Scottish High Court of Justiciary Decisons

STEWART FARQUHARSON FULTON v. HER MAJESTY'S ADVOCATE [1999] ScotHC 212 (19th August, 1999)

This is an appeal by Stewart Farquharson Fulton who was convicted at the High Court at Glasgow of three charges of being concerned in the supplying of a controlled drug and a charge of being in possession of a sawn-off shotgun without holding a firearm certificate, contrary to Section 1(1)(a) of the Firearms Act 1968. The trial judge had found that the appellant had no case to answer on a further firearms charge and had acquitted him of that charge. Originally, the appellant appeared on all the charges in the indictment along with a co-accused, Thomas Donnelly, but at the start of the trial Donnelly pled guilty to the three drugs charges and not guilty to the firearms charges. The Advocate Depute accepted those pleas and, in due course, led Donnelly as a witness against the appellant, in respect of both the drugs and the firearms charges.

The appellant did not appeal against his conviction of the drugs charges but only against his conviction of the remaining firearms charge. In presenting the appeal, Mr. Kerrigan Q.C. argued one point only which arises out of evidence relating to Donnelly.

The evidence showed that Donnelly was the tenant of a flat which was the locus of the charges. According to Donnelly, the appellant had imposed himself as a lodger and had then proceeded to carry out drugs transactions from the flat. The police raided the flat on two occasions, once in January and once in March 1997. At the time of both of these raids the appellant was living in the flat. There was evidence that the only other regular occupant, apart from Donnelly, was the appellant's fifteen year old son. In March the police found a sawn-off shotgun in a cupboard in the flat. Donnelly gave evidence that he himself was not the person in possession of the gun and that he had seen it in the possession of the appellant on a prior occasion outside the flat. There was no suggestion that the appellant's son had any involvement with it. In addition there was evidence from Detective Sergeant Miller, who conducted the search of the flat, that, when the gun was found in the cupboard in Donnelly's presence, Donnelly was visibly shocked. It is clear that Detective Sergeant Miller thought that Donnelly's reaction was genuine.

The trial judge took the view that the police officer's evidence of Donnelly being visibly shocked could be regarded as an adminicle independent of Donnelly's evidence. As such, it could constitute a separate source of evidence, which could corroborate Donnelly's evidence that he was unaware of the presence of the gun in the flat. The trial judge directed the jury in these terms:

Mr. Kerrigan submitted that Sergeant Miller's evidence, while relevant to Donnelly's credibility, could not be regarded as an independent adminicle and that the passage therefore contained a material misdirection. The Advocate Depute accepted that, if the evidence could not be regarded as an independent adminicle, the conviction would require to be quashed.

In advancing his submission Mr. Kerrigan did not seek to challenge the line of authority relating to evidence of distress which was reviewed in Smith v. Lees 1997 J.C. 73 and further considered in Fox v. H. M. Advocate 1998 J.C. 94. He accepted that, in the context of sexual offences, evidence of the complainer's distress could be regarded as an independent adminicle of evidence which could corroborate the complainer's evidence that she had not consented to the sexual activity in question. In such cases, however, Mr. Kerrigan submitted, the distress was attributable to the physical act giving rise to the offence, whereas in the present case there was no such connexion between the surprise and the crime. Mr. Kerrigan pointed out that in the sexual cases the evidence of distress was used for a limited purpose, to corroborate the evidence of the complainer in relation to the act constituting the crime. In the present case the trial judge had gone much further by ruling that the evidence of Donnelly's surprise could corroborate more general evidence given by him, that he had not been aware of the presence of the gun in the flat. There was no authority to justify that approach.

Mr. Kerrigan presented the issue as being whether Detective Sergeant Miller's evidence of Donnelly's shock at the discovery of the gun could corroborate Donnelly's evidence that he had not known that it was in the flat. That does indeed appear to have been how it was focused at the trial. The essential issue, however, is whether it was open to the jury to treat Detective Sergeant Miller's evidence as an independent adminicle pointing to the fact that Donnelly had not known that the gun was in the house. In my view it was. While Mr. Kerrigan maintained that such a conclusion would involve a significant development in our law, it appears to me that, in following that approach, the jury would simply be doing what we all do in our everyday lives.

If you tell someone that a relative has been killed and you see the blood draining from her face and that she is visibly shocked, then you may well conclude that she had not previously known of the death. Similarly, if you see someone walk into a room and suddenly cry out with delight when she sees her son who has been abroad for many years, again you may infer that she had not previously known that he was going to be in the room. In neither case is the inference inevitable, of course. In each case, it is a necessary part of the process of drawing the inference that you consider that the reaction is genuine. You may actually decide that the reaction is not genuine and that, for some reason, the person is faking the emotion. Or else you may decide that the reaction is indeed one of distress or pleasure, but not of distress or pleasure combined with the element of surprise which points to the person having been unaware of the situation. In either event you will not infer that the person was previously unaware of the matter in question.

