APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Menzies Sheriff Principal Lockhart	[2012] HCJAC 113 XJ520/12 OPINION OF THE COURT delivered by LADY PATON in STATED CASE by TRACY SMART Appellant; against PROCURATOR FISCAL, PAISLEY Respondent: _____________

Appellant: Collins, Solicitor Advocate; Wilson McLeod, Edinburgh

Respondent: McSporran, AD; Crown Agent

8 August 2012

[1] The appellant in this Stated Case was convicted on 9 March 2012 of the following offence:

"On 20 May 2010 at 1/3 Pilton Drive North, Edinburgh you TRACY SMART did threaten Alistair Doull, who resides there, by posting or causing to be posted by means unknown a letter containing pictures of fire engines and a house on fire and words suggesting that his house would be set on fire."

[2] The sheriff made the following findings-in-fact:

"1. As at 20^th May 2010 ('the relevant date') Alistair and Ruby Doull lived at 1/3 Pilton Drive North, Edinburgh ('the property'). They are husband and wife. They live together at the property.

2. Prior to the relevant date, Alistair and Ruby Doull had lived at the property for approximately 25 years.

3. Mr and Mrs Doull are retired.

4. Prior to the relevant date the appellant had been a neighbour of Mr and Mrs Doull.

5. The appellant knew where Mr and Mrs Doull lived.

6. On the relevant date Mr Doull received a card addressed to him ('the card').

7. Crown Label No 1 is the card.

8. The card depicted a house on fire with a fire engine. On it was written the words 'coming soon to you'.

9. Mr and Mrs Doull had not enjoyed good relations with the appellant.

10. The appellant's daughter, Emma Smart, lived with the appellant. Mr and Mrs Doull did not have good relations with Emma Smart.

11. Mr and Mrs Doull were upset by the contents of the card.

12. The card was examined by Angela Jane Niven and Sandra Couperwhite, Forensic Scientists, SPSA, Forensic Services, Edinburgh on 6^th October 2011. DNA from the appellant was present on the envelope seal recovered from the card. Crown Production No 1 is a true and accurate joint forensic report relating to the examination.

13. Crown Production No 2 is a true and accurate transcript of the interview of the appellant by Police Constable Blackhurst, Lothian & Borders Police at 1404 hours on 14^th February 2011 at Drylaw Police Station. The appellant made no admission as to the commission of the offence in the interview.

14. DNA was obtained from the appellant. DNA was extracted from the appellant and profiled from a piece of envelope seal recovered from the card. The DNA on the envelope matched that of the appellant.

15. The appellant posted or caused to be posted the card to Alistair Doull.

16. When interviewed by the police Alistair Doull told the police he had his suspicions that the Smarts might have been the senders of the card."

[3] In paragraph [9] of the Stated Case, in the context of repelling a submission of no case to answer, the sheriff observed:

"It was not disputed that the offence per se had been proved in the sense that the card constituted a threat and that was criminal. There was evidence before me which disclosed the relationship of neighbours between Mr and Mrs Doull and the appellant. The relationship was a bad one. The appellant knew where the complainer lived. The complainer had received the card. The complainer and his wife were concerned as to its content. There is also undisputed DNA evidence which linked the DNA of the appellant with that part of the envelope in which the card was sent. In my opinion this evidence was crucial. The forensic report set out that a DNA sample had been taken from the appellant. That sample linked the appellant to the envelope in which the card was sent. I did not consider that the two authorities to which I was referred were particularly helpful. I was not referred to any authority on the law relating to threats. It seemed to me that there were certain limited analogies that one could draw with other cases involving DNA or fingerprint evidence of an accused found at the locus of an offence such as housebreaking. I did not accept the proposition that the Crown had to lead evidence to prove that the perpetrator of the offence of issuing threats had been seen posting the item. In my opinion, putting together the DNA evidence with the other evidence I have referred to there was sufficient evidence to allow me to draw the inference that the accused was the perpetrator of this offence".

[4] Before us it was argued that the sheriff had erred. The Crown had failed to prove when the DNA was deposited on the envelope seal; how DNA had been deposited (for example by saliva or by another means); and the circumstances in which the DNA had been deposited, for example, contemporaneously with the writing of the card, placing the card in the envelope, and posting the card. All of these matters, it was said on behalf of the appellant, had not been established and accordingly, at best for the Crown, what had been proved was the handling of the envelope.

[5] In our view, however, this was a circumstantial case. DNA was part of the circumstantial case and provided a particularly accurate means of identification. There was further the fact that the DNA was on the envelope seal, the history of the appellant's bad relationship with the complainer Mr Doull, and all the other factors mentioned by the sheriff in paragraph [9] of the Stated Case. Those adminicles or strands of circumstantial evidence were, in our view, ample evidence that the appellant was the perpetrator of the offence libelled. In the result we answer the questions in para 12 of the Stated Case as follows:

Question 1: In the affirmative.

Question 2: In the negative.

Question 3: In the affirmative.

The appeal is refused.

DL