Lord Justice Clerk
Appeal Nos: C139/98
HIGH COURT OF JUSTICIARY
OPINION OF THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
JAMES JOSEPH HAMILL and JAMES BURNS GEMMILL
HER MAJESTY'S ADVOCATE
Appellants: Burns, Q.C., Becket; Gallen & Co; Boag-Thomson, Q.C., Miller; Wheatley & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
17 March 1999
On 24 February 1998, at the conclusion of a trial at which they appeared along with a number of other accused, the appellants were convicted of a charge that on various occasions between 1 November 1996 and 17 September 1997 at various addresses in Glasgow they were concerned in the supplying of diamorphine (heroin) to another or others, and in particular to certain named individuals, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The appellants have appealed against their convictions on a number of grounds in which it is claimed that the trial judge misdirected the jury. Before coming to them, it is convenient for me to set out an overall view of the evidence relied on by the Crown. In seeking the conviction of the appellants the Crown case did not rest on each of the appellants being party to the actings of the other and hence responsible for those actings on the ground of concert, but relied on evidence which showed that each of them as an individual had been concerned in the supplying of heroin. It may be noted that during the course of the trial the trial judge repelled an objection to a question put to a witness by the Advocate depute on the ground that the nature of the offence under section 4(3)(b) was such that there was no place for the application of the common law doctrine of concert (H.M. Advocate v. Hamill 1998 S.C.C.R. 164). In the course of his charge the trial judge summarised for the jury the evidence in respect of each of the appellants in turn, emphasising that they should look at the evidence against each of them as an independent exercise (21D-E). Because of the nature of the grounds of appeal it will be necessary for me to give an outline of the so-called chapters under which the trial judge assembled that evidence.
In the case of the appellant Hamill, he referred to ten chapters, which were, in brief, as follows. (i) Evidence was given by a Miss Branigan that she made various payments over a six month period in respect of supplies of heroin from "Hammy" who was based in Glasgow and, according to her, was not present in court; and that she enlisted as couriers Alisdair Maybury and Lynn Millson in that connection. Hamill, for his part, said in evidence that he knew her in connection with his making supplies of alcoholic liquor to her. There was also police surveillance evidence as to her activities in Glasgow. On 10 April 1997 Alisdair Maybury followed or appeared to follow her while a passenger in Hamill's motor car; (ii) Evidence was given by Lynn Millson that on one occasion Hamill took her to a part of Glasgow where she collected some heroin; (iii) A man named Grant Rebecca gave evidence that he was driven by Hamill to a derelict area where he was supplied with heroin, with money changing hands on one occasion; (iv) Lindsay Ann Gordon gave evidence that she introduced Paul Hanratty, John Williams and Nicola Robb as drugs couriers to Hamill and collected money for him. According to Hamill, this was in connection with the supplying of alcoholic liquor; (v) Paul Hanratty gave evidence that over a nine month period he had himself, or through others, collected in Aberdeen and transferred to Hamill in Glasgow £5,000-£6,000 per month, which he assumed was for illicit spirits and cigarettes; (vi) Evidence was given as to an occasion on 17 March 1997 when a co-accused Michael McGougan was collected by Hamill at a telephone box in Southcroft Road, Glasgow. He was found later in the day to be in possession of 5 ozs. of heroin in Aberdeen. Hamill stated in evidence that they met in connection with the purchase of a van; (vii) There was evidence that on 4 June 1997 Hamill was seen in the company of a Peter Main in Glasgow. The latter was found later in the day to be in possession of almost 1/2 kg. of heroin in Aberdeen. Hamill said in evidence that they met in connection with the sale of a motor car; (viii) Police surveillance evidence showed that in Glasgow on 1 July 1997 a co-accused Alan Morrison handed something to Hamill in Glasgow City centre. Hamill drove him to Southcroft Road. Near there Morrison got into a car driven by Gemmill who later handed him a bag. The Crown maintained that the same bag (containing heroin) was seized by the police when they stopped a vehicle in which Morrison was travelling in Aberdeen later on the same day. Hamill gave evidence that Morrison had handed over money for alcoholic liquor and that he asked his friend, Gemmill, who had arrived at Southcroft Road, if he would drop Morrison off in the city centre; (ix) There was evidence that on 30 July 1997 a man Jeffrey Mair, after telephoning Hamill's number and being seen in Southcroft Road, was found to be in possession of 1/2 kg. of heroin in Stonehaven; and (x) There was also evidence that, when a Michael Sim was detained in Aberdeen on 14 August 1997 with a bag containing 5 ozs. of heroin, he had on him a note of Hamill's telephone number.
The trial judge later in his charge went on to summarise the evidence relating to the appellant Gemmill, which was, in brief, as follows. (i) There was evidence that on 23 April 1997 Gemmill collected a man Alisdair Maybury outside the telephone box in Southcroft Road. Later in that day Maybury was found to be in possession of heroin in Aberdeen, which he allegedly said he had obtained in Glasgow; (ii) There was evidence that on 29 April 1997, soon after Paul Hanratty, one of the alleged couriers, had been picked up at the telephone box in Southcroft Road by Hamill in his car, Gemmill arrived on the scene and, according to the evidence of Detective Constable Graham asked him: "You here for gear frae Hammy?". The Detective Constable said in evidence that he assumed that Gemmill had mistaken him for someone else whom he was meeting. He took the reference to "gear" as meaning drugs. When he replied in the negative Gemmill drove off. Five minutes later he drove past with Hanratty beside him in the direction of the city centre. It may be noted that Hamill gave evidence that Hanratty had been in his yard at Southcroft Road to hand over money which he had collected for the sale of alcoholic liquor and cigarettes; (iii) There was evidence that on 1 July 1997 Gemmill gave a lift to the co-accused Morrison from Southcroft Road after his arrival there with Hamill. He later handed to him a bag to which I have referred in chapter (viii) relating to Hamill; (iv) There was evidence that on 11 July 1997 Gemmill was in the company of two co-accused, one of whom was found to be in possession of heroin later that day; and (v) There was evidence that on 5 August 1997 Gemmill drove John Williams and Nicola Robb from Southcroft Road after their meeting with Hamill. Gemmill did not give evidence.
Hamill's appeal against conviction
Before coming to the main ground of appeal, I can deal shortly with two other grounds.
