Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 105

HCA/2016/245/XC, HCA/2016/248/XC and HCA/2016/261/XC

Lord Justice General

Lord Brodie

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTES OF APPEAL AGAINST CONVICTION

by

(FIRST) LUKE McDOWALL, (SECOND) JOSHUA LAWRIE and (THIRD) JORDAN SCOTT

Appellants

against

HER MAJESTY’S ADVOCATE

Respondent

First Appellant: S Collins (sol adv); BCKM

Second Appellant: CM Mitchell; C & N Defence

Third Appellant: Dow; Wardlaw Stephenson Allan

Respondent: Erroch AD; the Crown Agent

20 October 2016

Introduction
[1]        On 20 April 2016, after a four day trial at the Sheriff Court in Edinburgh, Mr McDowall and Mr Lawrie were convicted of a charge which libelled that, on 10 June 2015, they had broken into a house at Braid Mount and stolen a quantity of jewellery, commemorative coins, various other items and a safe.  They were also convicted of the theft of a car at the same time from the same locus.  Mr Scott was convicted of reset of the items in the charge. 

[2]        On 11 May 2016, Mr Lawrie and Mr McDowell were sentenced to 9 months imprisonment.  Mr Scott was sentenced to 18 months imprisonment.  The appeal raises an issue concerning the sufficiency of the evidence, based as it was upon recent possession of stolen goods in criminative circumstances. 

The evidence
[3]        In terms of a joint minute it was agreed that the house had been broken into and that certain numbered labels, duly libelled in the list attached to the indictment, had been stolen from it.  There was evidence from a neighbour, from which it could be inferred that the break-in had taken place at about 1.15am on 10 June 2015.  In due course, some of the stolen items, notably the safe, were found in Fairmilehead Park.

[4]        At about 7.35am, the police arrived at a two bedroom flat in Muirhouse, tenanted by Mr Scott.  The three appellants were all found in the house, in a state of undress as if they had been sleeping.  Mr McDowall and Mr Scott were in one bedroom and Mr Lawrie was in another.  In the bedroom occupied by Messrs McDowall and Scott, there were four commemorative coins, which had been stolen in the break-in.  These included label 5, which was a £5 coin, which, when recovered by the police, was in a round, clear plastic casing.  The label in court, described in the indictment as “Five Pound Commemorative Coin 2”, included both coin and casing.  In terms of the joint minute, it was agreed that label 5 was one of the items stolen.  Also found in the flat was a bag containing various items of gold jewellery, labelled as a “bag of gold”. 

[5]        DNA, in a mixed profile, was found on the edges of the casing containing the £5 coin.  There was a partial match (1 in 950,000) to the DNA of Mr McDowall.  It was not disputed that it was a reasonable inference that the DNA found was indeed that of Mr McDowall.  There was a match to the DNA of Mr Lawrie, from findings both on the edges of the casing and on the coin itself.  In his case, but not in that of McDowall, the expert evidence was that it was more likely than not that this transfer had been direct, rather than secondary.  In Mr McDowall’s case, it had not been possible to form a view.  The coins had been found on open display on the window ledge of the bedroom.

[6]        At interview, Mr McDowall made no comment.  Mr Lawrie accepted that he had been staying in the flat at the time, but denied knowledge of, or contact with, the coins.  He had seen Mr Scott handling the coins, but would not have expected his DNA to be on them.  Mr Scott said that it was his flat and that Mr McDowall and Mr Lawrie had come to the flat at about 2.00am that morning.  He had not seen the coins. 

[7]        The sheriff repelled the submissions of no case to answer.  He formed the view that there was sufficient circumstantial evidence to link the appellants with the break-in, notably the identification of the DNA on the coin and casing, shortly after the break-in, and the finding of all three appellants in the house, where the coins and the bag of gold were found. 

Submissions
[8]        It was submitted, on behalf of Mr McDowall, that the sheriff had erred in determining that there was evidence that the appellant had been in possession of the coins.  There was no evidence that the case containing the coin had itself been stolen.  The presence of the appellant’s DNA on the case was not therefore evidence that he had handled it at a point when the coin had been in it.  It was, in addition, possible that the DNA had come to be on the case by way of secondary transfer.  There was insufficient evidence that any possession was in criminative circumstances.  The fact, that the coins were lying on a window shelf in open view, was not criminative (Fox v Patterson 1948 JC 104; Druce v Friel 1994 JC 182).  The coins had been put in the room in the early hours of the morning, but there was no evidence as to who had placed them on the shelf. 

[9]        On behalf of Mr Lawrie, it was submitted that the evidence of the appellant’s DNA on the case and coin was insufficient.  It had not been demonstrated that the DNA had definitely been from direct contact.  It could have been by secondary transfer.  As a result of that, the finding of DNA did not take the Crown anywhere, so far as proof of the charge was concerned.  There was also no evidence that the appellant had been involved in the theft of the car. 

[10]      Mr Scott argued similarly that there was no evidence of criminative circumstances, no forensic evidence linking the appellant to the items recovered, and insufficient evidence therefore of reset.  The appellant had been in bed at the time when the items had been recovered.

Decision
[11]      Before the doctrine of recent possession can apply, three conditions must be satisfied (Fox v Patterson 1948 JC 104).  The first is that the stolen goods should be found in possession of the accused person.  The second is that the interval between the theft and their discovery should be short.  The third is that there should be criminative circumstances.  In this case, it is accepted that the interval between the break-in and any possession was short.  There were criminative circumstances in that it had been demonstrated that a bag of gold and commemorative coins had been introduced into a residential flat in the early hours of the evening.  The issue then becomes one of whether there was proof of possession.

[12]      In relation to DNA, if a person’s DNA is found on an item, it may well be that there are a number of explanations, which, if proffered, might provide a jury with a doubt about the finding’s probative value.  One legitimate inference, however, is usually that the person has handled the item and therefore had knowledge and control over it. 

[13]      In relation to Mr McDowall, label 5, despite its description on the list, was in fact an encased coin, which the joint minute established had been stolen from the house.  It was located in a bedroom occupied by the appellant.  It had been brought into the house and the bedroom in the early hours of the morning and placed on open view on the windowsill.  There was also the bag of gold.  DNA belonging to Mr McDowall was found on the casing; that is to say one of the stolen items.  One inference from that, which drawn by the jury in due course, was that he had handled the item.  In these circumstances, following Fox v HM Advocate there was evidence of recent possession in criminative circumstances. 

[14]      In so far as Mr Lawrie is concerned, he was directly linked to the stolen property by reason of the finding of his DNA on both the coin and casing.  He was in the house where the other stolen property was found.  In these circumstances, there is a sufficiency of evidence of possession.  So far as the car is concerned, it was not disputed that it must have been stolen at the same time as the break-in by one or more of the persons involved in that break-in.  At the stage of the no case to answer submission, with which this appeal is concerned, there was sufficient evidence to demonstrate that all three accused had been involved in the break-in.  That being the state of the evidence at that time, there was sufficient evidence to conclude that the appellant had stolen the car.

[15]      Finally, in the case of Mr Scott, the stolen property was introduced into what was his flat in the early hours of the morning.  In these circumstances, once more, there is sufficient evidence of possession and that, coupled with the limited time lapse and the criminative circumstances, provided a sufficiency of evidence against him. 

[16]      These appeals are accordingly refused.