Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lord Bracadale Lord Woolman	[2010] HCJAC 1 XC235/07 OPINION OF THE COURT delivered by LORD BRACADALE in NOTE OF APPEAL AGAINST CONVICTION by PETER MORRIS HETHERINGTON Appellant; against HER MAJESTY'S ADVOCATE, Respondent: _______

Act: D. Findlay QC, V. Young; Lavery Smith & Co, Glasgow

Alt: P. Ferguson QC, Crown Agent

6 January 2010

[1] On 9 March 2007 after trial at the High Court at Glasgow the appellant was convicted of the following charges of theft, assault and robbery and attempt to defeat the ends of justice:

"(1) on 1 February 2006 at Old Dumbarton Road, Glasgow you Peter Morris Hetherington and Thomas Hunter did steal motor vehicle registered number K57 RCS;

you Peter Morris Hetherington did commit this offence while on bail, having been granted bail on 7 September 2005 at Dumbarton Sheriff Court;

(2) on 9 February 2006 at Crow Road, Glasgow you Peter Morris Hetherington and Thomas Hunter did assault Thomas Hanlon, Brian Donald and Frank Campbell, all c/o Strathclyde Police, Stewart Street, Glasgow and did brandish a shotgun and hammer at them, threaten them with violence and rob them of a security cashbox, force Frank Campbell aforesaid to hand over a cash bag and rob him of said cash bag containing £18,000 of money;

you Peter Morris Hetherington did commit this offence while on bail, having been granted bail on 7 September 2005 at Dumbarton Sheriff Court;

and

(3) on 9 February 2006 at Churchill Drive, Glasgow you Peter Morris Hetherington and Thomas Hunter being conscious of your guilt in relation to charges (1) and (2) libelled above, and having used motor vehicle registered number K57 RCS in the commission of the crime libelled in charge (2) above, did wilfully set fire to said motor vehicle in an attempt to destroy it and any other physical evidence that may connect you to said crimes and this you did with intent to defeat the ends of justice and you did thus attempt to defeat the ends of justice;

you Peter Morris Hetherington did commit this offence while on bail, having been granted bail on 7 September 2005 at Dumbarton Sheriff Court."

The co-accused Thomas Hunter was also convicted of all charges. The appellant was sentenced to 15 years 6 months imprisonment.

The evidence

[2] The circumstances of these offences, as disclosed in the evidence, are set out in the report by the trial judge as follows. On 9 February 2006 three employees of Brinks Security were engaged in uplifting cash from and delivering cash to various banks in Glasgow. In the course of their duties they visited a branch of the Bank of Scotland in Crow Road, Glasgow arriving about 8.30 pm. Two of the security guards alighted from the vehicle carrying an empty box. They intended to go into the bank and uplift cash which would be placed into the security box and thereafter carried to the van. When the security guards were on the top step at the entrance to the bank, two men approached from behind and shouted "Lie on the fucking ground" and "Open the fucking box". One of the men had a shotgun and the other had a claw hammer. The man with the shotgun prodded the legs of one of the guards and shouted "Open the fucking box or I'll blow your legs." The other man tried to open the box with the claw hammer, but the box began to give off a high pitched squeal. The guard told the man with the gun that he did not have a key for the box and that he should go to the van to ask for money. The man with the gun then went to the van and pointed the shotgun at the window of the van. He shouted to the remaining occupant that he should pass out money. The third guard, who was concerned for the safety of his colleagues, passed out a bag containing £18,000. Both men then ran towards a car and drove off in the direction of Hyndland Railway Station. The man with the gun was described as being 5 feet 7 inches or 5 feet 8 inches in height, of medium build and wearing dark clothing. His face was covered with something dark. He had a Glasgow accent. The man with the hammer was described as being of heavy build. One of the guards was 171/2 stone and he thought that the man with the hammer was of similar weight.

[3] The getaway car was abandoned near a path leading to Hyndland Railway Station. At about 9.30 pm a witness, Daniel Craig, saw two men at Hyndland Station. He identified the co-accused as being in possession of a safety deposit box which was emitting a noise like a siren. This witness saw a second man whom he associated with the co-accused. The second man was running. He was of slighter build than the co-accused. The witness estimated his height as 5 feet 7 inches. The impression that the witness had was that the man with the box was older than the second man and he thought that the man with the box was in his late 40s or early 50s. The co-accused was described at an identification parade held on 29 May 2006 as being aged 49 years and between 5 feet 10 inches and 6 feet tall, of heavy build, grey hair and having facial growth. The appellant was described at the parade on the same day as being aged 45 years, 5 feet 7 inches in height, of medium build and having short brown hair.