The first relates to a passage in the charge which followed the trial judge's summary of the evidence relating to Gemmill. He said at pages 54B-56B:
"Ladies and gentlemen, chapters 1 to 4 of the evidence which I've just summarised could - and I say only could - be taken by you as circumstantial evidence pointing towards the guilt of the second accused (Gemmill) quite independently of any association between him and the first accused, Mr. Hamill, and I say that because if you accept the evidence in three instances, the persons seen with the second accused in Glasgow were the same evening found in Aberdeen in possession of heroin and on the fourth occasion, if you accept the evidence of Detective Constable Graham, the second accused actually mentioned the subject of gear to him outside the telephone box, but the fifth chapter of evidence which I have mentioned about driving John Williams and Nicola Robb away from Southcroft Road after their meeting with Mr. Hamill would only be of significance, ladies and gentlemen, if, before you came to consider the case against Mr. Gemmill, you have come to the view quite independently that that meeting with Mr. Hamill was in connection with drugs, which leads me on to say this, that if - and I say only if - on an independent assessment of the case against James Hamill you were disposed to find him guilty of charge 1 - I say only if - but if that were the position, then, of course, that could - and I say only could - lend additional colour to the nature of Mr. Gemmill's association, or, rather, Mr. Gemmill's activities in and around Southcroft Road and his association with
I will say that again if - and I say only if - on an independent assessment of the case against James Hamill you were disposed to find him guilty of charge 1, then, of course, that could - and I say only could - lend additional colour to the nature of Mr. Gemmill's activities in and around Southcroft Road and his association with Mr. Hamill, and I suppose the converse would be true also. In fact, I would say and I direct you the converse would be true also if, on an independent appraisal of the evidence, you were disposed to find Mr. Gemmill guilty of charge 1, then that in turn could - and I say only could - lend colour to the nature of Mr. Hamill's association with Mr. Gemmill. What, however, you cannot and must not do is simply to look at the two together and come up with, as it were, some joint result on charge 1. That would be wrong. The case against each of Mr. Hamill and Mr. Gemmill must be considered separately, and I hope you understand that".
For Hamill, Mr. Burns did not dispute that the evidence relating to the activities of Gemmill could lend colour to the nature of Hamill's activities. However, it was misleading for the trial judge to indicate to the jury that they could rely on the guilt of Gemmill in doing so.
I do not accept this submission. At page 21A of his charge the trial judge emphasised that the jury should consider the case against each accused as an independent exercise. He stated in terms: "You can't find an accused guilty of a charge just because you find another accused guilty". Furthermore at the end of the passage which I have quoted above he again made it clear that the jury should not look at the appellants together and come up with a joint result. While the use of the word "guilty" was, as the Advocate depute accepted, the wrong word for him to have used, I do not consider that the jury could have been misled in the way contended for by the appellant.
The second ground relates to chapter (x) of the evidence relating to Hamill. Here the complaint is that the Crown did not found on this evidence as incriminating Hamill and could not do so. The Crown case was that Sim had been supplied with controlled drugs by a co-accused Robert Latham. This formed the subject of charge 3 of the indictment, on which Latham appeared alone. The Crown did not suggest that Latham had been acting in concert with Hamill. Mr. Burns submitted that there was nothing to show that any supply by Latham to Sim arose out of any association with Hamill. It was not surprising that the trial judge remarked to the jury that the defence had not dealt with this point, since it had not formed part of the Crown's case against Hamill.
In his report the trial judge says that there was no doubt in his mind that throughout the trial the number of Hamill's mobile telephone had considerable significance. It was used by those who sought to contact "Hammy" for the supply of drugs. Accordingly it was significant or possibly significant that Sim had a note of that number. At page 48B he reminded the jury of Hamill's own evidence that, for one reason or another, "loads" of people had his telephone number.
I am not persuaded that there is any substance in this ground of appeal. The fact remained that there was evidence before the jury that Sim, a person who was found to be in possession of heroin, was in possession of a note of Hamill's telephone number. In the light of the evidence that this number was used by those who were seeking a supply of controlled drugs, it was open to the jury to take that circumstance into account in considering the case against Hamill.
I come then to the main point which was taken by Mr. Burns on behalf of Hamill. It arises in the following way.
I have already referred to the evidence which was given by Detective Constable Graham in regard to the incident on 29 April 1997 which formed chapter (ii) of the evidence summarised by the trial judge in dealing with Gemmill. The trial judge referred to that evidence in three other passages of his charge.
At an early stage he set out the general rule as to the inadmissibility of hearsay evidence. He then set out a number of exceptions to the rule. The last of these exceptions was in the following terms:
"There is one further, fourth exception to the general rule about hearsay and that occurs where what has been said is part of the events said to constitute actual criminal activity as opposed to being simply a subsequent statement or report of what has previously happened, and an example of that might be, if you accepted the evidence, of course - only if you accepted the evidence - an example might be the evidence of Detective Constable Graham to the effect that the second accused, James Gemmill, came up to him outside the phone box described in evidence and said, according to him, 'You here for gear frae Hammy?'. That I think you could view as evidence of part of the scenario of events with which the Crown says Mr. Hamill was concerned, namely evidence of what, if anything, was or may have been the significance of the meetings, if any, which took place at the phone box and, as such, as being evidence available for your consideration of the case against Mr. Hamill as well as that against Mr. Gemmill".
The second reference to the incident came in a passage in which he was dealing with chapter (v) of the evidence relating to Hamill. He pointed out that the Advocate depute had invited the jury to reject the evidence of Paul Hanratty that he assumed that the money was for illicit spirits and tobacco. This was in the light of evidence including that of Detective Constable Graham as to what transpired shortly after Hanratty had been collected at the telephone box.
The third reference came at a later stage in the charge when the trial judge was concerned with the attack which counsel for each of the appellants had made, when addressing the jury, on the veracity of the evidence given by the Detective Constable. Since, in the words of the trial judge "this is obviously an important part of the evidence and because of some of the things said by counsel in their closing addresses", he referred the jury to his note on what the witness had said.
