APPEAL AGAINST CONVICTION BY COLIN REID AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 41
HCA/2015/2066/XC
Lord Justice General
Lord Bracadale
Lady Clark of Calton
OPINION OF LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
COLIN REID
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: CM Mitchell; Faculty Services Limited (for Burkingshaw Criminal Defence, Peterhead)
Respondent: Erroch AD; the Crown Agent
3 March 2016
Introduction
[1] This appeal raises a sharp issue of sufficiency of evidence in circumstances where an item has been left at the scene of a housebreaking, upon which DNA is found linking it to the accused. The court has looked at recent dicta in: Dunbar v HM Advocate 2015 SCCR 186 and McGartland v HM Advocate 2015 SCCR 192 against the background of Campbell v HM Advocate 2008 SCCR 847; Maguire v HM Advocate 2003 SCCR 758; Welsh v HM Advocate 1992 SCCR 108; and, much earlier, Hamilton v HM Advocate 1934 JC 1. There is a side issue about the corroboration of a householder’s testimony that items had been stolen during the “ransack” of her home.
The Trial
[2] On 21 April 2015, after a trial at the Sheriff Court in Inverness, the appellant was found guilty of a charge which libelled that:
“on 31 March 2013 you ... did break into the residential property ... at ... Drumnadrochit ... and steal jewellery, a watch and a jewellery box.”
He was sentenced to 15 months imprisonment.
[3] The locus is a detached house in Drumnadrochit, not far from Urquhart Castle. The female householder, who was aged 76, gave evidence that, on Sunday 31 March 2013, she went out, leaving the house secure. When she returned at about 2.30pm, she noticed that a bureau in her sitting room had been emptied onto the floor, as had a drawer of a cabinet in the lounge. Glass in an internal door leading from her dining room to a conservatory had been smashed. Similarly, the door then leading out into her garden had been broken. Upstairs bedroom doors had been opened.
[4] The householder said that, when the police came, they discovered a cigarette butt in the conservatory. It had been taken away by a scenes of crime officer. Neither the complainer nor her husband smoked. There had been no workmen in the house before the incident. The appellant had never been in her house with her permission. Her husband would not have instructed anyone to do odd jobs without telling her. She had noticed the cigarette butt on the carpet, to the right of the patio door. It was very near to where the entry point would have been. She had signed Label No.1 (“plastic bag containing cigarette butt”), although she could not remember having done so.
[5] The scenes of crime examiner gave evidence. Inside the house, he had found a stone, which had been used to gain entry by breaking the glass doors. He referred to some of the rooms, notably the dining room, livingroom and a bedroom as having been “ransacked”. He took possession of a cigarette “end”, (Label No.1) which was just inside the point of entry at the patio door. He had signed the label of the butt and had asked the complainer to do so. The butt had later been “taken apart”, although at the time it had been reasonably round in shape and reasonably clean. It had been intact, but was now fragmented.
[6] In terms of a joint minute, it was agreed that:
“The ... DNA sample from the accused ... was compared with ... Label 1 – a cigarette butt. Cellular material on the cigarette butt was analysed and the partial male profile obtained matched the corresponding DNA types in the DNA profile of the [appellant]. The estimated probability of finding such matching DNA profiles if another male unrelated to [the appellant] is the contributor of this DNA is 1 in more than 1 billion ...”.
[7] The sheriff formed the view that there was sufficient evidence from which to infer that the person who had smoked the cigarette was the same person who had been the perpetrator of the crime. The butt had been found close to the point of entry and exit. It had not been there when the house had been secured, but had been there shortly after it had been broken into. The butt had been in a reasonable condition, suggesting that it had not been brought into the house on a shoe. She repelled the no case to answer submission.
[8] The appellant gave evidence that he had lived in Skye and did general gardening and related work, including in the Drumnadrochit area. He did not say that he recognised the complainer’s house. He did put flyers through doors. He explained his DNA being on the cigarette butt on the basis that he was a smoker and, at the end of March, he would have been handing out flyers in the area. He sometimes shared his cigarettes with others.
