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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General
Lord Eassie
Lady Paton
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[2008]HCJAC50Appeal No: XC230/06OPINION OF THE COURT delivered by LADY PATON in THE REFERRAL BY THE
SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of BARRY JONATHAN CAMPBELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Nicolson; Adams Whyte, Edinburgh
Respondent: McCallum, Advocate
Depute; Crown Agent
Introduction
[1] The appellant
was born on
"30.
On 11 July 2002, in Broomhouse Road, Edinburgh, you ...did abduct Stephen
Ogilvie ...seize hold of him, compel him to enter motor vehicle registered number
L784 TSR and convey him therein against his will to 27/5 Murrayburn Place,
Edinburgh ... and place him in a state of fear and alarm for his safety ...
31.
On
33.
On 11 July 2002, in the carpark of the Hilton Edinburgh Airport Hotel ...
whilst being interviewed by ... Lothian and Borders Police, you ... did pretend
that your name was James Campbell ... with intent to conceal your true identity ...
and did thus attempt to pervert the course of justice."
[2] The trial
judge imposed a cumulo sentence of
four years in respect of the common law offences libelled in Charges 30 and 33,
and a consecutive sentence of two years in respect of the firearms offence
libelled in Charge 31. Accordingly the
total sentence was one of six years imprisonment, back-dated to
Application for leave to appeal against
conviction
[3] The appellant
sought leave to appeal against conviction and sentence. His appeal against conviction related solely
to Charge 31, as set out in his Note of Appeal:
"Charge 31: The appellant was convicted of possession of
a firearm (charge 31). At the close of
the Crown case, the appellant made a submission in terms of section 97 of the
Criminal Procedure (
[4] In his report,
the trial judge outlined the evidence relating to Charge 31 as follows:
"The evidence, so far as relevant to
this charge, disclosed that at about
Gordon Fyfe (Crown Witness number 3)
testified that he obtained the tenancy of
DC Keith McGowan (Crown Witness 110)
testified that on
Apart from the two black bags which
were wrapped round the rifle there was evidence that another black bag was
recovered containing certain items.
There was no other evidence of such bags in use within the house. I dealt with the absence of evidence about
other black bags in my charge to the jury at page 9, line 5 to page 10, line 14
in the context of the address to them by senior counsel for the appellant.
From the evidence it appeared to me
that the jury could infer that the appellant was living with the householder,
Louise Denny and had been living with her at the address where the rifle was
found since April 2002. In any event the
jury could infer that he stayed overnight at the address as recently as 9/10 July
2002. Having regard to the concealed
location of the rifle, the appellant's fingerprints on the bag covering the
rifle, the absence of any evidence about the general availability of such bags
within the house, the absence of any explanation for the appellant's
fingerprints on the bags containing the rifle and the fact that the householder
was the appellant's girlfriend with whom he was known to reside, the jury was
entitled to conclude that the appellant had the necessary knowledge and control
for him to be in possession of the rifle."
[5] The appeal
against conviction did not pass the first or second sift procedure. Accordingly no appeal hearing relating to the
conviction took place. The appeal
against sentence was duly heard, and was refused.
Application to the Scottish Criminal Cases
Review Commission
[6] The appellant
lodged an application relating to Charge 31 with the Scottish Criminal Cases
Review Commission. The Commission
carried out investigations, and ultimately referred the case to the High Court
of Justiciary in terms of section 194B of the Criminal Procedure (
"The above named convicted person
appeals against conviction on the following grounds:
1.
The appellant was convicted of possession of a firearm (charge 31 on the
indictment). The learned trial judge
erred in rejecting a submission in terms of section 97 of the Criminal
Procedure (Scotland) Act 1995 that there was insufficient evidence to support
this charge. The firearm was found
concealed behind a water tank in a cupboard in a flat. The appellant was not the householder. There was evidence [that] the appellant had
stayed overnight at the said flat the day before the firearm was found. A number of others also had access to the
flat, including at least three others who had keys to access it. The appellant's girlfriend at that time,
Louise Susan Denny, was identified as the occupier of the flat. The evidence in support of this charge consisted
of a single finger and partial palm print of the appellant on a plastic bag in
which the firearm was wrapped. There was
no evidence as to the time that the finger and partial palm print were affixed. There was no evidence to link the affixing of
the prints at the time the firearm was placed in the bag. There was no evidence to establish that the
appellant's fingerprints were deposited on the bag at a time when the firearm
was in it. There was no evidence as to
where the bag was when the prints were affixed.