Mr. Burns pointed out that when the Crown sought to elicit evidence from Detective Constable Graham as to what Gemmill had said, no objection had been taken by counsel for Hamill. This was on the view that while it might be admissible as evidence against Gemmill, it would not be used in evidence against Hamill. In the event the Crown relied on the evidence of the Detective Constable to discredit the exculpatory evidence of Hanratty, but did not seek to rely on it as evidence which incriminated Hamill. However, this was what the trial judge had invited the jury to consider. Evidence of a statement made by one accused in which he incriminated another, who was not present, was not admissible as evidence against the latter (Walkers on Evidence, section 37).
In his report the trial judge stated that he considered that the evidence was admissible against Hamill as being in the circumstances evidence of the res gestae, under reference to Walkers, section 377 and the case of Hunter (1838) 2 Swin. 1 at page 12. That case was concerned with a trial on a charge of conspiracy in which it was held that the res gestae included all the acts of conspiracy. The trial judge went on in his report to state that there had been a good deal of evidence from which the jury could infer that during the period libelled the telephone box was a recognised meeting place for those seeking to obtain drugs from the appellant, either directly or through Gemmill as an intermediary. He referred, by way of example, to the evidence which he had summarised in his charge relating to chapters (i) and (v) in regard to Hamill; and chapters (i) and (ii) in regard to Gemmill. (It may be noted that he could also have made reference to chapter (vi) in regard to Hamill). He said that it seemed to him that the evidence in question was highly, and directly, relevant to that matter.
Mr. Burns acknowledged that in a case in which the Crown relied on concert in order to establish the responsibility of two or more accused, the statement of one of them outwith the presence of the other was admissible against that other when it formed part of the criminal activities. (Walkers on Evidence, section 35; Dickson on Evidence, 3rd edition section 363). However, in the present case, the Crown had disclaimed the use of concert, and had proceeded on the basis that they sought to bring home guilt to each of the appellants on the basis of his responsibility for his own actings. All that the Crown had to prove - particularly in the light of the later decision in Salmon v. H.M. Advocate; Moore v. H.M. Advocate 1998 S.C.C.R. 740 - was that each of the appellants was to his knowledge concerned in the supplying of something, and that the something was the controlled drug mentioned in the charge.
In reply the Advocate depute argued that it was enough that the utterance of a person was so associated with his actions as to form part of the res gestae, regardless of whether that person was or was not a co-accused. In any event, even where there was no need for the Crown to establish that the accused were acting in concert, it did not mean that in the circumstances of the case there was not evidence of their having acted in concert. Such evidence would eliminate the need to show that the statement formed part of the res gestae. In the present case there had been, as the trial judge pointed out, a considerable amount of evidence about the telephone box, indicating that it was used by those who sought supplies of heroin from Hamill. In this connection the Advocate depute referred to H.M. Advocate v. Docherty 1980 S.L.T. (Notes) 33, which was concerned with charges under section 1 of the Public Bodies Corrupt Practices Act 1889, as amended, which libelled an association between the accused and another man who had since died. The question arose as to the admissibility of evidence of a statement made by the deceased, outwith the presence of the accused, which incriminated him. In ruling on the objection Lord Stewart at page 34 indicated that it was open to the jury to conclude that the accused and the deceased were acting together in furtherance of a common criminal purpose. If so they would be entitled to hold that the accused was answerable for criminal acts committed by the deceased in furtherance of that purpose. If, in order to do so, it was necessary, as it must be in a crime of that nature, to prove what was said by the deceased on particular occasions, that also was entirely proper. The Advocate depute submitted that the same applied in the present case to a common criminal purpose in regard to the supplying of heroin.
This ground of appeal raises a point of some difficulty. The trial judge appears to have taken the view that evidence of the statement made by Gemmill fell to be regarded as part of the res gestae. There is no doubt that there was a sense in which that was correct. His words were closely associated with his actions and could be regarded as incriminating him in regard to the charge. It is understandable that in these circumstances counsel for Hamill could not have objected successfully to the admission of that evidence as part of the evidence heard by the jury. However, whether it was evidence which was admissible against Hamill was a different matter.
If Hamill had been present and not demurred at what Gemmill said, evidence of Hamill's lack of reaction would have been admissible as evidence incriminating him. In that context the significance of the evidence of Gemmill's statement would have been that it was evidence as to the fact of the statement being made, as opposed to being evidence of its truth (cf. Buchan v. H.M. Advocate 1993 S.C.C.R. 1076). However, Hamill was not present, and in his directions to the jury at page 8A-E the judge plainly treated evidence of Gemmill's statement as being in itself capable of incriminating Hamill. This runs into the difficulty that, as is well established, a statement made by an accused which incriminates a co-accused who is not present, is not, at least in general, admissible as evidence against that other accused. This applies not only to an account given by an accused after the events which are the subject of the indictment but also a statement made by him during and in the context of those events. The reasons for such a rule are obvious and do not require examination for present purposes.
It is, however, recognised that in certain cases the position may be different. Dickson states at section 363:
"The confession of one prisoner is not admissible as evidence against another. This rule even applies to cases of theft and reset, where the confession by the thief is not an article of evidence against the resetter, and vice versa. Even in cases of conspiracy any statement by one prisoner, which is either a narrative of measures already taken, or a confession of the crime charged, cannot be used against a co-conspirator. On the other hand, all words uttered or documents issued by one conspirator in furtherance of the common design, and those which accompany acts of that description, and so form part of the res gestae, may be used against all the other prisoners, provided there be prima facie proof that they engaged in the plot".
Alison on the Criminal Law of Scotland vol. 2 states at page 518-519:
"Upon the same principle, in cases of riot, combination or conspiracy, it is competent to prove as evidence against the pannel, not only his own words, but those spoken by any of the party with whom he was engaged on that occasion to explain their motives or design...In cases of conspiracy or treason, it is competent to prove against a pannel, if he is once implicated in the design, conversations equally as actions held by those with whom he had communicated with others, though out of his presence".
Walkers on Evidence state in section 37 under the heading "Confessions made vicariously":
"When concert between two or more persons is proved, anything said or written by one of them in relation to the preparation, execution or completion of their common criminal enterprise is admissible in evidence against all of them. Apart from this, however, a confession of, or inferring, guilt by one accused is not admissible as evidence against another. If evidence of a confession by one accused is led as admissible against him, and its terms implicate another accused, the jury must be directed to disregard it as evidence against the other accused".
