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Maguire v. Her Majesty's Advocate [2003] ScotHC 54 (30 October 2003)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Marnoch

Lord Hamilton

Appeal No: XC589/03

OPINION OF THE LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

STEPHEN MAGUIRE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: A. Prentice, Solicitor Advocate; McCourts

Respondent: R. Anthony, Q.C., A.D.; Crown Agent

30 October 2003

[1] I concur with the Opinion of Lord Hamilton in the Opinion delivered by him, and accordingly I agree that this appeal should be refused.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Marnoch

Lord Hamilton

Appeal No: XC589/03

OPINION OF LORD MARNOCH

NOTE OF APPEAL AGAINST CONVICTION

STEPHEN MAGUIRE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: A. Prentice, Solicitor Advocate; McCourts

Respondent: R. Anthony, Q.C., A.D.; Crown Agent

30 October 2003

[2] The appellant was convicted after trial of a charge that, while acting along with others, he did, with his face masked, assault and rob a shopkeeper at premises in Govan Road, Glasgow.

[3] There was evidence that the appellant stayed in the Govan area but, that apart, the only evidence incriminating him was a multicoloured woollen mask, discarded at the shop, on the inside of which was found a piece of "skin-like material" matching the DNA profile of the appellant. Although the shopkeeper had claimed that at the time he had recognised the man who discarded the mask as "a local boy", his evidence from the witness box was that that man was not present in court and, indeed, that there was no one even of similar appearance to that man in court. There is, however, no ground of appeal directed to the reasonableness or otherwise of the jury's verdict and the only question for us is whether the trial judge was correct in repelling a submission of no case to answer made under section 97 of the Criminal Procedure (Scotland) Act 1995. Following the repelling of that submission no evidence was led by or on behalf of the appellant.

[4] Mr. Prentice, solicitor advocate for the appellant, conceded that the jury was well-entitled to infer that there had been contact between the mask and the appellant but submitted that there was simply no evidence as to when that contact had taken place and, in particular, no evidence that it had taken place at or about the time of the robbery. This was particularly so bearing in mind that the mask had been constructed from the sleeve of a woollen jumper and that there had also been found on the mask a mixed bloodstain showing proximity to persons other than the appellant. Although, in the course of his police interview, the appellant had denied ever having had contact with the garment in question, it was trite law that there could be no corroboration by false denial. In the course of submissions reference was made principally to Slater v. Vannet 1997 S.C.C.R. 578 and later, by the Crown, to Hamilton v. H.M. Advocate 1933 J.C. 1.

[5] In my opinion there is much to be said for the submissions advanced on behalf of the appellant. In particular, this is not a case where the garment in question was clearly proved to be "really the property or in the possession of the accused" - Hamilton cit. sup. per Lord Sands at p. 5. On the other hand, with the aid of modern science, it has been proved, in a way which could never have been contemplated by Lord Sands, that at some point of time there was actual contact between the appellant and what, at least in its present form, is a mask purpose-made for the sort of enterprise forming the subject-matter of the charge. It is, I think, reasonable to suppose that the appellant must have been aware of when that contact took place, if not at the time of the robbery. What is more, the appellant is the only person who is in a position to provide that information. In those very special circumstances I consider that the present case is one of these in which, in the absence of any explanation from the appellant, the jury was entitled to draw the inference beyond reasonable doubt that the appellant was the person who discarded the mask during the commission of the crime in question. In this connection, I refer to the well-known dicta of Lord Aitchison in H.M. Advocate v. Hardy 1938 J.C. 144 at p. 147 and to the more modern statement of the law contained in the Opinion of the Court delivered by Lord Justice General Hope in the relatively recent case of McLean v. H.M. Advocate 1993 S.C.C.R. 605.

[6] For the above reasons I am of opinion that this appeal should be dismissed.

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Marnoch

Lord Hamilton

Appeal No: XC589/03

OPINION OF LORD HAMILTON

NOTE OF APPEAL AGAINST CONVICTION

STEPHEN MAGUIRE

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: A. Prentice, Solicitor Advocate; McCourts

Respondent: R. Anthony, Q.C., A.D.; Crown Agent

30 October 2003

[7] In May 2002 the appellant was tried in the High Court at Glasgow on an indictment containing three charges. Charges (1) and (3) were of theft by housebreaking; charge (2) was that on 2 February 2000 in shop premises in Govan Road, Glasgow the appellant had, while acting with others, assaulted and robbed the shopkeeper there. At the end of the Crown case the appellant pled guilty to charges (1) and (3) and was convicted by the judge of those charges. He maintained his plea of not guilty to charge (2) and a submission that he had no case to answer in respect of that charge was made on his behalf. That submission was repelled by the trial judge. No evidence was led for the defence. The appellant was convicted by the jury of charge (2). Against that conviction he appeals to this court on the ground that the trial judge wrongly repelled the submission that he had no case to answer on that charge.

[8] It is not disputed that there was ample evidence that on 2 February 2000 the offence of assault and robbery was committed by three men, all of whom had entered the premises wearing masks. The issue is whether there was sufficient evidence in law that the appellant was one of those assailants.

