Appellant: Ewing, solicitor advocate; Turnbull McCarron, Glasgow

Respondent: Miller, advocate depute; Crown Agent

21 December 2012

Introduction
[1] The appellant was indicted on two charges of robbery. He pled guilty to Charge 2 and went to trial on Charge 1, which was in the following terms:

"(1) on 24 March 2011 you ... did, whilst acting with another to the prosecutor unknown and whilst masked, force your way into the dwellinghouse at Flat 0/1, 22 Bankhall Street, Glasgow and assault George Mercer, residing there, aged 68 years, repeatedly demand drugs from him, seize him by the body and force him to accompany you into various rooms in said flat, search said rooms, threaten him, press his glasses with force while he was wearing them and cause them to break, press your thumb into his eye, rifle through his clothing, throw him to the ground, bind his legs together with cable, strike him on the head with a knife or similar instrument, place him in a state of fear and alarm for his life and threaten him with violence if he reported you to the police all to his severe injury and permanent disfigurement and you did rob him of £20, a mobile telephone, a calculator, a top up card, cheque books and a quantity of personal documents."

The appellant was convicted of Charge 1 by a majority verdict. He now appeals against conviction, and also seeks a consequential reduction of sentence.

The evidence at the trial
[2] The trial judge summarised the evidence at the trial as follows:

"The Crown case against the appellant on charge 1 was in short compass. The complainer, who appeared to be somewhat frail, gave evidence that he was violently attacked in his home by two men. He was unable to identify either of them. The taller of the two had something like a scarf round his face. The assailants forced their way into the complainer's house when he opened the door to them at about 10pm on 24 March 2011. They repeatedly demanded drugs from him. I should mention that there was no suggestion in the evidence that the complainer was involved with illegal drugs in any way whatsoever. One of the men restrained the complainer in the kitchen, whilst the other (the one wearing the scarf) searched the house, including the living room. At a later stage, the complainer was taken into the living room by the man who had been restraining him in the kitchen; he was then tied up. Accordingly, the complainer's evidence was that both assailants entered the living room at some point during the robbery. The complainer's legs and ankles were bound up with computer or telephone extension cable. He was assaulted in the manner described in the charge. His glasses were pushed into his face and his left eye was injured as a result. In addition, one of the assailants slashed the complainer across the face in a particularly vicious manner. The resultant wound and scar ran from his chin to his ear on the left side of the complainer's face. Photographs showed that the wound was a deep one. The complainer was kept in hospital for about a week. He has been left with a disfiguring scar on the left side of his face. After the attack he moved to secure accommodation.

Passers-by became aware of a disturbance taking place in the complainer's house and summoned the police. Police officers arrived whilst the assailants were still in the property, but they managed to escape through a rear window into a courtyard. They were not traced at that stage.

The only evidence incriminating the appellant was a single fingerprint. The fingerprint of his left forefinger was found on the exterior surface of the living room door, four feet up at the open edge. This was agreed by Joint Minute. The fingerprint examiner who gave evidence, Karen McBride, explained that it was impossible to express any view as to when the fingerprint had been left on the door.

The complainer said in evidence that he did not know anyone by the name of Thomas Cameron. He confirmed that this was what he had stated to the police when they questioned him during the course of their investigations after the robbery. The police showed him photographs of possible perpetrators when he was still in hospital, but the complainer's glasses had been broken in the attack and because of this he was unable to assist at that stage. Later, in about May 2011, police officers showed the complainer an emulator sheet containing photographs of twelve men. The appellant's photograph was image No. 12 on the sheet. The complainer told the police that he was unable to recognise anyone, including the appellant, from the photographs shown to him.

The complainer also stated in evidence that he very rarely had visitors to his house. The only visitors he regularly received were his brother and the minister from his local church. When asked in evidence, the complainer said that he could think of no reason why the appellant would have come to visit him in his house. In cross-examination the complainer confirmed that he had been the tenant of the property for a total period of about two and a half years. He gave up the tenancy about 3 months after the robbery. So he had lived there for around 2 years and 3 months at the time of the robbery.

The appellant did not give evidence. Accordingly, there was no evidence as to an innocent explanation for the presence of the appellant's fingerprint on an internal door in the complainer's house. The appellant was the only person who could have supplied such an innocent explanation. In his police interview the appellant was asked if he could explain the presence of the fingerprint, but he declined to offer any explanation for it.

