Appellant: Shead; Paterson Bell, Edinburgh

Respondent: Allan, Q.C. AD, Crown Agent

8 December 2010

Introduction
[1] The appellant has appealed against his conviction of a charge of attempted murder. The circumstances of the offence can be summarised as follows. During the evening in question the complainer, Gary Walker, and his partner, Karen D'Arcy, had been visiting a neighbour, Suzanne O'Hanlon. When the complainer and Miss D'Arcy left Miss O'Hanlon's flat, the complainer was attacked by three men wearing balaclavas. The complainer managed to pull off the balaclava worn by the principal assailant, at which point the three men ran away. Miss O'Hanlon picked up the balaclava and took it into her flat, where it was recovered by police officers.

[2] In evidence, the complainer identified the appellant as the principal assailant, but said that he had been unable to do so until police officers had told him that they had arrested the appellant. Miss D'Arcy also identified the appellant, but gave a similar account of having been given information by the police which identified the appellant as the assailant. She said, however, that her identification of the appellant was not entirely derived from what she had been told by the police. The complainer and Miss D'Arcy also identified the balaclava as having been worn by the assailant. There was a joint minute of agreement in which the findings and conclusions of two forensic scientists in relation to their examination of the balaclava, and of a DNA sample taken from the appellant, were agreed to be accurately recorded in a report. The report stated:

"A DNA taping from the inside of the ski mask was analysed and a DNA profile was obtained which matched the DNA profile of James Patrick Quinn. The probability of finding these matching DNA profiles if this DNA from the inside of the ski mask originated from another male, unrelated to James Quinn, is estimated to be one in more than a billion. Other traces of DNA were also detected in this profile which were, in our opinion, unsuitable for comparison purposes.

The scientific findings would support an assertion that James Quinn has worn the black ski mask. The other traces of DNA could, in our opinion, be from wearing or from handling the ski mask".

[3] One of the forensic scientists who had prepared the report also gave evidence. She explained that someone who wore a ski mask might deposit skin cells or saliva from which DNA could be collected. She was cross-examined to the effect that it was impossible to infer from the finding of the appellant's DNA that he had worn the balaclava on the occasion in question. She accepted that he could have worn it either then or on some earlier occasion. She was also asked about the other traces of DNA, which she described as being of a very low level and as being present "in very, very small amounts". She confirmed that those traces could have been transferred to the mask either by handling it or by wearing it. In cross-examination, she said that the traces probably came from a source other than the appellant.

[4] Evidence was also led in relation to statements made by the appellant when interviewed by police officers. When asked whether he would have an explanation if his DNA were present on the balaclava, he replied that he would not. Asked if he had ever worn a mask like that, he replied that he did not know, but had probably worn a ski mask at Halloween. He could not remember wearing the mask in question but could not rule out the possibility that he had ever worn a ski mask. He might have worn one when at primary school, but not recently.

[5] In her address to the jury, the advocate depute invited the jury to accept the evidence of the complainer and Miss D'Arcy, identifying the appellant. She suggested that support for that evidence could be found in the evidence relating to the balaclava and the DNA findings. The solicitor for the appellant invited the jury to reject the identification evidence as unreliable, on the basis that the complainer and Miss D'Arcy had been influenced by the information given to them by the police. He suggested to the jury that, if they rejected the evidence of Miss D'Arcy, there was no other evidence sufficiently before them which would entitle them to find that the appellant was the person who had committed the attack on the complainer. The appellant's solicitor did not address the jury in relation to the DNA evidence.

[6] In his directions to the jury, the trial judge directed them that they could not reasonably treat the complainer's evidence of his identification of the appellant as reliable. He directed them that Miss D'Arcy's evidence might not be in the same position, but that it was necessary to consider the extent to which her identification of the appellant might have been influenced by the information given to her by the police. He continued:

"Now the Crown suggest that you can conclude that there is a genuine identification by Karen D'Arcy on which you can rely and the Advocate Depute has argued that her evidence tells you when it was that what she says is the accused's DNA came to be transferred to the balaclava and if you accept that there is genuine identification evidence from Karen D'Arcy on which you can rely then the Crown case is plainly stronger than if it is dependent only on the evidence relating to the balaclava and the DNA which I'll mention to you in due course. Mr Wheatley [the solicitor for the appellant] has strongly argued that you cannot rely on any identification of the accused which Karen D'Arcy may have made for the reasons which he explained...Mr Wheatley has argued that without eyewitness identification evidence from Karen D'Arcy there is simply not enough evidence in the case to allow you to convict. So I will now examine that evidence and what it amounts to in law ladies and gentlemen".

