Colin Reid v. Her Majesty’s Advocate [2016] HCJAC 41

Note of appeal against conviction:- On 21 April 2015, at Inverness Sheriff Court, the appellant was convicted after trial on indictment of a charge of theft by housebreaking. He was sentenced to 15 months imprisonment. The appellant appealed against his conviction on the grounds that there was insufficient evidence implicating the appellant for the offence. Evidence was led at the trial of a cigarette which was recovered from the locus which was forensically examined and found to have cellular material on the cigarette butt which was analysed and the partial male profile obtained matched the corresponding DNA types in the DNA profile of the appellant and the estimated probability of finding such matching DNA profiles if another male unrelated to the appellant as the contributor of this DNA was 1 in more than 1 billion. The householder said in evidence that neither she nor her husband smoked, that there had been no workmen in the house before the incident and the appellant had never been in her house with her permission. A scenes of crime officer gave evidence that the property had been ransacked. A ‘no case to answer’ submission, in terms of section 97 of the Criminal Procedure (Scotland) Act 1995, was made and repelled with the trial sheriff holding 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. It was submitted on behalf of the appellant that there had been insufficient evidence to convict the appellant. It was submitted that there was no evidence about when the DNA had been put on the butt and it was not even clear whether the butt had been smoked. It was submitted that it was speculative to say that the appellant had smoked the cigarette. On behalf of the Crown it was conceded that there was insufficient corroboration of the theft of the specific items libelled, however, there was sufficient evidence that the appellant had been the housebreaker as it was a legitimate inference that the appellant had smoked the cigarette. It was further submitted on behalf of the Crown that where an accused person leaves an item at a locus 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. Here the court refused the appeal. The court considered a number of authorities in relation to DNA evidence and what amounts to a sufficiency in relation to identification. The court noted that the complainer gave clear evidence that her house had been broken into and the scenes of crime officer gave evidence of the property having been ransacked. As such the court considered that the Crown concession ought not to have been made as it was not necessary to have two separate sources describing the specifics of the missing items. The court noted that there are cases where fingerprints at a locus has provided a sufficiency that an accused person has been present at or about the time when a crime has been committed and DNA evidence is similar. The court also noted that there have been cases where fingerprints on an object could have found their 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, for example, prints on moveable objects like shopping bags or bin bags have not been sufficient for proof of an accused at a locus at the relevant time. The court considered, amongst others, the recent case of Dunbar v HMA 2015 SCCR 186, in which it was determined that, where the only evidence was a DNA “match” of 1 in 4 million, that was insufficient. The court also considered the case of McGartland v HMA 2015 SCCR 192, in which 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 Glasgow and the match was 1 in 158 million and was considered to be sufficient. The court observed that the same basic principles apply between DNA and fingerprint cases albeit there are statistical variations in the conclusions that may be drawn. The court concluded that the statistic of 1 in 1 billion allowed the jury to hold that it was the appellant’s DNA on the cigarette butt and entitled an inference to be drawn that the appellant had been smoking the cigarette at some point during the course of the housebreaking and had dropped the butt. The court noted that there were other possible explanations but at the ‘no case to answer’ stage, when the sheriff made the decision against which the appeal was focused, there was no other explanation put forward.