Submissions
Appellant
[9] The first contention was that the evidence had been insufficient. The Crown intended to concede that there was no corroboration of the theft, thus leaving a conviction of housebreaking with intent to steal. Otherwise, the evidence was from a “single source”. Hamilton v HM Advocate 1934 JC 1, in which the appellant’s fingerprints had been found on a bottle at the locus, could be distinguished. Similarly, Langan v HM Advocate 1989 JC 132, in which a fingerprint in blood had been found, was different. In the present case, there was no evidence about when the DNA had been put on the butt. It was not clear whether the butt had been smoked. In contrast, Welsh v HM Advocate 1992 SCCR 108 had involved “wet blood” DNA. On the other hand, in Dunbar v HM Advocate 2015 SCCR 186, it had been determined that, where the only evidence was a DNA “match” of 1 in 4 million, this was insufficient. The statistical strength of the DNA finding did not provide a corroborated circumstantial case that the appellant had been the perpetrator. There was a lack of evidence on how, why, when and where the cellular material containing the appellant’s DNA had come to be on the butt. It was speculation to say that he had smoked the related cigarette.
[10] The second contention was that the sheriff had not properly directed the jury on where corroborated evidence of the appellant’s participation in the housebreaking could be found. She ought to have explained what evidence the jury had to accept, and what inferences they required to draw, before finding the case proved.
Crown
[11] The advocate depute did concede that there was insufficient corroboration of theft of the items libelled (McDonald v Herron 1966 SLT 1). There was, on the other hand, sufficient evidence that the appellant had been the housebreaker. It had been a common sense inference that the appellant had smoked the cigarette. It was settled law that, if an accused person leaves anything at the scene by which his presence at the time of the offence can be proved, and he can give no reasonable explanation for that presence, the jury may convict him of an offence such as housebreaking or theft (Hamilton v HM Advocate (supra)). Procurator Fiscal, Hamilton v HC [2014] HCJAC 68 and Dunbar v HM Advocate (supra) could be distinguished. The statistical probability in the DNA finding was much higher than in Dunbar; the match here being the highest degree of probability. The nature of a cigarette butt meant that secondary transfer was unlikely (cf McGartland v HM Advocate 2015 SCCR 192). No specific directions on sufficiency had been required.
Decision
[12] The householder gave clear, and unchallenged, evidence that, in essence, her house, or part of it, had been broken into, searched and certain specific items taken from it. For a sufficiency of evidence for theft, the search for corroboration falls to be carried out in terms of the Lord Justice General (Rodger)’s dictum in Fox v HM Advocate 1998 JC 94 (at 100). It merits repetition:
“While evidence can provide corroboration only if it is independent of the direct evidence which it is to corroborate, the evidence is properly described as being corroborative because of its relation to the direct evidence: it is corroborative because it confirms or supports the direct evidence. The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met.”
Fox rejected the fallacy in Mackie v HM Advocate 1994 JC 132 that circumstantial evidence is corroborative only if it is more consistent with the direct evidence than with a competing version.
[13] It is worth commenting in limine that the issue of a sufficiency of evidence for theft was not raised at the trial or in the Note of Appeal. Thus the court does not have a report from the sheriff on the issue. It may be that there were other adminicles of evidence bearing on the issue. However, as matters stand, there was evidence from the scenes of crime officer that the house had been “ransacked”. The word “ransack” brings with it a notion not only of disturbance, but search (see the original Old Norse meaning in Shorter Oxford English Dictionary), plunder and pillage (ibid, see also Chambers and Collins Dictionaries) in the sense of randomly stealing things, as well as causing general chaos and destruction (Penguin: Concise English Dictionary). Whatever precise meaning was intended by the scenes of crime officer, his testimony conveyed the idea of search for the purpose of theft. As such, independent evidence that a house was “ransacked” provides confirmation or support for a householder’s testimony that that is indeed what happened, ie items were stolen in the course of a housebreaking.
