Robber whose DNA was found on torch inside house fails in appeal against conviction 

Michael Ritchie claimed it was his brother who committed the crime and that he had previously given torches to his sibling, which is why his DNA would have been on it.

He argued that the sheriff “misdirected” the jury when explaining the defence position, but the High Court of Justiciary Appeal Court ruled that the evidence against the appellant was “highly incriminatory” and that “no miscarriage of justice” had occurred.

DNA evidence

The Lord Justice General, Lord Carloway, sitting with Lord Glennie and Lord Turnbull, heard that in June 2009 the appellant was convicted following a trial at Elgin Sheriff Court of breaking into a house in Forres and stealing a quantity of jewellery, war medals, coins and a box, while on bail.

The court was told that the owner of the house in the libel had died on 21 April 2018, and that the house had been checked on 11 May, when it was found to be in order.

By the following day, however, it had been ransacked, with one of the windows having been forced open and jewellery, war and constabulary medals, coins and a box stolen from the empty property.

It was not disputed that a small black torch found on the floor inside the front door had belonged to the appellant, nor was it disputed that his DNA was found on it, but the defence argued that the DNA profile of another person was also on the torch.

Expert evidence about the deposit of DNA was led by both the Crown and the defence, with various scenarios put to them about how DNA can be deposited, how long it could remain, how it could be transferred and whether it was primary or secondary.

In an interview with the police, the appellant, admitted being in the vicinity of the house, having been visiting someone about 150 metres away. 

When asked about how a black torch with his DNA on it came to be in the house, he explained that he had given torches to his brother - who had previous convictions for theft - so if the torch had been his, his DNA would have been on it.

The sheriff gave the jury the general directions on the onus and standard of proof, adding that the appellant did not have to prove his innocence and that the appellant’s position had been that contained in the interview. 

She stressed that it was for Crown to “meet the defence case” as set out in the interview and to satisfy the jury beyond reasonable doubt that that defence should be rejected.

The sheriff said it was up to the jury to decide which of the experts’ evidence they accepted, but that “Any hypothetical situations given to you in the speeches are not evidence”, before giving  various examples of how DNA evidence could be transferred and the need for evidence to support those propositions.

‘Sheriff misdirected the jury’

The appellant, who was sentenced to 21 months’ imprisonment, appealed against his conviction.

It was submitted that the sheriff had “misdirected” the jury relative to the various scenarios, which had the effect of “reversing the onus of proof”. 

The defence scenario had been that the torch may have been given by the appellant to the incriminee and used in the commission of the offence, and that it had been this torch that had been found at the scene. 

The sheriff had suggested that the jury had to have evidence that the incriminee had touched the torch fleetingly and that it had been the torch which had been found at the scene, but this would, it was argued, suggest that the same onus applied to both the Crown and the defence. 

The sheriff had said to the jury that the hypothetical situations given in speeches were not evidence, suggesting that the defence position was “hypothetical”, which was also incorrect. 

The defence position had a “clear evidential basis”, because the appellant had said that this brother had borrowed the torch or torches from him, and the expert evidence from the defence had suggested that the DNA of an unidentified person was on the torch. 

It was submitted that these matters were compounded by a remark made by the procurator fiscal depute (PFD) about the appellant’s answers at police interview and the fact that the sheriff had failed to correct what was an error of law on the part of the PFD, which been “misleading” and apt to “confuse the jury”.

‘No miscarriage of justice’

Refusing the appeal, the judges ruled that there had been “no material misdirection” in the sheriff’s charge to the jury.

Delivering the opinion of the court, the Lord Justice General said: “The evidence in this case was that the appellant’s DNA had been found on a black metal torch which had been left by the housebreaker at the locus. This evidence was highly incriminatory. 

“The appellant did not testify and, in particular, did not identify the torch which was produced at the trial as one which he had given to his brother. He did, however, say in his interview that he had given his brother torches in the past and that about a month before the incident, he had given him a black rubber torch. As already mentioned, the torch which had been found at the locus was not a rubber one.

“In her directions to the jury the sheriff made it clear that the onus was on the Crown to prove the case against the appellant beyond reasonable doubt and that no such onus rested upon the appellant. She correctly explained to the jury that various hypothetical situations, which had been put by both parties to the experts and perhaps to the jury themselves, did not constitute evidence of fact in the absence of evidence to support them. 

“The sheriff could have expressed herself with greater clarity in relation to the onus remaining on the defence when dealing specifically with the appellant’s version, as given in his interview, and when dealing with the torch and the defence expert’s view of the DNA coming partly from an unknown source.” 

“However,” Lord Carloway added, “the directions must, as it was accepted, be read as a whole. When that is done, it can be seen that the sheriff made it clear that the onus remained on the Crown and that there was no such onus on the defence. The sheriff’s reference to hypothetical situations was merited in the circumstances. 

“Anything said by the PFD was adequately covered by the sheriff in her general directions on onus; the sheriff being in the best position to determine what was required in order to correct any misconception that the jury might have had from what the PFD had said.

“In these circumstances, no material misdirection is apparent from the sheriff’s directions. In addition, no miscarriage of justice has occurred. In that situation, the appeal must be refused.”