Housebreaker who claimed DNA evidence was insufficient corroboration loses appeal against conviction

The Criminal Appeal Court rejected the appellant’s claim that the statistical strength of DNA evidence obtained from a cigarette butt found at the locus did not provide a corroborated circumstantial case that he had been the perpetrator.

The Lord Justice General, Lord Carloway, sitting with Lord Bracadale and Lady Clark of Calton, heard that the appellant Colin Reid was sentenced to 15 months imprisonment after being convicted after a trial at Inverness Sheriff Court of breaking into the home of an elderly woman in Drumnadrochit and stealing a watch and a jewellery box.

The evidence of the 76-year-old householder was that she left her home secure when went out on Sunday 31 March 2013, only to find that a bureau in her sitting room had been emptied, as had a drawer of a cabinet in the lounge, when she returned.

A police scenes of crime examiner, who told the court that he had found a stone which had been used to gain entry by breaking the glass doors, referred to some of the rooms as having been “ransacked”.

A cigarette “end” was also found just inside the point of entry at the patio door and later analysed alongside a DNA sample from the accused, with a joint minute stating that “the estimated probability of finding such matching DNA profiles if another male unrelated to is the contributor of this DNA is 1 in more than 1 billion”.

The appellant, who gave evidence that he had lived in Skye and did general gardening and related work in the Drumnadrochit area, explained his DNA being on the cigarette butt on the basis that he was a smoker and that at that time he would have been putting flyers through doors in the area.

The sheriff formed the view that there was sufficient evidence from which to infer that the person who had smoked the cigarette was the same person who had been the perpetrator of the crime and repelled a “no case to answer” submission.

However, the first contention on appeal was that the evidence had been insufficient.

The Crown intended to concede that there was no corroboration of the theft, thus leaving a conviction of housebreaking with intent to steal. Otherwise, the evidence was from a “single source”, it was submitted.

In the 2015 case of Dunbar v HM Advocate, it had been determined that where the only evidence was a DNA “match” of 1 in 4 million, this was insufficient and it was argued that the statistical strength of the DNA finding did not provide a corroborated circumstantial case that the appellant had been the perpetrator.

The advocate depute did concede that there was insufficient corroboration of theft of the items libelled, but said that there was, on the other hand, “sufficient evidence” that the appellant had been the housebreaker.

Refusing the appeal, the Lord Justice General observed that the case raised the “sharp issue” of sufficiency of evidence in circumstances where an item has been left at the scene of a housebreaking, upon which DNA is found linking it to the accused.

In a written opinion, the Lord Justice General said: “The householder gave clear, and unchallenged, evidence that, in essence, her house, or part of it, had been broken into, searched and certain specific items taken from it…As such, independent evidence that a house was ‘ransacked’ provides confirmation or support for a householder’s testimony that that is indeed what happened, ie items were stolen in the course of a housebreaking.”

The concession from the Crown was thus “not a sound one”.

“It is not necessary to prove theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance,” Lord Carloway added.

Turning to Dunbar and its sister, McGartland v HM Advocate, which was decided by the same court on the same day but with a different conclusion, he said reconciling the two cases may only be possible upon the basis of the difference between 1 in 4 million and 1 in 158 million, but he added that a fuller discussion of the statistical strength required for a conviction would have to be considered by a larger bench.

He continued: “In the present case, the statistic is 1 in 1 billion and that is sufficient upon which to hold that the jury were entitled to hold that it was the appellant’s DNA on the cigarette butt. It does, however, leave a question about just what statistic is required for proof beyond reasonable doubt. That is a matter which may need to be revisited by a larger court, which may also attempt to review what may be seen as differing judicial views on what is a matter for a jury and what for a judge.

“On the basis that the appellant’s DNA was indeed on the butt, which is the end of a smoked cigarette, the question is what inference can be drawn from that. The answer may appear straightforward. It is that the appellant had been smoking the cigarette at some point and, for whatever reason, he had dropped or lost it in the course of the housebreaking.

“There are other possible explanations, but, at the no case to answer stage (with which this appeal is concerned), there was none from the appellant. In these circumstances, the sheriff was bound to refuse the defence submission.

“Thereafter, the appellant tendered his explanation and this was ultimately rejected by the jury. There was no need for the sheriff to give any special ‘route to verdict’ instructions in what was a relatively straightforward trial.”