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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Peters v. Her Majesty's Advocate [2003] ScotHC 59 (29 October 2003)
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Cite as: [2003] ScotHC 59
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Peters v. Her Majesty's Advocate [2003] ScotHC 59 (29 October 2003)
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General Lord Marnoch Lord Hamilton
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Appeal No: XC148/02 OPINION OF THE COURT delivered by THE LORD JUSTICE GENERAL in APPEAL AGAINST CONVICTION by KEVIN PETERS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: A. Quinn, Solicitor Advocate; Wilson McLeod
Respondent:
R. Anthony, Q.C., A.D.; Crown Agent29 October 2003
[1] The appellant was found guilty after trial in the High Court at Edinburgh of three charges of contravening the Misuse of Drugs Act 1971. The first and second charges were of contraventions of section 4(3)(b) of that Act between 23 February and 24 May 2002. The first charge related to cocaine, and libelled a flat in Edinburgh as the place where the offence was committed. The second charge related to diamorphine and libelled both the flat and London Road, Edinburgh. The third charge was a contravention of section 23(4)(a) committed on 24 May 2002 in London Road. According to the terms of that charge the appellant struggled violently with three police officers and threw away a bag containing diamorphine.[2] At the appellant's trial evidence was given about a raid on the flat by a number of police officers. It was evidently a "dealer's den". The front door was armoured. Within the flat were found various paraphernalia associated with drug dealing. There were tick lists, foil and a set of digital scales. The foil was found to have traces on it of diamorphine and other substances. A swabbing of the scales showed the presence of cocaine and diamorphine along with other substances. There was also found a letter which had been addressed to the appellant at his mother's house.
[3] Acting on information police officers in plain clothes tackled the appellant in London Road. After a substantial struggle he was restrained. When he was detained it was discovered that on the pavement beneath his body was a package containing 18 grams of diamorphine in an uncut state. The powder had an immediate value of £500-£600, and an ultimate street value of about £1,300. It is not in dispute that, according to the evidence at the trial, it represented a dealer's quantity of diamorphine.
[4] The appellant gave evidence in his own defence. There was no other defence witness. He denied being involved in drug dealing. He did not deny that he had visited the flat, but said that he did not live there and that it belonged to his girlfriend. As regards the incident in London Road, his position was that the presence of the drug on the pavement was purely coincidental, and that he knew nothing about it.
[5] The Crown sought to link the appellant to the flat, and hence to prove that he was concerned in the supplying of drugs there, according to charges 1 and 2, by means of the letter which had been found in the flat, coupled with the appellant's evidence that the flat belonged to his girlfriend and that he had visited it. In regard to the incident in London Road, the Crown invited the jury to infer that the appellant had had the drug in his possession and that he had deliberately thrown it away, or that it had been dislodged from his clothing, at the time of the struggle between him and the police officers.
[6] The ground of appeal arises out of a passage in the cross-examination of the appellant. During that cross-examination the Advocate depute challenged the appellant with evidence on which the Crown were founding and put it to him that a number of features of the case were suspicious. At this point in the evidence the trial judge said to the appellant: "It is not just suspicious. It is singularly unfortunate that these large quantities of drugs appear to follow you about. Do you have any comment?". It is maintained on behalf of the appellant that in intervening in this way the trial judge could have led the jury to conclude that he had formed an adverse impression of the appellant's credibility. No other witnesses were called on the appellant's behalf and in the context of a short trial this constituted a miscarriage of justice.
[7] In his report the trial judge does not dispute that he made the statement which is attributed to him. He observes that at the time the appellant's evidence was being given in a very evasive manner, with a number of questions simply not being answered. So far as he could recollect, the appellant did not reply to his question. He adds that he had no intention of conveying any view about credibility. In any event he draws attention to a passage near the beginning of his charge to the jury which is as follows:
"As far as any question of law is concerned, that is entirely a matter for me, there is not much in this case, and what I have to say to you in that respect you must accept without equivocation. If I get it wrong it will be put right somewhere else. On the other hand, when it comes to any questions of fact, which of course is the substance of the case, that is entirely a matter for you as I said to you at the start. You are the judges, the sole judges of the facts. If I in the course of what I have to say to you in the next few minutes give you any impression that I have a view about the evidence, you will ignore that completely. It would not be my intention. It is you and your judgement alone that matters upon the evidence".
[9] We are in no doubt that the trial judge should not have made the remarks which he did. He implied that the appellant had been in proximity to large quantities of drugs both in London Road and at the flat, saying that this was more than "just suspicious". The question whether the appellant had any involvement with drugs at either place was in issue at the trial, and there was no evidence of large quantities of drugs being found at the flat. Furthermore, while we accept that it was not intended, the words of the trial judge could have been perceived as a form of sarcasm or even ridicule. It is perhaps not surprising that the appellant did not reply to the trial judge's question.
[10] It is well understood that in solemn proceedings the questioning of an accused by the judge may constitute a ground for quashing the conviction where it displays an adverse view of the appellant's credibility (Tallis v. H.M. Advocate 1982 S.C.C.R. 91). The question for an appeal court, which may not be an easy one to answer, is whether it has caused a miscarriage of justice.
[11] In the present case we take into account the fact that the trial judge did not pursue the matter with the appellant and that in his charge he made it plain to the jury that it was a matter for them, and not for him, to form a view about the evidence. However, the stage at which the trial judge intervened is of some significance. He did so when the Advocate depute was taxing the appellant with the Crown case, and went even further than the proposition which the Advocate depute was putting to him. We are also concerned about what could have been perceived as sarcasm or even ridicule in his remarks. The adverse nature of the intervention was increased by the fact that the evidence connecting the appellant with activities at the flat was relatively thin. Yet the trial judge's comment wrongly pre-supposed that the appellant had been in proximity to "large quantities of drugs" both in London Road and at the flat.
[12] In these circumstances we have reached the conclusion that the remarks of the trial judge gave rise to a miscarriage of justice in this case.