Scottish High Court of Justiciary Decisons

MICHAEL GOVELL v. HER MAJESTY'S ADVOCATE [1999] ScotHC 3 (7th January, 1999)

This is a continued appeal by Michael Govell, who was convicted after trial in the High Court in Glasgow on 18 December 1995 on four of the charges contained in the indictment. The appellant was one of five co-accused appearing on the same indictment which contained a total of fourteen charges, all but one being charges of contraventions of the Misuse of Drugs Act 1971. The trial lasted from 28 November 1995 to 18 December 1995, and evidence was adduced from a total of thirty six witnesses, including the appellant. The appellant appealed by Note of Appeal against his conviction on charge 3. That was a charge that between specified dates in 1993 at various addresses, including the Hospitality Inn, Cambridge Street, Glasgow and elsewhere in Scotland and England, the appellant and a co-accused William Rollo, while acting along with another person (unnamed), was concerned in the supplying of a controlled drug, namely cocaine, to another or others, in contravention of section 4(1) of the 1971 Act, contrary to section 4(3)(b) of that Act. On 27 September 1996 the High Court (differently constituted from the court which heard the appeal on 7 January 1999) heard argument to the effect that there was insufficient evidence in law upon which the appellant could have been convicted, in respect that there was no evidence from which the jury could properly conclude that the appellant had knowledge of any transaction involving cocaine, such knowledge being crucial to conviction. The court then had before it a report by the trial judge which inter alia stated that police officers, who were keeping under observation a number of people suspected of being involved in the supply of drugs, had observed the appellant meeting up with two others, Ian Michael Dall and a co-accused, Stuart James Reith, in the Hospitality Inn on 4 October 1993. The trial judge's report referred to the police officers' account of the meeting of the three men, and summarised their evidence - of seeing the appellant using the telephone on many occasions, of hearing him being called to the phone over the hotel tannoy system, of observing him having lunch with Dall and of making further telephone calls. The trial judge's report narrates

When the matter was before the court on 27 September 1996 it was not clear to the court whether or not this summary of the events observed by the police in the Hospitality Inn on the occasion in question was accurate. It was, therefore, decided to continue the appeal to a date to be afterwards fixed in order that the evidence of a police officer (Sergeant Tweedie) who observed the meeting, and caused the events to be recorded in a police log, should be reproduced and the relevant part of the police log be copied. That has been done. The matter came before this court on 7 January 1999 and was heard of new. (No explanation was tendered to the court for the delay).

Mr McBride, who appeared for the appellant, submitted that the transcript of the evidence and the relevant entries in the police log book illustrated that the report by the trial judge was inaccurate, in respect that the evidence and the log showed not that there was any conversation overheard "between them" (i.e. the persons under observation) about "Charlie", but that Sergeant Tweedie had stated that he had heard the appellant go to the telephone and had overheard a telephone conversation between the appellant and somebody else, identity unknown, and it was that conversation which included the words "Charlie", "trial date", "You may get a mention at the trial". Counsel, however, very properly drew our attention to what was said by the trial judge to the jury, as recorded at pps. 33/34 of the transcript of the charge to the jury, namely,

Counsel accepted that, although the summary in the report by the trial judge was inaccurate in its reference to a conversation "between them", there was no corresponding inaccuracy in what the trial judge had said to the jury.

Mr. McBride submitted, however, that the reference to "Charlie" in a telephone conversation with an unknown person could not properly be taken to be a reference to the drug cocaine. He pointed to the evidence of Sergeant Tweedie, under cross-examination, to the effect that he, Sergeant Tweedie, had heard only part of what the appellant had said during the telephone conversation, and that he had picked up other words, such as "yes", "uh-huh", "well", "maybe" and that he, the Sergeant accepted that he had missed a lot and would be unable to contradict any suggestion by the appellant that on the occasion in question he was on the telephone to his girlfriend talking about a number of things, not all of which were heard, registered or recorded. It was not disputed that if the jury were entitled to construe the reference to "Charlie" as being a coded reference to cocaine, then the whole evidence, including that inference, would be sufficient to entitle the jury to find that the accused had the necessary knowledge that a transaction involving cocaine was in train, and, therefore, to find him guilty on charge 3. Counsel maintained it was crucial for the purposes of sufficiency of evidence that the jury should draw such an inference, but submitted that the jury were not entitled, on the basis simply of hearing the word "Charlie" in the mouth of the appellant in the circumstances described, to hold that he had knowledge of some transaction concerning the supply of cocaine. The word "Charlie" itself was capable of at least one other meaning. The link between the use of such a word and the cocaine found more than a week later in a similar briefcase belonging to Dall was too tenuous. In his submission, it followed that the evidence fell markedly short of what was required to show that the appellant was knowingly involved in a transaction of dealing in cocaine.

