Scottish High Court of Justiciary Decisons

DAVID JOHN TULEWICZ v. PROCURATOR FISCAL, KIRKCALDY [1999] ScotHC 27 (9th February, 1999)

The appellant David JohnTulewicz was charged on summary complaint at Kirkcaldy Sheriff Court with having possession of amphetamine in contravention of section 5(2) of the Misuse of Drugs Act 1971. He pled not guilty and after summary procedure went to trial on 3 October 1997. At the close of the Crown case the appellant's solicitor made a submission under section 160 of the Criminal Procedure (Scotland) Act 1995 but the sheriff repelled this. Thereafter the appellant gave evidence on his own behalf. At the conclusion of the trial the sheriff found the appellant to be guilty and fined him £150. He now attacks the conviction by way of Stated Case. The relevant facts are set out in the findings of fact of the sheriff and may be summarised as follows. At 8.30am on 12 February 1997 Police Constable Kenneth Wilson, accompanied by PC Steven Howard and PC Morgan, called at a dwelling house at 86 The Henge, Glenrothes and had with them a warrant to search it. The appellant and his wife Andrea were present within the house. His wife opened the front door when the police called. She invited them in. The appellant was upstairs but immediately came downstairs. The purpose of the visit and the terms of the search warrant were made known to the occupants. Police Constable Morgan remained with Mrs Tulewicz while the other two constables accompanied by the appellant, searched the house. During the search the police took possession of two paper wrappers containing white powder. They also found a set of scales and two pipes. In the presence of the appellant the paper wraps were opened for inspection but it was not established that the appellant actually saw the contents. All the items discovered were taken from a cabinet in the kitchen. The appellant was cautioned in relation to his possession of a substance believed to be a controlled drug. His reply was "It's mine like". The two wraps mentioned were also analysed and found to contain a quantity of amphetamine. The appellant's wife and child were permanent residents at 86 The Henge. The appellant had resided in the premises over the night preceding the search. He had been in the kitchen and when asked for his address he advised the police that it was 86 The Henge. In the circumstances the sheriff found that the appellant had been in possession of amphetamine at the relevant time.

After the defence submission of no case to answer was repelled, the appellant himself gave evidence. He claimed that he and his wife were separated. However, he agreed that he had passed the night before the search at 86 The Henge although he claimed that he had slept downstairs on the settee. The police found the two wraps in a cabinet and he accepted that he was present at the time although he claimed that the wraps were never fully opened. He had seen the pipes and scales being found. He admitted saying to the police "It's mine like" and he stated that the remark was intended to apply to everything the police had found and shown to him. He claimed that he had not been in the house for some time before the search but he had lied to deflect blame from his wife. His attempts at a matrimonial reconciliation had failed so he no longer wanted to accept blame for something which he said he had not done. The sheriff states that where the evidence of the appellant was inconsistent with the police evidence she was prepared to prefer the police in every instance. It was argued by counsel for the appellant that the critical recovery of two paper wrappers, pipes and scales were accepted as having been found but one of the points was that one of the police constable witnesses thought that the reply of the appellant "It's mine like" applied to all of these items. So one question is whether the reply was in fact sufficient to lead to the inference that the appellant was accepting responsibility for all the items. The other issue that was put to us is whether or not the other evidence that was before the sheriff was sufficient corroboration of this particular reply.

In our view the sheriff was amply justified in finding the appellant had been in possession of amphetamine. She was entitled to repel the submission that there was no case to answer. The appellant had been sleeping in the house on the night before the police arrived. The sheriff accepted that the evidence showed that he gave that house as his address. The items were all taken from a kitchen cabinet. The appellant may not have known precisely what was in the paper wraps but he must have realised it was likely to be a controlled drug. After all, he claimed that he had lied when he owned up to what had been found. He was shown a number of items before caution. The caution indicated that the police had reason to believe he had possession of controlled drugs and yet nevertheless he made the remark that "it's mine like". Prima facie that referred to the controlled drug which the police were suggesting that he possessed. It is now clear law that the Crown had established the onus on them to show possession of a drug if they can show that the appellant knew that he had control of it even if it is not known precisely what the drug was. The assertion of the appellant that the drug was his own, and was in his home where he was present, inevitably leads to the inference that he had control of it. Once a submission of no case to answer had been repelled, evidence was given by the appellant that when he used the phrase "It's mine like", he was intending that to apply to all the incriminating evidence the police had, because his purpose in making the remark was to deflect suspicion from his wife. This well illustrates that the words under consideration can readily bear the interpretation the sheriff put on them. Indeed they bear the interpretation that the appellant intended the words to have.

In the whole circumstances we have no doubt that the Crown case has been established. We shall answer both questions in the Stated Case in the affirmative and shall refuse the appeal.