Appeal Against Conviction By Colin Reid Against Her Majesty's Advocate

JudgeLord Justice General,Lord Bracadale,Lady Clark Of Calton
Neutral Citation[2016] HCJAC 41
Published date28 April 2016
Date03 March 2016
CourtHigh Court of Justiciary
Docket NumberHCA/2015


[2016] HCJAC 41


Lord Justice General

Lord Bracadale

Lady Clark of Calton










Appellant: CM Mitchell; Faculty Services Limited (for Burkingshaw Criminal Defence, Peterhead)

Respondent: Erroch AD; the Crown Agent

3 March 2016

[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.

[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.

[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.

[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,...

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