Scottish High Court of Justiciary Decisons

JOHN THOMAS DUFFIN v. HER MAJESTY'S ADVOCATE [2000] ScotHC 7 (19th January, 2000)

The appellant stood trial along with a co-accused, Paul Russell, before a jury in the Sheriff Court at Glasgow. They were both convicted of charge (2) on the indictment which was in the following terms:

The appellant and the co-accused were both acquitted on a charge of committing a breach of the peace in the course of the journey referred to in charge (2).

The evidence relating to charge (2) can be summarised as follows. Karen Mills, who was a passenger on the train, gave evidence that the appellant and the co-accused got on board at Newcastle. She heard one of them say to the other: "That valium is magic". She was unsure which of them made that remark, but in cross-examination she appeared to think that it was the co-accused who did so. Later in the journey the appellant and the co-accused returned to the part of the train where she and her six year old daughter were seated. She was frightened when they made abusive remarks to her, and her daughter was crying. She thought that they might be on drugs. She reported their behaviour to the conductor and moved to a different part of the train. The conductor, Mr. Stokes, gave evidence about the report which the previous witness had made to him, and described her state. In the course of the journey he was able, by means of the description she had given to him, to pick out the two men to whom she had referred. They were together, and made abusive remarks to him. He made a telephone call to arrange for police officers to meet the train when it arrived in Central Station. Police Constable McLaren identified the appellant and the co-accused as persons whom he detained at the station. The co-accused was carrying a carrier bag. He was seen to discard a plastic container. After it was recovered it was found to contain 1,197 tablets containing diazepam, otherwise known as valium. Police Constable Thomson, who assisted in the detention of the appellant and the co-accused, also saw the container being discarded. He and Police Constable McLaren said that the two men were under the influence of drugs.

Although it is not stated in the sheriff's charge or in either of his reports, there was evidence that the tickets held by the appellant and his co-accused showed that they had travelled together by train from Paisley, and that after spending an hour in Newcastle they had travelled together from there to Central Station in Glasgow. Detective Constable McCann, who was a member of the Drugs Squad of Strathclyde Police, stated in evidence that where a quantity of drugs was conveyed by public transport, it was normal for a "minder" to accompany the courier who was carrying the drugs.

At the end of the Crown case the sheriff heard and refused a motion on behalf of the appellant that there was no case to answer. The appellant did not give evidence. The co-accused gave evidence that he travelled to Newcastle for the purpose of collecting some personal belongings. The appellant came with him "just to see what it was like". The co-accused stated that on the return journey they found the container of drugs. He said that it was down the side of a toilet. He opened it, looked at the tablets and said to the appellant that he had found some tablets. The appellant told him just to leave them but he went back and consumed some of the tablets, and took possession of the container unknown to the appellant. He denied that there was any conversation about valium.

It appears that the Crown case against the appellant was that he should be convicted on the basis that he was acting in concert with the co-accused. This is somewhat surprising considering that the trial took place after the decision in Salmon v. H.M. Advocate; Moore v. H.M. Advocate 1998 S.C.C.R. 740, in which the Lord Justice General and Lord Bonomy expressed doubts as to what room, if any, there was for concert to apply in cases under section 4(3)(b) of the 1971 Act (pages 763B and 771B). In his charge to the jury the sheriff gave them conventional directions on the subject of concert when dealing with the charges of breach of the peace and contravention of section 4(3)(b) on which both of the accused appeared. He directed them that where two or more people joined together in carrying out "a common or shared criminal purpose" each of them would be held responsible for everything which was done in furtherance of the common or shared criminal enterprise, so long as what was done was within the scope of the plan and within the contemplation of the parties. Later in his charge when dealing with the position of the appellant on the drugs charge he directed them that they might convict him only if they were satisfied beyond reasonable doubt that he was acting along with the co-accused in the carrying out of "the common criminal purpose of transporting the diazepam and therefore being concerned in the supplying of diazepam". He then referred to the evidence of the two accused coming on to the train at Newcastle, the remark which one of them had allegedly made, their being in each other's company during the journey, behaving as Miss Mills had described, appearing both to be under the influence of drugs and leaving the train together at Glasgow. He then directed them as follows:

The original grounds of appeal were that (1) there was insufficient evidence that the appellant was acting in concert with the co-accused; and (2) the sheriff misdirected the jury in directing them that the evidence to which he referred in his charge was sufficient evidence to enable them to infer that the appellant was acting in concert with the co-accused and that they were entitled to convict the appellant of being concerned in the supply of diazepam. With the leave of the court, the Advocate depute not objecting, Mr. Shead for the appellant added to these a supplementary ground of appeal as follows:

For the appellant Mr. Shead submitted, on the question of the sufficiency of evidence, that the critical piece of evidence was that of Miss Mills as to the remark which she had overhead. In his report the sheriff had stated that he would have sustained the defence submission of no case to answer had it not been for that evidence. In his supplementary report the sheriff accepted that evidence as to that conversation was the only evidence which was capable of yielding the inference that the appellant knew that he was involved in a scheme to supply the contents of the plastic container. Mr. Shead submitted that it could not go the length of showing that he had such knowledge. In the circumstances there was insufficient evidence to entitle the jury to convict.