The Crown case was that it could be inferred from the fingerprint on the surface of the living room door that the appellant had been one of the perpetrators of the robbery, particularly in view of the fact that both robbers had gone into the living room in the course of the incident and there was no other explanation for the appellant's fingerprint being on the door. The jury evidently accepted that approach in deciding to convict the appellant of charge 1."

The ground of appeal against conviction
[3] The appellant appeals against conviction on the following ground:

"1. Conviction on charge 1 - Sufficiency

That the trial Judge erred in law in repelling the submission of no case to answer (in terms of s97 of the 1995 Act) in relation to charge 1 on the Indictment.

(a) The evidence led in relation to charge 1 was insufficient in law to justify the appellant being convicted of it.

(b) The issue for determination by the jury was whether the appellant was one of the perpetrators of the robbery. The Crown case relied entirely on fingerprint evidence.

(c) A print of the appellant's left forefinger was found on the surface of the living room door within the property where the robbery occurred. There was no connection in time and place between the fingerprint and the offence. In such circumstances the Jury was not entitled to infer that the person who had left the print was implicated in the offence. Accordingly there was insufficient evidence identifying the appellant as one of the perpetrators of the offence".

Submissions for the appellant
[4] Mr Ewing contended that there was insufficient evidence to identify the appellant as one of the perpetrators. The trial judge had therefore erred in law when he repelled the "No case to answer" submission made at the conclusion of the Crown case.

[5] The complainer's flat was described as a ground floor tenement flat, accessed from the common close. The flat's front door led into its interior hallway, from which all the rooms could be accessed. There was evidence that both assailants had been in the living-room at some point during the commission of the offence. But the assailants had not been identified by the complainer. The sole piece of evidence incriminating the appellant was a single fingerprint, identified as that of his left forefinger, found on the "hall-side" of the living-room door, about 4 feet up and at the open edge. It was not known whether the print was above or below the door-handle. There had been no expert evidence that the fingerprint had been made by someone touching or pushing the door in the act of opening the door. All that could be said was that the appellant had been present in the flat, and that he had touched the living-room door.

[6] It was accepted that a fingerprint could, in some cases, provide a sufficient basis for a conviction. Whether or not it did depended on where the fingerprint was found, and any association in time and place with the crime. In appropriate cases, a fingerprint could form part of a set of circumstances from which a jury would be entitled to draw an inference of guilt, in the absence of an explanation which they accepted, or which left them in reasonable doubt. But for such an inference to be drawn, it was necessary that the finding of the fingerprint demonstrated a connection of time and place with the commission of the offence, as in, for example Hamilton v HM Advocate 1934 JC 1; Langan v HM Advocate 1989 SCCR 379; and McPhail v HM Advocate, 14 June 2012 (XC558/11). By contrast, the cases of Slater v Vannet 1997 SCCR 578 and Campbell v HM Advocate 2008 SCCR 847 illustrated circumstances where a fingerprint on a moveable item was insufficient to demonstrate such a connection.

[7] In the present case, it was contended that the evidence did not reach the threshold referred to in Campbell sufficient to permit the case to go to the jury for their consideration. While it was accepted that there was sufficient evidence to entitle the jury to draw an inference that the appellant had been at the locus, there was insufficient evidence to draw the inference that he had been there at the time of the offence. There was no temporal connection between the appellant's presence in the flat and the offence. There was not such an intimate connection with the circumstances of the robbery as existed in McPhail, cit sup. The Crown appeared to suggest that the finding of the undated fingerprint meant that any offence at that locus, committed at any time, could be attributed to the appellant. That could not be correct.

[8] The court was invited to allow the appeal, and to quash the conviction of Charge 1.

Submissions for the Crown
[9] The advocate depute contended that the proper issue before the appeal court was whether the trial judge had been entitled to repel the "No case to answer" submission, i.e. whether there had been evidence which, if accepted, would have entitled the court or jury to proceed to conviction (cf Williamson v Wither 1981 SCCR 214). The fingerprint evidence indicated that the appellant had been present in the flat, and that he had had contact with one of the permanent fixtures and fittings (the living-room door). Each case had to be decided on its own facts. It was unnecessary to view this case as one crying out for an explanation, but a judge (when assessing a "No case to answer" submission) and a jury (when deliberating their verdict) were entitled to take into account the fact that there was no alternative explanation for the presence of the fingerprint. The absence of any alternative explanation was one of the relevant factors in the case, together with the fingerprint itself and the evidence of the householder. The case of Campbell cit sup was illustrative of circumstances where an alternative explanation arose from the facts of that particular case. In the present case, it could be inferred from all the evidence (absent any explanation to the contrary) that the fingerprint had been left in the course of the robbery. In the circumstances the trial judge was entitled to repel the motion of "No case to answer". The appeal should be refused.

