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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Walker v. Her Majesty's Advocate [2002] ScotHC 332 (06 December 2002) URL: http://www.bailii.org/scot/cases/ScotHC/2002/332.html Cite as: [2002] ScotHC 332

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Walker v. Her Majesty's Advocate [2002] ScotHC 332 (06 December 2002)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Cameron of Lochbroom Lord Marnoch	Appeal No: C130/01 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by GARY TAYLOR WALKER Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: C. Shead; Drummond Miller

Respondent: A. Turnbull, Q.C., A.D.; Crown Agent

6 December 2002

1. At the High Court in Edinburgh on 12 January 2001 the appellant and his co-accused, Ewan Taylor, were convicted of a charge which libelled:

"on 2 February 2000 at 45 Marconi Road, Fraserburgh, Aberdeenshire and elsewhere in Aberdeenshire you ... were concerned in the supplying of a controlled drug, namely diamorphine, a class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b)".

2. Before coming to the grounds of appeal it is convenient to set out a summary of the evidence which is relevant. On 2 February 2000 police officers, acting on information which they had received, attended at the address at about 9.35 p.m. It was an upstairs flat in a block of four, of which the appellant was the tenant. Prior to doing so they noted that the appellant and another man had opened the outside door of the flat as if to leave it. The co-accused was in the livingroom of the flat, apparently having got up from an armchair. There was a jacket lying on the arm of the chair. It had three pockets, with two external ones having zips. In one of the pockets were two packets of what was found to be two one eighth ounce deals of heroin wrapped in clingfilm. The packets contained 3.5 and 3.48 grams of powder, 27% and 26% pure respectively. According to the evidence given by other witnesses, an 8 ounce deal would cost £250, while two such deals might be bought for £400. If the total of 7 grams in the present case had been divided into "tenner" bags, which contained an average of 0.03 grams, about £2,320 might have been realised. According to one of the police officers, the pocket had not been zipped when he searched it. The weights of the packets suggested that they were entire and had not yet been opened. On the floor below where the jacket was found there was a wallet containing a total of £305 in bank notes and a giro cheque for about £95 payable to the co-accused. Also in the livingroom on a table were found two pieces of tin foil with burn marks on them, and a rolled up piece of tin foil, which suggested the recent smoking of heroin.
3. Next to the livingroom was the kitchen. When it was searched it was found that on a kitchen unit there was a syringe containing brown liquid, foil with a trace of a brown substance, a box containing laces and elastic bands and two spoons. On a water boiler there was a tub of citric acid. Another one was found on a wall unit above a microwave oven. The oven was situated on a unit which would face anyone entering the kitchen. In front of it was a set of pocket electronic scales which were still in their box. The scales would cost £70. They measured weights up to 100 grams. They could perform no useful domestic function, but might be used to measure drugs such as heroin. On top of the microwave oven there was a large mirror with traces of brown powder. On top of the mirror there was a piece of polythene along with a bingo card in the appellant's name. The mirror and card could have been used to divide heroin or to crush any rock like pieces of heroin into powder suitable for use. A large roll of clingfilm, apparently not uncommonly found in houses in Fraserburgh, was in the unit above the microwave oven. There was a roll of foil in the unit beside the kitchen sink. There were several small pieces of polythene with traces of brown powder in a bin. With the exception of the scales, all of the items could have been used in the abuse, as distinct from the supply, of heroin. Detective Constables Kenneth Coutts and Glenda Cowe gave opinion evidence that, having regard to the amount of the drugs and the existence of the scales the drugs were for onward supply. The latter witness thought that the quantity of drugs indicated by itself a dealer's amount. She said that abusers did not normally buy in bulk as they found it difficult to ration themselves. The former witness said that he had not come across anyone who was purely an abuser of drugs with scales of the type which had been found in the house.
4. In the course of a police interview the appellant admitted to being a user of heroin and said that items such as the syringe, clingfilm and the citric acid belonged to him. He denied owning the scales. He said that the jacket belonged to the co-accused.
