Scott Colin Fowler v. Her Majesty’s Advocate [2019] HCJAC 35

Note of appeal against conviction:- On 7 August 2018, at Aberdeen High Court, the appellant and his co-accused, Slessor Buchan, were convicted after trial of a charge of assault and robbery involving the discharge of a shotgun and a charge relating to a contravention of section 19(a) of the Firearms Act 1968. The appellant was sentenced to 10 years imprisonment and his co-accused received a sentence of 7 years imprisonment. Evidence was led at the trial of the recovery of a single particle of firearms residue on a hat belonging to the co-accused and another particle was found on his jacket. Two particles of FDR were recovered from the appellant’s jacket. A forensic scientist gave that, where a single particle of FDR is recovered, it is not “really safe” to come to any conclusion, because it could have got there in various ways. The appellant appealed against his conviction in relation to criticisms of what the advocate depute had said to the jury in relation to the forensic scientist’s evidence on the recovery of the FDR and the failure of the trial judge to give adequate directions in how the jury should approach the expert evidence and the role of the expert. The advocate depute had said “...It is not a matter for ... a forensic scientist. ... It’s not a matter for me or any other lawyer in this court... it’s a matter for you and you alone. And you will have regard ... to what the scientist said in relation to ... the number of particles that were found here. ... but I suggest it’s for you to decide what that means...”. It was submitted on behalf of the appellant that the way the advocate depute had suggested to the jury they should proceed was incorrect and had not been rectified by the trial judge in the charge. It was submitted that the expert had not considered her findings in isolation, but in the context of the evidence which included Ms Shaw’s return from the locus to the appellant’s car (Ms Shaw had previously pled guilty to her involvement in the robbery and 17 particles of FDR had been found on Ms Shaw’s clothing) and the advocate depute’s comments were inappropriate and had invited the jury to speculate. On behalf of the Crown it was submitted that the recovery of the FDR on clothing belonging to the appellant was available to the Crown as one adminicle in the circumstantial case and it was for the jury to decide whether the charge against the appellant had been established having regard to all of the evidence and it was not the function of the expert to usurp the function of the jury. It was further submitted on behalf of the Crown that there was nothing improper about the advocate depute’s speech to the jury in which the jury were invited to consider how the expert evidence regarding the recovery of the FDR fitted with the remainder of the Crown case. Here the court refused the appeal. The court considered that there was nothing inappropriate regarding the advocate depute’s remarks to the jury in relation to how the jury might approach the expert evidence on the recovery of the FDR. Furthermore, the trial judge’s directions on how the jury should approach the expert evidence could not be faulted. The jury were directed that the scientist was not considering the recovery of the FDR in the context of the other potentially incriminating evidence, including the appellant and co-accused’s association with Ms Shaw, that the complainer had identified both as having physical characteristics resembling the robbers and he also said that three people had attacked him one of whom had been a woman. There was also evidence that the appellant was linked by his previous possession of a ‘Mexican mask’ which had a similar design to one used in the robbery. The court considered that, having regard to all of the other identification evidence, the significance of the recovery of the particle(s) of FDR became more telling.