Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 115

HCA/2016/150/XC

Lord Justice General

Lord Brodie

Lady Clark of Calton

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE

by

JOHN WILLIAMSON

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: CM Mitchell; Faculty Services (for Ward & Co, Perth)

Respondent: Prentice QC AD; the Crown Agent

18 October 2016

Introduction
[1]        On 8 February 2016, at the Sheriff Court in Perth, the appellant was convicted of a charge which libelled that:

“on 23 December 2014 at ... Stanley and elsewhere to the prosecutor unknown, 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 Misuse of Drugs Act 1971 to another or others in contravention of section 4(1) of the aftermentioned Act; CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b).”

 

[2]        On 16 March 2016, the appellant was sentenced to 30 months imprisonment.

 

Evidence
[3]        A joint minute recorded that the locus was the home of the appellant.  He lived in a one bedroom flat, situated on the ground floor of a building containing four flats.  Each flat had its own store cupboard, situated in the common close next to the door to each flat.  On 23 December 2014, the police, who were in possession of a search warrant, arrived at the locus to find the appellant and one of his two sons, namely William, present in the flat.  In the locked cupboard adjacent to the flat were a plastic bag containing 495 grams of heroin and a plastic tub containing 13 purple-tinged cling-film and plastic bag packages, also containing heroin.  The heroin in each package weighed about 28 grams.  The plastic tub was wrapped in a leopard print dress and a pair of boxer shorts.  The total quantity of heroin recovered (881 grams) had a potential value of between £44,050 and £88,100 if divided into street level deals. 

[4]        The appellant’s DNA was found on the inside of the boxer shorts.  His fingerprints were found on the top of a fridge freezer, which was located in the cupboard. 

[5]        There was evidence from the police that four rolls of cling-film were recovered from the appellant’s kitchen cupboard, one of which had a “purple tinge”.  A roll of polythene bags with blue advertising print was recovered from the kitchen.  These bags were the same as those used to wrap the drugs in the plastic tub.  A search for the key to the cupboard was carried out without success.  The appellant was asked about the key.  He said that he did not have it and did not know where it was. 

[6]        In cross-examination the police were asked certain questions about investigations into the activities of the appellant’s sons.  Evidence was given without objection to the effect that William had a “considerable” criminal record and that intelligence had been received that the other son, namely John, had been seen in the vicinity, driving a black Lexus car, prior to the date of the search.  Other members of the appellant’s family had also been seen in the vicinity.  Some of them had criminal records and were suspected by the police of being involved in drug dealing.  John was on trial in Liverpool for drugs offences.  Since there was no incrimination of either son or any member of the appellant’s family, the admissibility of this testimony was, at the very least, questionable.

[7]        Evidence, also elicited in cross from the police, suggested that those selected by dealers to store drugs could be vulnerable individuals.  These individuals could be doing so in return for payment of a debt or drugs or alcohol.

[8]        The appellant’s wife testified that she lived with the appellant “on and off”.  She had been staying with him in December 2014.  The key to the cupboard had normally been kept on a nail behind the front door, but it had been missing for “months”.  She had on one occasion put a handbag in the cupboard.  She did not own a leopard print dress and knew nothing of the drugs recovered.  She had seen neither the dress nor the boxer shorts. 

[9]        A neighbour gave evidence about the appellant not wearing expensive clothing, living a relatively quiet life, with occasional visitors and parties two or three times over a two to three month period.

[10]      The appellant did not give evidence.

 

Submissions
[11]      The contention was that no reasonable jury, properly directed, could have returned a verdict of guilty.  The jury would have been bound to find that there was a reasonable doubt as to whether the appellant could have been involved in the supply of drugs.  Reference was made to McGowan v HM Advocate 2013 SCL 787, Lady Paton at para [16], citing King v HM Advocate 1999 JC 266, LJG (Rodger) at 228-30 and McNally v HM Advocate [2012] HCJAC 156.  It was not disputed that there was a sufficiency of evidence.  However, it was possible that the appellant had known nothing of the drugs.  There had been other suspects in the vicinity, notably the appellant’s sons, who might have put the drugs in the cupboard.  The evidence against the appellant had been circumstantial.  The police had said that the appellant had been a vulnerable person, potentially used by others, and that others could have had access to the cupboard without the appellant’s knowledge.