[9] Shortly before they left one of them tripped over some bottles and landed on the floor. He then took his mask off and threw it away in the shop. This mask was shortly thereafter recovered by the police from the floor of the shop premises. It was later the subject of forensic examination, certain results of which were included in a Joint Minute of Agreement lodged at the appellant's trial. The mask was itself a production at the trial (Crown label production 3). Although that production was not exhibited to this court, it is described by the trial judge in his report as being woollen and having been made from the sleeve of a multicoloured pullover. In the agreed forensic evidence it is described as "home-made mask (jumper sleeve)". From the inside of that item there was removed in the course of scientific examination skin-like material which, on subsequent DNA examination, provided a profile which matched a profile from a blood sample taken from the appellant; the probability of finding these matching DNA profiles if the DNA from the skin-like material originated from another male unrelated to the appellant was estimated to be in the order of one in a billion. From the outside of the mask was recovered a bloodstain which, on analysis, provided a mixture of DNA from several persons; none of these persons was the appellant.

[10] In May 2001 the appellant was detained and interviewed under caution. A transcript of that interview was put in evidence at the trial. In the course of the interview the appellant admitted that in February 2000 he stayed in the Govan area and was familiar with the premises where the robbery had taken place. He denied any involvement in the robbery. He was shown the mask but stated that he did not recognise it, had never worn anything like it, had never seen it and had never had contact with anything like it. It was described verbally by the interviewing officer as being green, blue with dark red through it and having the appearance of having been the sleeve of a jumper which had been cut off specifically to make a mask. The appellant acknowledged that that appeared to be so.

[11] At the trial the shopkeeper gave evidence. He testified that, when the assailant who had tripped over the bottles had removed his mask, he (the shopkeeper) had got a look at him and had recognised him as a "local boy" who had been in the shop about 15-20 minutes before the robbery took place. However, when asked whether that man was in court, he did not identify the appellant, replying that the man was not in court. His response to a question whether anybody of similar appearance was in court was "No, definitely not". He gave a description of the man as having dark hair, a thin face and being of medium build and height. Such a description, the trial judge reports, was consistent with the appearance of the appellant.

[12] Mr. Prentice, solicitor advocate for the appellant, submitted that the trial judge had erred in repelling the submission of no case to answer. While the results of the DNA analysis could justify an inference that the item used as a mask in the course of the robbery had, at some time and in some form, been worn by the appellant, that evidence without more was insufficient in law to identify the appellant as the wearer of the mask in the premises. The skin-like material had not even been identified as tissue from the face, as distinct from some other part of the body such as the arm. The evidence was equally consistent with the appellant having, at some time, worn the jersey from which the mask had subsequently been made. The mask was a moveable item and its association with the appellant was not sufficiently linked to the commission of the crime. It was not known when, where or in what circumstances there may have been contact between the appellant and the jersey. Others had also had contact with it, as evidenced by the analysis of the bloodstain. Reference was made to Slater v. Vannet 1997 S.C.C.R. 578. There could be no corroboration by false denial (Wilkie v. H.M. Advocate 1938 J.C. 128). Reference was also made to Bovill v. H.M. Advocate 2003 S.C.C.R. 182.

[13] The advocate depute in response submitted that there had been sufficient evidence of identification. The mask, an item specifically created for criminal purposes, had been used in the commission of this offence and dropped at its scene. The DNA link between the appellant and the mask was, in the absence of any innocent explanation by the appellant, sufficient in itself to identify him as the wearer of it in the course of this crime. In any event, that evidence, together with other adminicles of evidence - the appellant's local residence and his matching the general description of the assailant - was sufficient. Reference was made to Hamilton v. H.M. Advocate 1934 J.C. 1, especially per Lord Justice-General Clyde at pp. 3-4 and Lord Sands at p. 5, and to Walker & Walker - The Law of Evidence in Scotland (2nd edition) para. 6.5.1 and the cases there cited.

[14] It is clear that the Crown's case against the appellant was heavily, albeit not exclusively, dependent on the DNA link between him and the mask. There is no doubt that that mask was intimately connected with the commission of the crime. The issue is whether the DNA link was in the circumstances of this case such that the jury could draw the inference that its wearer in the course of the crime was the appellant.

[15] In Hamilton v. H.M. Advocate the sole evidence against the accused (who was charged with theft by shopbreaking) was, apart from his residence near the scene of the crime, evidence of his fingerprints found on a bottle in the premises. At p. 4 Lord Justice-General Clyde stated:

"If [the finger-print evidence] is believed, it constitutes real evidence of the presence of the accused at the scene of the crime, in something the same way as a fragment of clothing (left behind by the criminal) or his boot-mark might be. There was nothing in the present case to support, or indeed to suggest, any possibility of the finger-mark having been made on the surface of the bottle by the appellant, or by anyone else, at any time other than that at which the crime was committed. The materials for a chain of circumstantial evidence are thus provided".

