Craig Anderson v. Her Majesty’s Advocate [2017] HCJAC 33

Note of appeal against conviction:- The appellant was convicted after trial on indictment of a charge of theft by housebreaking and a charge of theft of a motor vehicle. The appellant appealed against his conviction on three grounds. The main issue was whether sufficient identification evidence was led at the trial to implicate the appellant. At the trial an objection to the admissibility of fingerprint evidence was taken. It had been contended that the Crown had failed to produce and serve a certificate under section 284 of the Criminal Procedure (Scotland) Act 1995 and failed to have a witness attend court to speak to the evidence relating to the appellant’s fingerprints on a Crown production created by the Livescan system. The sheriff repelled the objection and dealt with the issue as one of sufficiency, namely, whether there was sufficient evidence to entitle the jury to draw the inference that images of fingerprints taken from the appellant were those that were compared with the lifts taken from the scene of the break-in. It was submitted here on behalf of the appellant that the two witnesses led by the Crown, Dr Davis and Mr Foley, in relation to the carrying out of the comparison had no direct knowledge of the taking of the appellant’s fingerprints and were only able to speak to what was contained in the productions stored on the Livescan system. It was further submitted that the two police officers who spoke to the taking of the appellant’s fingerprints could not confirm that the fingerprints on the document produced by the Livescan system were those that were taken from the appellant. It was further submitted that if the evidence was admissible, the recovery of fingerprints on the outside of the window at the locus was not sufficient to allow the jury to draw the inference that the appellant was responsible for the break-in only that he was present outside the property and none of the items stolen had been recovered. It was further contended that the sheriff had failed to provide the jury with adequate directions in relation to what use they could make of the evidence of a reluctant witness who had been referred to a prior statement in his evidence. It was submitted that the jury should have been given a specific direction that the jury could only take into account the evidence given in court and any part of the witness’s statement that he had adopted in court and the remainder of the statement should be disregarded. The court rejected the three grounds of appeal advanced on behalf of the appellant. It was noted that the Crown sought to establish that the appellant’s fingerprints had been found at the scene of the break-in by:- (1) two police officers gave evidence about the taking of fingerprints from the appellant using the Livescan scanner; (2) Dr Davis and Mr Foley gave evidence about the workings of the secure Livescan system and how it showed when the fingerprints were taken and the name of the person from whom they were taken; and (3) Dr Davis and Mr Foley spoke directly to the comparison between the images disclosed in the document produced from the Livescan system and the images of fingerprints taken from the crime scene and that these matched each other. The court stated that there was no obligation on the Crown to make use of section 284 in order to prove the contents of the document and the court considered that the fingerprint evidence led was sufficient to entitle the jury to draw an inference that the images taken from the appellant at the police station matched the lifts from the crime scene. In relation to the recovery of the fingerprints outside the property the court rejected that ground of appeal. The court noted that the fingerprint was found on a window which, according to the evidence of the householders, was the point of entry and the jury was entitled to conclude that the fingerprint was left by the person who carried out the break-in. in relation to the directions given by the sheriff in relation to the use the jury could make of the prior statement the court noted that the Crown did not rely on the witness’s statement in their address to the jury. The court considered that the sheriff gave two important directions, firstly, that prior statements may be used by the jury to assess the credibility and reliability of a witness’s evidence and, secondly, the content of a prior statement could not be used as a substitute for the witness’s evidence from the witness box. In all the circumstances the appeal against conviction was refused.