The opinion delivered by Lord Stewart in Docherty was clearly intended to fall in line with that approach, which comes to this, that where there is a conspiracy or concert each accused is held responsible for what is done in pursuance of that conspiracy or concert, whether it takes the form of actings or of actings in association with statements. There is no authority which, so far as I am aware, justifies extending the principle beyond the types of case to which these writers refer.
In the present case, as I have already noted, the Crown did not seek to pin responsibility on the appellants on the basis of concert. When the trial judge directed the jury at page 8A-E, he said to them that they could view the evidence of Gemmill's statement
"as evidence of part of the scenario of events with which Hamill was concerned, namely evidence of what, if anything, was or may have been the significance of the meetings, if any, which took place at the phone box and, as such, as being evidence available for your consideration of the case against Mr. Hamill as well as that against Mr. Gemmill".
I do not read these words as directing the jury that, before they would be entitled to treat evidence of Gemmill's statement as incriminatory of Hamill, they would require to be satisfied that Gemmill was acting in concert with Hamill. This would have required them to be satisfied that, at the time of the incident, Hamill and Gemmill were acting together in pursuance of a common criminal purpose, namely an enterprise for the supplying of heroin which was the subject of the charge, and to which Gemmill's actings and statement related. In my view what the trial judge said fell short of that. It was insufficient for him to direct them that it was enough if they took the view that the evidence about Gemmill's actings and statement was "part of the scenario of events with which Hamill was concerned", namely the evidence as to meetings which took place at the telephone box.
Despite that misdirection I am fully satisfied that, if the jury had been directed that evidence as to Gemmill's statement would not be admissible against Hamill unless they were satisfied that Gemmill was acting in concert with Hamill at the time of the incident, they would have reached that conclusion as to concert. Their conviction of Gemmill demonstrates that they were satisfied that he was concerned in the supplying of heroin. However, the incident to which Detective Constable Graham spoke was closely associated in time and circumstances with the activities of Hamill. Shortly before the incident Hamill had collected Hanratty. Shortly after the incident Hanratty is seen to be in the company of Gemmill as he is driven towards the city centre. The jury would have been entitled to conclude that Hamill and Gemmill were acting in a complementary way in furtherance of a common criminal purpose directed to the supplying of heroin. I have already noted that, according to his own evidence, Hanratty had been extensively involved in transactions with Hamill over a nine month period, and that, according to the evidence of Lindsay Ann Gordon, he was a drugs courier.
The evidence relating to the incident on 29 April 1997 did not, of course, exist in isolation. The jury would have been fully entitled to take into account other evidence, from which they could derive confirmation that what happened on 29 April was part of a more continuing combination between Hamill and Gemmill. The Crown sought to satisfy the jury that on 23 April 1997, six days before the incident, Gemmill was involved in the supplying of heroin to Alisdair Maybury, whom he collected outside the telephone box in Southcroft Road, where Hamill had his yard. As I have already noted, on 10 April 1997 there was evidence that Maybury who, according to Miss Branigan, was a drugs courier, followed or appeared to follow her while a passenger in Hamill's motor car. On 1 July 1997 when, according to evidence given at the trial, Gemmill gave a lift to the co-accused Morrison and handed to him a bag which the Crown maintained was the same bag as was seized by the police in Aberdeen, it was Hamill who had brought Morrison to Southcroft Road. On 5 August 1997 it was after their meeting with Hamill at Southcroft Road that Gemmill drove away with John Williams and Nicola Robb, both of whom were drugs couriers according to Lindsay Ann Gordon. It is also noteworthy that, according to the Crown case, which the jury must be taken as having accepted, Gemmill was involved in the supplying of heroin to persons from Aberdeen. From the evidence relating to the activities of Hamill, such as I mentioned in chapters (vi), (vii) and (ix), the jury were entitled to infer that Hamill also was involved in the supplying of heroin to persons from Aberdeen or at any rate the Aberdeen area. This evidence plainly supported the conclusion that on 29 April 1997 Gemmill was engaged in combination with Hamill in a common criminal purpose directed to the supplying of heroin.
In these circumstances, while there was a misdirection of the jury on the part of the trial judge, there was no miscarriage of justice occasioned thereby. Accordingly Hamill's appeal against conviction is refused.
Appeal by Gemmill against conviction
On behalf of Gemmill, Mr. Boag-Thomson advanced a number of complaints about the trial judge's charge.
Firstly, he drew attention to the fact that in his evidence Hamill had given evidence at length about his substantial dealing in alcoholic liquor and tobacco from a lockup in Glasgow. It was not in dispute that a trailer load of such goods had been found. In dealing with Hamill's defence the trial judge had referred to that evidence. He had relied upon it as assisting in Gemmill's defence when he addressed the jury. Even if the jury had disbelieved the evidence given by Hamill they might have been satisfied that Gemmill believed that he was conveying people in connection with the supplying of alcoholic liquor and tobacco. When he came to the case against Gemmill the trial judge failed to direct the jury that the Crown required to show knowledge on the part of Gemmill that he was conveying individuals in connection with their obtaining controlled drugs, as opposed to alcoholic liquor and tobacco. Mr. Boag-Thomson submitted that the decision in Salmon v. H.M. Advocate; Moore v. H.M. Advocate did not apply since there was an alternative explanation for Gemmill conveying such persons. It did not matter that Gemmill did not give evidence.
I do not consider that there is any merit in this ground of appeal. So far as any onus on the Crown is concerned, the point is plainly covered by the decision in Salmon and Moore. In that connection the Advocate depute referred the court to passages in the opinion of the Lord Justice General at page 757B and Lord Bonomy at page 773C-D. In the present case the trial judge directed the jury that it was essential for the Crown to prove that each accused knew that he was involved in some way in the supplying of the controlled drugs. This was a misdirection which was, in the light of that decision, favourable to the appellants. The fact that Hamill gave evidence in his own defence that his actings had been in connection with alcoholic liquor and tobacco had no effect whatever on what the Crown required to prove in regard to either appellant. If it were thought that there was some possibility that the trial judge had not been even-handed in dealing with the defence case, I consider that there is no foundation for such a suggestion. Given that Gemmill did not give evidence, it would have been difficult, if not impossible, for a defence to be made out that he neither knew nor suspected nor had any reason to suspect that what he was concerned with was the controlled drugs.