Seven other unidentified impressions were found on the bag. Accordingly, there was insufficient evidence
to permit the jury to infer that the appellant had had knowledge and control of
the firearm. The learned trial judge
erred in repelling the submission of no case to answer.
2.
Esto there was sufficient
evidence to establish the charge, the learned trial judge erred in directing
the jury that senior counsel for the appellant had advanced a "theory"
concerning possible affixing of the appellant's prints on the bag (charge to
the jury page 9, line 5 to page 10, line 14).
The learned trial judge erred by implying to the jury that, as there was
no evidence to support the "theory", this was mere speculation. He directed the jury [that] they were not
permitted to indulge in speculation. In
view of the fact that the item concerned was a domestic rubbish bag, commonly
used for refuse disposal, the learned trial judge erred in removing from the
jury's consideration any innocent explanation there may have been for the
appellant's contact with the bag, as there had been no evidence before the jury
of such innocent explanation. It is
respectfully submitted [that] not every such innocent explanation requires to
be spoken to in evidence. The jury were
entitled to have regard to certain legitimate associations between the
appellant and the rubbish bag in the absence of other criminative
circumstances, even in the absence of direct evidence of such legitimate
associations from any witness."
In response, the trial judge prepared a second report, which
contained the following passage:
"In his submissions [in terms of
section 97 of the Criminal Procedure (Scotland) Act 1995], senior counsel for
the appellant referred me to Reilly v
HMA 1986 SCCR 417, Slater v Vannet, 1997 JC 226 and MacDonald
v HMA 1998 SLT 37. I considered that each case depended upon its
particular circumstances. The cases
referred to could be distinguished upon their facts. In Reilly
the fingerprint was found on the back of false number plates and the Court
considered that the nature of false number plates was such that they had been
in someone's possession for some time prior to the theft of the vehicle to
which the false number plate was subsequently attached. It was not possible in those circumstances to
establish whether the fingerprints had been placed on the number plate before
or after the theft of the vehicle. In Slater the appellant's fingerprints were
found on a bag within a market where there had been a break-in but there was no
evidence directed to the bag being associated with the unit at which the
break-in had occurred, nor was there evidence as to where the bag had actually
been found. In MacDonald the Advocate Depute acknowledged that he could not
establish that the appellant's fingerprint had been deposited on the car after
it had been stolen. In that regard the
case was not dissimilar to Reilly v HMA.
By contrast in the present case there was no evidence of other plastic
bags within the house apart from the plastic bag containing body armour which
was found under the settee. The
appellant was living at the house at or about the date of the search. The rifle was concealed behind the water tank. It respectfully seemed to me that in the
circumstances of this case the finding of the appellant's fingerprints on the
bags containing the rifle called for an explanation.
The second ground of appeal relates
to my direction to the jury at page 9, line 5 to page 10, line 14. The passage referred to accurately reflects
the absence of evidence of any black bags other than those recovered by the
police and introduced into evidence. I
have already referred your Lordships to evidence about those bags. In particular there was no evidence that the
belongings of the appellant or anyone else was contained in such black bags nor
was there any evidence of the existence of a roll or rolls of black bags within
the house. In referring to such matters,
senior counsel for the appellant acknowledged that he was indulging in
speculation. While it is true that the
item containing the appellant's fingerprints was a domestic rubbish bag
commonly used by some people for refuse disposal, as I have already observed,
there was no evidence of such bags within the house apart from the two bags containing
the rifle and the one bag containing the body armour. There was no legitimate association between
the appellant and the rubbish bags containing the rifle in the circumstances of
this case."
The appeal hearing took place on
Submissions for the appellant
[7] Ground
1: Counsel for the appellant contended
that there was insufficient evidence in relation to Charge 31. A number of people had access to the flat at
[8] Counsel
submitted that this was not a case where there was evidence from an eye-witness
claiming to have seen the appellant with the rifle, supported by evidence of a
fingerprint. It was not a case where a
fingerprint had been found on the gun itself.