Discussion
[10] In this case, the Crown relied upon circumstantial evidence, i.e. pieces or strands of evidence which, when looked at individually, may appear to have little significance; but when looked at together, are productive of a body of evidence pointing beyond reasonable doubt to the guilt of the accused: cf Al Megrahi v HM Advocate, 2002 JC 99, 2002 SCCR 509 at paragraphs [31] to [36]. As was noted in paragraph [16] of Campbell v HM Advocate 2008 SCCR 847, the sufficiency of circumstantial evidence must be decided on the basis of the particular facts and circumstances of every case. While precedent may give assistance, it will not necessarily be determinative.

[11] The evidence led by the Crown included the following.

[12] The complainer was aged 68. He lived alone in a small ground floor tenement flat at 0/1, 22 Bankhall Street, Glasgow. At the time of the robbery, he had been living in the flat for 2 years 3 months. He seldom had visitors. His only regular visitors were his brother and the local minister.

[13] On 24 March 2011 two men came to the appellant's front door at about 10pm and forced their way into the flat. The complainer was later unable to identify them. He was restrained in the kitchen by one man, while the other searched the flat, including the living-room. At a later stage, the man who had been restraining the appellant in the kitchen took him into the living-room where he was tied up. His glasses were pushed into his face, injuring his left eye, and one of the men slashed him across the face. Passers-by who noticed a disturbance called the police, but the two men managed to escape through a rear window and were not traced at that stage.

[14] The appellant's fingerprint was found on the hall-side of the living-room door, 4 feet up at the open edge. It was not possible for the fingerprint examiners to express a view as to when the fingerprint had been left on the door. The police traced the appellant.

[15] The complainer said in evidence that he did not know anyone with the name of "Thomas Cameron". He was unable to select anyone from a sheet of photographs which included a photograph of the appellant. He could think of no reason why the appellant might have been in his flat.

[16] The appellant did not give evidence. During his police interview, he answered questions with the response "No comment".

[17] In our opinion, there were several important strands of evidence in this case, namely: (i) The fingerprint was that of the appellant's left forefinger. (ii) The fingerprint was found on a door inside the flat, i.e. a heritable fixture and fitting, (not a moveable item) within the flat. As Mr Ewing very properly conceded, that fact established the appellant's physical presence in the appellant's flat at some undefined time. (iii) The door on which the fingerprint was found was the door of the living-room. During the robbery, both assailants went into the living-room. Furthermore the complainer was taken by one of the assailants from the kitchen to the living-room where he was tied up and further assaulted. (iv) The flat was a private residence, inaccessible to all unless by invitation of the complainer, in contrast with shop premises or commercial premises accessible to members of the public, where the finding of strange fingerprints would be explicable. (v) The complainer seldom had visitors: the only people who visited his flat regularly were his brother and his minister. (vi) The complainer did not know anyone called Thomas Cameron. (vii) The complainer could not think of any reason why the appellant or anyone called Thomas Cameron would be in his flat. (viii) The complainer had not recently moved into the flat, but had been living there for 2 years 3 months. (ix) One obvious inference from the finding of the appellant's fingerprint was that the appellant had been one of the two assailants. (x) Nothing in the evidence assisted the jury to find some alternative explanation (contrast with, for example, Campbell v HM Advocate, cit sup, where the circumstances offered alternative explanations to involvement with the rifle).

[18] Against that background we are satisfied that, in the circumstances of this case, the trial judge was entitled to reject the submission of "No case to answer". When the evidence was viewed altogether, there was in our opinion, a sufficiently strong circumstantial case such that it could properly be put before the jury for their assessment and decision. In other words, the various strands of circumstantial evidence provided the necessary "aptitude and coherence of the several circumstances" (Lord Justice Clerk Aitchison in Morton v HM Advocate, quoted in paragraph 31 of Al Megrahi, cit sup).

Decision
[19] For the reasons given above, we refuse the appeal against conviction. It follows that the appeal against sentence, dependent as it was upon success in the appeal against conviction, also falls to be refused.