[4] On 26 May 2006, police officers in possession of search warrants searched the homes of the appellant and the co-accused. In the living room of the house of the co‑accused there was a free-standing plant pot which had earth in it about 18 inches deep. Buried halfway down, there was a package containing £700 in £20 notes. In the living room of the appellant's house the police officers recovered a laptop computer with discs. Within the case for the laptop computer they found the receipt for its purchase. The receipt disclosed that the computer and associated items were purchased from PC World, Finneston Street, Glasgow on 10 February 2006 at 09.53 hours. The total cost of the purchases was £823.96 and the receipt disclosed that £830 in cash was tendered in payment.

[5] The appellant was detained and in the course of an interview he admitted knowing the co-accused, whom he described as being like Santa Claus. He agreed with the suggestion that the co-accused was quite heavy. He denied being with the co‑accused on the day of the robbery. The appellant and the co-accused saw each other at their respective houses and each had also travelled in the car belonging to the other. He also stated that he was not working and that his wife was in receipt of mobility allowance.

[6] The wife of the appellant gave evidence as a Crown witness. She maintained that the receipt for the computer belonged to the appellant and their daughter. The daughter had obtained a loan from the Social Security. Although the daughter did not live at home, she was not allowed to take the computer away from the appellant's home. This witness identified the co-accused as someone who had been a friend of the appellant for years. He visited them "now and again".

[7] An attempt had been made to set fire to the abandoned getaway car using improvised incendiary devices. One of the devices consisted of a cigarette attached to matches by means of elastic bands, the intention being that as the cigarette burned down it would ignite the matches. In the event, although the cigarette had been lit, it had extinguished without igniting the matches. The other device had three constituent parts: a bundle of eleven loose matches secured with an elastic band; a box of matches; and a demister pad. The three items were secured together by elastic bands. Close to one of the incendiary devices there was a black and white piece of material. The owners of the car confirmed that the demister pad had been in the car when it was stolen some time after 11.00 am on 1 February 2006.

[8] The Crown led evidence from Lara Deborah Lee, a forensic scientist who, along with a colleague, examined the improvised incendiary devices for the presence of DNA. They were provided with reference samples from the appellant, the co‑accused and the two owners of the getaway car. They recovered DNA on the elastic band securing the cigarette to the matches in the first device. From that DNA a profile was obtained which matched the profile of the appellant. On the elastic band which held together the eleven loose matches in the second device they recovered DNA from which a profile was obtained matching the profile of the appellant. There were further trace amounts of DNA which did not match the profiles of the co-accused or either of the owners of the vehicle. On a taping from the demister pad DNA was recovered containing a mixture of DNA from three or more sources. The major profile within the mixture matched that of the appellant. A taping from the piece of black and white checked material bore DNA containing a profile which matched that of the co‑accused.

Ground of appeal

[9] The Ground of Appeal was that there was insufficient evidence to entitle the jury to convict of the charges against the appellant. In the Note of Appeal it is conceded that there was sufficient evidence to entitle the jury to conclude that a robbery was committed by two men who made their escape from the scene in a recently stolen motor car. It was further conceded that the car was abandoned shortly after the robbery in the vicinity and an attempt had been made to set it on fire using improvised incendiary devices. However, it was contended that there was insufficient evidence, to demonstrate that the appellant was one of the robbers and, accordingly, the submission of no case to answer, which was repelled by the trial judge, should have been upheld.

Submissions for appellant

[10] Mr Findlay QC who appeared on behalf of the appellant accepted that there was a clear sufficiency of evidence against the co-accused. He had been identified by Mr Craig and his build closely fitted the description of the large robber.  The trial judge reported that one of the security guards, Brian Donald, appeared to identify the appellant as the man with the gun, but it became clear in cross‑examination that his identification was unreliable because it depended upon the identification of shoes which the Crown accepted were not worn by the appellant at the time of the robbery. Mr Donald also stated that the man with the gun was 5 feet 7 inches or 5 feet 8 inches in height and of medium build. The height and the build matched that of the appellant. Mr Findlay submitted that that description of height and the build was of a most general nature and could not be described as an identification. The trial judge had referred to the fact that the appellant and the co-accused knew each other. Mr Findlay submitted that this did not even amount to an adminicle of evidence and would not have any bearing on the commission of a robbery.

[11] In relation to the evidence that the appellant had purchased a piece of computer equipment for cash on the day after the robbery, Mr Findlay pointed out that the comment in the trial judge's Report that the appellant was not working came from the evidence of the interview of the appellant. All this showed was that he was not working in May 2006. It was not canvassed with him whether he was in employment in February 2006.