Mr. Boag-Thomson next complained that the trial judge had failed to direct the jury in regard to the incident on 29 April 1997 that the reference to "gear" could have had a meaning which was, from the point of view of the charge, an innocent one, in respect that it might have referred to alcoholic liquor or tobacco. There is no merit in this point. No attempt was made, as I understand the matter, to establish in the course of the evidence that the expression was capable of having this meaning.
Next Mr. Boag-Thomson pointed out that in connection with chapter (viii) in the evidence relating to Hamill the trial judge directed the jury that they required to be satisfied that there was some tie-up between the bag which was recovered and the co-accused Morrison before they could draw the inference which the Crown sought to establish. The trial judge had failed to give the same direction in the case of Gemmill when dealing with chapter (iii) of the evidence relating to him. I do not consider that there was any need for the trial judge to repeat his direction which plainly applied in the case of each of the appellants.
Mr. Boag-Thomson also pointed out that during the course of commenting on the submissions which had been made by him in regard to the evidence relating to Gemmill the trial judge had referred to an incident involving Hamill on 4 June 1997 (chapter (vii)). It appears from the trial judge's report that he had confused this incident with the incident on 5 August 1997 (chapter (v)). Mr. Boag-Thomson did not submit that this provided an independent ground for quashing his client's conviction, but maintained that it lent colour to his argument in regard to the other grounds. I do not consider that it is of any significance, since it is unlikely that the jury would have been misled by it.
Lastly, Mr. Boag-Thomson maintained a similar attack on the passage at pages 54B-56B of the charge to that which had been maintained by Mr. Burns in his first ground of appeal. For the same reasons as I gave in rejecting that ground, I reject this one also.
In these circumstances Gemmill's appeal against conviction is refused.
Lord Justice Clerk
Appeal Nos: C139/98
HIGH COURT OF JUSTICIARY
OPINION OF LORD CAPLAN
NOTE OF APPEAL AGAINST CONVICTION
JAMES JOSEPH HAMILL and JAMES BURNS GEMMILL
HER MAJESTY'S ADVOCATE
Appellants: Burns, Q.C., Becket; Gallen & Co; Boag-Thomson, Q.C., Miller; Wheatley & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
17 March 1999
I have read the Opinion of the Lord Justice Clerk and I agree with his views and his conclusions. I shall therefore confine my comments to some brief remarks about the statement made by the appellant Gemmill when he is alleged, on 29 April 1997, to have asked the witness Detective Constable Graham: "You here for gear frae Hammy?" The trial judge directed the jury that, if they regarded this remark as "part of the scenario of events" with which Mr Hamill was concerned, then they could regard it as being an exception to the general rule about hearsay and treat it as available to be considered as part of the case against Mr Hamill. However, I agree with the Lord Justice Clerk that this direction does not focus the law properly. Insofar as "Hammy" is implicated in what Gemmill is doing at the time in question, not all of this implication springs from an "event". Insofar as what Gemmill says incriminates Hamill specifically it is derived from Gemmill's statement implicating "Hammy" as a drugs supplier.
In my view the Lord Justice Clerk correctly differentiates between evidence that a statement has been made (which is acceptable) and evidence from which it is sought to take that the content of the statement is true (which if such content is hearsay, and incriminates a third party, generally is not). This important distinction has been well recognised since McLaren v Macleod 1913 S.C. (J) 61. At page 67 of the report Lord-Justice General Dunedin states that evidence of conversations may be allowed, not to prove their truth, but their character. He then proceeds "I hope that it is clear that there is nothing in this judgment to countenance the idea that hearsay conversations may be used as evidence to prove what is contained in them". Thus what Gemmill said to Detective Constable Graham is perfectly valid evidence against Gemmill himself. Leaving aside any question of weight, it could be taken as evidence that Gemmill himself was looking for someone who wanted a supply of drugs. Similarly it could point to the fact that the telephone box at the locus was a place where persons looking for drugs might come. Moreover, as the Lord Justice Clerk points out, the statement to Detective Constable Graham could constitute a well-acknowledged exception to the hearsay rule if it were first established to the satisfaction of the jury that Gemmill and Hamill were working together in furtherance of a common criminal scheme to supply drugs. Unless the general rules affecting hearsay incrimination by one accused of another applied also to statements forming part of the res gestae the qualification stated by Dickson on Evidence at paragraph 363 that there is need for prima facie common engagement in a plot would be unnecessary. The suggestion that a person coming to the locality of the telephone box might be coming to collect drugs "frae Hammy" distinctly incriminates Hamill. Without being specifically advised to look beyond the conversation to the relationship between Hamill and Gemmill, if the latter's whole statement is allowed to be considered by the jury in relation to Hamill, then "Hammy" can be connected with what Gemmill is trying to transact with Detective Constable Graham because Gemmill has indicated this connection verbally. The path of participation in a common criminal project is available to the Jury if they are interested in linking Hamill with what Gemmill said but that is not the path to which they have been directed in the Trial Judge's charge.
I may say that I have considerable sympathy for the plight of the Trial Judge in directing a Jury in this case. The evidence referable to each accused is almost inextricably intertwined and it is difficult to illustrate to the Jury how the various parts of the evidence may be applied. Nevertheless I consider that the reference by Gemmill to "gear frae Hammy" must be regarded as a hearsay statement by one accused which incriminates another accused, outwith his presence. If Gemmill's statement is, as part of the res gestae, to be regarded as criminal actings on his part, these actings can only be attributed to Hamill as well on the basis of concert. The Jury required to be directed accordingly.