[14] The concession from the Crown is thus not a sound one. In that respect, the present circumstances are to be distinguished from the situation where there is no evidence at all to corroborate a person’s account of a possession having been removed. That was the position in McDonald v Herron 1966 SLT 61. It appears to have been the rationale in Procurator Fiscal, Hamilton v HC [2014] HCJAC 68, although it is not clear why, in that case, evidence that money had been removed from a drawer was not corroborated by video footage of the respondent removing “items” from the drawer, which she had no reason to be accessing, and putting them in her pocket. It is not necessary to prove theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance.
[15] In Hamilton v HM Advocate 1934 JC 1, a shop had been broken into and goods and cash stolen. It could be inferred that the culprit had refreshed himself from a bottle of raspberry wine during the break-in. His fingerprints were on the bottle, which had been wrapped in paper. The accused lived locally, but otherwise the fingerprint evidence, spoken to by two witnesses from Scotland Yard, was all that there was to incriminate him. The Lord Justice General (Clyde) said (at 4):
“Finger-print evidence is undoubtedly competent; that is settled. If it is believed, it constitutes real evidence of the presence of the accused at the scene of the crime, in something the same way as a fragment of clothing (left behind by the criminal) or his boot-mark might be.”
Lord Sands made some additional observations (at 5):
“It is well settled ... that, if an accused person has left anything by which his presence on the scene at the time of the offence can be proved and he can give no reasonable account of his presence there, the jury may convict him of such an offence as housebreaking or theft. Now, what was left, or used to be left, occasionally in the past was generally garments or such instruments as tools. But I do not see any reason why it should be held on the one hand that to leave a chattel behind which clearly shows the owner’s presence warrants a conviction if the jury so judge, while on the other hand, if a man leaves something behind which just as clearly shows his presence in the shape of a finger-mark, it should be unreasonable for the jury to convict.”
In a later passage (at 6) he added:
“I do not say for a moment that a jury are bound to accept finger-print evidence, and expert evidence connected with it, in every case as conclusive. It is a question for the jury in the particular case, and, in order to disturb their verdict, it would be necessary to conclude that it was not a view which a jury might reasonably have taken.”
Lord Sands’ reference to the issue being one of fact for the jury rather than one of law for the judge is important in defining the respective roles and distinguishing sufficiency of evidence from reasonableness of verdict.
[16] There have been several reported instances thereafter in which the finding of a fingerprint at a locus has been advanced as providing a sufficiency of evidence that an accused person has been present at or about the time when a crime has been committed. They provide an analogy for DNA cases (infra). Sometimes, where the object upon which the fingerprint was discovered could readily have found its way into the locus from an innocent setting, the evidence has been held insufficient to place the accused at the scene at the relevant time. The existence of other possibilities than that presented by the prosecution appear to have been regarded as fatal to a conviction in certain circumstances, especially where a print is found on ubiquitous plastic shopping or bin bags. This is best illustrated in Slater v Vannet 1997 SCCR 578 and Campbell v HM Advocate 2008 SCCR 847.
[17] In Slater the charge of theft by breaking into commercial premises was not made out where the accused’s palm-prints were found on a plastic bag in the particular premises, which the appellant said he had recently visited, as he had neighbouring premises. The premises were open to the public during normal trading hours. Campbell is an example of differences in judicial opinion on just what can be inferred from the presence of a fingerprint on a bin bag wrapping a rifle and concealed in an accused’s girlfriend’s flat, where he stayed, and where he was when the rifle was discovered. The trial judge and 4 sifting judges had considered it not even to have been arguable that this evidence was insufficient to allow the jury to infer the accused’s connection with the rifle. Upon a reference from the Scottish Criminal Cases Review Commission, 3 different judges reached a radically different conclusion, holding that the only inference was that the accused had, at some point, come into contact with the bag used to wrap the rifle. He might, it was said, have done this before the bag was used to wrap the rifle, although the appellant had given no evidence of such a possibility and there were no other bin bags in the flat. In holding that the evidence was insufficient, the court were content to observe (at para [21]) that, although:
“It would be for the jury, examining the circumstantial evidence as a whole, to decide what inferences to draw ... in our view the evidence ... did not reach the stage or attain the level at which a jury would be entitled in law to consider competing interpretations including one of guilt ...”.
