evidence on which the prosecution case depended. The learned trial judge decided that the video clips were inadmissible. The prosecution now apply pursuant to Article 17 of the Criminal Justice (Northern Ireland) Order 2004 for leave to appeal that ruling.
[3] On 8 December 2008 Detective Constable McKee received a complaint regarding certain activities on 23 March 2008. He was directed to commence an investigation in relation to an Easter commemoration at Edendork, Dungannon on that date during which persons professing to be from the Continuity IRA made a declaration and fired two shots from a handgun. It appeared that the events had been filmed and distributed on the YouTube website. Sergeant Bleakley was instructed to download the recording from that website.
[8] It will, of course, be a matter for the trial judge in due course but where a defendant remains silent in face of comments made by his solicitor in his presence the court may be invited to draw an inference, depending on the circumstances, that the defendant has accepted the statement (see R v Norton [1910] 2 KB 496 ). It seems to us that in the circumstances of this case the judge will have to consider whether the comments of the solicitor are capable of amounting to an admission that the defendant was holding the microphone in close proximity to the two masked men.
Again it seems to us that it would be for the trial judge to determine whether it was proper to infer from the circumstances that by his silence he was accepting that the DVDs demonstrated his activities in relation to the events which occurred at Edendork on 23 March 2008.
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