APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE
THOMAS REID ALLAN
HER MAJESTY'S ADVOCATE
Appellant: Jackson, Q.C.; Berry Scullion, Glasgow
Pursuer: Brady, A.D.; Crown Agent
2 September 1999
The appellant stood trial along with two co-accused, David East and James Paterson Smith, on charges of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant, who was the first-named accused, appeared alone on the first charge, which was in respect of the supplying of diamorphine to another or others, including the two co-accused. As amended at the conclusion of the evidence, it related to 21 January 1998 and a house at 16 Donald Terrace, Fairhill, Hamilton. The two co-accused appeared on the second charge which also related to the supplying of diamorphine. This related to the same date and house, along with High Blantyre Road, Hamilton. Smith and East pled guilty to charge 2 during the course of the trial. The appellant was found guilty of charge 1. The appellant's appeal against conviction is based on an additional ground which was introduced during the course of the appeal proceedings. It is claimed that there was a miscarriage of justice in respect that his case was not "properly and fully presented".
The Crown led evidence that on the evening of 21 January 1998 a police officer was keeping the appellant's house at 16 Donald Terrace under observation. He saw a van, which was driven by Smith, drawing up near the house. East left the van and went into the house. Some time later he left the house. As he did so he seemed to be putting something into his jacket pocket. He then re-entered the van which was driven off. Shortly thereafter the van was stopped in High Blantyre Road. When it was searched a packet containing 294.5 gms of powder (which was 42% weight for weight diamorphine) was found behind the driver's seat. This was a quantity which indicated dealing rather than mere use. A fingerprint of the appellant was found on a clear plastic bag which formed part of the packaging of the drug. When his house was searched the sum of £3,250 was found in a jacket pocket. The Crown case was that East and Smith had collected the drug from the appellant's house, and that this accounted for the appellant's fingerprint being found on the bag.
The trial lasted for three days. On the second morning Smith pled guilty to charge 2. After the close of the Crown case the appellant gave evidence in his own defence. His position was that the drug which was found in the van had nothing to do with him. His explanation for the finding of his fingerprint on the bag was that East had taken some plastic bags from his kitchen while he and Smith were in his house. However, he did not say that he had seen him doing so or that he had seen such bags being taken from the house. The co-accused Smith was led as a witness for the appellant. He said that he and East were asked to take the drug to East Kilbride. It was already in the van when they called at the appellant's house. It was left in the van while he and East went into the house. While the appellant was out of the kitchen East had taken some plastic bags and had used them to repackage the drug after they left the house. Counsel for the appellant took the unusual step of seeking to call East as a witness under section 266(9) of the Criminal Procedure (Scotland) Act 1995, but he declined to give evidence, not being a compellable witness at that stage. After counsel for the appellant had closed his case East pleaded guilty to charge 2. During his speech to the jury counsel for the appellant sought to rely on a statement which, according to evidence given in the course of the Crown case, East had made to the police. In his Charge to the jury the trial judge directed them that this statement was not admissible in defence of the appellant.
The appellant's ground of appeal maintains that after East had pleaded guilty counsel for the appellant could and should have moved the court to allow the appellant's case to be re-opened, so that he could call East as an additional witness under section 268(1) of the 1995 Act. Instead he had attempted to rely on evidence as to the police statement made by East which was inadmissible.
Counsel who represented the appellant at the trial received intimation of the ground of appeal, and provided a note dated 16 November 1998 which gave his comments upon it.
For the appellant, Mr Jackson pointed out that in his note counsel stated that it had not occurred to him that, after East had pleaded guilty, he could competently move the court to allow the appellant's case to be re-opened, so that East could be called as an additional witness. In this counsel was mistaken. It was not a question of counsel exercising his judgment not to call East as a witness. In view of his previous attempt to call East as a witness, it could be taken that if he had realised that the motion was competent, he would have presented it. Mr Jackson pointed out that in his note counsel stated that he had earlier sought to call East as a witness under section 266(9) on the strength of the appellant's belief that he wished to give evidence in his favour, despite the fact that counsel for East indicated to him that he would plead guilty only after all the evidence had been heard, so as to avoid being called as a witness by the Crown or the appellant. In his note counsel for the appellant stated that if East had refused to consent to give evidence, as he did, this would tend to confirm that he did not wish to assist the appellant. Mr Jackson submitted that, in seeking to have East called as a witness without having had him precognosced, counsel must have considered that his evidence was important and should be heard in the appellant's interests. Next, Mr Jackson pointed out that in his report the trial judge stated that he had expected counsel for the appellant to move that the appellant's case be re-opened, so that East could be called as an additional witness, and that he would have granted that motion. Mr Jackson also maintained that it was important to bear in mind that East was in the best position of all persons to speak to his having taken plastic bags from the house. Counsel could have protected the appellant's position by asking for an opportunity to have him precognosced before putting him into the witness box. If East had refused to be precognosced, his police statement could have been put to him.