Mr. Shead went on to submit, under reference to the supplementary ground of appeal, that it was not enough for the jury to be satisfied, in the words of the sheriff's charge, that the two accused had a "common interest" in valium. The question was whether the appellant was knowingly involved in the supplying of something. On no view was there evidence of an admission of this on the part of the appellant. The Crown had to show that the appellant played some role in facilitating the supplying of what was in the container. It was not enough that he was travelling with the co-accused. This would be so even if he knew that the co-accused had been to Newcastle in order to pick up drugs. There was no sufficient basis for the sheriff describing the evidence to which he referred as capable of yielding the inference that the appellant and the co-accused were "being supportive of each other in their activities on the train, and who were acting together in the transporting of a quantity of valium from Newcastle to Glasgow". The fact that the appellant was under the influence of a drug might show that he knew that the co-accused was carrying valium. The important point was that the sheriff had failed to direct the jury in regard to the mens rea standing the lack of evidence that he was knowingly involved in the supplying of the contents of the container.

In reply, the Advocate depute submitted that in the light of the evidence, including that of Detective Constable McCann, there was sufficient evidence to convict the appellant, and there was no deficiency in the sheriff's directions as to what was required to be proved in order to bring home guilt to the appellant on the basis of concert. In the circumstances there was sufficient in the fact that the appellant was accompanying the co-accused for the jury to infer that he was participating in the transporting of the contents of the container. While the supplementary ground of appeal complained that the sheriff ought to have directed the jury that the evidence as to the remark was capable of more than one interpretation, it should be noted that in his supplementary report the sheriff indicated that there was no suggestion in the evidence or in any cross-examination that the words were capable of more than one interpretation. The cross-examination on behalf of the appellant was to the effect that he had not uttered these words, and similarities in appearance between him and the co-accused were explored in some detail. The Advocate depute also pointed out that at the time the appellant demonstrated no surprise at the discovery of drugs which the co-accused had discarded.

On the basis that the case against the appellant depended on concert, the question for the jury was whether they were satisfied that he acted along with the co-accused in the carrying out of a common criminal purpose concerned with the supplying of diazepam. In the light of the decision in Salmon v. H.M. Advocate the Crown required to lead evidence to show that the appellant knew that there was a common purpose, and that it was concerned with the supplying of something. They did not require to show that he knew that the thing was diazepam, but this might emerge incidentally from evidence as to his knowledge of what was the common purpose.

We are not persuaded that there was insufficient evidence on which to convict the appellant. The jury were entitled to regard the evidence of Miss Mills as to the remark she overheard, and the evidence given by various witnesses as to the state of the appellant, as showing that he was aware that the co-accused had a quantity of diazepam with him. If the jury were satisfied that the co-accused was acting as a courier, which they were, they were entitled, in the light of the evidence of Detective Constable McCann, to take the view that it would be normal for him to be accompanied by someone else as his "minder". In the light of the evidence that the appellant and the co-accused travelled together to Newcastle and were returning from there together, they were entitled to infer that the appellant was fulfilling that role. In these circumstances we do not consider that the first ground of appeal is well-founded.

It is convenient to take the supplementary ground of appeal next. We are not persuaded that the sheriff failed to direct the jury's attention to the need to consider whether the Crown had brought home to the appellant knowledge that he was involved in the supplying of something. Read in isolation the words "a common interest in valium" might be read as referring merely to an interest in the consumption of that drug. However, taken in their context, they do not, in our view, bear that meaning. The sheriff made it clear that the question which the jury required to consider was whether the appellant was acting in concert with the co-accused in the transporting of the diazepam from Newcastle to Glasgow. We do not consider that the jury would have had any doubt that he was referring to the question of the part which the appellant was knowingly playing in that.

We have had more difficulty with the second ground of appeal. The sheriff's charge contained a plain direction to the jury that they were entitled to convict the appellant on the strength of the various strands of evidence to which the sheriff had referred. We appreciate that there does not appear to have been any discussion in the evidence as to the possible meanings of the remark spoken to by Miss Mills. However, the evidence to which the sheriff referred could not in our view go beyond demonstrating that the appellant knew that the co-accused had diazepam with him and that they were travelling together while under the influence of such a drug. The sheriff made no reference to the evidence of Detective Constable McCann which, in our view, was of considerable importance. We are unable to read the sheriff's reference to the appellant and the co-accused being "travelling companions who were being supportive of each other in their activities on the train" as referring by implication to the evidence of that witness, as the Advocate depute submitted.

For these reasons we have come to the conclusion that the second ground of appeal is well-founded. We will accordingly allow the appeal and quash the appellant's conviction.