McPherson v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Brodie,Lord Turnbull |
| Judgment Date | 19 March 2019 |
| Neutral Citation | [2019] HCJAC 21 |
| Date | 19 March 2019 |
| Court | High Court of Justiciary |
| Docket Number | No 18 |
[2019] HCJAC 21
Lord Justice-General (Carloway), Lord Brodie and Lord Turnbull
Anderson v HM Advocate [2017] HCJAC 33; 2017 JC 287; 2017 SCL 621; 2017 GWD 17-269
Campbell v HM Advocate [2008] HCJAC 50; 2008 SCCR 847; 2008 SCL 1245
Fox v HM Advocate 1998 JC 94; 1998 SLT 335; 1998 SCCR 115
Hamilton v HM Advocate 1934 JC 1; 1933 SLT 613
Langan v HM Advocate 1989 JC 132; 1989 SCCR 379
McGartland v HM Advocate [2015] HCJAC 23; 2015 SCCR 192; 2015 SCL 471; 2015 GWD 11-184
Maguire v HM Advocate 2003 SLT 1307; 2003 SCCR 758
Mitchell v HM Advocate [2008] HCJAC 28; 2008 SCCR 469; 2008 GWD 18-315
Reid v HM Advocate [2016] HCJAC 41; 2017 JC 37; 2016 SLT 797; 2016 SCCR 233; 2016 SCL 448
Ross v HM Advocate [2016] HCJAC 54; 2016 SCCR 380
Slater v Vannet 1997 JC 226; 1998 SLT 112; 1997 SCCR 578
Welsh v HM Advocate 1992 SLT 193; 1992 SCCR 108
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol I, para 64
Starkie, T, A Practical Treatise of the Law of Evidence (4th Dowdeswell and Malcolm ed, V & R Stevens and GS Norton, London, 1853), p 839
Walker, AG, and Walker, NML, Law of Evidence in Scotland (4th Ross and Chalmers ed, Bloomsbury Professional, Haywards Heath, 2015), para 5.9.3
Justiciary — Evidence — Sufficiency — Items possessed by accused found at locus of housebreaking — Whether sufficiency of evidence identifying accused as perpetrator of housebreaking
Richard McPherson (aka Cowan) was charged on indictment by the authority of the Right Honourable W James Wolffe QC, Her Majesty's Advocate, with a theft by housebreaking. The appellant pled not guilty and a trial took place before a sheriff (GK Buchanan) and a jury at Aberdeen. During the trial a defence submission of no case to answer was refused. On 11 June 2018 the appellant was convicted of theft by housebreaking. The appellant appealed against conviction.
The appellant was charged with theft by housebreaking. There was evidence that the appellant had purchased a mobile phone. The mobile phone, packaging and a receipt with the number for the new phone were given to the appellant within a branded carrier bag. About six-and-a-half hours later the locus was found to be disturbed and a window opened. The following day the locus was examined. Items were missing and the window had been damaged. A carrier bag had been left there, containing the receipt with a telephone number and packaging for a mobile phone, and a screwdriver. The screwdriver could have caused the damage to the window. The major deoxyribonucleic acid (‘DNA’) profile found on the bag handle matched that of the appellant. A submission of no case to answer was repelled and the appellant was convicted.
On appeal, it was argued for the appellant that there was an insufficiency of evidence linking the appellant to the theft by housebreaking. The respondent argued that the Crown case, at the stage of no case to answer, had to be taken at its highest. The link between the appellant and the carrier bag, and the bag and the theft by housebreaking, gave rise to a case to answer.
Held that: (1) the finding at the locus of an item which belonged to an accused or upon which his DNA or fingerprint had been left was a piece of circumstantial evidence which may link him to the scene and give rise to an inference that he was present at the material time, which in turn may lead to an inference that he committed the crime (para 8); (2) whether it was legitimate to draw the inference of involvement in the crime involved questions of fact and degree, and if one reasonable inference from the evidence was that the accused was a perpetrator then there would be a sufficiency of evidence notwithstanding the existence of other possible explanations (para 10); (3) it was a reasonable inference that the appellant had the carrier bag with him from the point at which he left shop until the time he forgot to take it with him along with the fruits of the...
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Appeal Against Conviction By Lc Against Hma
...which the Crown asked them to draw were reasonable inferences, whether to draw them should be left to the jury: McPherson v HM Advocate 2019 JC 171, paragraph 10. The judge had not misdirected the jury. So far as the first statement was concerned, he had made it clear that it did not provid......