The Lord Justice Clerk
Lord Nimmo Smith
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE LORD JUSTICE CLERK
NOTE OF APPEAL AGAINST CONVICTION
ROBERT MALCOLM BAIN
HER MAJESTY'S ADVOCATE
Appellant: McKay; Clerk Ferguson
Respondent: Di Rollo, A.D.; Crown Agent
20 April 1999
The appellant went to trial on four charges of which he was convicted. This appeal is concerned only with charge 4, a charge of contravention of Section 4(3)(b) of the Misuse of Drugs Act 1971. In its original terms, it stated:
"Between 22 January 1998 and 22 April 1998 at Plean Street, Partick Police Office and Stewart Street Police Office, all in Glasgow, and elsewhere in Glasgow, you were concerned in the supplying of a controlled drug, namely diamorphine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: contrary to the Misuse of Drugs Act 1971, Section 4(3)(b)."
The jury in convicting the appellant of that charge made a number of deletions and substitutions so that the charge read: "on 22 April 1998 at Stewart Street Police Office, Glasgow you were concerned ...".
According to the report by the Trial Judge, there was Crown evidence to the effect that two police officers saw the appellant in Plean Street on the late afternoon of 21 April 1998. The appellant was arrested and taken to Partick Police Office, where he was given a full strip search. He was found to be in possession of £1,075 in notes of various denominations. He was interviewed by the police officers who had arrested him and then placed in a cell. In the early hours of the morning, he was transferred to Stewart Street Police Office where he was again placed in a cell. About 5.30am he was taken from this cell. He was seen to put something in his pocket. He was searched and in the pocket was found a plastic bag containing 53 small paper packages. Five of these, selected at random, contained a brown powder which, on analysis, was found to contain diamorphine. According to the police the appellant, when interviewed, admitted that the bag contained "smack". This was denied by the appellant whose evidence was to the effect that he had found the plastic bag in the mattress in his cell at Stewart Street. He thought that the bag contained cigarette dog ends and he had put it in his pocket so that he might smoke these later. There was unchallenged evidence to the effect that the packages were of a size which would sell on the street at £10 each.
The trial judge goes on to say that the Crown case was presented on the basis that the appellant had had the plastic bag since before his arrest in Plean Street and had somehow succeeded in concealing it throughout the strip search and the other more perfunctory searches which he had undergone, both at Partick and at Stewart Street. The Crown founded on the money found in his possession, asking the jury to infer that either this was money which he intended to use to buy drugs or that it was the proceeds of selling drugs. His evidence was to the effect that £1,000 had been given to him by his mother so that he might pay off his substantial rent arrears. His mother gave evidence supporting him in this, and it was a matter of agreement between the Crown and the defence that he did indeed have rent arrears of considerably more than £1,000. The Trial Judge in his report comments on the jury's verdict, saying that it appeared to him that they had rejected the Crown theory namely, that he had the plastic bag since before his arrest in Plean Street and considered that the bag had come into his possession only in Stewart Street. The Trial Judge says that he had some difficulty in understanding the verdict when it was delivered and he says that the only way in which sense could be made of it was that, on the basis that the jury concluded that the appellant did in fact find the diamorphine in his mattress, he realised immediately what it was and took possession of it with a view to supplying to someone else later. He says that, while this was a view that was theoretically open to the jury, it was not the basis upon which the Crown sought a conviction. It was a view which he described as rather bizarre, if not indeed perverse.
The ground of appeal presented today by Mr McKay is that the verdict was indeed perverse and resulted in a miscarriage of justice. Mr McKay repeated the suggestion that one could infer from the jury's verdict that they had accepted the appellant's evidence, namely that he had found the drugs in the cell. He did not disagree with the proposition that there was evidence upon which the jury were entitled to reach the verdict which they did, but in the circumstance it was not a reasonable verdict. That was because the position adopted by the Crown was one which the jury had plainly had rejected. They had instead preferred to accept the explanation of the appellant that the drugs had been found by him in the cell. It had not been suggested to him that even if he had found the drugs in the cell, he nonetheless at that stage became somehow or other involved in the supplying of those drugs to others. Mr McKay accepted that evidence had been given by an expert officer from the Drugs Squad that the kind of drugs and extent of drugs found on the person of the appellant was consistent with being a dealer quantity, but in the circumstances there was no reasonable basis for the jury to reach the verdict they did, having regard to the stance adopted by the parties in the light of the evidence. The Advocate depute responded to this submission by disputing that one could infer from the verdict that the jury had accepted the evidence of the appellant that he had merely found the drugs in the cell. All that one could determine from that verdict was that at the time when he was in the cell he was in possession of the drugs. The jury had, for their consideration, not merely that factor but also the money which had been found on the appellant at an earlier stage, and it was open to them to take the view that this assisted them in reaching the conclusion that, being in possession of those drugs, he was doing so with a view their supplying.
We consider that the Advocate depute's approach to this matter is correct. We do not think that it requires to be inferred from the jury's verdict that they necessarily accepted the evidence of the appellant. All that can be deduced from the verdict is they were satisfied that, at the time when he was in the cell at Stewart Street, he was concerned in the supplying of drugs. There was plainly evidence that at that time, he was in possession of the drugs in question and, in the whole circumstances, the jury were entitled to infer that he was then concerned in the supplying of those drugs. The question then comes to be whether, in view of the position taken up by the parties at the trial, it was not open to the jury to confine their verdict in the way in which they did. We are not persuaded that that was the position. It was open to them to decide just how far they were prepared to accept matters proved in the light of the evidence before them and, in our view, they were entitled to adopt the restricted position reflected in their verdict. There was, in our view, no miscarriage of justice. This appeal against conviction is refused.