[7] The trial judge then summarised the evidence relating to the balaclava and the DNA findings, and continued:

"From the evidence you can infer that the accused has worn that item at some time...given what you have been told of what happened to the balaclava and how the scene of the crime was preserved and protected by the police you could infer that the DNA inside the balaclava had got there by the time it was deposited at the scene of the crime, although of course it could have got on to the balaclava beforehand...This article, which is linked to the accused by DNA evidence, was left at the scene of the crime by one of the perpetrators. The accused is the person who could be taken to know when and how what seems to be his DNA came to be inside the balaclava. In the particular circumstances of this case, if you find that he has given no explanation as to how what seems to be his DNA is in this balaclava Label 1, or if you reject any possible explanation which he gave to the police, then it would be open to you to infer that the DNA got there because he was wearing the balaclava at the time of the assault.... Now it is implicit in Mr Wheatley's argument that it is going too far to draw the inference that the DNA got on the balaclava when the crime was committed and in effect he is arguing that you just cannot be confident as to when the DNA got inside the balaclava. Whilst this body of evidence, if viewed in isolation from other possible identification evidence, is very thin, I direct you that it is open to you, if you feel able to draw the appropriate inferences, to find the accused guilty on the basis of the DNA evidence and evidence about the mask and what the accused said to the police about it without requiring to rely on direct identification evidence given by Karen D'Arcy or indeed Gary Walker".

The Appeal
[8] The appellant has appealed against his conviction on the basis that the directions which we have quoted were objectionable in three respects. First, it is said, "without the identification evidence there was no legal sufficiency." Secondly, it is said:

"In any event, the Crown had not presented its case to the jury on the basis that the evidence relating to the balaclava was per se sufficient in law. The solicitor advocate for the accused had presented the defence to the jury on the basis that such evidence was not sufficient. It was not for the trial judge to offer up a route to conviction which the Crown had not advanced. Esto the trial judge was entitled so to direct, he ought in fairness to the accused to have intimated such an intention to the solicitor advocate for the accused prior to starting his charge and offering him the opportunity for further submissions to the jury thereanent. This was particularly the case where, as here, there was evidence from the forensic scientist that a second source of DNA had been found on the balaclava".

Thirdly, it is said that the trial judge misdirected the jury in respect that "there were no circumstances that justified the casting of an onus upon the accused nor were the jury entitled to draw an inference of guilt from what the accused said at interview".

The first ground of appeal
[9] In his submissions, counsel for the appellant focused primarily on the second and third grounds of appeal, but did not depart from the first ground of appeal. So far as that ground of appeal is concerned, counsel recognised that the circumstances of the present case were similar to those of Maguire v HM Advocate 2003 SCCR 758. He noted that a feature of the present case which had been absent in Maguire was the presence of DNA from a different source. Counsel accepted however that, according to the forensic evidence, that DNA could have come from someone who had handled the balaclava, and there was evidence that the balaclava had indeed been handled when, and after, it was taken from the assailant. In those circumstances, counsel submitted that the presence of the other DNA was merely a background circumstance which did not affect his argument. That argument was that since the DNA matching the appellant was merely one circumstance pointing towards guilt, no matter how many witnesses spoke to it, there was insufficient evidence on which to base a conviction. Counsel recognised that this argument was inconsistent with the approach which was adopted in Maguire. We see no reason to question the correctness of that approach (cf Maguire v HM Advocate (No 2) [2009] HCJAC 48). In a circumstantial case, the question is whether the circumstances described in the evidence, considered as a whole, enable an inference of guilt to be drawn. Such an inference could be drawn in the present case, given the evidence relating to the balaclava, the DNA findings, and the absence of any credible innocent explanation.

The second ground of appeal
[10] In support of the second ground of appeal, counsel submitted that the procedure followed by the trial judge had been unfair. He should have made the appellant's solicitor aware of his intention to direct the jury as he had done, before the solicitor addressed the jury. He was not entitled to assume that the solicitor knew about the case of Maguire. By correcting the solicitor's address to the jury, the trial judge had undermined the appellant's position. A trial judge should never correct counsel without giving counsel an opportunity to consider his submission before he addressed the jury. That was the logic of the approach adopted by the court in Ferguson v HM Advocate 2009 SCCR 78. So ran the argument.