However, any inadequacy in the trial judge's treatment of the Gemmill statement is more theoretical in its impact than practical since I agree that no miscarriage of justice has resulted. The incidence of signs of association between Gemmill and Hamill is so pronounced in the evidence that it would be extraordinary if they were not involved in some joint venture. Indeed Hamill when giving evidence accepted that Gemmill occasionally helped him out although it was maintained that this was in relation to the supply of alcoholic liquor. We now know that the jury were satisfied that Gemmill was involved in drug supply. As emerges from the Lord Justice Clerk's detailed summary of the evidence, in relation to various incidents where Gemmill was held to have been dealing in drugs, we find that Hamill appears to be closely associated with what is happening. Thus, for example, Hamill picks up Hanratty at the telephone box in Southcroft Road. Shortly afterward Gemmill arrives at the same place and seems to be looking for someone expecting to procure drugs. He drives off and within minutes is seen driving Hanratty. Thus, in relation to Gemmill the fact that he had a little earlier been interested in a drugs transaction was validly proved and obviously had been accepted by the Jury. However it was Hamill who had picked-up Hanratty at the telephone booth. Again in relation to the co-accused Morrison, this person on 1 July 1997 hands something to Hamill in Glasgow city centre. Later once again it was Hamill who drove Morrison to Southcroft Road. Near there Gemmill picked him up by motor car and handed him a bag. Later when police intercepted Morrison in Aberdeen the bag was found to contain heroin. There was evidence that Hamill, himself, collected Michael McGougan from the said telephone box on 17th March 1997 and that later McGougan was found with a supply of heroin in Aberdeen. There was a considerable body of other evidence which associates Hamill with drug dealing. Many of the customers he was dealing with came from the Aberdeen area. The operations show an association with Southcroft Road. In the whole circumstances, given that the Jury had decided to convict Gemmill, as they did, I do not see that there was room for any conclusion other than that Hamill and Gemmill were working together in supplying heroin, particularly to persons in the Aberdeen area. The interrelationship of the activities of the two men is too close to admit a co-incidental explanation for the clear, logical indications of a joint enterprise between these men. The common criminal objective, once established, would have permitted the full use of Gemmill's statement to Detective Constable Graham as evidence against both Gemmill and Hamill.
Finally, even excluding the words "frae Hammy" from Gemmill's statement as having any bearing on the position of Hamill, the remainder of his statement, and his actions, cast a considerable incriminatory reflection on the position of Hamill. Hanratty is picked up from the telephone box by Hamill. Shortly thereafter Gemmill arrives at the same telephone box. His approach to Detective Constable Graham must suggest that he is looking for someone and even without reference to the naming of "Hammy", in relation to his own behaviour, his words are direct evidence that his interest is related to a person looking for "gear". He drives off and shortly thereafter he is seen with Hanratty in his car. The implication is that he has found who he is looking for. Hamill drives someone to a rendezvous and shortly afterwards Gemmill picks him up and, as the jury have held, engages in a drugs transaction with him. In my view the distinction between the acceptable evidence, and the hearsay reference to "Hammy", is so fine that viewed against the whole evidence, I very much doubt that it would have made any difference to the jury's verdict if they had been directed to remove the words "frae Hammy" from their minds.
I therefore agree that both appeals should be refused.
Lord Justice Clerk
Appeal Nos: C139/98
HIGH COURT OF JUSTICIARY
OPINION OF LORD PHILIP
NOTE OF APPEAL AGAINST CONVICTION
JAMES JOSEPH HAMILL and JAMES BURNS GEMMILL
HER MAJESTY'S ADVOCATE
Appellants: Burns, Q.C., Becket; Gallen & Co; Boag-Thomson, Q.C., Miller; Wheatley & Co.
Respondent: Bell, Q.C., A.D.; Crown Agent
17 March 1999
James Joseph Hamill and James Burns Gemmill were convicted on 24 February 1998 of a charge of contravening section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supplying of diamorphine to a number of named individuals on various occasions between 1 November 1996 and 17 September 1997 at various locations in Glasgow and Aberdeen, one of the locations being Southcroft Road, Glasgow.
The appellants have appealed against these convictions on a number of grounds. So far as the grounds of appeal advanced on behalf of the appellant Gemmill are concerned, I agree with your Lordship in the chair that they should be repelled for the reasons set out by your Lordship. So far as the first and second grounds of appeal advanced on behalf of the appellant Hamill are concerned, I also agree that they are ill-founded and fall to be repelled for the reasons stated by your Lordship. In relation to the third and last ground of appeal advanced on behalf of Hamill, while I agree that the appeal should be refused, I do so for reasons which differ from those set out by your Lordship, and in these circumstances I think it appropriate to set out the reasoning by which I come to that conclusion.
The ground of appeal in question is concerned with a direction given by the trial judge in relation to certain evidence of a witness Detective Constable Graham to the effect that on 29 April 1997 at about 12.14 p.m. Gemmill came up to him while he was carrying out surveillance duty in plain clothes outside a telephone box at the junction of Southcroft Road and Glasgow Road and asked "You here for gear frae Hammy?". The trial judge directed the jury that that evidence was available for their consideration of the case against Hamill as well as that against Gemmill. On behalf of Hamill it was argued that that constituted a misdirection.
It is convenient to begin by summarising the evidence in the case so far as it related to both Hamill and Gemmill. For this purpose, I rely on the references to the evidence in the trial judge's charge to the jury.
(i) There was evidence from a witness, Miss Branigan, to the effect that, one way or another, over a period of about six months she paid around £5,000 per week in respect of supplies of heroin from "Hammy" who was based in Glasgow. "Hammy" had a silver/blue Mercedes car and could be contacted by dialling the telephone number 0802 474 280. Although Miss Branigan did not identify Hamill in court, Hamill himself in evidence said that he knew Miss Branigan in connection with supplying alcohol to her. Miss Branigan also gave evidence that she had enlisted, among others, Lynn Millson and the late Alisdair Maybury to assist her as drugs couriers. On 10 April 1997 Miss Branigan and Maybury were seen in Glasgow and at one stage Maybury appeared to follow Miss Branigan while she was a passenger in Hamill's Mercedes car. There was also evidence that at some point on the same date, something was passed by Miss Branigan to Hamill. On 30 April 1997, about 20 days later, Miss Branigan and another female were observed at the telephone box at the corner of Glasgow Road and Southcroft Road before walking down Southcroft Road.
(ii) Lynn Millson gave evidence that on one occasion Hamill took her to a part of Glasgow where she collected heroin from under a rock or stone.
(iii) The witness Grant Rebecca gave evidence that he went to Glasgow on three occasions and was driven by Hamill to a derelict area where he transferred to another vehicle and was given heroin. On one occasion he put between £5,000 and £10,000 in the glove box of Hamill's Mercedes car.