The appellant's prints were found on one of the plastic bags wrapped
round the rifle, but there had been no evidence demonstrating the significance
of the position of the prints, as one might have in a case of uttering where
the position of prints gave rise to an inference that the accused had torn out
the cheque. It was not therefore
possible to draw the necessary inferences of knowledge and control of the
rifle. The prints could not be
dated. They did not have the
significance which a print might have in a housebreaking case, where an
individual's print was found inside a house where he should not have been. The concealment of the rifle behind a water
tank in the hall cupboard was a factor favourable to the appellant. It might be easy to infer knowledge on the
part of occupants in a situation where drugs had been left in open view in a
house: but it was not easy to infer
knowledge of the presence of the rifle in the appellant's case. All that the Crown had been able to prove was
contact by the appellant with the plastic rubbish bag at some unspecified time. That, taken with the surrounding
circumstances, was insufficient to allow the jury to draw the inference of
knowledge and control of the rifle.
Reference was made to Slater v Vannet 1997 S.C.C.R. 578; Maguire
v HM Advocate 2003 S.C.C.R.
758;
[9] Ground
2: Counsel submitted that the judge had
misdirected the jury in the following passage of his charge, where (at page 9 et seq) in the context of instructing
the jury not to speculate, the following directions were given:
"... Now, following on from that,
ladies and gentlemen, it is also not legitimate for you to base your decision
upon theories advanced by counsel unless these theories have some basis in the
evidence. For example, there is an
example of this, when he was addressing you in respect of charge no.31, Mr Ogg,
senior counsel for the second accused, described how Barry Campbell's
fingerprints might have been deposited upon one of the black bags covering up
the rifle which was recovered on 11th July from 27/5 Murrayburn
Place, Edinburgh. As I understood the
theory, it started with the proposition that black bin bags were common and
were used by students and others who were dossing, as it was put, in different
houses to move their belongings in such bags.
The theory also assumed that the bags were torn from a roll of bags and
that in tearing a bag from a roll for a legitimate purpose the accused might
deposit a finger and palm print on the rest of the roll or the next bag on the
roll. Ladies and gentlemen, there is no
evidence before you that there were any black bags in
[10] Counsel
submitted that the directions compounded the Crown's difficulties. Defence counsel at the trial had mentioned an
innocent explanation, possibly in more concrete terms than was appropriate. But that did not entitle the judge to direct
the jury to exclude the possibility of some innocent explanation. The jury should have been left with the
possibility that there might be an innocent explanation.
Submissions for the Crown
[11] Ground 1: The Advocate Depute submitted that the trial
judge had been entitled to hold that there was a case to answer in respect of
Charge 31. The circumstances, taken
together, were capable of supporting an inference beyond reasonable doubt that
the appellant was in possession of the rifle.
[12] The trial
judge had prepared two reports. In those
reports he had identified the following facts and circumstances:
1.
There was evidence that the co-accused Louise Denny was a de facto occupier of the flat.
2.
There was evidence that the appellant had been living with Louise since
April 2002.
3.
More particularly, there was evidence that on
4.
The Crown witness Fyfe gave evidence that a number of people had access
to the flat, and that some had keys, including Craig Wilson, David McLeave (the
first accused), and someone called Tony.
It was accepted that the appellant did not have keys.
5.
There was evidence that the rifle was found on
6.
There was evidence that the rifle was not visible from the hallway. The Advocate Depute conceded that such
evidence was open to a number of interpretations. But it was a circumstance which might tell
against the appellant, whose prints had been found on one of the bags wrapping
the rifle.
7.
On one bag had been found the finger and palm prints of the
appellant. It was accepted that a
further seven unidentified prints had been found. It was not possible to say whether those were
the prints of seven other persons, but what was clear was that the prints were
not referable to the appellant or to the co-accused.
8.
There was evidence that a third bin-bag was found concealed under the
settee in the living-room. The bag
contained a number of items, including body armour.
[13] While
reference to authorities might assist, each case had to be determined on its
own facts. The judge in his second
report had been entitled to distinguish previous decisions. In Reilly
v HM Advocate, the only evidence
against the appellant had been fingerprints on the false number-plate of a
stolen car, whereas in the present case the prints were not the only
evidence. The evidence about the prints
should be viewed in the context of the appellant's association with the flat,
and his presence there at a time relevant to the finding of the weapon. Slater v Vannet was also distinguishable. In that case, prints were found on a bag
within a shop unit which had been broken into.
