CROWN APPEAL UNDER SECTION 107A and D OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995 BY HER MAJESTY'S ADVOCATE AGAINST (1) MARK CHUNG AND (2) BENJAMIN KINNAIRD
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 48
HCA/2017/000340/XC
HCA/2017/000341/XC
Lord Justice Clerk
Lord Menzies
Lord Turnbull
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
CROWN APPEAL UNDER SECTION 107A and D OF THE CRIMINAL PROCEDURE (SCOTLAND) ACT 1995
by
HER MAJESTY’S ADVOCATE
Appellant
against
(1) MARK CHUNG and (2) BENJAMIN KINNAIRD
Respondents
Appellant: Meehan, AD; Crown Agent
First Respondent: Mitchell, Sol Adv; Ross & Fox, Glasgow
Second Respondent: Graham; Harding & Co, Glasgow
7 June 2017
[1] Where the jury may be satisfied beyond reasonable doubt that the circumstances of two, or more, offences libelled together are such that they must have been committed by the same person, they may rely upon proof – in the sense of corroborated evidence – of identification on one charge to support conviction on the other charge, even though there may be a lack of evidence relating to identification on that other charge.
[2] The doctrine in Howden v HMA 1994 SCCR 19 thus operates where there has been, “full legal proof of identification” (Gillan v HMA 2002 SLT 551) on the one charge, but a lack of identification in another or others. The operation of the doctrine means that:
“If the evidence shows that two crimes were committed by the same person, then the evidence that the first was committed by the accused entitles the jury to convict him of the second.” (Gillan, per the Lord Justice Clerk (Gill), para 19).
If the evidence as to particular features of the separate offences is such as would entitle a jury to reach the conclusion that the offences were committed by the same person, these factors provide “circumstantial evidence to the effect that the perpetrator on one charge was the same person who is identified as having been the perpetrator on the other” (Gillan, para 20).
[3] There are thus two elements to the doctrine: proof sufficient to establish the accused as the perpetrator of one of a series of offences; and proof of common circumstances between that offence and others in the series, of a kind which bear on the question of identity of the perpetrator of those other offences in such a way as to enable the conclusion to be drawn that the same individual committed both, or all of the offences.
[4] The starting point for the operation of the doctrine must thus be legal proof of identification of the appellant as the perpetrator of at least one of the offences. That proof may involve eye witness identification; it may not. Evidence capable of establishing that an accused was the perpetrator of an offence may equally come from circumstantial evidence. The evidence which was found to be a sufficient starting point in Martin v HMA 2016 SCCR 276, was circumstantial evidence which was held to be sufficient to establish proof of charge 5 in that case. That enabled the Howden doctrine to be applied as between charge 5 and the remaining charges on the indictment, which were all charges of fire-raising. The respondents submitted that it was a particular feature in Martin that the appellant had been identified as being present at the scene of all the other fires. That of course is correct: but it is not a relevant factor to the first question which arises for operation of Howden, which is simply the question whether there is sufficient proof implicating the accused in that offence. As can be seen from Martin, the “full legal proof of identification” may come from circumstantial evidence; it may come from forensic evidence alone. Therefore, in so far as the trial judge in the present case appears to have concluded that Howden could not be applied where the basis of proof of the foundational charge was a circumstantial one, he fell into error.
[5] Turning to the second important element of the doctrine, namely whether the circumstantial evidence relating to the similarities between the charges were such as would entitle the jury to hold that both crimes were committed by the same person, as the court in Gillan observed, the essential question is
“not simply whether the two crimes libelled are similar in type or in the manner and circumstances of their being committed. The essential question is whether these and any other similarities go to the identification of the accused as the perpetrator of both. It is at this stage, in our view, that the jury must approach the evidence with great care.” (para 24).
[6] In fact, in the present case both the solicitor advocate for the first respondent and counsel for the second respondent had accepted that there were sufficient similarities in the three charges of a kind which would permit the operation of the Howden doctrine, were it possible to apply it. The only argument was that the doctrine could not apply in the absence of eye witness identification in respect of the foundational charge. It is clear to us that the factors relied upon by the Crown provide ample similarities of the kind necessary for the application of the doctrine. In the circumstances the appeal will be granted and the acquittal of the respondents on charges 1 and 2 will be quashed.