Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Kirkwood Lord Coulsfield Lord Marnoch	Appeal No: C912/00 OPINION OF THE COURT delivered by LORD KIRKWOOD in NOTE OF APPEAL AGAINST CONVICTION by PHILLIP TAGGART Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: N. McCluskey; Balfour & Manson

Respondent: S. Woolman, Q.C., A.D.; Crown Agent

 

8 October 2002

1. This is an appeal against conviction at the instance of Phillip Taggart. He and his co-accused, Michelle Rooney, appeared at the High Court at Perth in November 2000 facing a charge that they had been concerned in the supplying of diamorphine, a class A drug, contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. They both pled not guilty and went to trial. They were each convicted of an amended charge which narrated that on 7 November 1999 at Her Majesty's Prison, 3 Edinburgh Road, Perth they were concerned in the supplying of diamorphine. The appellant was sentenced to 4 years imprisonment.
2. We are informed by the trial judge that the evidence led disclosed that on the afternoon of Sunday 7 November 1999 Michelle Rooney, who was the girl-friend of the appellant, visited him in Perth Prison. The operator of the CCTV surveillance of the visitor hall in the prison became aware of suspicious behaviour on the part of the appellant and Miss Rooney and, in particular, saw the appellant with his arms around her fumbling about at her back underneath her jacket, and then apparently doing something to the cuffs of his sweatshirt. Prison officers approached the appellant and took hold of him and removed him to a search area where two cellophane wraps were recovered, one from under each cuff. The packages recovered were both found to contain diamorphine of 17% purity, and the combined total weight was a little over 6 grams. Evidence was led from a drugs squad officer to the effect that the total quantity would have cost between £350 and £400 to buy outside the prison, and would have had a potential value of about £3,000 within the prison. It was the officer's opinion that the 6 grams recovered was a dealer's, rather than a user's, quantity. He said that it is very common for prisoners to deal in drugs in prison as a means of financing their own habit. He agreed with the suggestion put to him in cross-examination that a heavy user may use up to one gram of heroin per day, and that 6 grams would thus represent six days use, but explained that use at that level would be difficult in the closed environment of a prison where prisoners are under the scrutiny of staff, particularly since the effects of consumption of one gram a day would be obvious.
3. Evidence was led on behalf of the defence from Dr. Roy Robertson, a general practitioner with a particular interest in, and experience of dealing with, drug abuse. His evidence was that while it was a possibility that the 6 grams was a dealer's quantity, it was equally possible that it was for the appellant's own use. Six grams was not a large amount of heroin for a heavy user and, since it would not deteriorate in quality, it could be kept for weeks or even months. In view of the relatively low purity of the 6 grams, it could even be used within the space of a few days, although this would be an extremely expensive habit. Dr. Robertson agreed that use at the rate of one gram a day would lead to a level of intoxication which would be very obvious, and that use at that level would be unlikely to be maintained, not least because of the very high expenditure involved.
4. The trial judge tells us in her report that she explained to the jury that the essential question for them was whether they were satisfied that the appropriate inference to be drawn from the evidence was that the heroin found on the appellant was a dealer's amount, and that if Dr. Robertson's evidence, or that of any of the defence witnesses which included evidence from the co-accused and another witness as to the appellant's previous heavy use of heroin, raised a reasonable doubt in their minds as to whether the quantity recovered was exclusively for his own use, they must give him the benefit of that doubt. The appellant did not give evidence on his own behalf.
5. The only ground of appeal maintained before us was to the effect that the trial judge had failed to direct the jury to disregard hearsay evidence given in court by Detective Constable Paton. D.C. Paton had given evidence that the drugs found in the appellant's possession constituted a dealer's quantity. The defence position was that the quantity of drugs was consistent with personal use and that the appellant was a heavy user of drugs. When he was being cross-examined by defence counsel D.C. Paton volunteered the information:

"I know that your client gave a negative mandatory drug test before and after this incident".

This issue was taken up by the advocate depute in re-examination, without objection from defence counsel, and by the trial judge, in the following passage of the evidence:

"Q. And can I just clarify one matter which my learned friend raised with you this morning. Did you indicate that you were aware that Mr. Taggart gave a negative drug test both before and after this incident?

A. I am aware of that, yes.

Q. That means that at some point he was tested for diamorphine and found negative, is that right?

A. He was tested for all drugs.

Q. For all drugs?

A. Yes.

BY THE COURT: Do you know how long before and how long after the event?