By contrast in the present case not only were prints found on a bag
wrapped round the rifle, but also there was the additional evidence of the
appellant's association with the flat at the relevant time. Similarly
[14] Each case had
to be decided on its particular facts and circumstances. In Maguire
v HM Advocate cit. sup., the only
evidence was the accused's DNA on the inside of the jersey-sleeve-mask dropped
to the ground by the unidentified raider.
In the present case there was other evidence available beyond the
prints. In
[15] Ground 2: The judge's charge should be considered as a
whole. The Advocate Depute referred to
pages 9 to 10; 26; 39 to 40; 119; and
149 to 150. The charge emphasised the
presumption of innocence; the burden of proof resting on the Crown
throughout; and the fact that the
appellant need prove nothing. At pages
149 to 150, the trial judge directed the jury as follows:
"Charge 31 is the alleged possession
of the rifle. Again, ladies and
gentlemen, as far as I understand the position, the Crown rely upon the fact
that this accused was in control in the sense that he was one of a number of
people in the house. There was evidence
I think that he had stayed the night before or may have stayed the night
before. He was certainly there. So if you accept that he was there then you
could conclude that he was one of a number of people from that house who were
in control. But the issue really, ladies
and gentlemen, as I understand it is one of knowledge because you have not only
to have control but also knowledge and you will bear in mind that the rifle was
concealed behind the water tank in a cupboard and, as I understand it, the
Crown invite you to attribute knowledge to the accused because of the finger
and palm impression on the black bag or one of the black bags which was wrapped
round the gun. Mr Ogg on the other hand
says that the Crown hasn't excluded an innocent explanation for the
fingerprint. If you are satisfied beyond
reasonable doubt that he was in possession of the rifle, it is agreed that he
did not have the requisite certificate and you would convict. On the other hand, if you're not satisfied
you would obviously acquit ..."
Thus the judge had expressly reminded the jury that the Crown
might not have excluded an innocent explanation for the prints on the bag. The judge had done so at a stage later in his
charge than the passage about speculation (quoted in paragraph [9] above). The question of an innocent explanation had
therefore been left before the jury. The
charge, construed as a whole, could not be said to have led to a miscarriage of
justice. The second ground of appeal
should be refused.
Discussion
Ground 1
[16] Counsel for
the appellant and the Advocate Depute accepted, correctly in our view, that the
sufficiency of circumstantial evidence must be decided on the basis of the
particular facts and circumstances of each case. While precedent may give assistance, it will
not necessarily be determinative.
[17] In the present
case, two matters are in our view of particular significance when assessing
whether a jury would be entitled to draw an inference beyond reasonable doubt
that the appellant had knowledge of, and control over, the rifle.
[18] First, the
evidence established that the appellant was not the sole occupant or user of
the flat at
[19] Secondly, the
evidence established that the rifle was well concealed behind a water tank in
that hall cupboard. The rifle could not
be seen from the hallway. There was no
evidence that the appellant had ever been seen with the rifle: contrast with the circumstances in
[20] Against that
background, we have come to the view that the evidence was insufficient to
entitle a jury to draw the inference beyond reasonable doubt that the appellant
had knowledge and control of the rifle concealed in the cupboard. In our opinion, the jury would be entitled to
infer that the appellant had indeed come into contact at some time with the
black plastic bag (a moveable item) which had been used by someone to wrap up
the concealed rifle. Contact with such a
bag might be thought unsurprising, given that the appellant was a visitor to
the flat and that he might have come into contact with items and surfaces (both
moveable and fixed) within or brought to the flat. Thus some additional evidence would in our
view be necessary before the inference could properly be drawn beyond reasonable
doubt that the appellant had been involved in handling or concealing the rifle
and thus that he had the requisite knowledge of and control over the
rifle.
[21] We accept, of
course, that even with such additional evidence, the resultant body of
circumstantial evidence might be -
" ... open to more than one
interpretation and ... it is precisely the role of the jury to decide which
interpretation to adopt ..." (Lord Rodger of Earlsferry in Fox v HM Advocate 1998
S.C.C.R. 115 at page 126F).
It would be for the jury, examining the circumstantial evidence
as a whole, to decide what inferences to draw.
