Appellant: Keenan, Solicitor Advocate; Martin, Johnston & Socha

Respondent: Ferguson, QC, AD; Crown Agent

20 May 2011

[1] On 24 August 2010, after a trial at Dunfermline Sheriff Court, the appellant was, by majority verdict of the jury, convicted of assaulting his former partner by stabbing her repeatedly with a knife to her injury some twelve months earlier. In this appeal against conviction, the sole issue is whether the evidence led by the Crown was, in law, sufficient to establish the identity of the appellant as the assailant. According to the appellant in his Ground of Appeal, the Sheriff erred in repelling a submission of No Case to Answer at the conclusion of the Crown case, thereby leaving open the issue of identification for the jury to determine.

[2] It is not disputed that the Crown case here got off to a very strong start, with a clear positive identification of the appellant from the outset by the complainer herself. She identified him as her attacker to police officers at the scene, to hospital staff thereafter, to police subsequently conducting a VIPER identification parade and then finally in the witness box at the trial. She also confirmed what the jury could see from the indictment before them, namely that the assault occurred within the appellant's own home address at 36D William Street, Dunfermline.

[3] According to a well-settled line of authority which includes the decision of this court in Ralston v HM Advocate 1987 SCCR 467, very little more is required in order to corroborate clear positive eyewitness identification evidence of that kind. The question for determination here is whether that relatively modest threshold was crossed or not.

[4] In the absence of any other direct evidence to link the appellant to the complainer or to the assault itself, the Crown case relied exclusively on the evidence of two forensic scientists concerning DNA traces on a large, black-handled kitchen knife which was retrieved from a waste bin within the property. One bloodstain on the blade was found to contain a partial DNA profile which matched the complainer herself, with a statistical probability of 1 in 1.7 million that such a profile could have come from some other source. On this basis it was clear that the knife had been used in the assault. For present purposes, however, the real dispute centred around the DNA analysis of further bloodstains which were swabbed from the handle of the knife. This exercise produced a mixed profile, that is, one derived from the DNA of at least two individuals, and in presenting his submission of No Case to Answer the appellant's solicitor advocate maintained that, while "... not quite neutral", the forensic scientists' evidence regarding this mixed profile was inconclusive and would merely invite speculation on the part of the jury. The same contention has been renewed before us at the hearing of the appeal.

[5] A potentially unsatisfactory feature of the evidence in question is that, for reasons which were not fully clarified at the trial, the forensic scientists had not sought to calculate, and could not therefore express, any statistical probability of the mixed profile having been contributed by persons other than the complainer and the appellant. Their disinclination to do so appears to have related mainly to the low volume of the material which was before them for analysis, and in particular to a degree of uncertainty as to the strength of parts of the profile which might be thought to relate to the complainer. The possibility of chemical contamination affecting DNA from the complainer was also raised.

[6] So far as the appellant was concerned, however, the scientists confirmed in the witness box, first, that the mixed profile derived from the knife handle was entirely consistent with a combination of the appellant's DNA with that of the complainer; second, that all 20 of the appellant's DNA "types" matching his reference sample were present in that mixed profile (that is, both "types" at each of the 10 "areas" of the profile which would routinely be extracted and analysed); third, that whatever might be said about the DNA "types" which potentially matched the complainer, those matching the appellant were all at a level above the guideline threshold for statistical significance; and fourth, that if the complainer were assumed to be the other contributor to the mixed profile, as the presence of her blood elsewhere on the knife might suggest, the remainder of the profile was a direct match for the appellant.

[7] In the view of the Crown, and of the Sheriff in repelling the submission of No Case to Answer, there was ample evidence capable of supporting or corroborating the complainer's clear positive eyewitness identification of the appellant as her attacker. The incident occurred in the appellant's own home. When the police arrived at the scene, he was not there. He was not seen again until four days later, at which point he was arrested in the street. In addition, the extent to which the mixed DNA profile from the knife handle actually matched the appellant was important evidence in its own right. Before us, however, Mr Keenan for the appellant insisted that forensic evidence lacking any statistical evaluation of the primary findings fell short of the minimum standard which the law required for corroborative purposes. The witnesses could not even be certain that the mixed profile came from the complainer and the appellant, as opposed to from a different combination of individuals, and further problems were (a) that if the appellant lived at the locus there might be an innocent explanation for his DNA being present on a kitchen knife; and (b) that since DNA could not be dated there was no proof that any deposit was made at the time of the assault.

[8] In our opinion the point to be determined here is a short one which is not capable of much elaboration, and the relevant law is not in doubt. As Mr Keenan very fairly acknowledged in the course of his submissions, Ralston and other cases establish that very little more is required to corroborate a clear and positive eyewitness identification, provided always that the support relied on (which may go no further than a witness's impression of build or general resemblance) is fully consistent with the primary source. Furthermore, following the decision in Fox v HM Advocate 1998 SCCR 115, it is well settled that for corroborative purposes supporting evidence does not have to be more consistent with a primary source than with some other possible explanation. As the Lord Justice General (Rodger) explained at p. 126,

"
[With the possible exception of .... cases where the circumstantial evidence is ambiguous, but no reasonable jury could choose the interpretation which would support the direct evidence], it is of the very nature of circumstantial evidence that it may be open to more than one interpretation and that it is precisely the role of the jury to decide which interpretation to adopt. If the jury choose an interpretation which fits with the direct evidence, then in their view - which is the one that matters - the circumstantial evidence confirms or supports the direct evidence so that the requirements of legal proof are met."

And at p. 129 his Lordship continued as follows:

"Evidence of an accused's fingerprint at the locus and of the deceased's blood on his clothing is normally apt to provide powerful corroboration of an eyewitness's evidence that the accused stabbed someone to death. This is not because such circumstantial evidence is open to only one interpretation and that interpretation is one which confirms the evidence of the eyewitness. After all the jury will often be invited to consider more than one possible explanation of that kind of circumstantial evidence. If, having considered the matter, the jury draw the inference that the circumstantial evidence points to the accused's involvement in the crime, then the circumstantial evidence does indeed confirm the evidence of the eye-witness and so provides the corroboration which our law requires",

[9] Against that background we have reached the conclusion, ultimately without great difficulty, that this appeal is not well-founded and that there was, in law, a sufficiency of evidence tending to identify the appellant as the complainer's attacker. Taken together with her own direct evidence of identification, including confirmation that the attack occurred in the appellant's own home, we are satisfied that the DNA analysis of blood traces from the knife handle was more than adequate for corroborative purposes. All 20 of the appellant's DNA "types" were found to be present, and at significant levels, in the mixed profile obtained; that mixed profile was wholly consistent with having been contributed by the appellant and the complainer; and if the complainer's DNA "types" were subtracted (on the reasonable view, open to the jury, that she must have been a contributor), the whole remainder matched the appellant. To our mind no more than that was necessary in order to corroborate the complainer's direct evidence of identification, and we are unable to accept the proposition that forensic evidence (unlike any other form of testimony) should be regarded as valueless unless expressed in numerical probability terms.

[10] For these reasons we are satisfied that the Sheriff, taking the available evidence "at its highest" as he was bound to do, was well entitled to repel the submission of No Case to Answer which was made to him in the course of the trial. Despite Mr Keenan's best efforts, therefore, this appeal must be refused.