 

Decision
[12]      In Geddes v HM Advocate 2015 JC 229, the test for the review of a jury’s verdict on the ground of unreasonableness in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 was described (LJC (Carloway) at para [4]) as well settled.  It involves an objective exercise in which, for an appellant to succeed, the court must be able to hold that no reasonable jury could have returned a guilty verdict.  Where there is a sufficiency of evidence, it is only in the most exceptional of circumstances that an appeal on this ground will succeed (Harris v HM Advocate 2012 SCCR 234, Lord Bonomy at para [67]).  The court requires to carry out its assessment with the benefit of its collective knowledge and experience.  An appellant requires to demonstrate that there was no credible and reliable evidence which would have entitled the jury to return a guilty verdict. 

[13]      The test has not been met in this case.  It is important to note that there is no concern about the quality of the testimony.  The only issue is the reasonableness of the inferences which might be drawn from it.  The drugs were discovered in the appellant’s locked cupboard, of which, so far as the evidence was concerned and subject to a fleeting use by his wife, he had the sole use.  They were wrapped in clothing which bore his DNA.  His fingerprints were found on an item in the cupboard, indicating his use of it at some point.  There were further adminicles linking the appellant with the drugs, notably, the fact that they were wrapped in relatively distinctive cling-film, with a purple tinge, and in polythene bags.  Similar cling-film and a quantity of the same bags were recovered from the appellant’s kitchen.  This body of evidence entitled the jury to reach a verdict of guilt, especially in the absence of any explanation from the appellant at trial.  The absence of that explanation, which the circumstances cried out for, is a factor which the jury were entitled to take into account in drawing an adverse inference relative to the appellant’s knowledge of, and control over, the drugs on his premises.  The appeal against conviction must therefore be refused.

 

Sentence
[14]      The contention was that the imposition of a custodial sentence was not appropriate.  The appellant was 73.  He had no analogous previous convictions, although he did have a record for assault in 1984 and public disorder in 2001.  He had a number of chronic medical problems, notably, ischaemic heart disease, chronic obstructive pulmonary disease, cataracts and type 2 diabetes.  He had informed the social worker, who prepared the relative Criminal Justice Report, that he had been diagnosed as schizophrenic.  There was nothing to establish what benefit the appellant would have obtained from his commission of this offence.  His close proximity to the drugs indicated that he was not at the top of the drugs chain, but rather at the low or lowest end of the scale of offending.  He had lived modestly, was dependent on State benefits and had a moderate level of debt.  He had been in custody from 16 March to 22 July 2016.

[15]      It has been regularly said that those involved in trafficking Class A drugs should normally receive significant custodial sentences.  That is not an inevitable conclusion.  It is always necessary to consider the individual circumstances and context.  However, it is not a sound reason for not imposing a custodial sentence, which would otherwise be appropriate, that an accused requires medical treatment, where that is available in the prison setting.  In this case, the appellant was deemed not suitable for a Community Payback Order even if that had been a realistic option, which it was not.

[16]      Having regard to the quantity of drugs involved, it is not possible to conclude that a sentence of 30 months imprisonment was inappropriate or excessive.  Although it may be that leniency is merited where a person is elderly, vulnerable and prevailed upon by others, especially those in his own family, into providing a safe house for drugs, that is not the appellant’s position in this case.  He maintains that he had nothing to do with, and no knowledge of, the drugs.  Accordingly, the precise nature of his involvement remains one of speculation.

[17]      It is clear from the level of sentence selected by the sheriff that she gave due regard to all the circumstances, including the appellant’s age and health, in imposing a period of custody significantly below that which would otherwise have been merited.  In these circumstances, the appeal against sentence must also be refused.