APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Hardie Lord Bonomy Lady Dorrian	[2011] HCJAC 64 XC16/11 OPINION OF THE COURT delivered by LORD HARDIE in APPEAL AGAINST CONVICTION AND SENTENCE by ANDREW FAIRLEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: M MacKenzie; Belmonte & Co

Respondent: A Prentice, QC AD; Crown Agent

21 June 2011

[1] The appellant was convicted on indictment at Edinburgh Sheriff Court of assault to severe injury, permanent disfigurement and permanent impairment and also a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995. He was sentenced to 54 months imprisonment in respect of charge 1 and three months imprisonment in respect of charge 2, the sentences to be consecutive. He has appealed against conviction and sentence, the appeal against sentence being confined to the sentence of 54 months. In the submissions before us the appeal against conviction was restricted to the second ground of appeal in the Note of Appeal, the first and third grounds no longer being insisted upon.

[2] The outstanding ground of appeal relates to the question of the sufficiency of the evidential link between blood found on the accused and the complainer. The appellant acknowledges that the complainer testified that he provided mouth swabs to be used for scientific analysis. The complainer also confirmed that his signature appeared on Crown Label No 7, the relevant mouth swabs. Crown Production No 6 is a report of an analysis of various items, including Label No 7. That report narrates that Label No. 7 is described as two mouth swabs labelled as having been taken from the complainer on 4 January 2009, the day after the assault upon him. The analysis of the mouth swabs disclosed that the DNA extracted from them matched the DNA profile obtained from a spot of blood on the upper front of the left sleeve of the appellant's fleece and a spot of blood on the lower right front at the pocket and also a contact blood stain on the lower right back. In each case the probability of the DNA coming from any other source was one in a billion.

[3] The question for our determination is whether there was sufficient evidence linking the mouth swabs to the complainer. In our view there was. The complainer testified that he had provided such swabs; he identified his signature on the label attached to the envelope containing them. DC McGrath, the investigating officer, testified that she sent Detective Constables Majid and Donaldson to Edinburgh Royal Infirmary to obtain DNA samples from the complainer. Upon their return they gave her Label 7 which bore her signature. It also bore the signatures of these two officers and a signature "F Hamilton" which is the name of the complainer. In all of the circumstances we consider that that is more than sufficient to link the swabs to the complainer. It is acknowledged that if the evidence relating to the swabs was properly available for the jury's consideration as relating to the complainer, there was a sufficiency of evidence to entitle the jury to convict the appellant. Accordingly we shall refuse the appeal against conviction.

Appeal against Sentence

[4] The appellant's appeal against sentence is only directed against the sentence of 54 months imprisonment imposed in respect of charge 1. The force of the submission on behalf of the appellant was that the sheriff had failed to give sufficient weight to the medical condition of the appellant. He has a heart condition and has been in hospital; he is in receipt of medication and is continuing to receive treatment within the prison. His condition undoubtedly causes inconvenience in respect that he is unable to go for meals and has to have them in his cell. It is clear that his medical condition is being properly managed by the prison medical authorities and that there is no doubt that the appellant will receive proper treatment.

[5] Indeed, we were advised that a reference has been made to a cardiologist and the appellant is awaiting an appointment with such a specialist. Despite his medical condition, in view of the nature of the offence and the consequences for the complainer, as well as the appellant's previous convictions, the most notable of which was one for robbery in England when he was sentenced to 12 years imprisonment, and generally for the reasons given by the sheriff we are not persuaded that the sheriff erred in selecting the sentence that he did.

[6] We are not persuaded that the sentence was excessive in the circumstances. In all the circumstances we do not consider there is any merit in this appeal and we shall refuse it.

ES