APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Appeal No: C593/98
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION
THOMAS FREDERICK McARTHUR
HER MAJESTY'S ADVOCATE
Appellant: Scott; John Carroll & Co.
Respondent: Doherty, Q.C., A.D.; Crown Agent
11 August 1999
The appellant is Thomas Frederick McArthur who was convicted at the Sheriff Court at Dumbarton of possession of cannabis resin with intent to supply it to another, contrary to Section 5(3) of the Misuse of Drugs Act 1971. The locus was the grounds of Auchnacraig Estate in the Faifley area of Clydebank. He has appealed against his conviction on the ground that the presiding sheriff failed to give the jury a necessary direction on hearsay evidence, with the result that they might have treated the particular element of hearsay evidence as constituting corroboration.
The evidence for the Crown was essentially straightforward. It came from two police officers, Constable Currie and Constable Faull, who spoke to stopping the appellant when he was riding a bicycle along a footpath through the Auchnacraig Estate. The officers spoke to identifying themselves, cautioning the appellant and asking him if he was in possession of controlled drugs. The appellant denied that he was, but Constable Currie carried out a cursory search of the appellant and found two bars of cannabis resin, wrapped in a plastic carrier bag, in his jacket pocket. Clearly, if the jury accepted that evidence - as they must have - there was sufficient evidence to convict the appellant. At the trial the appellant gave evidence to the effect that the police officers were lying and that what had happened was that the officers were keeping watch on the package of drugs, waiting for someone to come to collect it. The appellant had come along and, as "an opportunistic thief", had picked it up. Their verdict shows that the jury rejected that evidence.
The point taken in the appeal arises out of evidence led by the Crown as to the circumstances in which the police officers had come to stop the appellant. Both officers said that Constable Currie had received a telephone call from a reliable source giving certain information. When asked what the information was, Constable Currie's reply as transcribed was:
"The information I received was that a male by the name of Thomas McArthur at his home address of 18C Craigbanzo Street in Faifley, Clydebank on the Auchnacraig Estate which is situated in the north of Faifley was (inaudible) controlled drugs (inaudible)."
Constable Faull said that Constable Currie had told him that a male voice had said that the appellant (whose name he got wrong) "had left his home address to an estate [sic] in the Auchnacraig area to collect controlled drugs." This evidence was led without objection. The Sheriff says that it was not clear to him quite why the questions were asked and allowed to be answered, but he notes that both the procurator fiscal and the defence agent are people whose professional skill he respects and he had no doubt that both knew what they were doing. The Advocate Depute confirmed that the questions were asked in order to show that the officers had been entitled to have a reasonable suspicion that the appellant was in possession of a controlled drug at the time when they stopped and searched him in terms of Section 23(2) of the Misuse of Drugs Act.
In his cross-examination of the appellant the procurator fiscal put it to him that the police had information that he was going to the estate to pick up drugs but the appellant denied this and said that they had made it up. The procurator fiscal went on to ask
"Is it not an awful coincidence that you just happened to be there doing exactly what the police say they were informed you were going to do?"
The appellant answered "No." Again, there was no objection to these questions.
The suggestion in the ground of appeal is that the jury might have been misled into thinking that the evidence about the alleged telephone call was "in some way, corroborative of the person allegedly taking it." Miss Scott developed the point in argument. She said that the jury had to decide between the account given by the police officers and the account given by the appellant. The evidence contained an indication that a source whom the police regarded as reliable had thought that the appellant was going to the Auchnacraig Estate to pick up drugs. In the absence of a direction on hearsay, the jury might have taken that part of the evidence as providing separate confirmation of the evidence of the police officers and as providing a refutation of the appellant's evidence that he had simply noticed the package when cycling through the estate and had stolen it in an opportunistic theft. To avoid the risk of that happening, the Sheriff ought to have given a direction as to the limited use to which the hearsay evidence could properly be put.
Miss Scott rightly directed the main thrust of her attack on the question which the procurator fiscal depute put to the appellant in cross-examination. It was clearly inept because it suggested that it was somehow an amazing coincidence that what the police officers said had occurred at one point corresponded to what they said that they had been told earlier would happen. There would only have been room for such a coincidence if the evidence about the earlier information had come from a separate source. This question did indeed invite the kind of confusion which Miss Scott said might have affected the jury's consideration of the verdict.
Had it not been for this question, we do not consider that there would have been any force in the submission that the Sheriff ought to have given the jury a specific direction as to how they should approach hearsay evidence. Miss Scott accepted that the experienced defence solicitor who conducted the trial had not addressed the issue in his speech to the jury and had not asked the Sheriff to give the jury a direction on the point. As she observed, the mere fact that an issue is not raised by the defence does not in itself mean that a sheriff does not require to give directions on it. The sheriff will still require to give such directions if the matter is critical to a proper consideration of the evidence (Johnston v. H. M. Advocate 1997 S.C.C.R. 568 at p. 576 E per the Lord Justice General). While we do not consider that the matter was critical to a proper consideration of the evidence in this case, we tend to think that, given that the procurator fiscal had raised the matter in cross-examination, it would have been preferable if the Sheriff had given a direction on the point.
We are none the less satisfied that his failure to give the direction did not give rise to a miscarriage of justice. As his report makes plain, it did not even cross the mind of the experienced Sheriff who conducted the trial that he should give such a direction on this matter of hearsay. That is in our view a significant pointer to the fact that, in the overall context of the trial, the significance of the hearsay evidence was not really a live issue by the end of the case when the parties were addressing the jury and the Sheriff was giving his directions. The sharp issue for the jury was whether they accepted the evidence of the police officers about stopping and searching the appellant and finding the bars of cannabis on him or the appellant's account of coming across the bars of cannabis resin and picking them up in an act of casual theft. There were only three witnesses for the Crown and the only witness for the defence was the appellant himself. Not surprisingly, the Sheriff considered that it would have been an insult to the jury's intelligence if he had gone over the evidence. In the context of a trial of this essentially simple kind the absence of a direction on this particular point, though unfortunate, was not of such significance as to give rise to a miscarriage of justice. We shall accordingly refuse the appeal.