Scottish High Court of Justiciary Decisons

JOHN LYLE v. HER MAJESTY'S ADVOCATE [2001] ScotHC 76 (3rd August, 2001)

[1] The appellant is John Lyle who was convicted at the High Court at Edinburgh of a charge of being concerned in the supply of diamorphine contrary to Section 4(3)(b) of the Misuse of Drugs Act 1971. He has appealed against his conviction on the ground of misdirection by the trial judge.

[2] At about 6 p.m. on the day in question surveillance officers observed the appellant in the driver's seat of a parked Fiat in Forge Street, Glasgow. A BMW drove into the street and parked nose to nose with the appellant's car. The appellant left his car and went towards the boot, while the driver of the BMW took a holdall from the back seat of his car and joined the appellant at the boot of the Fiat. According to the police officers' evidence, the driver of the BMW held the holdall open and the appellant looked in and put his hand inside it. He then took the holdall, zipped it up and returned to the driver's seat of the Fiat. He drove off and the police stopped him at traffic lights. The car was subsequently searched in the rear yard of Baird Street Police Station. The holdall was found to contain almost 8 kilograms of heroin.

[3] The appellant was therefore in possession of the holdall containing the heroin. His defence was that he did not know, and neither suspected nor had any reason to suspect, that the holdall contained heroin (Section 28(2) of the 1971 Act: Salmon v. H. M. Advocate 1999 J.C. 67 at pp. 73 H -75 D). He said that he was acting on the instructions of a man, Williams, and thought that the holdall contained money and cheques. Contrary to the evidence of the police officers, he said that he had not looked inside the holdall when it was handed over to him.

[4] The Crown led evidence as to what had happened at the time of the search. There was a Strathclyde Police production schedule relating to the search which contained an entry in these terms:

[5] The appellant gave evidence on his own behalf during which he admitted that he had told the police many lies. In cross-examination the following passage occurred:

Counsel for the appellant did not re-open the point in re-examination.

[6] In his charge to the jury the trial judge said this:

[7] Miss Scott submitted that this passage contained a misdirection since it was founded on the passage in the Advocate Depute's cross-examination of the appellant about his answer to the police. That passage had itself been based on an inaccurate version of the question put by the police. The police had not asked the appellant whether there were any drugs in the bag but, rather, whether there were any controlled drugs on his person or within the motor vehicle "to your knowledge". The fact that the question had contained the words "to your knowledge" was important since it explained why the appellant had phrased his answer "To my knowledge, no." Contrary to what the Advocate Depute had suggested in his questioning, there was nothing sinister in the appellant having used this phrase rather than simply saying No. By repeating the passage and highlighting it to the jury, the trial judge had compounded the Advocate Depute's damaging error and this amounted to a material misdirection.

[8] We are satisfied that Miss Scott's argument is unsound. It is important to notice that the passage occurs in the part of the judge's charge where he was dealing with the defence case and, in particular, with the need for the appellant to show that he did not know, and neither suspected nor had reason to suspect, that the holdall contained controlled drugs. It is plain from the opening and closing sentences of the passage which we have quoted that the trial judge was giving the jury this passage because he considered that it could indeed be favourable to the appellant since, on one interpretation, it could suggest that he did not know that the holdall contained drugs and was under the impression that it held money and cheques. It must be because of this potentially favourable interpretation that his Lordship also avoided quoting other parts of this passage in the evidence which might have been, on one interpretation at least, less favourable to the appellant's defence.

[9] Indeed, in his report to this court the trial judge explains that he was conscious that the objection by appellant's counsel might have erased the question and answer from the jury's recollection. For that reason, he thought it in the interests of justice that he should quote it from a note he had made after listening to the tape of the appellant's evidence.

[10] It is, of course, true that the police question, which provoked the answer, contained the words "to my knowledge". As Miss Scott submitted, that may well help to explain why the appellant used them in his answer. But from the point of view of the appellant's defence, the answer containing those words was a potentially positive feature since they were part of the evidence which the jury were entitled to consider as showing that, from the outset, the appellant had denied knowing that the holdall contained drugs. The trial judge left the matter of interpretation to the jury. It is noticeable that the experienced defence counsel who conducted the trial did not consider it appropriate to re-examine the appellant as to his answer to the police.

[11] In these circumstances, even when the terms of the entry in the police production schedule are taken into account, we are unable to find any misdirection in this passage in the judge's charge. The jury plainly rejected the appellant's defence and there were substantial reasons why they would have been entitled to do so. There was no miscarriage of justice and this ground of appeal must accordingly be rejected.

[12] There are, however, an outstanding ground of appeal against conviction and an appeal against sentence. The appeal will therefore be continued to a date to be afterwards fixed to allow these matters to be dealt with.