Scottish High Court of Justiciary Decisons

Dunn v. Her Majesty's Advocate [2002] ScotHC 329 (02 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord Osborne	Appeal No: C663/99 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK in NOTE OF APPEAL AGAINST CONVICTION by ROBERT DUNN Appellant against HER MAJESTY'S ADVOCATE Respondent _____________

Appellant: Davies; Carr & Co.

Respondent: Peoples QC, AD; Crown Agent

1 November 2002

1. On 3 September 1999, the appellant was convicted at Glasgow Sheriff Court on indictment on the following charges:

"(1) on 10 May 1998 in Curtis Avenue, Rutherglen, Glasgow you did assault Alan Scott ... and stab him on the back with a knife to his severe injury;

(2) On 10 May 1998 in Curtis Avenue, Rutherglen, Glasgow you did assault Stephen Docherty ... and did repeatedly stab him on the body with a knife to his injury;

(3) On 10 May 1998 in Curtis Avenue, Rutherglen, Glasgow you did assault David James Gillespie ... and stab him on the body with a knife to his injury;

(4) On 10 May 1998 in Curtis Avenue, Rutherglen, Glasgow you did assault Thomas Gough ... and repeatedly stab him on the leg with a knife to injury; and

(7) On 10 May 1998 in Castlemilk Road, Glasgow and elsewhere you did without lawful authority or reasonable excuse have with you in a public place an offensive weapon, namely a knife; contrary to the Criminal Law (Consolidation) (Scotland) Act 1995, section 47(1)".

2. The appellant was remitted to the High Court for sentence and thereafter was sentenced to detention for five years on charges 1, 2, 3 and 4 and to detention for two years on charge 7, those sentences to be served concurrently from 20 September 1999. He appeals against conviction on charges 2, 3 and 4.
3. Counsel for the appellant argued two points, namely (1) that there was an insufficiency of evidence to entitle the jury to convict on those charges and (2) that in relation to an admission made by the appellant to the police, the sheriff misdirected the jury by failing to refer to the appellant's qualification to that admission, which was to the effect that he had not had the knife in his possession during the whole of the evening in question.
4. Before we deal with these submissions, it may be helpful if we set out the background and the main elements in what appears to us to have been a strong Crown case. Shortly after midnight on 10 May 1998 there was a fight near a public house at the locus libelled between two rival groups of football supporters. The appellant was one of a group of Rangers supporters. All four complainers, it appears, were in the Celtic contingent. An eyewitness named Diane Trevitt said that she saw the appellant take part in the fight. When it came to an end, all four complainers were found to have been stabbed. Soon after, the appellant was detained by the police at the locus of another incident about half a mile away. He was found to be in possession of a small bloodstained knife attached to a set of keys. In the course of his police interview he admitted that the knife was his, but he denied that he had stabbed anyone with it. His account was to the effect that he had not had the knife in his possession throughout the evening. The appellant later made a voluntary statement to the police. In this statement he admitted having stabbed the complainer in charge 1, but he said that he had done so in self-defence. The medical evidence showed that the injuries sustained by the complainers could have been inflicted by the knife that was found in the appellant's possession. DNA evidence showed overwhelmingly that blood from Alan Scott, the complainer on charge 1, was on the knife. The DNA evidence also showed that there was blood from three other persons on the knife. The three DNA profiles derived from that blood were consistent with the DNA profiles of the three other complainers.
5. The first submission was focused on the DNA evidence. Counsel pointed out that the expert witness on that subject, Dr Fairley, had refrained from expressing any certainty as to the link between the three other blood profiles on the blade and the complainers on charges 2, 3 and 4. When questioned at one point as to the strength of the inference to be drawn from that evidence, Dr Fairley had said in effect that that was a matter within the domain of the jury. Counsel submitted that the mere consistency of the profiles derived from the knife and from the three complainers could not constitute a sufficiency of evidence on those charges.
6. We do not accept this submission. In our opinion, the DNA evidence on charges 2, 3 and 4 was merely one adminicle in a strong case that was built upon the eye witness evidence, the other circumstantial evidence to which we have referred and the appellant's own statements. Although, in each of those three individual cases the link with the blood on the knife was not a matter of certainty, it nevertheless seems to us that it was open to the jury to conclude that the consistency of the profiles in all three cases was more than mere coincidence. Looking at the case in that way, we consider that there was ample evidence to entitle the jury to convict on those charges. We therefore reject the first submission.
7. The starting point in the second submission was that in his police interview and in his voluntary statement, the appellant's words were both incriminatory and exculpatory. Counsel argued that the sheriff was obliged specifically to refer the jury to the exculpatory elements in each. In relation to the police interview, the sheriff should have reminded the jury that, although he admitted that the knife was his, the appellant had added the qualification to the effect that he had not had it in his possession throughout the evening.
8. In our opinion the sheriff dealt adequately with both matters. In relation to the police interview he reminded the jury that the appellant's position at that time was that the keys and knife recovered were his, but that he did not have them at the time (Charge, p. 41). The sheriff then said

" ... the Crown want to take out of that that he was in the position where he admitted that the knife was his and although he didn't have it when he was in Curtis Avenue, the point is that he admitted that the knife was his, and he also admitted that he had been in Curtis Avenue round about the time when something was going on" (p. 42).

9. Later the sheriff referred the jury to the terms of the voluntary statement and said that the production containing it was available for their consideration if they wished to see it (p. 48). In reference to both statements he directed the jury that they must consider both the incriminatory and exculpatory parts (pp. 49B - 50E). Later he said:

"If you're left in reasonable doubt when you consider his voluntary statement or indeed his earlier statement, if you hold that to be admissible, then you must acquit him because he said he didn't assault anybody in that statement. And so you've got to look and decide what statements said to have been made by the accused are in fact properly before you, applying the criteria I give you, and if you find anything in them that you accept as being the truth, the accused denied doing something and you accept that, it raises in your mind a reasonable doubt as to his guilt on a particular charge, he must get the benefit of it, and you must acquit him." (p. 79)

The references as to admissibility of that statement need not concern us as that is no longer an issue.

10. In addition, all of the directions that we have quoted were given in the wider context of the charge, in which the sheriff more than once reminded the jury that, if there was any reasonable doubt in their minds on any charge, the benefit of that doubt must go to the appellant. When the sheriff delivered his charge, these matters were fresh in the minds of the jury who had just heard the defence speech in which the exculpatory part of the appellant's statements had been referred to. In our opinion, the point regarding these statements did not require any great elaboration and the sheriff's manner of dealing with the point was satisfactory. We therefore reject the second submission.
11. We should add, in reference to a passing criticism made by counsel for the appellant, that in our opinion the sheriff rightly instructed the jury to delete from charges 2, 3 and 4 the averment that the appellant was acting along with others. There was no evidence that would have entitled the jury to convict upon that basis.
12. We shall refuse the appeal.