It would not be necessary that each piece of circumstantial evidence was
incriminating in itself, rather that the pieces, when looked at as a whole,
gave rise to an inference of guilt such that there was sufficient corroborated
evidence of guilt providing a case to answer, even if there was conflicting
evidence inconsistent with the accused's guilt (which the jury might choose to
reject): cf. Al Megrahi v HM Advocate,
paragraphs [31] to [36]. However in our
view the evidence in the present case did not reach the stage or attain the
level at which a jury would be entitled in law to consider competing
interpretations including one of guilt on the part of the appellant of the
offence libelled in Charge 31.
[22] It is neither
necessary nor appropriate for this court to indicate what further strands of
circumstantial evidence might have resulted in the necessary sufficiency of
evidence in this particular case. The
fact, for example, that the appellant had been present in the flat shortly
before the weapon was discovered was not in our opinion enough. But it is perhaps worth emphasising some
features which distinguish this case from previously decided cases in which there
was held to be a sufficiency of evidence.
[23] In Maguire v HM Advocate (the robbery of a shopkeeper), the accused's DNA was found on the internal surface of an item of
personal clothing, namely a woollen multi-coloured pullover, the sleeve of
which had been made into a mask used by one of the robbers. The robber was seen to discard the mask in
the course of the robbery. The mask was
not an impersonal or neutral item
such as the black plastic bag in the present case, which might be used by a
variety of individuals for a variety of purposes. As Lord Hamilton emphasised at paragraph
[18]:
"... 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 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."
Further the complainer in Maguire
had recognised the robber who discarded the mask as a "local boy", and had
given a description of that person. The
appellant did in fact live in the neighbourhood, and the complainer's
description was consistent with his appearance.
The jury were entitled to prefer that evidence to the complainer's
evidence in court when he maintained that he could not see any of the robbers
in the court-room. Finally there was the
evidence relating to the appellant's interview with the police. When shown the woollen sleeve made into a
mask, he stated that he did not recognise it and that he had never had contact
with it. The jury were entitled to weigh
up the appellant's response with all the other circumstances, including the
fact that the sleeve was a distinctive multi-coloured one, and that it bore the
appellant's DNA on the inner surface, giving rise to an inference that he had
come into contact with the inner surface of the sleeve, as one would when, for
example, wearing it.
[24] Thus in the
particular circumstances of Maguire, there
were several strands of circumstantial evidence coming from more than one
source which provided the necessary "aptitude and coherence of the several
circumstances" (in the words of Lord Justice Clerk Aitchison in Morton v HM Advocate,1938 J.C. 50, quoted
at paragraph [31] in Al Megrahi cit.
sup.). Thus there was a sufficiency of evidence,
entitling a jury to assess the evidence and to decide what to accept, what to
reject, and whether guilt had been established beyond reasonable doubt.
[25] In Langan v HM Advocate 1989 S.C.C.R 379 (a murder, where the victim was found
lying in a pool of blood in his living room), the appellant's fingerprint in
blood was found on the hot water tap of the kitchen sink. The blood was not identified, but another trace
of blood on the kitchen sink was found to be of the same group as that of the
deceased. There was evidence that the
deceased's blood could have remained liquid for about 24 hours after death. When cautioned and charged, the appellant
stated that he had never been in the victim's home. The circumstances in that case, taken
together, provided a cogent body of evidence from which the inference could be
drawn, beyond reasonable doubt, that the fingerprint had been made by the
murderer when cleaning up after the murder.
Accordingly there was a sufficiency of evidence for consideration by the
jury.
[26] In
[27] By contrast
with the cases of Maguire, Langan, and
Hamilton above referred to, we do not consider that the
circumstances in the present case provided a cogent body of evidence sufficient
in law to entitle a jury to infer to the standard beyond reasonable doubt that
the appellant had knowledge of, and control over, the rifle. As indicated in paragraph [20] above, the
most that the jury could in our view properly infer from the particular
circumstances of this case would be that the appellant had indeed come into
contact at some time with the moveable black plastic bag in question. The circumstances in which, and the time at
which, such contact was made, could not be inferred with any degree of
certainty from the evidence led. Such
contact could not in our view properly found an inference that the appellant
had the requisite knowledge and control of the rifle concealed in the hall
cupboard. Accordingly there was in law
an insufficiency of evidence: cf Slater v Vannet;
Ground 2
[28] In the
circumstances it is unnecessary to consider the second ground of appeal.
Decision
[29] For the
reasons given above, we shall sustain the first ground of appeal, and quash the
appellant's conviction so far as relating to Charge 31.