APPEAL COURT, HIGH COURT OF JUSTICIARY
	[2013] HCJAC 155
Lord Menzies Lady Smith Lady Dorrian	Appeal No: XC631/12   OPINION OF THE COURT   delivered by THE RIGHT HONOURABLE LADY SMITH   in   APPEAL AGAINST CONVICTION   by   LAURENCE MCALLISTER   Appellant;   against   HER MAJESTY'S ADVOCATE   Respondent:   _______

 

Appellant: Mitchell, Advocate

Respondent: Di Rollo, Advocate Depute

 

29 November 2013

 

Background

[1] On 27 September 2012, after trial at Kilmarnock High Court, the appellant, who is 56 years old, was found guilty by a majority of the following offence:

"between 28 April 2012 and 30 April 2012 both dates inclusive, at Stena Terminal Compound, Cairnryan Port, Cairnryan and elsewhere you... were concerned in the supplying of a controlled drug, namely Cannabis, a Class B drug specified in Part II of Schedule 2 to the Misuse of Drugs Act 1971 to another or others in contravention of section 4(1) of the [Misuse of Drugs Act 1971]; CONTRARY to the [said] Act section 4(3)(b);

 

You LAURENCE MCALLISTER did commit this offence while on bail, having been granted bail on 27 September 2011, at Stranraer Sheriff Court;"

 

[2] The appellant was sentenced to a period of imprisonment extending to 5 years 6 months, 6 months of which was attributable to the bail aggravation. He now appeals against conviction.

[3] The evidence, much of which came from the appellant's police interview, was as follows.

[4] The appellant and his co-accused, Kieran Murphy, both lived in Northern Ireland. The appellant, a farmer, was in the business of buying and selling horses. Horses had been sold to a couple in Essex and he, through some arrangement which is not entirely clear, took on the responsibility of delivering them. His own lorry had broken down. Mr Murphy had a horsebox, with 13 stalls inside it. The appellant had used his services before, in connection with transporting horses. The appellant had, himself, previously borrowed Murphy's horsebox. The appellant was familiar with the horsebox; in particular, he was familiar with the stall arrangement within the horsebox. There was equipment of the appellant's such as ropes and head collars in the back of the horsebox. The appellant engaged Murphy to drive him to England to deliver the horses. They travelled to Holyhead from Dublin on 28 April. The horses were delivered to Essex. The purchaser, Melissa Brewer, took delivery of the eleven horses. Whilst she had paid an auctioneer in Northern Ireland for eight of them, three of the horses had been sold to her outwith the auction by a Mr Michael Riley and the price was outstanding. She paid the appellant £4,700 in cash for the three horses which she had bought from Riley. She also paid £170 per horse for transport.

[5] The appellant and Murphy did not return immediately to Ireland. Thereafter, whilst still in England, they went to various locations to deliver and uplift other horses including at Luton, Birmingham, Kersley outside Coventry, Kirby Mallory and Newcastle upon Tyne. Whilst in England, the appellant engaged in a multiplicity of transactions involving horses. He bought five horses from a man called Higgins in Kirby Mallery, "left off" six horses at Newcastle Upon Tyne, and picked up a grey horse on the A69, after being in Newcastle. They had also picked up a pony at the M1 for, it seems, Murphy. No money changed hands at the time although the appellant was hoping that it would do so at some future date. After these various horse transactions, there were two horses to take back to Northern Ireland which, at one point, the appellant said were Murphy's - or, at least, that Murphy was transporting them back to Northern Ireland. At another point, however, he said that one of them - the grey stallion - belonged to his partner, Natalie. He spoke of having done some of the driving when they were in England. He said that he had paid for the diesel and he had paid for the boat. He said that he put the grey horse onto the horsebox. At other points in the interview, he sought to distance himself from having been involved in putting horses onto the horsebox.

[6] The appellant and Murphy left England and drove to Cairnryan, via Dumfries, with a view to taking the ferry across to Larne. Murphy was driving when they reached Cairnryan. There was one horse in the front stall of the horsebox, at the unlocked side door, and one in the rear stall. The rear tailgate was locked. The appellant spoke, at his interview, of the stallion "wrecking and smashing back" and a Crown witness, Ian Thompson of Dumfries and Galloway Constabulary, described the horse as "a not very friendly horse"; rather than examine the horsebox by trying to enter at the side door (which would have required them to try and get past the horse), he and a colleague looked into its windows from a ladder to see what was inside. The evidence was plainly to the effect that the stallion deterred them from entering the horsebox.

