Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 33

HCA/2015/3140/XC

Lord Justice General

Lady Paton

Lord Bracadale

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

APPEAL AGAINST CONVICTION

by

BRIAN LAING

Appellant;

against

HER MAJESTY’S ADVOCATE

Respondent:

Appellant:  Mackintosh; McCusker, McElroy and Gallanagh, Paisley

Respondent: R Goddard, Solicitor Advocate, AD; the Crown Agent

24 March 2016

Introduction  

[1]        On 10 August 2015 at Paisley Sheriff Court, the appellant was convicted of three charges relating to events occurring on 9 May 2015 at an address in Woodside Crescent, Paisley.  These included a contravention of section 38 (1) of the Criminal Justice and Licensing (Scotland) Act 2010 by striking at the front door of the flat with a machete, kicking the door and breaking a bedroom window.  On 7 September the appellant was sentenced to 14 months imprisonment.

The evidence
[2]        The evidence was that on 9 May 2015 the householder was at home in his flat along with several others.  The occupants spoke to the events libelled in the charge, but none of them made a positive identification of the assailant.  They did testify, broadly, that the perpetrator was male, in his twenties, tall, slim and spoke with a Scottish accent. 

[3]        The police were called to the scene.  The officer concerned found a trail of blood spots leading along the common passageway to the address.  Broken glass was found outside the bedroom window.  A piece of that glass had apparent blood on it.  It was removed for analysis.  A forensic scientist spoke to the content of her report which demonstrated that the blood matched the DNA profile of the appellant to a degree of probability that the likelihood of the blood coming from a male unrelated to the appellant was one in one billion.  Neither the evidence of the police officer removing the blood stained glass nor that of the forensic scientist was directly corroborated. 

[4]        On 11 May the appellant was detained and interviewed.  He had three recent lacerations to his fingers.  In response to questioning about this, he gave an explanation about being struck by a bottle.  He declined to amplify that.  He stated that he did not know anyone at Woodside Crescent and had not been there for about two years, although he did know the householder.  The police interviewing the appellant explained that the descriptions given by the various occupants coincided with their own description of the appellant’s appearance two days later. 

The sheriff’s report

[5]        The sheriff repelled a no case to answer submission on the basis that the several circumstances taken together supported the inference that the appellant was the perpetrator.  He described the various strands being: first, the blood being that of the appellant;  secondly, the location of the blood on the broken glass beneath the broken window;  thirdly, the window having been broken in the course of the disturbance;  fourthly, the appellant having recent cuts to his fingers;  fifthly, the appellant’s explanation about not being in Woodside Crescent, but knowing the occupant; sixthly, the absence of any explanation for the presence of the appellant’s blood at the locus; and, seventhly, the similarities in appearance between the appellant and the perpetrator as spoken to by the eyewitnesses.  The sheriff was satisfied that this constituted a circumstantial sufficiency. 

Submissions
[6]        The contention was that there was insufficient evidence to prove that the appellant had been the perpetrator.  Only one eyewitness had spoken to the recovery of the blood and only one forensic scientist had spoken to its analysis.  In these circumstances, there was insufficient proof of the appellant’s involvement.  In particular, although it was accepted that, where there was a single positive identification very little else would be required (Nelson v HM Advocate 1988 SCCR 536, LJC (Ross) at 540), here there was no evidence about when the blood had been deposited on the glass.  The evidence had not been of the same coherent quality as demonstrated the guilt of the perpetrator in Cameron v HM Advocate 2013 SCCR 107.  The blood had been found outside the flat.  Although the appellant did appear to have an injury, that was two days later.  All that the blood might establish was that, at some point, the appellant had been in the common close. 

[7]        The advocate depute submitted that the accumulation of circumstances, when viewed as a whole, entitled the jury to draw the inference that the appellant was guilty.  Reference was made to the classic descriptions of circumstantial evidence in Al Megrahi v HM Advocate 2002 JC 99 at paras [31] to [36] and Docherty v HM Advocate 2010 SCL 874 at para [58].  There had been recovery of the appellant’s DNA at the scene of the crime and that finding demonstrated that he was present when the glass had been broken.  That positive evidence required little by way of corroboration (Nelson v HM Advocate (supra) and Ralston v HM Advocate 1987 SCCR 467). 

Decision
[8]        Where there is a positive but single strand of evidence which identifies an accused as the perpetrator of the offence libelled, as has been said previously in Ralston v HM Advocate (supra, LJG (Emslie)) at 472 and Nelson v HM Advocate (supra, LJC (Ross) at 540), very little else is required by way of corroboration to provide a sufficiency which would prove the accused’s involvement.  The single strand of evidence in this case came from the blood recovered from the broken pane of the window.  That permitted the inference that it had been the appellant who had been present at the scene at the time that window had been broken and was therefore the perpetrator of the crime.  By way of corroboration, there was evidence of the appellant’s recent injuries to his hands and the, albeit general, coincidences in general appearance between the appellant and the descriptions of the perpetrator by the eyewitnesses.  There was also the fact that the householder was known to the appellant.

[9]        In all these circumstances there was a sufficiency to enable the jury to draw the conclusion that the appellant was the perpetrator of the offences.  The appeal is accordingly refused.