The decision seems to straddle sufficiency and reasonableness. Whilst acknowledging that inferences of fact are for the jury to determine, their ability to do so was instantly removed. The jury had, of course, been content to draw the inference complained of.
[18] The court in Campbell took time and care (at paras [23] et seq) to contrast the circumstances with those in similar cases. Thus in Maguire v HM Advocate 2003 SCCR 758 the finding of the appellant’s DNA on the inside surface of a mask, discarded in the course of a robbery, was sufficient, but a mask was not “an impersonal or neutral item such as [a] black plastic bag”. It is helpful to repeat the dictum of Lord Hamilton in Maguire (at para [18]) quoted in Campbell (at para [23]):
“Much will depend on the nature of the item on which the fingerprint or other identifying link was found and its association in time and in place with the crime. The readiness with which the accused may innocently have come to be in contact with such an item may be such that, even in the absence of an explanation from him, no inference of sufficient association between him and the crime can legitimately be drawn”.
That, as stated, is no doubt correct as a generality. However, judges must remain wary of trespassing into the jury’s realm of fact. What inferences are to be drawn from evidence that an accused is proved to have handled a particular object, including wrapping, found at the scene of a crime must be a matter primarily for the jury to assess. Recourse can usefully be had to Lord Sands’ dictum (supra), in relation to fingerprints, that it is only when the jury’s inference reaches the level of unreasonableness that an appellate court should intervene.
[19] The same basic principles apply in DNA cases (Welsh v HM Advocate 1992 SCCR 108, LJC (Ross) at 118) even if the statistics in DNA findings may not demonstrate the certainty of fingerprint comparison evidence, where no conclusion is presented by the experts until a specific number of points of identity are found.
[20] It may not be especially helpful to describe all the cases in this area. Each can be said to turn on its own facts. Langan v HM Advocate 1989 JC 132, for example, is at the other end of the spectrum, in which a bloody fingerprint could be said almost inevitably to lead to an inference of guilt. It remains interesting, however, that the Lord Justice Clerk (Ross) was at pains (at 135) to stress that, whether a jury might draw a particular inference, may “turn upon whether any explanation was put forward by the appellant for the presence of his fingerprint”. It is important for a judge not to lose sight of the need for an evidential base for any alternative innocent explanation unless it is one which is so obvious, having regard to the ways of the world, as to require no support from the witness box.
[21] Dunbar v HM Advocate 2015 SCCR 186 follows the same line of reasoning as appears in Campbell (supra). The evidence demonstrated that a package had been sent from a Post Office in Leith to Saughton prison containing 5 books. Concealed in the spine of each book was a brown envelope containing drugs. In the area of the seal of one of these envelopes was cellular material from which an incomplete DNA profile was obtained. This was male in origin and matched that of the accused. The probability of finding such matching DNA from a male other than the accused was 1 in 4 million. This was based on a Caucasian database, which statistically favoured the accused. Other material on the envelopes produced a DNA match with a co-accused who was caught on CCTV in the post office when the package was posted by a third party in his company.
[22] To some, including the sheriff and the jury, the statistically based DNA evidence created a sufficient link between the accused and the placing of drugs into the envelope. A figure of 4 million to one in the context of a local Edinburgh crime, in which the accused were from that vicinity, may seem bordering on the conclusive, in the absence of an explanation from the accused as to how what was effectively his DNA came to be on the area of the seal of one of the envelopes. Yet the court found that the statistical base was insufficient. Lord Eassie’s reasoning, with which the other members of the court agreed on this point only, was that the 1 in 4 million was “very far from attributing, or even approaching, the uniqueness of identity” of fingerprints. Because, upon his arithmetic (using for some reason the population of the United Kingdom), there was a 0.87 per cent chance that some other male in the UK had produced the DNA on the envelope, there was an insufficient link to the appellant. There was “simply ... a possibility that he, among an indeterminate plurality others (sic), may be a possible source of the crime scene cellular material”. Once again, this may be seen as a surprising view of the statistical base. A more reasonable approach may be to restrict the geographical spread of the cohort of potential culprits to the Edinburgh area. The statistics may then be seen to approach the degree of mathematical certainty which juries are asked to guard against when assessing reasonable doubt.