Just as, in these social situations, you have to interpret what you observe against wider circumstances, so also the jury would have to assess Sergeant Miller's evidence in the light of the evidence as a whole. They would have to determine whether they accepted that Detective Sergeant Miller was speaking of genuine shock on the part of Gemmell and whether, even if it was genuine, the shock was caused because he had been unaware of the presence of the gun rather than, say, just because the police had found it in his flat, with all the possible consequences for him of that discovery. The task of the jury in assessing the evidence of Gemmell's shock at the discovery in this way would be essentially similar to the task of a jury who have to assess the evidence of a complainer's distress in sexual offences. In such cases they frequently have to decide whether distress was due to the complainer not having consented to the sexual act or was due to some other factor, such as fear that a boyfriend might discover that she had had sexual relations with the accused. Similarly here, if, having made their assessment of Detective Sergeant Miller's evidence, the jury determined that it was evidence of a genuine spontaneous reaction on the part of Gemmell, then they were entitled to treat it as an independent adminicle indicating that Gemmell had been unaware of the presence of the shotgun in the flat. I see nothing inconsistent in this approach with anything said in Smith v. Lees 1997 J.C. 73.

Although Mr. Kerrigan submitted that it was critical to the use of the evidence of distress in the sexual cases that the distress had been directly caused by the accused's physical assault on the complainer, that is in my view incorrect. The significance of the evidence of the complainer's distress is, rather, that it confirms or supports her evidence that she did not agree to the sexual activity in question and that it occurred without her consent. See, for instance, Smith v. Lees 1997 J.C. in my opinion at p. 90 B - C and in the opinion of Lord McCluskey at p. 106 C - D; Fox v. H. M. Advocate 1998 J.C. 94, in my opinion at pp. 107 I - 108 A. Nor do I accept Mr. Kerrigan's submission that evidence of a person's reactions can be used only when the reaction is to the actual commission of the alleged offence. Such evidence can be relied on by the Crown wherever the reaction in question may entitle the jury to draw an inference which is relevant to the proof of the alleged crime. Equally the defence may rely on evidence of a particular reaction of the accused or his supposed associate, for instance, as allowing the jury to draw an inference indicating the accused's innocence of the alleged crime.

On the firearms charge the central question was whether the appellant or Gemmell was in possession of the shotgun. There was evidence that the appellant was living in the flat at the relevant time and would therefore have had access to the unlocked cupboard where the shotgun was found. There was evidence that Gemmell was also living in the flat and could similarly have had access to the gun. But in addition the Crown relied on two aspects of Gemmell's evidence: that he himself had not been aware that the gun was in the flat, and that he had once seen the appellant with the gun outside the flat. There was also Detective Sergeant Miller's evidence that Gemmell had been shocked when the police found the gun in the cupboard. If the jury accepted these various adminicles of the Crown evidence and considered them as a whole, they would have been entitled to infer, first, that only the appellant or Gemmell could have possessed the gun but, secondly, that, since Gemmell did not know that the gun was in the cupboard, it must have been the appellant who put it there. They would therefore have been entitled to conclude that it was the appellant who was in possession of the shotgun when the police searched the flat.

For these reasons I am satisfied that the relevant passage in the trial judge's charge contained no misdirection. In my view the appeal should be refused.

The second ground of appeal raises the point which goes to the heart of the appeal. It relates to evidence given by Detective Sergeant Miller. He gave evidence that in the presence of the appellant's co-accused Thomas Anthony Donnelly, he searched a flat in which the appellant resided as a tenant. There, in the cupboard, he found the shotgun referred to in charge 4. The evidence of Sergeant Miller was to the effect that when the gun was found in the cupboard in the presence of Donnelly, Donnelly was visibly shocked. It is submitted by the appellant that Sergeant Miller's evidence could not corroborate evidence given in court by Donnelly to the effect that he (Donnelly) was unaware of the presence in the flat, and the cupboard, of the shotgun.

For the purpose of evaluating the use to which that evidence from Sergeant Miller might legitimately put it is appropriate to assume that the jury accepted it. When Donnelly displayed visible signs of being shocked, then his evident surprise could have been feigned or could have been genuine. It appears clear that Sergeant Miller judged that the surprise evinced was not feigned but was genuine. The jury were entitled, therefore, to arrive at the same conclusion, and to conclude that they had evidence, independent of the evidence given in court by Donnelly himself, that Donnelly was indeed genuinely surprised at the discovery of the shotgun. From that it is but a short, and in my view, entirely legitimate, step to infer that Donnelly had been, until the moment of the shotgun's discovery by the Detective Sergeant, ignorant of its presence. It follows that the evidence of the genuine shock displayed by Donnelly is evidence from which his prior ignorance as to the presence, and even the provenance, of the shotgun can properly be inferred.

