Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Emslie Lady Dorrian	[2012] HCJAC 98 XC778/11 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by NADIR TUFAIL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _____________

Appellant: C. Fyfe, Solicitor Advocate; Paterson Bell for Bruce Short Solicitors, Dundee

Respondent: McSporran, Solicitor Advocate, AD; Crown Agent

27 June 2012

[1] The only issue raised in this appeal is whether the sheriff materially misdirected the jury on the defence under section 28(2) of the Misuse of Drugs Act 1971, which defence had been raised by the appellant in the course of the trial. At the outset, we should record Mr Fyfe's submission that a problem arose through conflation of the positions of the two accused. However we note that at page 25 of his Charge, the sheriff made clear that the position of the appellant and his co-accused were different and had to be dealt with separately. In our opinion, therefore, there was no prejudice to the appellant, and there is no merit in that branch of the submission.

[2] The section 28(2) defence was very simple in nature, namely that while the appellant was aware of the presence of a box in the boot of the car, he thought the box contained car parts and not drugs. What the Crown has to do in a case of this nature is conveniently summarised by Lord Bonomy in paragraph [30] of Aiton v Her Majesty's Advocate 2010 SCCR 306. As regards a defence under section 28(2), the Crown's obligation is to exclude it beyond reasonable doubt.

[3] Although the wording used by the sheriff in his Charge at pages 24 to 25 was unfortunate, it is our view that when the charge is read as a whole, the jury were left in no doubt as to the nature of the defence and the obligation of the Crown to exclude that defence. The sheriff repeatedly told the jury, in particular at pages 10, 25 and 26 of his Charge, that if they believed the appellant, or had a reasonable doubt about his position, they must acquit. Importantly, one such passage occurs at page 25, immediately after the sheriff had reminded the jury that the appellant's defence was that he did not know that there were drugs in the car.

[4] In the result, we are not persuaded that there has been any material misdirection on this matter, or that any miscarriage of justice has occurred. The appeal is refused.

JJ