APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General Lord Osborne Lord Wheatley	[2008] HCJAC 70 Appeal No: XC200/07   OPINION OF THE COURT   delivered by THE LORD JUSTICE GENERAL   in   APPEAL   by   DEREK HENRY CARSWELL Appellant;   against   HER MAJESTY'S ADVOCATE Respondent:   _______

 

 

Act: Ram; McClure, Collins

Alt: Ogg, Q.C., A.D.; Crown Agent

 

21 November 2008

Introduction

[1] The appellant was on 11 January 2007 convicted after trial on indictment in the Sheriff Court at Peterhead of having, between 13 August 2004 and 9 May 2005, been concerned at various places in Peterhead and elsewhere in the supplying of diamorphine to another or others, all contrary to the Misuse of Drugs Act 1971, section 4(3)(b). He was sentenced to two years' imprisonment. In his note of appeal, lodged in May 2007, he advanced three grounds of appeal against conviction. Leave was granted in respect of these grounds.

[2] At the opening of the appeal hearing the appellant was represented by Ms Ram, Advocate - as he had been at the trial. She addressed us first on ground of appeal 2 and then proceeded to ground of appeal 3. While she was in the course of addressing us on that ground, the appellant signalled that he wished to consult Ms Ram. The court adjourned to allow him to do so. When it reconvened, Ms Ram announced that the appellant had withdrawn his instructions from her, though not from her instructing solicitor. She sought leave to withdraw. The court, having ascertained that the appellant had been advised that, if he insisted in this course, there was a real prospect that the court would require him to present the remainder of his argument himself, and the appellant having confirmed that he was ready to do so, Ms Ram was granted leave to withdraw. She having done so, the court then called upon the appellant to proceed. In the event he said little in relation to the grounds in his note of appeal but maintained that there were other grounds (in relation to a witness having been forced to give a statement and in relation to DNA matters) which he wanted advanced. He sought an adjournment to obtain alternative representation. He stated that for some months he had been unhappy about the grounds of appeal which had been presented by his legal advisers and that he had informed these advisers accordingly. Nothing had, however, been done to address his concerns.

[3] The court refused to grant an adjournment. Having regard to the facts that the note of appeal had been lodged as long ago as May 2007, that the appellant had, on his own statement, been dissatisfied for some time with what was to be argued on his behalf and that he had taken no steps until some distance into the hearing of the appeal to withdraw his instructions from counsel with a view to having alternative representation, the court considered that it was not in the interests of justice that an adjournment be granted.

 

Submissions for the parties

[4] In addressing us on ground of appeal 2 Ms Ram submitted that there had been a clear infringement of section 99(2)(b) of the Criminal Procedure (Scotland) Act 1995 - a juror had left the room for a purpose other than one authorised by that subsection. She submitted that section 92(1) was also engaged. Words had passed between the sheriff clerk and the juror, but there was no written record of what had been said. A breach of that subsection fell within the category of cases which necessarily gave rise to a miscarriage of justice (Renton & Brown - Criminal Procedure para.19.14.2). Reference was made to McColl v HM Advocate 1989 S.C.C.R. 229, McLeod v HM Advocate 2006 SCCR 679 and Thomson v HM Advocate 1997 S.C.C.R. 121. As to ground of appeal 3, the Crown had at no time laid a foundation in evidence for the witness McGee being qualified to identify as heroin any substance she had seen. Her purported identification of it could not be regarded as reliable or of any weight. Reference was made to King v HM Advocate 1999 S.C.C.R. 330, where a restrictive test had been applied to section 106(3)(b). The test used in E v HM Advocate 2002 S.C.C.R. 341 had been less restrictive. The present case was not like King where the jury's choice was between two inconsistent bodies of testimony. The circumstances were closer to those in E.

[5] At this point the appellant made his interjection. The only additional factor which he relied on thereafter - in relation to ground of appeal 2 - was a suggestion that the juror who had emerged from the jury room might have overheard conversation between the appellant and his mother. He said nothing about grounds of appeal 1 or 3.

[6] The Advocate depute, addressing us on ground of appeal 2, accepted that there had been an irregularity in that the juror had come out of the room other than for a purpose authorised by section 99(2)(b). That irregularity had not, however, been in circumstances which led to a miscarriage of justice. Renton & Brown - Criminal Procedure at para.19.14.2 did not suggest that a breach of section 99(2)(b) had such an effect. Section 92(1) was not engaged. What had occurred was not "part of the trial" within the meaning of that subsection. There had been no communication with the jury as a whole, merely an instruction to the individual juror to return immediately to the jury room; that was not something "in the cause". The giving of that instruction had been an innocent and proper course of action. Unsurprisingly, counsel appearing at the trial, who had observed what had happened, had not raised any issue about it before the sheriff. Section 99(5) was not engaged. That provision, which was of ancient origin, was directed against the prosecutor or anyone in his interest communicating with an enclosed juror (Thomson v HM Advocate, per Lord Justice General Roger at p.129).