In reply, the Advocate Depute argued that the evidence was sufficient in law to support a conviction on charge 3 against the appellant, even if the jury were not entitled to infer from the appellant's use of the word "Charlie" in the telephone conversation that he was talking about cocaine. However, the Advocate Depute also submitted that, in the whole context fully described in the report by the trial judge and seen in the directions to the jury, the jury were perfectly entitled to make the inference that the reference to "Charlie" was a reference to cocaine. This was necessarily a matter which the trial judge was entitled to leave to the jury as a piece of evidence capable of supporting the appellant's involvement in a course of dealing involving cocaine. The other evidence showed his association with William Rollo in the Hospitality Inn on the occasion in question, and there was ample evidence to show that William Rollo was involved in dealing with cocaine; and there were other pieces of evidence pointing to a drug-related association between the appellant, William Rollo and Dall, who was later found to be in possession of a large quantity of cocaine inside the briefcase referred to. Furthermore, later on the day of the meetings in the Hospitality Inn, Dall had been found in possession of £20,000 in the same briefcase when he was passing through Glasgow Airport.

In our opinion, it is unnecessary to set forth in detail all the evidence pointing towards the appellant's involvement in the cocaine transaction embraced by charge 3 in the indictment; it is summarised in the trial judge's Report. Approaching the matter on the basis suggested by counsel for the appellant, namely that the evidence in relation to the significance of the appellant's use of the term "Charlie" in the telephone conversation was crucial to proof of knowledge, we are satisfied that in the context of the whole circumstances disclosed by the evidence the question of the significance and meaning of this word as used by the appellant on the occasion in question was one for the jury to determine. It was properly left to the jury by the trial judge and the jury were entitled to infer that the appellant had used the term as a code for cocaine. Despite the questions put to Sergeant Tweedie in cross-examination, when the appellant himself came to give evidence he did not admit to using the words overheard by Sergeant Tweedie. In particular, he did not assert that he had used the word "Charlie" in some innocent sense. He denied that he had used this term at all during the telephone conversation spoken to by the police. As the jury were entitled to make the inference which was made, we are satisfied that the evidence was sufficient to support the conviction on this charge.

In support of grounds 2 and 3 of the Grounds of Appeal, Mr McBride submitted that, even if the evidence was sufficient, the trial judge's references to and summaries of it were unclear, inadequate and unbalanced. Counsel accepted, quite rightly, that the trial judge had been very careful to make it clear to the jury that matters of evidence were for them and it was for them and them alone to determine all questions of fact upon the basis of the evidence. He did not submit that the trial judge had presented the evidence to the jury in a way that was positively misleading. He had, however, erred in failing to give accurate, full and clear directions as to what evidence might infer knowledge by the appellant of any transaction involving cocaine. It was also submitted that he had made no attempt to analyse the evidence in relation to charge 3 separately from the evidence in relation to charge 1, involving William Rollo, the appellant and Reith on another occasion. In counsel's submission, it would have been appropriate for the trial judge to analyse the evidence separately in relation to each accused and in relation to each charge. The trial judge's statement to the jury that there was evidence in the case common to many of the charges and which the jury were entitled to use in relation to different charges was too vague and did not amount to adequate performance of the trial judge's duty at the end of such a long trial. Furthermore, the trial judge, in dealing with the case for the defence of the appellant, had done so extremely briefly and, in counsel's submission, unfairly - although it was acknowledged that there had been a reference to defence counsel's analysis of the evidence (see the transcript of the charge, p.31).

We found it unnecessary to ask the Crown to respond to these criticisms. In our view, it must be borne in mind that in a trial of such length and complexity it is primarily a matter for judgment by the trial judge as to the extent to which the evidence needs to be referred to by him in his charge to the jury. It appears clear from what was said to the jury that the Crown and counsel for the various accused had presented their cases fully and sufficiently; and the trial judge invited the jury to have regard to the "able speeches and analyses by counsel". He himself indicated, as he was entitled to do, that he did not intend to go over the evidence in any detail. We accept that in relation to the matters to which Mr McBride drew attention, the trial judge summarised the evidence very briefly indeed. There is, however, no basis for suggesting that there was any lack of balance in the references he made to the evidence for the Crown and for the appellant. There was no undue emphasis on the supposed strengths of the case advanced by the Crown. The trial judge simply referred in a summary way to the main features of the evidence. There was no attempt at all by him to rehearse the evidence in detail whether for the Crown or for the appellant.

We are not able to hold that in a trial of this kind the trial judge's decision to deal with the evidence by referring to its main features rather than to its detail was a decision which led to any miscarriage of justice. The trial judge was perfectly entitled, as he repeatedly did, to emphasise to the jury that it was for them to decide what was significant and impressive and to proceed upon the basis of their own recollection of the evidence. If the trial judge had sought to give what, in Mr. McBride's submission, was called for, namely a full and accurate picture of the evidence both for the Crown and for the defence, then, given the numbers of the accused and of the charges, the directions to the jury would inevitably have been of such length that they would have been potentially very confusing. Indeed, if police officers give evidence of the kind given in this case - of overhearing a telephone conversation such as Sergeant Tweedie said he heard, and the accused person then goes into the witness box and denies making any such conversation - it is patronising to suggest that the jury has to be reminded by the trial judge of the details of the evidence on both sides in relation to such a matter. It is primarily a function of those representing accused persons - and of the Advocate Depute - to emphasise such features of and contradictions in the evidence.

In our opinion, the trial judge was entitled to approach the matter in the way that he did and to avoid detailed repetition of the submissions about the detailed evidence for and against each accused person. We consider that the submissions made in support of grounds 2(a), (b) and (c) are unsound. In these circumstances the appeal has been refused.