[7] A routine security check was carried out by a female member of staff from Stena who opened the side door of the horsebox and closed it again as soon as she saw the horse in the first stall. Later a check was carried out by the police under powers conferred in terms of the Terrorism Act 2000 using a sniffer dig called Buster, a springer spaniel trained to detect both money and drugs. Buster gave an indication towards the appellant's jacket and his bag in which there was found to be a substantial quantity of cash; £2,150 was found in his jacket and £3,995 was found in his bag. The horsebox interior was then searched - the two horses having been removed from it. Four white hessian sacks were found in the fourth stall of the horsebox. Buster showed interest in the first sack he was shown. The sacks contained plastic bags of molasses inside which were plastic bags of herbal cannabis. The molasses may have been used to mask the strong smell of the cannabis. The total quantity in the sacks was a substantial dealer quantity. It amounted to 24.5 kilos in weight and it had a street value in Scotland of £243,637. The value would have been double that amount in Northern Ireland. When the drugs were discovered, the appellant denied having had any knowledge of the presence of the sacks, as did Murphy. The two men remained calm throughout the process during which the drugs were discovered.

 

No case to answer submission: the trial judge's decision and reasons:
[8] Counsel for the appellant made a no case to answer submission at the close of the Crown case. The trial judge rejected it. He considered that it would be legitimate for the jury to infer from the evidence that the appellant was concerned in the supplying of the cannabis found in the sacks in the horsebox stall. The journey to England had been undertaken at his request and while Murphy was the driver, he was driving at the appellant's request and on his behalf. The appellant and Murphy had been with the horsebox throughout the journey. He considered that the circumstances of the finding of the drugs within bags of molasses within sacks inside the horsebox with a horse stationed at each door were capable of pointing to the journey having been a drugs run even if it also involved the transportation and delivery of horses. Neither the appellant nor Murphy gave evidence at trial.

 

The Appeal
Submissions for the appellant
[9] Ms Mitchell submitted that the trial judge had erred in repelling the "no case to answer" submission. As was stated in the note of appeal:

"It was accepted by the Crown that the drugs were concealed and the argument proceeded on this basis.

 

It was submitted that the appellant was not a proprietor of the vehicle. There was no suggestion of any proprietorial connection between the accused and the vehicle.

 

...there was more than one person in the vehicle, namely the appellant along with the co-accused who was both the driver and registered keeper of the vehicle.

 

...the co-accused was more intimately connected insofar as he had ownership of the vehicle. Moreover it was noted that the co-accused had by his own admission been in the back of the vehicle more recently than the appellant and that he had the keys to the cabin..."

 

[10] She drew attention to the appellant's written submissions, and submitted that there was an insufficiency of evidence against the appellant to support the contention that he was concerned in the supply of controlled drugs - in particular, there was insufficient evidence from which to infer knowledge and control of the drugs concealed in the sacks found in one of the stalls in the horsebox. The Crown needed to establish that the appellant had both knowledge and control and they had failed to do.

[11] Ms Mitchell accepted that every case has to be looked at on its own facts and circumstances. Nevertheless this case was almost on all fours with the case of Lees v HMA 2012 HCJAC 57. It demonstrated that where two people are involved and drugs are concealed in a place accessible to more than one person there must be evidence of the knowledge of the particular accused. There was, however, no such evidence in the present case.

[12] Ms Mitchell referred to the trial judge's note of the evidence, his supplementary report and the transcript of the appellant's police interview, particularly where:

• the appellant explained why he was with Mr Murphy;
• the appellant explained that he had his own horsebox but it had broken down;
• the appellant explained the lengthy and complex journey he took delivering and buying horses sometimes to deal with business for himself and sometimes to deal with business for Mr Murphy;
• the appellant explained what collections and deliveries of horses were made in various places;
• the appellant explained the circumstances of the last time someone was in the van;
• the appellant explained the reason why the horses were loaded in the way that they were; and
• the appellant denied all knowledge of the bags and said he had never seen them before.

[13] Ms Mitchell submitted that it could not be inferred from any one of these pieces of evidence that the appellant had the requisite knowledge and control.

Regarding the money, it would, she submitted, be flying in the face of Melissa Brewer's evidence about paying money to the appellant if the jury thought that cash found in the appellant's possession was related to drugs. Even if they disbelieved her, it did not mean that they could leap to a conclusion that the money and the drugs were related. This was a horse trader who was in the course of trading. The natural inference was that the money had come from Mrs Brewer, not from drug dealing. There was no proper evidential basis for drawing an adverse inference from the evidence about the money.

[14] The Crown did not, she submitted, bring home knowledge and control of the bags to the door of the appellant. The Crown required to be able to rely on something which either identified that it was the natural inference to draw or something which showed that he knew these sacks contained drugs.

