Her Majesty’s Advocate v. (1) Mark Chung and (2) Benjamin Kinnaird [2017] HCJAC 48

Crown appeal under section 107A and D of the Criminal Procedure (Scotland) Act 1995:- At the close of the Crown case the court upheld ‘no case to answer’ submissions made on behalf of the respondents in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. Under section 107A and D of the Criminal Procedure (Scotland) Act 1995, the prosecutor may appeal to the High Court against an acquittal under section 97 of the 1995 Act for an expedited appeal and did so in the present case. At the trial the Crown had relied upon the application of the doctrine in Howden v HMA 1994 SCCR 19, namely, where the evidence shows that two crimes were committed by the same person then identification evidence that one charge was committed by an accused entitles the jury to convict him of the second charge. The trial judge considered that the doctrine could not apply in the absence of eye witness identification in respect of the foundational charge and that Howden could not apply where the proof of identification on the foundation charge was circumstantial. The Crown appealed against that decision. The court granted the appeal and quashed the respondents’ acquittals in relation to charges 1 and 2. The court considered the application of the Howden doctrine and noted that there are two elements to the application of the doctrine:- (1) proof (by corroborated evidence) to establish the accused as the perpetrator of at least one of a series of offences; and (2) proof of common circumstances between that offence and others in the series of offences which allows the conclusion to be drawn that the same individual was responsible for the offences. The court noted that it had been accepted on behalf of the respondents that there were sufficient similarities between the relevant charges which would permit the application of the doctrine and the submission made on behalf of the respondents had been restricted to the absence of any positive eye witness identification in relation to the foundation charge. Here the court reiterated what was said in Martin v HMA 2016 SCCR 276, where forensic evidence was held to be sufficient for proof of identification in the foundation charge in that case, that the question is whether there is sufficient proof implicating the accused and that full legal proof of identification need not come from a positive eye witness identification but can come from circumstantial evidence.