Richard MacPherson (aka Cowan) v. Her Majesty’s Advocate [2019] HCJAC 21

Note of appeal against conviction:- On 11 June 2018, at Aberdeen Sheriff Court, the appellant was found guilty after trial of a charge of theft by housebreaking. At the close of the Crown case a ‘no case to answer’ submission was made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 which was repelled by the sheriff. Following his conviction the appellant appealed against his conviction it being contended that the sheriff erred in repelling the section 97 submission. The issue that arose in the appeal related to the sufficiency of evidence in circumstances in which an item, in this case a bag, linked to the appellant, had been found at the scene of the housebreaking. The circumstances were that the appellant had bought a mobile phone at a Vodafone shop in Aberdeen and the phone and the receipt were placed in a Vodafone bag. It was noted by the customer service representative that the appellant appeared intoxicated. Later that day the housebreaking at the locus occurred. The occupants on their return to the locus noted a Vodafone bag and receipt in the house. Also within the bag was a screwdriver, entry to the locus having been gained by the use of an item similar to a screwdriver. Forensic examination of the bag disclosed DNA from the bag and the screwdriver. DNA, recovered from the handles of the bag, had a mixed DNA profile the appellant being the major contributor and consistent with him having handled the bag, albeit it was not possible to say when the bag had been handled. The DNA on the screwdriver had a mixed profile which was unsuitable for further interpretation. The basis of the ‘no case to answer’ submission had been that there was only one piece of circumstantial evidence pointing to the appellant’s involvement and there were other possible innocent explanations as to how the bag came to be in the house. During his evidence the appellant stated that he had left the bag and receipt on the bus. It was submitted here on behalf of the appellant that the sheriff had erred in not sustaining the submission at the close of the Crown case. It was submitted that the recovery of the bag was insufficient to demonstrate that the appellant had been at the locus at the material time there being a period of around 6 ½ hours between the appellant’s possession of the bag and the housebreaking. The presence of the screwdriver broke the chain of circumstantial evidence in that the bag had been interfered with and the presence of an item, handled by the appellant at some previous point, at the locus was insufficient. It was further submitted that if the appellant’s DNA had been recovered from the screw driver that may have been different as that item could be said to be intimately connected with the commission of the offence. On behalf of the Crown it was submitted that the Crown case had to be taken at its highest and the circumstantial evidence could be open to more than one explanation. The appellant had been in possession of the bag at around 1pm and the offence occurred at 7.30pm providing a sufficient link between the appellant and the crime. Here the court refused the appeal. The court noted that the recovery of an item connected to an accused from a crime scene is a piece of circumstantial evidence which may link an accused to the scene and provide an inference of his presence at the material time which may result in an inference that he committed the crime. The court reiterated that whether an inference is a legitimate one is a matter for the judge or sheriff if faced with a submission to the contrary and, ultimately, by the fact finder having heard the evidence. The court considered the various circumstances the courts see, for example, one involving an accused who has left DNA or a fingerprint on an item which is fixed at the scene, or where the DNA or fingerprint is left on a moveable item which is proved to have been at the locus at the time of the crime, or a moveable item which is introduced to the scene having not been there previously which is proved to belong to an accused, or the situation where an illegal or stolen object or its wrapping is linked to an accused by the finding on it of DNA or a fingerprint. The court stated that in each of these situations “reason has to be applied to the proven facts to determine whether it is legitimate to draw the inference of involvement in the crime”. The court confirmed that it will only be in circumstances where the inference is an unreasonable one that an insufficiency of evidence will result. Where more than one reasonable inference may be drawn the court stated that is not a question of sufficiency but, rather, of quality. In relation to the circumstances of the present case the court considered that it was a reasonable inference that the appellant still had the bag a few hours later when the crime was committed, there being no evidence that the bag had been discarded by him before that.