(iv) The witness Lindsay Ann Gordon gave evidence that she introduced Paul Hanratty, John Williams and Nicola Robb to Hamill as drug couriers. She also said that she had collected money from going round houses, including £5,500 from Nicola Robb, and handed that money to Hamill. Hamill accepted that he met Williams and Robb at a yard at Southcroft Road occupied by him and that he received money from Williams. Hamill said that whatever money he did receive was in payment for drink.
(v) The witness Paul Hanratty gave evidence to the effect that over a nine month period he had himself, or through others, collected in Aberdeen and transferred to Hamill in Glasgow between £5,000 and £6,000 per month. He assumed that the money was for spirits and tobacco. As I have already recorded Lindsay Ann Gordon gave evidence to the effect that Hanratty was a drugs courier. Detective Constable Graham gave evidence that on 29 April 1997 Hanratty was picked up by Hamill at about 11.52 a.m. in his Mercedes car at the telephone box at the junction of Southcroft Road and Glasgow Road. The car drove into Southcroft Road at 12.01 p.m. At 12.14 p.m. the appellant Gemmill arrived and asked the Detective Constable, who was standing beside the telephone box, "You here for gear frae Hammy?". When Graham replied in the negative, Gemmill drove off in his car into Southcroft Road. At 12.19 p.m. Gemmill was seen to drive his car from Southcroft Road into Glasgow Road with Hanratty as a passenger. It is the evidence of the words spoken by Gemmill with which the appeal is concerned.
(vi) There was evidence that on 17 March 1997 the accused Michael McGougan was collected by Hamill at the telephone box at Southcroft Road, and later the same day at Aberdeen station was found in possession of 5 ozs. of heroin.
(vii) There was evidence that on 4 June 1997 Hamill was seen in the company of Peter Main at George Square, Glasgow and then some time later, driving with him into Southcroft Road. Later during the evening of the same day Mr. Main was found in Aberdeen in possession of almost half a kilo of heroin.
(viii) There was evidence that on 1 July 1997 that the accused Allan Morrison was seen handing something to Hamill in the Mercedes car in Albion Street, Glasgow, and was later seen transferring from the Mercedes to a vehicle driven by Gemmill in the vicinity of Southcroft Road. Still later, around 5.50 p.m., in Tollcross Road, he was seen being handed a white rolled up bag by Gemmill. Later the same day Morrison was stopped by the police in Market Street, Aberdeen in a vehicle which contained 2 ozs. of heroin.
(ix) There was evidence that on 30 July 1997 Jeffrey Mair was seen arriving at Queen Street station and dialling the telephone number 0802 474 280. He was later seen in the vicinity of Southcroft Road. Still later the same day he was found in Stonehaven in possession of half a kilo of heroin.
(x) There was evidence that on 14 August 1997 Michael Simm was detained in Aberdeen with an Umbro bag containing 5 ozs. of heroin and a bus ticket with the number 0802 474 280 written on it.
(xi) There was evidence that on 23 April 1997 at 12.54 p.m. Gemmill collected the late Alisdair Maybury outside the telephone kiosk at Southcroft Road. Twenty minutes later he was seen depositing him in Butterbiggins Road, Glasgow where Mr. Maybury boarded a taxi for Queen Street station. There he was seen running for an Aberdeen train as if holding something in his pockets. Later that evening there was found in Mr. Maybury's house in Aberdeen 130 gms. of heroin. Mr. Maybury said to a police officer that he had obtained the drugs found in his house at about 12.54 p.m. that day from a man in the Shawfield area of Glasgow.
(xii) There was evidence that on 11 July 1997 Gemmill was seen in the company of the accused Barry Reid and Mark Williamson. Williamson was, on that evening, found in possession of 5 ozs. of heroin.
(xiii) There was also evidence that on 5 August 1997 Gemmill was seen to drive John Williams and Nicola Robb away from Southcroft Road after their meeting there with Hamill.
In the course of the trial the trial judge delivered an opinion, reported at 1998 S.C.C.R. 164, to the effect that the breadth of the statutory charge of being concerned in the supplying of drugs was such that there was no place for the application of the common law doctrine of concert. The Crown, in seeking the conviction of both Hamill and Gemmill did not rely upon the doctrine of concert, but sought to bring home guilt against each appellant on the basis of his own actings.
In the course of his charge the trial judge directed the jury that hearsay evidence was generally inadmissible, but went on to list certain exceptions to the rule. At page 8A of his charge his Lordship said:
"There is one further, fourth exception to the general rule about hearsay and that occurs where what has been said is part of the events said to constitute actual criminal activity. As opposed to being simply a subsequent statement or report of what has previously happened, and an example of that might be, if you accepted the evidence, of course - only if you accepted the evidence - an example might be the evidence of Detective Constable Graham to the effect that the second accused, James Gemmill, came up to him outside the phone box described in evidence and said, according to him, 'You here for gear frae Hammy?'. That I think you could view as evidence of part of the scenario of events with which the Crown says Mr. Hamill was concerned, namely evidence of what, if anything, was or may have been the significance of the meetings, if any, which took place at the phone box and, as such, as being evidence available for your consideration of the case against Mr. Hamill as well as that against Mr. Gemmill".
For the appellant, Mr. Burns argued that the evidence of the words spoken by Gemmill in the absence of Hamill, which were incriminating of Hamill, was not evidence against Hamill, even though the words formed part of the res gestae, since the doctrine of concert was not relied upon by the Crown. Only when concert was proved could the words of Gemmill be evidence against Hamill. Reference was made to Walker on Evidence, paragraph 37. He argued that in these circumstances the passage quoted contained a misdirection, and, further, that the misdirection constituted a miscarriage of justice, since the evidence of the words spoken by Graham represented an important piece of evidence in the jury's consideration, in the context of the remaining evidence against the appellant. In the course of his argument he conceded that if the doctrine of concert had applied, the evidence of the words spoken by Gemmill would have been admissible as evidence against Hamill.