[23] It is worth remarking en passant that, in so far as the SCCR rubric (part (2)) in Dunbar (supra) suggests that the court held that the jury had not been entitled to infer that the DNA on the seal came from saliva, it is incorrect. That was the view of Lord Eassie alone.
[24] The sister of Dunbar is McGartland v HM Advocate 2015 SCCR 192, decided by the same court on the same day but reaching a different conclusion. There, the DNA of the accused was found on a knot of the clingfilm which packaged drugs smuggled into Kilmarnock prison in a parcel posted in Newlands. This time the match was 1 in 158 million. The appellant’s son was a prisoner, although he was not the addressee. The appellant had no explanation for the presence of what must have been his DNA. Lord Malcolm correctly reminded himself (at para [27]) of the different functions of judge and jury. In rejecting the contention that the sheriff ought to have sustained the no case to answer submission, he said (at para [28]):
“... the presence of the appellant’s DNA on [the knotted] part of the polythene package, allowed the inference that he was involved in the supply of the drugs ... In the absence of any contrary explanation, this allowed the jury to reach the view that it had been proved that the appellant was knowingly participating in, and therefore concerned in, the whole operation.
[29] On many occasions the court has recognised that there can be circumstances which call for an explanation, and that the absence of such from an accused is a relevant consideration for the jury (Langan v HM Advocate (supra) is a good example) While all accused persons have a right to silence, they should be aware that if there is an innocent explanation, but it is never tendered, there can be consequences.”
[25] All of this appears eminently sensible and sound in law. Yet, reconciling Dunbar and McGartland may only be possible upon the basis of the difference between 1 in 4 million and 1 in 158 million. In the present case, the statistic is 1 in 1 billion and that is sufficient upon which to hold that the jury were entitled to hold that it was the appellant’s DNA on the cigarette butt. It does, however, leave a question about just what statistic is required for proof beyond reasonable doubt. That is a matter which may need to be revisited by a larger court, which may also attempt to review what may be seen as differing judicial views on what is a matter for a jury and what for a judge.
[26] On the basis that the appellant’s DNA was indeed on the butt, which is the end of a smoked cigarette, the question is what inference can be drawn from that. The answer may appear straightforward. It is that the appellant had been smoking the cigarette at some point and, for whatever reason, he had dropped or lost it in the course of the housebreaking. There are other possible explanations, but, at the no case to answer stage (with which this appeal is concerned), there was none from the appellant. In these circumstances, the sheriff was bound to refuse the defence submission. Thereafter, the appellant tendered his explanation and this was ultimately rejected by the jury. There was no need for the sheriff to give any special “route to verdict” instructions in what was a relatively straightforward trial.
[27] The appeal is refused.
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 41
HCA/2015/2066/XC
Lord Justice General
Lord Bracadale
Lady Clark of Calton
OPINION OF LORD BRACADALE
in
APPEAL AGAINST CONVICTION
by
COLIN REID
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: CM Mitchell; Faculty Services Limited (for Burkingshaw Criminal Defence, Peterhead)
Respondent: Erroch AD; the Crown Agent
3 March 2016
[28] I agree that for the reasons set out by your Lordship in the chair this appeal should be refused. In addition, I agree that the evidence of the householder that items were stolen is sufficiently corroborated by the evidence from the scenes of crime officer that the house had been “ransacked”.