[15] Turning to the case of Lees v Her Majesty's Advocate, Ms Mitchell referred in particular to paragraphs 9 to 16. The circumstances in the present case were akin to those in Lees. It was possible that neither the appellant nor Murphy knew that there were drugs in the bags. Why was it not possible that Murphy loaded the bags on at an earlier stage, the appellant never saw them at all and when they were taken out of the horsebox, that was the first time he had seen them? The Crown could not simply say that he had been in and out of the horsebox, the bags were there and therefore he must have known that they were drugs. There was, in this case, no corroborated evidence of knowledge and control.

[16] Reference was also made to Bath v Her Majesty's Advocate 1995 SCCR 323, White v HMA 1991 SCCR 555, McGill v HMA 2000 SCCR 253 and Hughes and Brisland v Milne 1990 SCCR 527.

 

Submissions for the Crown:
[17] On behalf of the Crown, the advocate depute submitted that there was sufficient evidence to allow the jury to draw the necessary inference of the appellant's knowledge and control of the significant quantity of drugs found in the horsebox. The factors which allowed an inference of knowledge to be drawn were as follows:

·       the appellant commissioned the use of the horsebox for buying, selling and transporting horses and journeying from Northern Ireland to and within England;

·       the appellant was, accordingly, intimately involved with the use to which the horsebox was put in that journey - he was not a mere passenger;

·       the sacks were in one of the centre stalls of the horsebox - access to it was difficult when the horsebox was in use not least because of the presence of a horse at either extremity;

·       the horses at each door effectively acted as a planned means of security;

·       the appellant had explained, at interview, that the enterprise had taken place at his instigation, to go to Essex and other places in England and he had had a significant involvement with the horsebox during the two days prior to the discovery of the drugs;

·       the value of the drugs was such that it was highly unlikely that they had been deposited in a random vehicle on a random basis; and

·       a substantial amount of cash was found on the appellant.

[18] It was, she stressed, inherently improbable that a third party would have placed those drugs in the horsebox given their quantity and value. It was fanciful to suggest that that would have occurred. The bags were on open view to anyone looking in or taking to do with the horsebox. Such a hypothetical third party would need access through the stalls, past the horses. How could that be achieved without the appellants being aware?

[19] The advocate depute referred to the appellant's police interview. At page 55, he was asked "when was the last time you were actually inside the back of the lorry?" and in his reply he said "I was maybe up in there the last, you know the, helping wi' the last 2." Any person inside the horsebox in relation to the last two horses would inevitably see the bags. The Crown's position was, further, that he was actively engaged in going in and out of the horsebox throughout the journey.

[20] Regarding the cash, the advocate depute did not stress its importance but it was an adminicle available to the jury to take into account as being a feature of drug dealing, according to the drugs expert who gave evidence. It did not match exactly the sums which were said to have come from Mrs Brewer. There was no need to challenge her evidence.

[21] The advocate depute submitted that assessment of a circumstantial case is not a linear exercise. It was a matter of looking at the totality of the evidence. On the evidence in this case, both accused were intimately involved with the horsebox for the duration of the journey. The bags were readily visible. The defence was not that the appellant knew of the containers but not that they contained drugs; the defence was that he had no knowledge of the bags at all - as had been the position of his co-accused. The positioning of the horses was downright suspicious. It was open to the jury to consider it did not make sense to move a difficult horse all the way to the front of the horsebox unless it was to guard the front door. In assessing whether there was a case to answer, the trial judge was entitled to take the Crown case at its highest and when that was done, there was plainly a sufficiency.

 

Decision
[22] From the reports of the trial judge and the transcript of the appellant's police interview, it can be seen that the evidence before the jury included:

i. that the journey took place at the appellant's behest;

ii. whilst Murphy was the owner of the horsebox, he allowed it to be used for the appellant's purposes;

iii. the appellant had free and unrestricted access to the inside of the horsebox;

iv. the appellant was familiar with the horsebox - he had himself borrowed it before and items belonging to him were within that part of it which contained the horse stalls;

v. the horsebox was used, after the delivery in Essex, to enable the appellant to carry out a number of horse dealing transactions at a number of geographically diverse locations in England;

vi. the appellant made statements in the course of his police interview which indicated that he had been involved in loading horses onto the horsebox at various points including when the grey stallion was collected;

vii the two horses that were being taken back to Ireland in the horsebox were positioned in the horsebox stalls in such a way as to block access to that part of the horsebox which contained the drugs, with the difficult stallion positioned beside the unlocked side door at the front;

viii. the drugs were extremely valuable and thus not likely to have been left in the horsebox randomly by a random stranger;

ix. neither the appellant nor Murphy had spoken of any other person accessing the inside of the horsebox outwith their presence during this trip;

x. the appellant was in possession of a substantial amount of money which did not match the sums said to have been received from Mrs Brewer;

xi. horse dealing of the sort engaged in by the appellant had been shown to be a cash business;

xii. cash businesses are known to provide a good cover for the drugs trade; and

xiii. both men remained calm when the drugs were found.

