Scottish High Court of Justiciary Decisons

KENNETH THOMAS WILLIAM MICHIE v. PROCURATOR FISCAL, PERTH [1999] ScotHC 127 (25th May, 1999)

This is the appeal of Kenneth Thomas William Michie who was convicted of a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971.

The circumstances were that a man, Gray, had lived in a two bedroom flat for about four years. His flatmate had died in November 1996. The appellant was to commence living in Gray's flat with effect from Monday 13 April 1997. By 11 April he had moved some of his belongings into the bedroom which he was to occupy in the flat. According to Gray the appellant was employed by the Post Office. Gray denied having any dealings with any property in the room to be occupied by the appellant. On 13 April police officers with a search warrant searched the flat. Gray was present at the time but the appellant was not. In Gray's bedroom and in the livingroom cannabis resin was found which was in fact the property of Gray. The police also found a piece of cannabis weighing 146 gms in a jacket hanging on the back of the door of the bedroom which the appellant was to occupy. The jacket was described by the police officers as a Post Office jacket. Also in that room there was found a pay slip issued by the Post Office to K T Michie. On the back of this payslip figures had been written which were described by one of the police officer as being a typical drug dealer's tick list. There was another document lying by the telephone in the hall which was also described as a tick list.

In these circumstances the submission was made that there was insufficient evidence to show that the appellant was concerned in the supply of cannabis resin.

The Sheriff took the view that there was sufficient. Clearly there was the evidence of Gray, who said that the drugs found in the bedroom to be occupied by the appellant had nothing to do with him. In that bedroom there was a pay slip in the name of the appellant, give or take one initial, and also a jacket which was described by the police officer as being a Royal Mail jacket and the evidence of Gray to the effect that the appellant was employed by the Post Office.

The combination of Gray's evidence, the police officer's evidence, the pay slip and the nature of the jacket would, in our view, entitle the Sheriff to take the view that the jacket was indeed the appellant's jacket.

Then there was found in the jacket a piece of cannabis. On the back of the pay slip there is the writing which indicates that it was a tick list. Gray denies that either the cannabis or the that tick list had anything to do with him.

The question then becomes whether there is sufficient evidence to entitle the Sheriff to take the view that the cannabis found in the jacket and the writing found on the pay slip could be attributable to the appellant.

The Sheriff accepts that the matter is undoubtedly thin but he took the view that at its highest there was sufficient evidence to show that the appellant was indeed the person who was the possessor of that cannabis and the person who wrote on the pay slip and therefore there was sufficient to show that he was concerned in the supplying of cannabis.

Mr Shead on the appellant's behalf today has submitted that there was insufficient evidence. He said that, essentially, all the evidence came from Gray, and Gray had himself pleaded guilty to a charge under section 5(2) of the Act. He said that there was no evidence that the handwriting on either of the so-called tick lists was the handwriting of the appellant. There was no evidence to support Gray's assertion that the appellant was an employee of the Post Office other than the pay slip. The vital point is that even if the jacket and the pay slip could be said to be attributable to the appellant there was insufficient to show what is essential, namely that it was the appellant who put cannabis in the pocket of the jacket and the appellant who wrote on the pay slip.

While we accept that there is no direct corroboration of Gray's evidence in that regard, we are of the view that if one accepts that the jacket was in fact the appellant's jacket, found in the bedroom which he was to occupy, one is entitled to draw the inference, in the absence of any explanation, that what was found in that jacket was the property of the owner of the jacket. Similarly, in our view, as far as the pay slip is concerned, if one accepts that it was a pay slip attributable to the appellant and bearing in mind that a pay slip is, as the Advocate Depute put it, a somewhat personal document, one is entitled to draw the inference that what is written on the back of the pay slip would be written there by the person to whom the pay slip was issued.

Accordingly, we are of the opinion that looking at the matter as a whole there was sufficient in the evidence to entitle the Sheriff to take the view that what was found in the bedroom was not put there by Gray but was, in fact, the property of the appellant. If, of course, the appellant had given an explanation that it was not his jacket or that when he put his jacket in the bedroom there was nothing in the pockets, then, obviously, that would have been material which the Sheriff would have had to take into account. As it was, however, the appellant led no evidence at all.

In these circumstances the Sheriff says that he felt entitled to draw inferences from the evidence led, including inferences adverse to the appellant in the absence of any contrary explanation. In our view that was a view which the Sheriff was entitled to take.

We consider that having regard to the nature of the evidence in this case, while undoubtedly thin, there was sufficient to entitle the Sheriff to take the view that it had been established that the appellant was concerned in the supply of controlled drugs and for these reasons we shall answer all four questions in the affirmative and refuse the appeal.