APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Drummond Young Lord Glennie	[2013] HCJAC 173 XC644/12 OPINION OF THE COURT   delivered by LORD CARLOWAY, the LORD JUSTICE CLERK   in   APPEAL AGAINST CONVICTION   by   ERNEST D'ARCY Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _____________

Appellant: McKenzie; Drummond Miller

Respondent: Scullion AD; the Crown Agent

 

5 December 2013

[1] On 9 November 2012, at the Sheriff Court in Aberdeen, the appellant was convicted by the unanimous verdict of the jury of a charge of wilful fire-raising, whereby on 10 March 2010, at an address in Udny, he set fire to a caravan. He was sentenced to 4 years imprisonment.

 

Evidence of fact
[2] The sheriff reports that the evidence against the appellant was, in his view, overwhelming and that it was therefore no surprise that the jury had returned a unanimous verdict of guilty. Throughout the trial the position of the appellant, who did not give evidence, was to concentrate primarily on the evidence of the three expert witnesses with a view to persuading the jury that the Crown had not proved its case beyond reasonable doubt and, in particular, that the fire had been started deliberately.

[3] The sheriff expands upon this by reporting that the evidence disclosed that the appellant had been approached by an estate agent, who had become involved with the caravan owner's former wife. A witness spoke to having been present when the estate agent had sought to persuade the appellant to destroy the caravan as a punishment for his behaviour in relation to the children of the owner and his former wife. After some persuasion, the appellant had agreed to set fire to the caravan.

[4] There was evidence that he recruited others to assist him in this enterprise. In particular, on the morning of the fire, the appellant had picked up two teenage girls, one of whom gave evidence, and a young man in his car and had driven them to the location of the caravan, stopping to fill two jerry cans full of petrol and to buy two boxes of Bluebell matches at a nearby petrol station. There was CCTV recording showing the appellant at the filling station, pouring petrol into the jerry can and purchasing the matches. On arriving thereafter in the vicinity of the caravan, the young man and one of the young women had left the car carrying the cans of petrol. They later returned.

[5] Another witness had spoken to seeing a female heading back towards the appellant's car with a petrol can shortly prior to the fire occurring. The owner of the caravan said that, two days after the fire, he had found two Bluebell matchboxes and some matches on the ground under the caravan's burnt-out frame.

 

The expert evidence
[6] The focus in this appeal is on the testimony of the expert witnesses. The first of these was a retired senior scenes of crime officer, who spoke to a joint report that he and a colleague had prepared. Because there had been no fatality, and no significant financial loss, there had been no extensive investigation into the cause of the fire. The caravan had been completely destroyed, but that was normal, because of the nature of the materials from which they are built. Nevertheless, his view was that an accelerant had been used to start the fire. His opinion was based not only on his observations at the scene, but because of the content of certain witness statements, which he had seen before completing his report. The particular statement, that appears to have played a major part in his consideration, was that of the owner of the caravan who said that he had left it at about 8.00am and it was some hours (mid-day) before a fire had been observed. The second expert was a retired fire station manager, who had also been made aware of the witness statements and had reached the same view as his colleague. He accepted that the accounts in the statements had influenced his thinking.

[7] The defence expert expressed the view that there was no basis for the conclusion that the fire had been started deliberately. It was not permissible for an expert to try to rely on material beyond the results of his own physical observations. He made criticisms, therefore, of the Crown experts for having not taken samples etc. His conclusion was that the Crown experts' findings were not supported by the physical evidence.

 

Charge to the jury
[8] The sheriff reports that the position was that the Crown experts had been significantly influenced by the accounts of the eye witnesses, which were in due course repeated in evidence. The defence expert's view was that these eye witness accounts ought to have been excluded from consideration in reaching any conclusion. There were no competing scientific theories before the jury, but simply an opinion from Crown experts, which was disputed by the defence expert on the simple view that there had been insufficient material to support it.

[9] In his charge to the jury the sheriff stated that it was a matter of agreement that the caravan had been destroyed by fire. He then focused the issue for the jury in stating that "there is a serious and live dispute between the Crown and the defence as to whether the fire was started deliberately". He reminded the jury that they required to be satisfied beyond reasonable doubt that the crime of wilful fire-raising had been committed. In approaching that question, the jury had to examine the evidence which had been presented to them during the course of the trial. They ought not to be distracted by speculation about what other evidence might or might not have been available if the investigation had been carried out in a more thorough or different way. The trial was not an enquiry into the competence of the police or the fire service.

[10] The sheriff continued as follows:

"In assessing the matter of whether or not the fire was started deliberately, you are entitled to have regard to all of the evidence which you think assists you in determining that question. The expert witnesses ... may have expressed certain opinions and that is evidence which is before you and there for your consideration, but those opinions are not decisive of the matter. The issue is one for your determination and your determination only, because you are masters of the facts, as we say in jury trials".

 

Ground of appeal and submission
[11] The ground of appeal is focused upon the adequacy of this direction. It is complained it was insufficient and did not assist the jury beyond stating the obvious. The particular ground of appeal is that the evidence of the experts was complex and that in such cases directions to a jury should provide a proper framework for the verdict. Where there was divergent expert opinion, the sheriff ought to have analysed the evidence in greater detail and offered more guidance.

[12] This was expanded upon in submissions under reference to Liehne v HM Advocate 2011 SCCR 419, (LJG (Hamilton) at paras [44] and [47], following Shepherd v HM Advocate 1996 SCCR 679, Lord McCluskey at 684), to the effect that there are certain circumstances in which there is an obligation upon the judge to refer to some of the evidence so that the jury's minds may be focused on the critical issues for their decision. It was recognised in this context, however, that Liehne was a rather different case involving conflicting expert views on the cause of an infant death.

[13] In response, the advocate depute stressed that there was a powerful body of direct evidence of fact on this matter, quite apart from the views of the experts. Any directions to the jury had to be tailored to the particular circumstances of the case. There was no conflict between the experts on any matters of scientific opinion which required to be resolved.

 

Decision
[14] In general terms, there is no requirement upon a trial judge to rehearse or summarise the evidence in a charge to the jury. Where, however, the resolution of the central issue or issues requires consideration of competing expert evidence of a complex technical nature, the trial judge may require to give the jury some guidance on how to approach that evidence in relation to the central factual matters for their determination. This will often be designed to provide a framework within which the jury can reach a reasoned verdict (Liehne v HM Advocate 2011 SCCR 419, LJG (Hamilton) at para [47] and also Hainey v HM Advocate 2013 SCCR 309, Lord Clarke at para [52]). It is important, however, that a trial judge, whilst he is entitled to review and comment upon the evidence, takes considerable care before trespassing upon the jury's province as masters of the fact.

[15] In this case there was very little, if any, complexity in the evidence adduced from the expert witnesses. The Crown experts had conceded that a full investigation had not been carried out and there was no conclusive proof of the cause of the fire from the physical findings at the scene. Other causes could not be excluded, but the Crown's view, based partly upon the timing of the owner's departure relative to the first observation of signs of fire, was that the fire had been started deliberately. The defence position was simply that this was not a conclusion which ought to have been drawn by an expert witness. In that context, and having regard to the evidence of the civilian witnesses on the instructions to, and movements of, the appellant, the directions to the jury must be seen as entirely adequate to deal with the real points at issue. In these circumstances, the court is not at all persuaded that any misdirection of the jury occurred and the appeal must, therefore be refused.