Such an adminicle of evidence is comparable in its character and limited - but possibly significant - effect to evidence given in a sexual assault case as to genuine distress displayed by the victim after the event. In such a case, the jury may properly infer from the independent evidence of observed genuine distress that the alleged victim was genuinely distressed: if that sounds like a truism, it is probably because it is true. Thus if the issue in such a case is whether or not she consented to the sexual conduct which preceded the exhibition of distress (assuming that the conduct is sufficiently proved by other evidence in the case) then the jury may treat the evidence of the genuine distress displayed as pointing to the fact that she did not consent. Similarly in the present instance, I conclude that the evidence of Donnelly's observed shock could properly be used for the purpose I have indicated as well as being evidence to support his credibility in saying on oath that he had been unaware of the presence of the gun.

What the trial judge said in his Charge was,

In my view this direction is perfectly sound, although the word "the" before "evidence" near the end may be a misprint, as there was obviously evidence from Donnelly himself to the effect that he did not know that the gun was there.

In relation to the question of sufficiency of evidence, I agree with your Lordship in the chair that once it is accepted that there is independent evidence, from Sergeant Miller, to the effect that Donnelly was shocked by the finding of the gun, and hence evidence that he had been unaware of its presence, the jury were entitled to infer that the only other adult who had access to the premises, namely the appellant, was in possession of the shotgun.

I agree that this appeal should be refused.

The appellant was convicted on 12 March 1998 of four charges. Three of these were charges relating to concern in the supply of drugs in respect of which he was sentenced to five years imprisonment. No appeal is taken against either conviction or sentence in regard to these charges. The fourth charge was a charge of being in possession of a sawn-off shotgun and in respect of that charge he was sentenced to three years imprisonment, consecutive to the sentence imposed on the other charges. He appeals against both conviction and sentence.

The trial judge narrates that the principal evidence came from a former co-accused Thomas Donnelly who had pled guilty to the drugs charges before commencement of the trial. Donnelly was the occupier of a flat in which the drugs were found. He alleged that the appellant had imposed himself on Donnelly as a lodger, that he had thereafter used the flat for drugs transactions and that he, Donnelly, was in fear of Fulton. There were two police raids on the flat, on 10 January and 6 March 1997. The appellant was living in the flat on both occasions. On the first occasion, the police found certain quantities of drugs. On the second occasion they found further quantities of drugs and, in addition, found a sawn-off shotgun in a cupboard in the hallway of the flat. Donnelly gave evidence that some of the drugs found were his for his personal use but that the main quantity belonged to the appellant who regularly sold drugs. Donnelly also gave evidence that he was not the person in possession of the sawn-off shotgun and that he had seen that gun in the possession of the appellant outside the flat on a previous occasion. As the trial judge says, there was therefore clear evidence that the gun was in the possession of the appellant. It appears also that the cupboard in which the gun was found was not locked. In these circumstances, a question might arise as to whether the evidence that the appellant resided in the flat and had access to the cupboard in which the gun was found, together with Donnelly's evidence that it was not his gun but the appellant's, might, by itself, have been sufficient to entitle the jury to convict the appellant. In his report, the trial judge refers to that possibility, under reference to Bath v. H.M. Advocate 1995 S.C.C.R. 523 and White v. H.M. Advocate 1991 S.C.C.R. 555. There was, however, an additional piece of evidence on which the Crown founded and which the trial judge directed the jury that they were entitled to take into account as corroboration of Donnelly's evidence. The question which was argued in this appeal was whether that piece of evidence could constitute corroboration and the advocate depute accepted that if the trial judge had wrongly directed the jury that they were entitled to treat the evidence as corroboration of Donnelly's account that the shotgun was the appellant's shotgun, then the conviction could not stand.

The piece of evidence in question was evidence from the Detective Sergeant who conducted the search on the second occasion that when the gun was found in the cupboard in Donnelly's presence Donnelly was visibly shocked. In giving his directions to the jury, the trial judge said:

For completeness it should be added that there was no question of concert between the appellant and Donnelly.

The argument for the appellant was simply that Sergeant Miller's evidence was not an independent source of evidence capable of corroborating Donnelly's evidence. It was suggested that that evidence was no more capable of being treated as corroboration than would be evidence of something said by Donnelly when the gun was found or indeed of the way in which anything had been said by Donnelly on that occasion. It was submitted that this was a different situation from that in which the distress of a victim of an assault, for example, may be regarded as capable of constituting corroboration of the fact that something occurred against the victim's will or which was capable of causing distress. In the latter case, the fact of the distress spoken to by other witnesses could be regarded as part of the res gestae or the criminal event: in this case the supposed surprise was something separate and independent of the supposed criminal event. For the Crown, it was submitted, equally simply, that evidence noted by the police officer of visible shock on Donnelly's part on the finding of the gun was evidence of an independent circumstance capable of corroborating Donnelly's evidence.