At p. 5 Lord Sands observed:

"It is well-settled in our criminal law and practice that, if an accused person has left anything by which his presence on the scene at the time of the offence can be proved and he can give no reasonable account of his presence there, the jury may convict him of such an offence as housebreaking or theft. Now, what was left, or used to be left, occasionally in the past was generally garments or such instruments as tools. But I do not see any reason why it should be held on the one hand that to leave a chattel behind which clearly shows the owner's presence warrants a conviction if the jury so judge, while on the other hand, if a man leaves something behind which just as clearly shows his presence in the shape of a finger-mark, it should be unreasonable for the jury to convict. No doubt, in the case of garments or tools, it must be clearly proved that the garment or the tool, the presence of which is founded upon, was really the property or in the possession of the accused. Similarly, as regards finger-marks, if they are to be relied upon and treated as conclusive, it must be clearly proved that they are the finger-marks of the accused person".

Although that case is more commonly cited in relation to the use of fingerprint evidence for the purposes of identification of an accused as the criminal, it is clear from these observations that other circumstantial evidence, including moveable items left behind at the scene of a crime, may provide a sufficient link between an accused and the crime charged. The absence of an alternative explanation in circumstances where such might, in the case of innocence, have been expected was also noticed.

[16] In H.M. Advocate v. Rolley 1945 J.C. 155 the sole evidence against the accused (who was charged with theft by housebreaking) was of a palm print identified as his on a sideboard in the premises. Lord Justice-Clerk Cooper, in charging the jury, told them that in cases of that kind, in the absence of eye-witness evidence or evidence of recent possession,

"the most common method upon which the prosecution rely for bringing home guilt to the accused is to found upon something that the delinquent has left behind, and then by suitable evidence to show that that something is unquestionably associated and identified with the accused. It may be a footprint, it may be a garment, or a distinctive tool, or something of that kind. In this case it is a palm print ... ".

On that evidence the accused was convicted.

[17] Although both these cases preceded the introduction of the statutory right to make a submission of no case to answer, it is clear that in each of them there was considered to be sufficient evidence in law to convict, the value of the evidence being a matter for adjudication by the jury. In Langan v. H.M. Advocate 1989 J.C. 132; 1989 S.C.C.R. 379 a submission of no case to answer was made and rejected. The accused was subsequently convicted of murder. Although certain other adminicles of evidence were also relied on by the Crown before the trial court (see 1989 S.C.C.R. at page 380C), the critical evidence was of a single fingerprint identified as of the accused and found on the hot water tap of the kitchen sink in the victim's home, the evidence showing that the print had been deposited at a time when the finger was wet with blood. At the appeal against conviction this fingerprint evidence appears to have been regarded as the sole evidence in the case implicating the appellant in the commission of the crime. The appeal was refused, the court again noting the absence of any explanation from the appellant, whose reply to caution and charge had included a statement that he had never been in the victim's house. In that case there were also some ten fingerprints which remained unidentified (1989 S.C.C.R. at p. 383D).

[18] There have, of course, also been cases where fingerprint or similar circumstantial evidence has been held to be insufficient in law to allow a judge or jury to draw the inference that the accused was the criminal. Illustrations include Reilly v. H.M. Advocate 1986 S.C.C.R. 417, MacDonald v. H.M. Advocate 1997 S.C.C.R. 116 and Slater v. Vannet. Much will depend on the nature of the item on which the fingerprint or other identifying link was found and its association in time and in place with the crime. The readiness with which the accused may innocently have come to be in contact with such an item may be such that, even in the absence of an explanation from him, no inference of sufficient association between him and the crime can legitimately be drawn.

[19] In the present case the item was intimately connected with the crime, being worn during its commission by one of the perpetrators. The item was not only distinctive as something designed in its final state for use for criminal purposes but was also apparently of a distinctive and recognisable pattern. The DNA evidence pointed to the appellant as having at some time had the internal surface of the item (whether as a mask or as the sleeve of a complete jumper) against his skin. The natural inference was that at some stage he had worn it. Its pattern was such that it was a reasonable inference that he must have recognised it as an item which he had worn in some form. Yet, no explanation was proffered by the appellant of how such an item in some form might have been worn by him otherwise than for the purposes of this robbery. His position at police interview was that he had never seen nor had any contact with the item shown to him. In these circumstances the present case appears to me to be closer, in circumstances and in reasoning, to cases where the evidence has been found to be sufficient in law than to those where it has been found to be insufficient. In the context of considering the appropriate directions to a jury, the court in McLean v. H.M. Advocate 1993 S.C.C.R. 605 adopted a similar approach. While disapproving of the use of the expression "presumption of guilt", it approved of the jury being invited "to see what inference they could draw from the basic facts, taking account, as they did so, of the absence of an innocent explanation" (p. 608D).

[20] Against the positive exclusion by the shopkeeper in evidence of all persons present in court, including the appellant, as being the wearer of the mask, I doubt whether his very general description of the wearer advanced to any extent the Crown case. However, it is unnecessary to decide that matter. Although the issue is a narrow one, I am of opinion that, given the evidence relative to the mask (including the scientific evidence associating the appellant with it) and the absence of any explanation by him for that association, the trial judge was entitled to rule as he did and there was no miscarriage of justice. I would refuse the appeal.