A. Within a week before and after, my lady.

Q. Within a week before and after?

A. Yes.

Q. You can't say any more specifically than that?

A. I can't, no."

6. Counsel for the appellant submitted to us that the evidence given by D.C. Paton, about the drug tests said to have been undergone by the appellant, was hearsay evidence. D.C. Paton was an expert witness who had been attached to the Tayside Police Drugs Branch for four years, and he would not have been involved in drug tests on prisoners. While D.C. Paton had not been asked how he knew about the drug tests, it was, counsel submitted, a necessary inference that his evidence about the drug tests was hearsay. The issue at the trial was whether the heroin found in the possession of the appellant was for his own use or whether it was a dealer's quantity. D.C. Paton had stated that in his opinion it was a dealer's quantity, whereas the defence witness, Dr. Robertson, had said that the amount of drugs found on the appellant was consistent with being for personal use, although it was also consistent with being a dealer's quantity. While the appellant had not given evidence, there had been evidence from two witnesses that he was a heavy user of heroin, and after the incident paraphernalia consistent with drug use had been found in his cell. As the defence position was that the drugs had been for his own personal use, the hearsay evidence that he had passed the alleged drug tests about a week before and a week after the incident had had the effect of undermining the appellant's defence to some extent. In the circumstances the trial judge should have directed the jury to disregard the hearsay evidence about the alleged drug tests. D.C. Paton had volunteered the evidence about them in the course of cross-examination, and counsel conceded that, with hindsight, he should have objected when the advocate depute returned to that matter in re-examination. However, he had raised the issue in the course of his speech to the jury, although he had not sought a direction from the trial judge. As the required direction had not been given by the trial judge, and having regard to the adverse effect on the defence position of the hearsay evidence complained of, there had been a miscarriage of justice. The appeal should be allowed and the conviction quashed.
7. In reply, the advocate depute submitted that there had been no material misdirection and, in any event, that there had been no miscarriage of justice. The evidence in question had not unmistakably been hearsay. While it was accepted that it was likely to have been hearsay, that issue had not been properly explored, or resolved, in the course of the trial. Counsel for the appellant had not objected when the advocate depute had put further questions to D.C. Paton about the drug tests in the course of re-examination, and the defence had not sought a direction from the trial judge on the matter. In these circumstances it had not been necessary for the trial judge to give the suggested direction. Reference was made to McArthur v. H.M. Advocate 2000 S.L.T. 694 at page 695I-J. In any event, there had been no miscarriage of justice. If the trial judge had referred to the disputed evidence in her charge, it could simply have had the effect of drawing the jury's attention to it. The appeal should be refused.
8. In our opinion, there was no material misdirection in this case. D.C. Paton, who had been attached to the Tayside Police Drugs Branch for about four years, volunteered a statement that he knew that the appellant had given a negative mandatory drug test before and after the incident. That issue was taken up by the advocate depute in re-examination, and in answer to the trial judge the witness stated that the appellant had been tested for all drugs within a week before, and a week after, the incident on 7 November 1999. When the evidence about the drug tests was volunteered by D.C. Paton in cross-examination, counsel for the defence did not ask him how he knew that the drug tests had been carried out on the appellant, and the question as to whether the evidence which the witness had given about the drug tests was hearsay was never explored. Further, counsel did not object when the advocate depute returned to the matter in re-examination. While it is true that he referred, in his speech to the jury, to D.C. Paton's evidence about the tests as being hearsay, he did not ask the trial judge to direct the jury to disregard the evidence about the drug tests. In our opinion, it was not established at the trial that the evidence given by D.C. Paton about the drugs tests was, in fact, hearsay evidence. In our opinion, it was not a necessary inference that the evidence was hearsay and in the overall context of the trial the alleged hearsay evidence was not regarded as a significant issue. In our opinion, in the particular circumstances of this case, the direction sought was not one which the trial judge had been bound to give to the jury. In any event, even if the evidence complained of was hearsay and the direction sought should have been given, we would not have been satisfied that the failure to give the direction had given rise to a miscarriage of justice. Counsel for the appellant told us that there was evidence at the trial that drug addiction can be sporadic and that an addict does not necessarily have to take drugs every day, and when he was addressing the jury about the alleged hearsay evidence he referred to evidence given by the appellant's expert, Dr. Robertson, that someone "could pass a drugs test in respect of heroin but that wouldn't mean that they hadn't been using heroin the previous day". In the circumstances it is difficult to say that D.C. Paton's evidence about the drugs tests was necessarily inconsistent with the appellant being a heavy user. The appeal is refused.