[11] We are unable to accept these contentions. It is the responsibility of the trial judge to direct the jury on the way that the law applies to any reasonable view of the facts discussed by the evidence, so that they have a proper understanding of the way that the law is intended to work, depending on the view of the facts which they take (R v Coutts [2006] 1 WLR 2154 at paragraph 82 per Lord Bingham of Cornhill, cited with approval in Ferguson v HM Advocate at paragraph 33; cf Johnston v HM Advocate 2009 SCCR 518, Poole v HM Advocate 2009 SCCR 577 and Gardener v HM Advocate 2010 SCCR 116). In particular, it is for the trial judge to direct the jury on the question of sufficiency according to his own judgment of the evidence (Fraser v HM Advocate 2008 SCCR 407 at paragraph 175 per Lord Justice Clerk Gill).

[12] In the circumstances of the present case, the trial judge was not required as a matter of fairness to warn the appellant's solicitor, in advance of his addressing the jury, that he intended in due course to direct the jury on sufficiency in accordance with the case of Maguire: such directions were reasonably to be anticipated. The appellant's solicitor having however told the jury that, if they rejected the evidence of Miss D'Arcy, "there is no other evidence sufficiently before you to find that [the appellant] committed [the offence charged]", it was the judge's duty to correct that apparent mis-statement of the position. The contention that a trial judge should never correct counsel without giving counsel an opportunity to consider his submission before he addresses the jury does not bear scrutiny: a trial judge cannot be expected to anticipate counsel's mistakes. Nor is the trial judge required, as the ground of appeal suggests, to allow counsel to make a further address to the jury, after his mistake has been drawn to his attention.

[13] In the present case, the trial judge corrected any misapprehension which might have been created by the solicitor's address to the jury, without expressing any criticism of the appellant's solicitor or even suggesting that he had made a mistake. What the judge did was to interpret the solicitor's submission as advancing an unobjectionable contention:

"Now it is implicit in Mr Wheatley's argument that it is going too far to draw the inference that the DNA got on the balaclava when the crime was committed and in effect he is arguing that you just cannot be confident as to when the DNA got inside the balaclava".

That may indeed have been what the solicitor had meant. Whether that be the case or not, however, the way in which the trial judge dealt with the matter reminded the jury of the position which the appellant's solicitor had adopted in relation to the DNA evidence in his cross-examination of the forensic scientist, and avoided any risk that the position of the appellant might be prejudiced.

[14] In these circumstances, we are satisfied that the trial judge was correct to give the directions complained of, and that there was no unfairness in the procedure which was followed.

The third ground of appeal

[15] In relation to the third ground of appeal, counsel for the appellant submitted that the language used by the trial judge was apt to confuse the jury into thinking that the onus lay on the appellant to provide a satisfactory explanation for the DNA findings. We reject that contention. The directions in question began by reminding the jury that the balaclava was left at the scene of the crime by one of the perpetrators, that the accused's DNA was inside it, and that he could be taken to know how it got there. The trial judge then directed the jury:

"In the particular circumstances of this case, if you find that he has given no explanation as to how what seems to be his DNA is in this balaclava Label 1, or if you reject any possible explanation which he gave to the police, then it would be open to you to infer that the DNA got there because he was wearing the balaclava at the time of the assault".

[16] The trial judge was not, in that passage, directing the jury that any onus of proof lay upon the appellant: on the contrary, the direction that the jury could only draw an inference of guilt if they rejected any explanation given by the appellant to the police was consistent only with a presumption of innocence. In that passage, the trial judge was merely explaining to the jury the basis upon which, in a circumstantial case of this kind, an inference of guilt might be drawn: an explanation which reflected what had been said by the court in the case of Maguire. We also note that elsewhere in the directions the trial judge repeatedly directed the jury that the appellant was presumed innocent, that he was not required to prove his innocence, that it was for the Crown to prove his guilt, and that there was no burden of proof whatsoever on any accused person.

Conclusion
[17] For these reasons the appeal is refused. HMhmhmnvnvnvnvkkkkkkkjfjfjfjfjfjfjfffffffff