[7] As to grounds of appeal 1 and 3, there had been a sufficiency of evidence and the verdict was not unreasonable. The commission of an offence of being concerned in the supplying of a controlled drug could competently be proved by evidence of actual supplying (HM Advocate v Grant 2008 SCCR 143, disapproving HM Advocate v McCormack 1995 S.C.C.R 477). The character of the substance supplied could be proved by lay evidence (McCallum v McKay 1997 S.C.C.R. 558; Main v PF, Cupar, High Court of Justiciary, 23 February 1997, unreported). The principal witness (Rachel Whyte), who was a regular drugs user, had spoken to the appellant dealing in drugs including heroin, which she had sampled. The other witness (Pamela McGee) had spoken to the same type of activity and had testified that the drug being dealt in was heroin. No objection has been taken to the competency of her giving evidence identifying that drug; nor had she been challenged as to her qualification to do so. Reference was made to Martin v HM Advocate, High Court of Justiciary, 21 January 1994, unreported. The jury were entitled to give to such evidence of identification such weight as they thought fit.

 

The statutory provisions

[8] The Criminal Procedure (Scotland) Act 1995 provides as follows:

"92(1) ... no part of a trial shall take place outwith the presence of the accused.

...

99 ...

(2) ... while the jury are enclosed and until they intimate that they are ready to return their verdict -

...

(b) no juror shall come out of the jury room other than to receive or seek a direction from the judge or to make a request -

(i) for an instruction [of a particular kind]; or

(ii) regarding any matter in the cause.

...

(5) If the prosecutor or any other person contravenes the provisions of this section, the accused shall be acquitted of the crime with which he is charged."

 

Discussion

[9] After the jury had been secluded, a juror emerged from the jury room. It was apparently his intention to go out of the building to smoke. His emergence was immediately detected by the sheriff clerk who instructed him to return forthwith to the jury room. He did so. There is no reason to suppose that the juror, when out of the jury room, communicated with any other person nor that his communication with the sheriff clerk extended beyond his receiving the instruction referred to. In these circumstances, while there was a breach of section 99(2)(b), it did not lead to a miscarriage of justice. By contrast, in McColl v HM Advocate the sheriff clerk had communicated with the jury on a matter going directly to their deliberations (how they might arrive at a majority verdict) and it was unclear what precisely had been the terms of that communication. Similarly, in McLeod v HM Advocate the communication by the bar officer was about what the jury should do in the event of a division of view. Such matters, which go to the heart of the functioning of the jury, are integral to the trial and should not take place outwith the presence of the accused. Here, the communication with the single juror was purely of an administrative character and did not touch upon the issues with which the jury were concerned. No breach of section 92(1) occurred. Regard being had to the interpretation of section 99(5) given in Thomson v HM Advocate, the appellant is not entitled by reason of the breach of section 92(2)(b) to be acquitted. We would only observe that we are surprised that a jury attendant was not stationed immediately outside the jury room to prevent unauthorised exit or entry while the jury deliberated. Such an arrangement would reduce the risk of infringement of the statute.

[10] There was clearly a sufficiency of evidence to allow the jury to convict the appellant of a contravention of section 4(3)(b) of the 1971 Act. Although there was no expert evidence identifying as heroin any substance which the appellant was concerned in supplying, proof by lay testimony is competent and may, in appropriate circumstances, be sufficient (McCallum v McKay; Main v PF, Cupar). The principal witness (Rachel Whyte) was a heavy user of heroin. On a number of occasions during the period libelled she had travelled with the appellant in his car to the north-east of Scotland, including to Peterhead. There was always, she testified, heroin in the car in significant quantities. The appellant allowed her to take some of it for her own use; at times he gave some to her from what he was transporting. There were also substantial amounts of money in the car. The appellant had told this witness that he supplied heroin. There was accordingly a substantial body of evidence from this source that the appellant had, during the relevant period, been concerned in supplying a controlled drug which this witness was from her own personal experience able to identify as heroin. The only remaining question on ground of appeal 1 was whether that evidence was corroborated. The other witness (Pamela McGee) was apparently not asked, either by the prosecutor or by defence counsel, what experience, if any, she had had with heroin. But she also spoke to being with the appellant, in his car and elsewhere in Peterhead, where she had observed the appellant with substantial amounts of measured quantities of a substance which she said was heroin. She had on occasion bought that substance from the appellant. No objection - on the ground that no evidence had been led of her qualification to do so - was taken to this witness being asked to identify the substance as heroin. In the absence of any such objection being taken, this witness's evidence identifying the drug as heroin was available to the jury for them to attach such weight to it as they thought fit. They were directed in due course that corroborated evidence was required for proof of the charge and that one of the things which the Crown was required to prove was that what the appellant was involved in supplying was diamorphine. There is no suggestion that there was a failure to link the "heroin" of which the witness spoke to the Class A drug diamorphine. In these circumstances the sheriff rightly repelled the submission of no case to answer and the jury's verdict cannot be regarded as unreasonable. The fact that the jury, having retired, asked to see a "statement" of Pamela McGee's evidence (apparently a request to have sight of a transcript of her oral testimony) but were directed by the sheriff that they must proceed on their own recollection, does not import that, having so proceeded, they returned a verdict which no reasonable jury, properly directed, could have returned.

 

Disposal

[11] In all the circumstances this appeal must be refused.