Lord Justice Clerk
Appeal No: C118/96
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
PETER COCKBURN SMITH
HER MAJESTY'S ADVOCATE
Act: Wheatley; More & Co.
Alt: Bell, Q.C.,A.D.; Crown Agent
3 February 1999
On 29 January 1996 the appellant was found guilty by a majority verdict of the jury on a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971. His appeal against conviction is based on the argument that the trial judge was in error in rejecting the defence submission that there was no case to answer.
Before coming to the arguments which were presented on his behalf it is convenient to set out a summary of the evidence, which is derived from the grounds of appeal and the report by the trial judge. In the early morning of 9 January 1995 the appellant, along with his son, Jason Scott Smith, and John Dalton (both co-accused), and Robert McNeish set off from the farm at Wallyford, East Lothian in a yellow Mercedes motorcar owned by the appellant's wife. The appellant was in the front passenger seat; his son was the driver; and in the back sat Dalton and McNeish. Dalton came from the Manchester area and lived in the next street to another son of the appellant. He was friendly with Jason Smith and had stayed with the Smiths over the New Year. He had been doing some plumbing work for the appellant in return for the repair of his car for which he had been unable to pay. The Mercedes car proceeded to the Manchester area where the occupants were kept under surveillance by the police. The four men remained in each other's company during the day.
They first visited the appellant's other son and then went to a number of public houses. When they were at the Commercial public house in Salford the appellant appeared to be waiting impatiently for the arrival of a man called James Donnelly. Prior to his arrival there was some banter between the appellant and his party on the one hand and the publican on the other. In the course of this Dalton said that the publican must be on "wacky backy" (cannabis). Jason Smith then turned to the appellant and said in a quieter and more serious tone words to the effect that "when Jimmy (Donnelly) gets here and gets us sorted out, we'll all be like that". The appellant did not respond to this. Shortly after 1 p.m. Donnelly arrived at the bar with a female. He also had a black holdall which had distinctive red piping. He left the female and went off to a table in a quieter spot away from the main bar area where he was joined by the appellant. They engaged in a quiet but earnest conversation for a while. They then returned to the main bar area but did not engage in any further conversation, even of a social kind. The holdall was placed close to where a detective constable was observing what was going on. Donnelly telephoned for a taxi and the detective constable decided to leave. As he did so his foot came into contact with the holdall. This confirmed his impression that it contained some apparently heavy items. Donnelly left the public house with the holdall, put it in a Chevrolet motorcar and drove away.
The appellant and those with him then left the public house and walked to another public house, the Ox Noble, which was nearby. While they were there, at about 3.30 p.m., a red Nissan taxi arrived. Two men got out and went into the public house. After a short time they came out again. One of them walked away. The other drove off in the taxi, which had been waiting. The appellant and his party then came out of the public house and walked down the road. At about 4.20 p.m. the yellow Mercedes was seen being driven along the A580 road and turning into the car park of the New Ellesmere public house. Shortly thereafter the appellant was seen standing on a footpath of that road outside this public house. About two minutes later a red taxi, said to be identical with the earlier one and thought to be the same one, pulled into a garage forecourt adjacent to the car park. A man in the car appeared to be identical to one of the men who had been seen earlier in the red Nissan taxi. The taxi stopped for only a very short time and then drove off but returned about a minute later. The appellant got into the front passenger seat. The taxi then drove further into the car park and was lost to view.
