Man found guilty of theft by housebreaking who claimed ‘no case to answer’ fails in appeal against conviction

Richard MacPherson, who was sentenced to three-and-a-half years’ imprisonment, challenged a sheriff’s decision to dismiss a defence submission of “no case to answer”, but the Appeal Court of the High Court of Justiciary refused the appeal.

‘No case to answer’

The Lord Justice General, Lord Carloway, sitting with Lord Brodie and Lord Turnbull, heard that the appellant was found guilty following a trial at Aberdeen Sheriff Court in June 2018 of breaking into a house in Spital, north Aberdeen and stealing a number of items.

The court was told that the property had been secured when the student occupants had left at about 2pm on Wednesday 20 December 2017. 

At about 12.30pm on Thursday 21 December, the appellant had bought a mobile phone at the Union Street branch of Vodafone, where he was observed to have been in an intoxicated state.

When he left the shop he had a red Vodafone plastic bag containing the box for the phone and a receipt, on which the phone number had been recorded for his benefit. 

At about 7.30pm on 21 December a friend of the occupants, who had permission to enter the property, noticed that items in the house had been disturbed. 

When the students returned at about 7.30pm on Friday 22 December, the Vodafone bag containing the box, the receipt, a screwdriver and a newspaper dated Thursday 21 December, was found in the house, and various items had been stolen.

The kitchen window showed signs of damage, consistent with it having been prised open with a screwdriver.

A forensic scientist spoke to DNA being recovered from the handle of the Vodafone bag, which had a mixed DNA profile of which the appellant was the major contributor, while at least four others could have made minor contributions by either handling the bag or by indirect or secondary transfer such as speaking, coughing or sneezing.

However, from a scientific point of view it was not possible to say when the appellant’s DNA had been deposited on the bag. 

The DNA on the screwdriver had a mixed profile, but it was unsuitable for further interpretation.

‘Innocent explanations’

The appellant made a “no case to answer submission” on the basis that there was only a “single piece of circumstantial evidence” pointing to his involvement. 

It was argued that the evidence was weak because “innocent explanations” could quite readily be advanced as to how the bag might have come to be in the house, but the sheriff repelled the submission.

In due course, the appellant testified that he had left the bag containing the box and receipt on a bus.

But he was ultimately convicted and sentenced to three years and six months’ imprisonment.

He appealed against his conviction, arguing that the evidence was “insufficient” to demonstrate that he had been at the locus at the time of the offence. 

In order to create a sufficiency, the Vodafone bag required to be “associated in time and place with both the crime and the appellant”. 

It was submitted that although he had had possession of the bag earlier in the day, it had not been proved that he still had it at the time of the offence, or that he had left the bag within the locus. 

There was a “window of opportunity” of some six-and-a half hours between the appellant’s proved possession and the housebreaking.

‘Reasonable inference’

Refusing the appeal, the judges ruled that it was a “legitimate inference” that the appellant had the bag in his possession during the housebreaking and that he “forgot” to take it with him.

Delivery the opinion of the court, the Lord Justice General said: “The finding at the scene of a crime of an item, which is proved to belong to an accused or upon which the accused’s DNA or fingerprint has been left, is a piece of circumstantial evidence which links the accused to the item. It may link him to the scene and give rise to an inference that he was present at the material time.

“This in turn may lead to an inference that he committed the crime. Whether these inferences can be drawn from the circumstantial evidence ‘is the result of reason exercised upon the facts, or of reason and experience conjoined’.

“Whether an inference from proved fact is a legitimate one, thus amounting to a sufficiency of evidence, is, first, a matter for the judge or sheriff, should he or she be faced with a submission to the opposite effect. Secondly, it will be a matter for the fact finder (whether jury or sheriff) to determine whether to draw the inference in the face of any other inferences which may be open on the evidence led at trial.”

The court observed that in each situation, reason had to be applied to the proven facts to determine whether it was legitimate to draw the inference of involvement in the crime, which would involve “questions of fact and degree”.

Lord Carloway added: “is case, it is a legitimate inference, from the appellant having bought the Vodaphone bag in which to carry the box for the phone and the receipt with the information about the number, that he had left the shop with the intention of transporting the items home or to some other place in that bag. 

“In the absence of acceptable evidence that he had discarded the bag en route, it is a legitimate inference that he would still have had it a few hours later when the crime was committed (ie he had used it to carry the screwdriver and the other items to the locus).

“Applying reason to the facts, the prospect, of: (i) the appellant having lost or discarded the bag; (ii) the bag being picked up by chance by a random housebreaker; (iii) that person electing to carry the empty phone box and receipt with him, and to use the bag to carry the screwdriver and a newspaper; before (iv) finally leaving the bag at the scene of a crime, is very remote indeed. 

“It is a reasonable inference that the appellant had the bag with him from the point at which he left Vodafone until the time when, in an inebriated state, he forgot to take it with him along with the fruits of the housebreaking.“