5. It may be added that the appellant did not give evidence. The co-accused did so, explaining that the jacket had been borrowed for his use, but he said that the drugs in the pocket had nothing to do with him. He had not checked the pockets and did not know that the heroin was there, although he had had the jacket for at least three days. He had stayed overnight at the appellant's house but had not noticed any of the paraphernalia there. The scales did not belong to him. The money came from his savings.
6. In charging the jury the trial judge directed them that before they could convict the co-accused they would require to be satisfied that he knew that he had drugs in his possession, and that these drugs were intended for onward supply by him. In the course of his directions on that subject he stated that if the jury were not prepared to conclude that the co-accused knew he was carrying drugs they could not convict him or the appellant. In regard to the appellant he directed the jury that it was open to them to conclude he was "also concerned in the supply of the drugs because he was permitting his house and/or his equipment to be used to facilitate a supply". This, he said, was the only basis on which they could convict him. Having referred to evidence as to what was found in the house, he directed them that they would be entitled as a matter of law to infer from those various circumstances that the appellant "knew what was going on and was going to permit or was permitting rather his house and/or his equipment to be used to facilitate the chain of supply". If they drew that inference, they would be entitled to convict him of being concerned in the supplying.
7. The first ground of appeal is that the trial judge erred in rejecting the submission of no case to answer in that there was insufficient evidence from which it could be inferred that the appellant had knowledge of the existence of the diamorphine in view of the fact that it was concealed within a pocket of a jacket worn by the co-accused. Such knowledge was an essential fact. The second ground of appeal is that the trial judge misdirected the jury in indicating to them that there was sufficient in law to justify the conviction of the appellant, in respect that the essential elements were lacking.
8. For the appellant Mr. Shead pointed out that the case for the Crown had been conducted on the basis that the appellant was alleged to have been concerned in the supplying of the drugs which were in the jacket of the co-accused. This was reflected in the way in which the trial judge had charged the jury. It was important to note that the appellant and the co-accused appeared on a single charge. That implied that they had taken part together in a single operation. It was also to be noted that the charge related to a single day. Thus the Crown case was that the co-accused had brought the drugs to the house to be broken up, whereas the appellant had been permitting his house to be used for that purpose. In these circumstances it was plain that there required to be sufficient evidence to bring home knowledge on the part of the appellant that the co-accused was in possession of a dealer's quantity of drugs, which were to be broken up in the house that day. There was insufficient evidence from which this could have been inferred by the jury and the trial judge had misdirected the jury accordingly.
9. There is force in the submissions made by Mr. Shead. It is clear that the Crown did not merely rely on the presence of the heroin in the co-accused's jacket as an adminicle of evidence to show that the appellant was concerned in the supplying of drugs, but chose, perhaps unnecessarily, to put both accused on a single charge and then to present the case as one involving a single operation in which the appellant was concerned in the supplying of the drugs which were found in that jacket.
10. However, it is necessary to consider the evidence as a whole. On the one hand there was evidence as to the presence in the appellant's kitchen of paraphernalia which the jury were entitled to regard as indicative not merely of drug abuse but also of the breaking up and packing of drugs for onward supply. These items were on full view. On the other hand there was evidence that the appellant and another man had left the co-accused alone in the appellant's house at a time when his jacket contained what the jury were entitled to regard as a dealer's quantity of drugs. The jury were entitled, in our view, to consider these pieces of evidence in conjunction and to conclude that it was not simply a case of the co-accused being a visitor to the house who happened to have such a quantity of drugs with him, but that the appellant knew that the drugs were there for the purpose of being broken down and packaged in his house for onward supply. Thus there was in our view just sufficient to enable the jury to conclude that the appellant was guilty. On that basis there was no misdirection of them by the trial judge.
11. The appeal will accordingly be refused.