Lord Justice Clerk
Appeal No: C676/97
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
GLEN STEWART OGILVIE
HER MAJESTY'S ADVOCATE
Appellant: Donaldson; A.J. Drummond, Dundee
Respondent: Bell, Q.C., A.D.; Crown Agent
25 March 1999
On 22 July 1997 the appellant, along with two co-accused, was found guilty, by a majority verdict of the jury, on a charge of being concerned in the supplying of amphetamine in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. According to the terms of the charge the offence was committed on 13 September 1996 in the house occupied by him and Kelly Tracey Weston, a co-accused, at 312 Perth Road, Dundee and elsewhere in Dundee to the prosecutor unknown. The appellant was subsequently sentenced to 30 months imprisonment. He has appealed against his conviction.
The substance of the grounds of appeal is that the sheriff allowed the Crown to lead inadmissible evidence which was prejudicial to the appellant, and that he failed to direct the jury to ignore that evidence. The court has been supplied with a transcript of the evidence given by certain witnesses.
During her examination-in-chief by the procurator fiscal depute a witness Jennifer Airlie was asked whether she had given a statement to the police on 24 September 1996 in regard to incidents on 13 September of that year. She said that she did not remember doing so but agreed that she would have told them the truth. The procurator fiscal depute then put it to her that she gave a statement to Detective Constable Garrigan on 24 September that, when she was at some shops in Perth Road
"I met two guys I know who use drugs and they asked me to contact the people in Perth Road to get drugs for them, and they wanted the guy with the blond hair to meet them with drugs. I don't know the guy with the blond hair".
At this point the solicitors for all three accused objected to the question which had been put on the ground that it was based on hearsay. During the discussion which followed they also complained that they had not been supplied with a copy of the previous statement of the witness. After a short adjournment to allow the defence to see the statement the sheriff repelled the objections and allowed the question to be put to the witness. The witness and the jury then returned to the courtroom. Without any further evidence being heard there was an adjournment for lunch. When the trial resumed after lunch the procurator fiscal depute sought and obtained the leave of the court to interrupt the evidence of the witness in order to lead the evidence of Detective Constable Garrigan, in reliance on terms of section 263(2) of the Criminal Procedure (Scotland) Act 1995. During the examination-in-chief of that witness the procurator fiscal depute attempted to refer the witness to a statement form which he had used in order to note statements made by Miss Airlie. The solicitors for the accused objected to the use of this document on the ground that it was not a production. The sheriff sustained that objection. Thereafter the procurator fiscal depute sought to elicit the evidence of Detective Constable Garrigan as to his recollection of the statement made by Miss Airlie. He said that he had spoken to her on 13 and 24 September. She said that she had been near the house at 312 Perth Road when she met a couple of lads. She did not name them. They were interested in buying some amphetamine and asked if she could put them on to someone from whom they could buy it. In response to that request she telephoned the house at 312 Perth Road. One of his colleagues answered the telephone. About ten minutes later she arrived at the house. Police officers invited her into the house and took a statement from her. At that time she said that she was not there to purchase drugs on behalf of the two men but simply to ask "Glen Ogilvie" to go down and meet them at the local Kwik Save Store.
Thereafter Jennifer Airlie was recalled to the courtroom and resumed her evidence. It was put to her that she had indicated in her statement to the police that she knew the "guy" who lived at Perth Road as "Glen"; that she went to the telephone box on Perth Road outside Kwik Save and made a telephone call asking for "Glen". She said that she did not remember making such statements to the police. It was also put to her that she asked the person who answered the telephone call whether he had a half ounce of "speed". She denied this. She also denied saying to the police that she wanted "Glen" to go and meet the two guys at Kwik Save. She said that the name "Glen" did not mean anything to her and that she did not know who stayed at 312 Perth Road. In referring to this evidence we bear in mind the sheriff's comment that Miss Airlie was a drug addict and appeared to be unable to give any coherent evidence.
Counsel for the appellant submitted that it appeared that at the outset the prosecutor had in mind the possibility of using the evidence of Detective Constable Garrigan in order to set up a prior statement by Miss Airlie as evidence of the truth of its contents. However, it was clear that the conditions for the admissibility of her prior statement for this purpose could not be fulfilled, having regard to the requirements of section 260 of the Criminal Procedure (Scotland) Act 1995. In particular no evidence had been taken from Miss Airlie that she adopted what was contained in that statement. The prosecutor had then sought to use the evidence of Detective Constable Garrigan in order to challenge the credibility of the evidence given by Miss Airlie, by relying on section 263 of the 1995 Act. However, prior to Detective Constable Garrigan giving evidence, Miss Airlie had not yet answered the question which had been put to her about her statement. She had merely said that if she had made a statement to the police it would have been true. She had not even been asked whether she had mentioned the name of the appellant, or at least the name "Glen".
The Advocate depute made it clear that he did not seek to defend the course taken by the procurator fiscal depute or by the sheriff in regard to the admission of the evidence of Detective Constable Garrigan as to the statements made to him by Miss Airlie. In the course of his charge to the jury the sheriff directed them that they should not rely to any extent on hearsay evidence unless the evidence was of what the accused said to others and that as relevant to a charge or charges in the indictment. In his report the sheriff states that he did not see the necessity of making particular reference to the evidence as to Miss Airlie's statement to Detective Constable Garrigan in his charge since he took the view that this evidence did not in any way implicate the appellant or the co-accused. He also states that any comments on that evidence would in his view have confused the jury, possibly to the detriment of the appellant and his co-accused. We do not agree. It is plain from the transcript of the evidence of Detective Constable Garrigan that his evidence identified, or at least was capable of leading to the identification of, the appellant as a person with whom Miss Airlie sought to make contact with a view to the supply of amphetamine to the two men whom she had met. That statement was, as the Advocate depute frankly accepted, prejudicial to the appellant.
In these circumstances the Advocate depute sought to persuade us that, while that prejudicial evidence had been given and while the jury had not been directed to disregard it, no miscarriage of justice had occurred. It was, he said, a question of balance: there was a substantial body of evidence against the appellant. The position taken up by the appellant at the trial was that he did not dispute being in possession of the controlled drug. What was in issue was whether he was concerned in the supplying of amphetamine. In that respect we understand that evidence was given of the finding of amphetamine to the value of about £50 in the house, but a larger quantity of that drug was in possession of the co-accused outside the house.
We consider that the admission of the evidence as to Miss Airlie's statement and the failure of the sheriff to direct the jury that it could not constitute evidence incriminating the appellant led to a miscarriage of justice. The jury required to discriminate between a conclusion that the appellant was involved in drug dealing and one that he was merely in possession of drugs. It is not in dispute that the statement attributed to Miss Airlie was incriminatory of the appellant. In the circumstances it could hardly be regarded as other than a material piece of evidence. Standing the fact that the major part of the drugs recovered came from outside the house occupied by the appellant its importance assumed an even greater significance. In these circumstances we are not satisfied that it can be said that, even if the jury had not been able to rely on the evidence as to Miss Airlie's statement, they would have reached the same conclusion as to the guilt of the appellant.
Accordingly we allow the appellant's appeal against his conviction on the charge.