[29] I also have some concern about the approach to the statistical evidence of the court in Dunbar v HM Advocate 2015 SCCR 186. Without, in the absence of expert evidence on the matter, forming a concluded view, it seems to me that the approach in Dunbar might be valid if the appellant had been drawn at random from the population of the United Kingdom. But that is to ignore the other evidence in the case. That evidence reflected the local nature of the case. The package was sent to HM Prison Edinburgh. The postal box used to dispatch the books in which the sealed envelopes containing the drugs were secreted was purchased in the Post Office at Leith and the package was then posted there. Assuming that the inference could be drawn that the DNA on the seal was deposited by the person who sealed the envelope (while Lord Eassie considered that that inference was not open, the other judges reserved their position on this matter), it would be a reasonable conclusion that that too was done in the Edinburgh area. It would appear that the accused came from the Edinburgh area. Accordingly, it seems to me that the approach to the statistical evidence in Dunbar requires to be considered with a degree of caution.
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 41
HCA/2015/2066/XC
Lord Justice General
Lord Bracadale
Lady Clark of Calton
OPINION OF LADY CLARK OF CALTON
in
APPEAL AGAINST CONVICTION
by
COLIN REID
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: CM Mitchell; Faculty Services Limited (for Burkingshaw Criminal Defence, Peterhead)
Respondent: Erroch AD; the Crown Agent
3 March 2016
[30] I agree that this appeal should be refused. As I adopt a narrow approach to the appeal, it may be helpful to set out briefly my reasons.
[31] The main issue raised by the appellant is whether the sheriff erred in refusing to uphold the submission on behalf of the appellant at the end of the Crown case, that there was insufficient evidence to identify the appellant as the perpetrator of the offence charged. There was an alternative ground of appeal in relation to the terms of the charge given by the sheriff in relation to the identification evidence.
[32] At the end of the Crown case, there was evidence that a cigarette butt found inside the householder’s house, near the point of entry, at the outer glass door, which had been broken by a stone to gain entry to the house. There was evidence from the scene of crimes officer about the recovery of the cigarette butt. A Joint Minute agreed that the police took a DNA sample, in the form of a mouth swab, from the appellant; the said DNA sample was analysed and compared with said cigarette butt; cellular material on the cigarette butt was analysed and a partial male profile obtained, matching the corresponding DNA types in the DNA profile of the appellant; the estimated probability of finding such a matching DNA profile with another man, unrelated to the appellant as the contributor of this DNA, is 1 in more than 1 billion. This was not a case in which there was any evidential dispute about the DNA evidence and no forensic expert was led. At the end of the Crown case, there was no innocent explanation to explain the appearance of a cigarette butt with the DNA results in a position inside the house, near to the point of entry, in circumstances where the householder had left the house secured, prior to the break-in, with no cigarette butt in that area.
[33] In my opinion, on the evidence available, there was a sufficiency of evidence which would entitle the jury to infer that the appellant had smoked the cigarette butt and dropped it in the course of perpetrating the offence.
[34] I consider, however, that the facts in this case are very far removed from Dunbar v HM Advocate 2015 SCCR 186. There are potentially many difficulties which may arise in trying to assess the probative value of DNA evidence and the sufficiency thereof on the facts of an individual case. DNA profiling evidence, in its current form, does not uniquely identify individuals and both the science and statistical underpinning of DNA evidence may be very complex. In this appeal, we have had no opportunity to consider expert evidence in any form. I am not persuaded therefore that, in this appeal, this court is well placed to assess the forensic evidence and statistics considered by the court in Dunbar. My opinion is therefore restricted to the particular circumstances of the present case.
[35] Counsel for the appellant was also critical of the charge to the jury. I consider that there is no merit in this submission. The sheriff gave standard directions in this simple evidential case.
[36] The Lord Justice General also refers to a side issue about the corroboration that items had been stolen during the “ransack” of the house. This issue was not raised by the appellant and is not part of the appeal. We have no report by the sheriff. For these reasons I consider that the issue should not be entertained. The advocate depute did raise this matter, but the court was not fully addressed about this issue, which may have more general implications.