Mr Jackson also founded on the terms of an affidavit which East had sworn on 12 August 1999. In it he stated that he accepted that the drug was his responsibility and that he had been taking it from Alexandria to East Kilbride. Smith had agreed to give him a lift in the van. He decided to see the appellant on the way. While he and Smith were in the kitchen of the appellant's house he lifted a roll of polythene bags off the floor, and put two of them into his pocket. He did so as he needed to re-package the drug, as he had burst the polythene bags containing it. While Smith was moving the van into the street at the appellant's house, he took the bags from his pocket and transferred the drug into them and then placed the package under the driver's seat. He did not give evidence at the trial because he knew about not being obliged to give evidence. If he had been forced to go into the witness box after he had pleaded guilty, he would have given evidence in the terms of the affidavit. Mr Jackson also pointed out that East had appealed against the sentence which was imposed on him, but that he abandoned that appeal on the day when the appellant's appeal against conviction was heard. He submitted that this was in view of the implications of what he stated in his affidavit.
In reply the Advocate depute did not dispute that it would have been competent for counsel for the appellant to have made the motion after East had pled guilty. While it was apparent that counsel had had no qualms about attempting to call him as a witness at an earlier stage under section 266(9), this was primarily in view of the confidence which his client had expressed that East would testify in his favour. However, East had declined to do so. It was also important to remember that the defence must have been aware of the contents of East's police interview. In that interview he said that he had called at the appellant's house with Smith in order to see how he was. He said that the appellant had not given him anything, and he did not see Smith taking anything from the house. On the other hand he said nothing about any plastic bag being taken from the house, and claimed that he knew nothing about the drug which was found in the van. The latter two statements were different from what was stated in the affidavit. If East had given evidence on the lines of the affidavit, he would have been cross-examined as to the inconsistency.
In Anderson v H. M. Advocate 1996 S.C.C.R. 114 the Lord Justice General (Hope), giving the Opinion of the court, stated at pages 131F-132A:
"Accordingly it cannot be asserted as an absolute rule that the conduct of the defence by the accused's counsel or his solicitor will not be a ground of appeal. But the circumstances in which it will provide a ground of appeal must be defined narrowly. The conduct must be such as to have resulted in a miscarriage of justice, otherwise section 228(2) of the 1975 Act will not apply. It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That can only be said to have occurred where the conduct was such that the accused's defence was not presented to the court. This may be because the accused was deprived of the opportunity to present his defence, or because his counsel or solicitor acted contrary to his instructions as to the defence which he wished to be put or because of other conduct which had the effect that, because his defence was not presented to the court, a fair trial was denied to him."
Earlier in its Opinion the court referred to the tension between the principles which give a wide discretion to counsel to conduct a defence as he thinks fit and the duty of a court of criminal appeal to correct a miscarriage of justice on the ground that the accused did not receive a fair trial.
In the present case it is clear that counsel was under the erroneous impression that it was not competent for him to ask for the appellant's case to be re-opened, so that he could call East as a witness. One way of approaching the consequence of that is to consider what he would have done if he had not been under that impression. The appellant and Smith had both given evidence to the effect that the drug in the van was nothing to do with the appellant. If East had given evidence, he would no doubt have had to admit that he was involved in the transporting of the drug, but it does not follow that he would have added anything to the evidence given by the appellant and Smith as to the appellant's non-involvement. As the Advocate depute pointed out, there was nothing in his police statement to the effect that he supported the explanation which the appellant and Smith had given. In these circumstances it was at least very doubtful whether counsel would have considered it advantageous to the appellant's case to seek to have East called as a witness at that stage. In his note he indicates that he would have been cautious about calling East as a witness since, in light of his earlier refusal, he was apparently unwilling and potentially hostile.
However, we would prefer to approach the matter on a broader ground, in which we assume the truth of the statement made by East in his recent affidavit that if he had been compelled to give evidence he would have given evidence in its terms. If he had been willing to be precognosced and had given substantially the same account as in the affidavit, what would have been the practical effect of that? He would have joined the appellant and Smith in saying that the drug was nothing to do with the appellant, but in this respect he would have been simply adding to the evidence as to the appellant's defence which had already been heard. He would have given, on the face of it, direct support to the evidence of Smith as to what he had done with bags from the appellant's kitchen. However, it is plain that his credibility would have been in question in the light of the fact that in his statement to the police he had said nothing about that, let alone the fact that he was knowingly involved in the transporting of drugs in one way or another.
In light of our consideration of the material in the affidavit we are not satisfied that there was any failure to put the appellant's defence before the jury. All that can be said is that the erroneous understanding of counsel may have led to his not leading evidence which merely added to evidence in support of the appellant's defence which was already before the jury. It was, moreover, evidence which was open to significant criticism as to its credibility.
In these circumstances we are satisfied that there was no miscarriage of justice. The appellant's appeal against conviction is accordingly refused.