[23] As has repeatedly been said by this court, in all cases of this type, the matter is one of fact and circumstances. Rarely is there direct evidence of knowledge and control of the drugs in question. Such cases are often circumstantial ones. Accordingly, the question that arises is whether it would be legitimate for a jury to draw, from all the facts and circumstances spoken to in evidence, an inference of the requisite knowledge and control. When answering that question, it is important to bear in mind that each adminicle of evidence is not to be dissected out and examined to see whether, on its own, it is capable of bearing the necessary inference. It is of the nature of circumstantial evidence that each piece of it does not, of itself, need to be incriminating; each adminicle may give rise to a number of possible inferences (see: Lord Justice General (Rodger) at p.185C of Mack v HMA 1999 SCCR 181, as relied on by Lord Justice General (Cullen) in Al Megrahi v HMA 2002 SCCR 509 at para 35). What those pieces of evidence amount to, if anything, in the end of the day will depend on whether they are accepted by the jury and on what inferences, if any, are drawn by the jury from such evidence as they do accept. There is, as Lord Justice General Rodger observed, in Mack, nothing strange about that. But it is important to remember that, at the point of a no case to answer submission, the hypothesis must be that the jury accept all the evidence relied on by the Crown.

[24] Each piece of evidence must then be considered not on its own but, applying that hypothesis, in the context of the evidence as a whole. In some cases, matters may be complicated by there having been joint occupiers of premises in which concealed containers containing drugs are found or there is more than one user of a vehicle in which drugs are hidden. It may, depending on the evidence, be possible to distinguish the position of one person in such circumstances. In other cases of which we are satisfied that this is one, such complications do not arise. The question is - and in this case, was - simply, whether it could possibly be said the appellant, as one of two joint users of a vehicle whose journey was taking place at his behest, in the circumstances outlined above, had, in the light of all the evidence, the relevant knowledge and control. In our opinion, a jury would plainly have been entitled to infer the relevant knowledge from the above factors when looked at together.

[25] Regarding the cash found in the possession of the appellant, we do not accept that Mrs Brewer's evidence about having handed over a substantial amount of cash to the appellant created a difficulty for the Crown as seemed to be suggested. First, the evidence about the cash was not the mainstay of the Crown case; it was one adminicle. Secondly, whilst the jury may have accepted that the cash could be related money handed over to the appellant by Mrs Brewer, some time had passed since the delivery to her, the appellant had stopped at geographically diverse locations since then, the sums paid by her and the cash in the appellant's possession did not match, there were Irish notes amongst the cash which she said had not come from her and there was evidence that cash businesses - of which horse trading was said to be one - provide a good cover for the drugs trade; the jury did not require to draw an adverse inference but it was open to them to do so even if they accepted Mrs Brewer's evidence.

[26] We do not agree that the circumstances in this case are directly comparable to those in the case of Lees. In Lees, the appellant had just arrived home when the police arrived. The containers in which the drugs were situated were hidden from view, they were in packages which made them look like fish, and they could have been brought into the house by the appellant's husband on the day of their discovery before the appellant arrived home. Whilst the appellant, as one of the two householders, could have looked in the relevant freezer drawers and behind the microwave (where the packages were found), there was no evidence that she had looked there. In the present case, there was ample evidence of the appellant having been in and out of the inside of a horsebox which had been engaged by him for the purposes of his business and of the bags in which the drugs were found being readily visible there. There were also, as abovenoted, in addition to that, various other facts and circumstances on which the Crown could rely. The available evidence in Lees was considerably more limited and, for the reasons explained by the court, could not, even taking it at its highest, point to the appellant having the requisite knowledge and control. If anything, Lees demonstrates the importance of considering the particular circumstances of each individual case.

[27] We, of course, accept that aspects of the Crown evidence might have been rejected by the jury as being incredible or unreliable and, equally, that evidence led by the defence might - as in any such case - have displaced the case made against the appellant. But that is not relevant at the stage of considering sufficiency. There was, in our opinion, by the close of this Crown case, ample evidence to entitle the trial judge to repel the no case to answer submission.

[28] We accordingly refuse the appeal.