I am in no doubt that the words said to have been uttered by Gemmill on 29 April 1997 formed part of the res gestae. In Dickson on Evidence paragraph 254 the admissibility of words forming part of the res gestae is explained in this way:
"Statements, which would otherwise be excluded as hearsay, may be proved, when they form part of the res gestae of acts given in evidence. The reason is, that words which accompany acts, or which are so connected with them as to arise from coexisting motives, form part of the conduct of the individual, which cannot be rightly understood unless his words as well as his acts are proved. In general, also, the actions and the correlative words are so interwoven, that they cannot be separated without destroying the connectedness and intelligibility of the narrative; whereas experience teaches us that such a dissociation would generally impede the discovery of truth, for coincident words and actions are far more frequently in unison than the reverse. The admissibility of statements on this ground is determined by the judge according to the connection with the relative facts, and in the exercise of a sound discretion; it being extremely difficult, if not impossible, to bring this class of cases within the limits of a more particular description. The admissibility usually depends on whether the declarations were contemporaneous with the facts, and so connected with them as to illustrate their character; or in legal language, whether the words and acts occurred unico contextu".
A simpler, and not unhelpful definition of res gestae was given by Lord Young in Greer v. Stirlingshire Road Trustees 1882 9 R. 1069, cited in Walker on Evidence at paragraph 377, where he said at page 1076:
"Res gestae is the whole thing that happened. Exclamations uttered or things done at the time by those concerned are part of the res gestae, and may be spoken to by those who heard them".
He then went on to distinguish res gestae from a subsequent account of what happened.
Gemmill's words, in the context in which they were uttered, were part of "the whole thing that happened". The jury were entitled to infer that, on the occasion in question, Gemmill's presence at the locus and his actions there were connected with the supply of drugs. His words were therefore part of the activities involved in the actual commission of the crime with which the appellants were charged. They were not a subsequent account of what happened. They were not even a de recenti account. They were part of the action and therefore part of the res gestae.
The particular argument advanced on behalf of Hamill falls to be considered in the light of a further passage in Dickson on Evidence, at paragraph 256, where the author, who is still dealing with res gestae, says this:
"...expressions used by any one of several persons engaged in an unlawful undertaking (provided they are in furtherance of the common design), are admissible against the whole in explanation of their acts".
At paragraph 363 the following passage appears:-
"The confession of one prisoner is not admissible as evidence against another. This rule even applies to cases of theft and reset, where the confession by the thief is not an article of evidence against the resetter, and vice versa. Even in cases of conspiracy and statement by one prisoner, which is either a narrative of measures already taken, or a confession of the crime charged, cannot be used against a co-conspirator. On the other hand, all words uttered or documents issued by one conspirator in furtherance of the common design, and those which accompany acts of that description, and so form part of the res gestae, may be used against all the other prisoners, provided there be prima facie proof that they engaged in the plot".
In this case, Hamill and Gemmill were charged together on a single charge, and the evidence which I have summarised entitled the jury to infer that both men were engaged together in a single unlawful undertaking to supply drugs in the area of Southcroft Road. So the words uttered by Gemmill were used by him when engaged in an unlawful undertaking in furtherance of the common design. Mr. Burns conceded that, had the Crown case relied upon the doctrine of concert, the evidence of Gemmill's words would have been admissible against Hamill. In my view that concession was correctly made in the light of the passages I have quoted. The question for decision is whether the evidence of Gemmill's words is admissible against Hamill in the situation in which the Crown do not rely on the doctrine of concert, but seek to bring home guilt against each appellant the basis of his actings. In H.M. Advocate v. Docherty 1980 S.L.T. (Notes) 33 the accused was tried on an indictment containing three charges of breaches of section 1 of the Public Bodies Corrupt Practices Act 1889 as amended by the Prevention of Corruption Act 1916. In each charge there was libelled an association between the accused and a man, Marr Jackson, then deceased. In charge 1 the accused was said to have corruptly solicited and received certain gifts, loans, fees and rewards and advantages from Jackson as inducements and rewards to certain ends, while on charges 2 and 3 it was alleged that Marr Jackson and the accused were acting together in receiving inducements to other ends. Objection was taken to the admissibility of certain evidence of statements made at a meeting by Jackson incriminating Docherty but outwith his presence. In repelling the objection, Lord Stewart held that the application of paragraph 363 of Dickson was not confined to cases where the nomen juris of the crime was conspiracy and went on to say this:
"When the jury come to weigh the whole evidence at the end of this case, they may or may not come to the conclusion that Jackson and the accused Dr. Docherty were acting together in furtherance of a common criminal purpose. If they concluded that the two were so implicated together, they would be entitled to hold that the accused was answerable for criminal acts committed by Jackson in furtherance of that purpose. It therefore appears to be entirely proper for the Crown to seek to elicit evidence which is relevant to show what criminal acts Jackson was committing. In order to do so, if it is necessary - as it must be in a crime of this nature - to prove what was said by Jackson on particular occasions, this also is entirely proper. As I have said before, the situation is quite different from that in which statements or confessions regarding past events were sought to be tendered in evidence. What the Crown is trying to prove here is part of the res gestae".
In the present case, Hamill cannot be answerable in law for criminal acts committed by Gemmill. On the other hand, each man can be held answerable for his own criminal acts committed as part of the common criminal enterprise with the other. In my view that distinction does not provide a sufficient justification for declining to extend the principle set out in paragraphs 256 and 363 of Dickson to the circumstances of the present case. I am unable to see how the use of section 4(3)(b), which enables the Crown to proceed against participants in a common criminal enterprise for the supply of controlled drugs without invoking the doctrine of concert, should have the effect of rendering inadmissible evidence which would have been admissible had the doctrine been relied upon. In my view there is no reason in logic or fairness why the evidence of Gemmill's words should not be admissible against Hamill. It is enough that both men were charged together with being concerned in the supply of drugs, and that there is evidence that they were engaged together in that activity.
The effect of the authorities cited is that it was for the judge to determine whether the jury were entitled to infer from the evidence in the case the existence of a common criminal purpose. If he came to an affirmative conclusion on that question he was in my view entitled to direct the jury that the evidence of the words uttered by Gemmill was available to them as evidence against Hamill as well. I did not understand counsel for the appellant to argue that it was necessary for the judge to explain the principle of concert to the jury. Where the doctrine of concert is not relied upon it would not in my view be correct to tell the jury that they required to find concert established from the rest of the evidence before they could consider the effect of the Gemmill's words. I consider that the last sentence of the passage from the judge's charge quoted above was sufficient to cover the situation as it existed in this case. In these circumstances I have come to the view that there was no misdirection in this case.
Had I required to do so, I would have agreed with your Lordship that there was no miscarriage of justice.
For these reasons I would refuse the appeal.