The argument for the Crown sought to equiparate the police evidence of the appellant's surprise in the present case with evidence of distress displayed by the victim of an assault, particularly of course a sexual assault, as an independent fact capable of corroborating the account of another witness. I should say at once that I accept that there is an element of logic in the Crown argument. The distress exhibited by the victim of a sexual assault established by evidence from those who saw her at the relevant time is an objective fact from which, taken along with other circumstances, certain inferences may be drawn. In a similar way, it can be argued that surprise exhibited by a witness in whose presence a discovery is made is an objective fact about that witness from which, along with other circumstances, an inference might be drawn. I am not, however, convinced that this is properly or entirely a question of logic and I am uneasy about the value of such evidence and the problems to which it may give rise.

One should, I think, begin by recalling that in a case of assault evidence of distress has a very important but equally a limited function. As your Lordship in the chair said in Smith v. Lees 1997 S.C.C.R. 139 at 146:

In the same way, in my view, evidence that a witness appeared to show surprise at the discovery of some fact can, at best, tell the court no more than that something surprising occurred. It cannot, in my opinion, indicate the nature of the reason for that surprise. It is equally possible, in the present case, that Donnelly was surprised or shocked at his own folly in leaving the gun in an open cupboard where the police could find it as that he was shocked that the gun was there at all. There seems to me nothing about the nature of the evidence of surprise which makes it possible to relate it to one explanation rather than the other. In my view, therefore, the evidence of Donnelly's surprise is neutral. It adds nothing to the Crown case.

That reasoning is, in my view, sufficient to indicate that Donnelly's surprise was not capable of being treated as corroboration of his evidence in the present case. It is, however, reinforced by a number of other considerations about evidence of this kind. The analogy between the use of evidence of distress and evidence of surprise is, I think, not exact. Distress as a source of corroboration only becomes material where, put shortly, the occurrence of some event, such as sexual intercourse or an assault, is established by corroborated evidence from other sources. That is to say, the distress only comes into play where an event which would naturally be distressing, at least if not consented to, has occurred: and, it may be added, only if there is a reasonably close relationship in time to the event. The event, moreover, is the actus reus itself. In the present case, the surprise of the witness is not related to the occurrence of a criminal act but to the discovery of evidence of it. Even if it is accepted that there is an analogy, it is not an exact one and the less direct character of the connection between the event and the evidence relied on as corroboration seems to me to detract markedly from the force of the reasoning which favours treating the surprise as corroboration. In the result, it seems to me that the fact that the witness was surprised is and remains just that: it does not point beyond itself to indicate in any way the reason for the surprise.

Further, I think that there is some difference between evidence of surprise and evidence of the kind of distress about which evidence is usually led in sexual offence cases. In the latter case, it is possible to explore, often in very considerable detail, the nature of the behaviour which is said to have exhibited distress: indeed, in many cases, medical evidence will be led in addition to any other evidence that may be available. It is thus possible to scrutinise the basis of the objective fact on which reliance is to be placed. There may, perhaps, be dramatic cases in which clear evidence can be given about the nature of the witness's reaction. In the present case, all that we know is that the police sergeant formed the impression that Donnelly was visibly shocked and while, in theory, there might be some opportunity to test that impression in cross-examination, it is obvious that a great deal of reliance would have to be placed on the impression as simply an impression. Moreover, in a case such as the present, precisely what would be expected from Donnelly, if the shotgun was indeed his, was that he should express surprise and shock and, indeed, do his best to do so convincingly. These considerations seem to me to make it more difficult to regard the evidence of shock which is relied on as evidence truly independent of the evidence of Donnelly and therefore capable of providing corroboration for it. Again, as Mr. Kerrigan pointed out, the distinction between permitting evidence to be led of the witness's visible surprise and allowing evidence to be led of something said by the witness becomes a very thin one. It would seem odd if nothing could be led about the witness's reaction to the discovery of the incriminating object if all that he did was to say "That is not mine" in a controlled and calm manner but evidence of his reaction could be led if he said "That is not mine" in an emphatic or excited fashion. None of these considerations to which I have referred as reinforcing the view which I am inclined to take could perhaps in themselves amount to sufficient reason for holding the evidence of the witness's surprise could not be taken as providing corroboration but they do show, in my view, that there is good reason for adopting a strict approach to the use of such evidence for that purpose.

In the whole circumstances, I have come to the conclusion that it was not correct to invite the jury to treat the evidence that Donnelly appeared to be surprised at the discovery of the shotgun as capable of being corroboration in the circumstances of this case. It follows, in my view, that this appeal should be allowed.