Shortly thereafter the yellow Mercedes was seen travelling along the A580 road towards Manchester, with four people in it. The appellant, Jason Smith, Dalton and McNeish visited the house of the appellant's other son for a second time. At about 5.30 p.m. they set off again. Their car then proceeded to Bolton where it stopped at the railway station. The appellant and Dalton got out. The appellant handed to Dalton a holdall from the boot of the car which appeared to be identical or similar to the one which had earlier been seen in the possession of Donnelly. They then entered the railway station and spent some time looking at the train information board there. Dalton caught a train which went to Preston, where he caught another train which took him to Edinburgh. When he alighted from that train at Waverley Station at 9.40 p.m. he still had the holdall with him. After a telephone call and buying and eating some food he took a taxi. It was later stopped by the police and Dalton was detained. He still had with him the holdall which was found to contain 40 slabs of cannabis resin with a total weight of 10 kgs. He had been in possession of the holdall at all times from the stage when the appellant handed it to him. The appellant and the other two men returned to Scotland in the Mercedes. It was stopped at Newcraighall. The appellant was detained and searched. He was found to have the sum of £1,000 in a bank bag in one pocket, and £777 loose in another pocket.
In his report the trial judge also gives an account of evidence relating to earlier events. On 17 November 1994 the appellant was observed in the ticket office in Waverley Station where he asked the staff there to confirm the time of the train from Edinburgh to Bolton. On 21 November 1994 he arrived by train at the station. He was met by Jason Smith who had come by car. Some luggage was put into the boot of the car and they then drove to Wallyford. After they arrived at the Fa'side Inn there, which at that time was run by the appellant's wife, Jason Smith took a black holdall from the boot of the car and into the Inn. Its measurements were consistent with those of the holdall which had been taken from Dalton and it appeared to be full. On 28 November 1994 the appellant and his two sons drove from Wallyford to the Manchester area. When they arrived they went into the Ox Noble public house and two other public houses in the area.
For the appellant, Mr. Wheatley submitted that the question was whether there was sufficient evidence to entitle the jury to conclude that the appellant was concerned in the supplying of something (Salmon v. H.M. Advocate; Moore v. H.M. Advocate 1998 S.C.C.R. 740). The only evidence that the appellant had any contact with the holdall which was eventually taken from Dalton by the police was the evidence that he had taken it out of the boot of the Mercedes car and handed it to Dalton at Bolton railway station. There was no link between that event and the earlier meeting between the appellant and Donnelly. Donnelly had not been seen since he left the first public house. There was nothing to connect the holdall which the appellant handed to Dalton to the holdall which was taken out of the boot of the car by Jason Smith on 21 November 1994. The evidence had not shown that the appellant was in possession of that holdall when he arrived at Waverley Station on that date. Mr. Wheatley added that as regards the events which took place in Manchester there was no evidence that anything had been supplied or that anything had been done by or for the appellant which was directed to the supplying of something. In these circumstances there was insufficient evidence to yield the inference that the appellant knew that he was concerned in such supplying.
In our view these submissions take an unduly narrow view of the evidence in the case. It should be considered as a whole. It disclosed that the appellant in company with Dalton went down to the Manchester area for the day, where the appellant was engaged in earnest conversation with James Donnelly who was in possession of a black holdall which appeared to have heavy contents. Thereafter the appellant was involved in a meeting in the car park of another public house. When the appellant's party left Manchester they did not proceed directly to Edinburgh, but, as the Advocate depute pointed out, went to Bolton where the appellant not only took out of the boot of the car a black holdall which ultimately was shown to contain 10 kgs. of cannabis resin, but also went into the railway station with Dalton, apparently in order to assist him to take a train to Preston, from which he returned that evening to Edinburgh. Dalton was without money to pay for the repair of his car, and yet he travelled northwards by train when there was no need for him to do so, as he could have travelled back with the other three members of the party. It was open to the jury to infer that the appellant was in some way involved in arrangements by which Dalton travelled back to Scotland with the holdall and its contents. It should also be borne in mind that when the Mercedes car was stopped at Newcraighall the appellant was found to be in possession of substantial amounts of money. It was open to the jury to infer they were funds for use in connection with the supplying of substances of a substantial value.
In these circumstances we are satisfied that there was sufficient evidence to enable the jury to conclude that the appellant had the necessary knowledge. His appeal against conviction accordingly is refused.