David Dunbar v. Her Majesty’s Advocate [2015] HCJAC 22

Appeal against conviction:- On 20 February 2014 the appellant was convicted after trial on indictment, along with his co-accused, of being concerned in the supply of diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The co-accused was also convicted of a charge of being concerned in the supplying of cocaine. The jury acquitted the appellant of that charge. The circumstances of the offences were that 5 books were received into HMP Saughton inside a box. Within the spine of each of these books were quantities on drugs within a sealed brown paper envelope. Four of those envelopes contained powder which on subsequent analysis was found to include diamorphine. The fifth envelope also contained a quantity of powder which contained cocaine. The postal markings on the package indicated that the packet had been posted at a post office in Leith. CCTV footage from the post office in question was recovered. The footage showed the co-accused, Wayne Johnston, entering the post office with another man, Thomas Seath. Seath was also charged, with the same charges, on the same indictment but his plea of not guilty was accepted by the prosecutor prior to the commencement of the trial of the appellant and Wayne Johnston. The CCTV footage showed Seath purchasing the postal box, placing within it the carrier bag containing the books, and thereafter closing, addressing and posting the box, all in the presence of the co-accused Johnston. In relation to the appellant, however, the only evidence tendered by the prosecutor was the evidence of one of two forensic scientists who had examined a mouth swab taken from the appellant by police officers and portions of the paper envelopes, including the seal area, which had been found in the spines of the books within the carrier bag in the postal box. No other admissible evidence was offered which referred to the appellant or linked him to the diamorphine or cocaine in the postal box. At the close of the Crown case the solicitor acting for the appellant advanced a submission that there was no case to answer. The submission was to the broad effect that such evidence as had been presented by the prosecutor was insufficient to implicate the appellant in the supply. The presiding sheriff rejected that submission and the issue in this appeal was whether the evidence offered by the Crown was sufficient to enable conviction of the appellant. The scientist was unable to say whether the cellular material detected on the portion of the envelope was contained in saliva or any other bodily fluid. She accepted that the presence of the material could readily result from direct contact in other ways than the depositing of saliva or bodily fluid and the material could equally arrive on the envelope by secondary transfer. It was not possible to express any view as to the time at which the material might have been deposited or transferred. It was submitted here on behalf of the appellant that an envelope is a very movable item and this was not a situation where cellular material was deposited on an immovable object or structure at a crime scene. There was no evidence as to when or in what circumstances the material came to be deposited. In particular there was no evidence that the material was contained in saliva or any body fluid and the DNA evidence tendered against the appellant was likewise, on that account alone, insufficient to found a conviction. It was submitted that whereas in fingerprint cases it has been possible traditionally to speak of the fingerprint on the crime scene sample as being “that of the accused”, however, in the present case it was inaccurate to speak of “the accused’s DNA” being found on the crime scene sample as the evidence from the forensic scientist was that the probability of finding such a matching DNA profile if a male other than the appellant, and unrelated to the appellant, were the source of the crime scene DNA was approximately one in four million. In the present case counsel for the appellant submitted that the sheriff was wrong to agree with the prosecutor’s contention that the “accused’s DNA” appeared on the envelope because the accused had licked the seal, there was no evidence that the organic material on the envelope derived from saliva. Here the court allowed the appeal. It was noted that there was no evidence that the cellular material came from saliva and that the material was deposited by the licking of the seal of the envelope does indeed fall on the side of speculation and the DNA evidence alone was insufficient of itself to convict the appellant.