Michael Scott Ritchie v. Her Majesty’s Advocate [2020] HCJAC 7

Description

Note of appeal against conviction:- On 6 June 2019, at Elgin Sheriff Court, the appellant was convicted on indictment of a charge of theft by housebreaking whilst on bail. He was sentenced to 21 months imprisonment with 3 months of the sentence attributable to the bail aggravation. The appellant appealed against his conviction. The circumstances were that the owner of the locus died on 21 April 2018. The locus was checked on 11 May 2018 when it was found to be secure. The next day the locus had been broken into with jewellery, medals, coins and a box stolen. A window was found to have been forced and a small black metal torch unconnected to the locus was recovered inside the front door. The appellant’s DNA was found on the torch and the appellant did not dispute that the torch was his. Evidence was led from both Crown and defence experts in relation to how DNA is deposited and how long it can endure. The only issue upon which the experts disagreed related to four peaks, identified in the DNA print-out following testing. The Crown expert considered that these were simply artefacts and of little relevance whereas the defence expert considered that they were part of the DNA profile of an unknown individual. In his police interview the appellant admitted being within 150 metres of the locus when visiting someone. In relation to the torch and the presence of his DNA on it, he said he had possibly given his brother a black rubber torch some time before. During the Crown speech to the jury the procurator fiscal depute made reference to what the appellant had said in his police interview and said “…if you accept that it [what he said in his police interview] raised a reasonable doubt, you would have to say that it is credible and reliable. Now I say to you that it is not and you should put it to one side.” The solicitor acting for the appellant raised concerns about what the fiscal-depute had said with the trial sheriff prior to her charge but the sheriff considered that the standard directions on the onus of proof would be sufficient. The sheriff thereafter gave directions on the onus of proof and that the appellant did not have to prove his innocence and his position was contained in the interview and it was for them to decide what to make of that evidence. In relation to the apparent divergence in the expert evidence the sheriff referred to the examples given by parties in relation to primary and secondary transfer of DNA. Here it was contended on behalf of the appellant that the sheriff’s directions in relation to the onus of proof and in relation to the various scenarios described by the sheriff in relation to the DNA amounted to a reversal of the onus of proof in that the same onus applied to both the Crown and the defence in relation to the likelihood of each scenario occurring. It was further submitted that the fiscal-depute’s reference to the appellant’s police interview and the failure by the sheriff to correct it exacerbated the issue and resulted in the jury being left with the impression that there was an onus on the appellant. On behalf of the Crown it was submitted that the directions given in relation to the burden of proof, when the charge was read as a whole, were sufficient and the sheriff had been best placed to consider how best to deal with the fiscal-depute’s comment in relation to the appellant’s police interview. Here the court refused the appeal. The court noted that the finding of the torch was highly incriminatory and the description of the torch which the appellant said he gave his brother was different to the type of torch that was recovered in that it was not rubber. The court considered that when read as a whole the charge made clear that the burden of proof remained on the Crown throughout albeit the directions could have been clearer in relation to how the jury should approach what the appellant said in his police interview but there was no material misdirection. In relation to the various hypothetical situations described by the sheriff in relation to the depositing of DNA on the torch the court considered them to be appropriate. As far as the issue relating to what the fiscal-depute had said the court noted that the sheriff was best placed to determine what was required to remedy any misconception the jury might have.