[12] There was no forensic evidence to connect the appellant with the security guards. In relation to the DNA relating to the improvised incendiary devices found within the car, Mr Findlay pointed out that these were moveable objects and were not part of the car. Accordingly there was no evidence that the appellant had ever been in the car. In relation to the DNA on the demister pad, Mr Findlay submitted that while at first blush that might imply direct contact with the demister pad, there was no basis for excluding the possibility that the demister pad had been contaminated by DNA from the rubber bands. He suggested that the likelihood was that the DNA had been transferred from the rubber bands to the demister pad. There was, he submitted, no basis for concluding that the person whose DNA was on the demister pad had ever actually touched the pad. Mr Findlay contended that the forensic evidence was to the effect that the DNA on the demister pad had come from contamination from the elastic bands. There was no evidence that the presence of DNA on the elastic bands meant that it had to be deposited on them when they were being used to make the incendiary devices. Even if the DNA was deposited at the time when the devices were created, it could not be inferred that they were necessarily going to be used in connection with a robbery. On the whole evidence led by the Crown there was not sufficient evidence to demonstrate that the Crown had proved that the shorter robber was the appellant. The submission of no case to answer should have been sustained.

Submissions for the Crown

[13] The Advocate Depute pointed out that this was a circumstantial case. He accepted that in the absence of the DNA evidence the other adminicles would not have been sufficient to prove that the appellant was one of the robbers. However, he submitted that the DNA evidence was important. The demister pad had been in the car when it was stolen on 1 February 2006. He submitted that it was open to the jury to conclude that the demister pad had come to have the DNA on it in the course of the construction of the improvised incendiary device. They could infer that the purpose of the preparation of the device was to cover the tracks of the robbers. In relation to the question of secondary transfer from the elastic bands to the demister pad, the Advocate Depute referred to the cross-examination of the forensic scientist. She had expressed the opinion that the amount of DNA recovered from the demister pad rendered it more likely that there had been a primary depositing of the traces of DNA directly on to the demister pad, rather than contamination from the elastic bands.

[14] The Advocate Depute submitted that, in the context of this case, the DNA evidence on its own would have been sufficient to allow the jury to infer that the appellant was one of the robbers. In support of that contention he relied on the case of McGuire v HMA 2003 SCCR 758, which related to DNA on a discarded mask. He also drew attention to the other adminicles of evidence identified by the trial judge. In addition, he pointed out that circumstantial evidence may be open to more than one interpretation, and that it was precisely the role of the jury to decide what interpretation to place on such evidence (Megrahi v HMA 2002 SCCR 509 at page 529, paragraphs 33 and 36).

Decision

[15] The question for us is whether the trial judge was correct in repelling a submission of no case to answer made under section 97 of Criminal Procedure (Scotland) Act 1995. It is conceded in the Note of Appeal that that there was sufficient evidence to entitle the jury to conclude that (a) the robbery was committed by two men who made their escape from the scene in a recently stolen motor car; (b) the getaway car was abandoned in the vicinity shortly after the robbery; and (c) an attempt had been made to set the vehicle on fire using improvised incendiary devices. From that evidence it was open to the jury to infer that the purpose of the improvised incendiary devices was to destroy evidence connecting the car and its occupants to the robbery. In the circumstances it is difficult to conceive of another purpose for them. From the DNA evidence it would be open to the jury to infer that the appellant had been involved in making the improvised incendiary devices. The evidence of the forensic scientist as to the likelihood of direct depositing of DNA on to the demister pad, rather than contamination from the elastic bands, would entitle the jury to conclude that the appellant had handled the demister pad. The demister pad had been in the car when it was stolen some days before the robbery.

[16] The Crown case against the appellant was a circumstantial case and was heavily, though not exclusively, dependent on the DNA link between him and the improvised incendiary devices in the car. Whether, in a case where a link of this kind is relied on, it is open to a jury to draw the inference that the accused was involved in committing the crime will depend on the nature of the item on which the DNA or other link is found and its association in time and place with the crime. Regard must be had to the readiness with which the accused may innocently have come to be in contact with the item (see McGuire v HMA 2003 SCCR 758, Lord Hamilton at paragraph 18). It seems to us, having regard to the use of the stolen car in the robbery, the nature and purpose of the improvised incendiary devices, one of which included in its construction an item which had been in the car when it was stolen, that there was demonstrated a close association between the improvised incendiary devices and the robbery. The presence on them of DNA from which a profile was obtained matching that of the appellant was highly significant. It would, in our view be open to the jury to infer that he was one of the robbers.

[17] In addition, there were other adminicles of evidence. The co-accused, who was established to be one of the robbers, had been a friend of the appellant for many years. The height and build of the appellant matched that of the smaller of the two robbers. The description of the man running at the railway station in the vicinity of the co-accused matched the appellant. Further, the appellant was in possession of £830 in cash the morning after the robbery and used it to purchase computer equipment.

[18] In our view the trial judge was correct to repel the submission of no case to answer and the appeal against conviction is refused.