APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Appeal No: XC40/03
OPINION OF THE COURT
delivered by THE LORD JUSTICE CLERK
GEORGE MACKIE THOMPSON BRYCELAND (also known as GEORGE NELSON)
HER MAJESTY'S ADVOCATE
Appellant: Shaffer, QC; Bruce Short, Dundee
Respondent:Macleod, AD; Crown Agent
6 January 2004
The conviction The appellant was convicted at Edinburgh High Court on 11 December 2002 on four charges under section 4(3)(b) of the Misuse of Drugs Act 1971, all relating to class A drugs, and one charge under section 2 of the Road Traffic Act 1988. Charges (2) and (3) alleged that between 25 April and 2 November 2001 the appellant, while acting along with Steven Millar, was concerned in the supply of ecstasy and cocaine respectively at various addresses in Dundee, in Edinburgh and on a journey between Edinburgh and Dundee. Charge (5) alleged that on 2 November 2001 the appellant drove dangerously in various streets in Dundee while being pursued by the police. Charges (8) and (9) alleged that between 13 November and 10 December 2001 the appellant and a co-accused, Rosemary Lynch, were concerned in the supply of ecstasy and amphetamine respectively at various addresses in Dundee and in two specified motor cars. The co-accused was acquitted on charges (8) and (9). Nothing turns on the exact terms of the charges.
The ground of appeal The ground of appeal is that, by reason of certain suggestions put by the advocate depute to a defence witness, Alexander Skelly, whose evidence was pivotal, the trial judge ought to have directed the jury that the line of cross-examination depended on unsubstantiated assertions and not on evidence; and that in the absence of such a direction it is likely that the jury treated that cross-examination as though it was founded on evidence and thereby wrongly gave weight to it. Although the appeal is maintained against the conviction generally, it cannot apply to charge (5)
Charges (2), (3) and (5) There was evidence that on 2 November 2001, the appellant had driven to Dundee in a Ford Escort where he met Alexander Skelly. Skelly gave him a Ford Orion which he then drove with James Stevens to Edinburgh where he picked up Steven Millar (also known as Steven Douglas Fordyce) who had arrived from London with a package of cocaine. The appellant returned to Dundee. On the outskirts of Dundee he was pursued by the police in the chase referred to in charge (5). During the chase, Millar threw the cocaine out of the car. When the appellant was stopped he ran away and was found hiding in a hedge. He had £507 in his possession. In the Orion, the police found 76 Ecstasy tablets and some plastic bags. In the Escort they found 197 ecstasy tablets and a white powder used as a bulking agent. At the home of the appellant's former wife, which the appellant visited regularly, the police found two bank pay-in slips relating to recent payments of large sums of money to a recipient in London, together with a tick list. There was evidence that the appellant had placed high-stake bets in various betting offices in the period September - October 2001 and had lost about £100,000 overall.  The appellant's defence was that he did not know that there were drugs in the cars. The money that he had came from gambling and from trading, mainly in cars and clothing. Both cars belonged to Skelly. He had driven to Edinburgh as a favour to Skelly, who was unfit to drive on that day. He knew nothing about the items found in his ex-wife's house.
Charges (8) and (9) On 10 December 2001, when he was on bail, the appellant was detained by the police, along with his co-accused, in a Peugeot 406. He had over £2800 in his possession. In the car the police found 55 ecstasy tablets, 2 mobile phones, a notebook which appeared to contain a tick list, and a plastic bowl containing a residue of amphetamine on which there was a fingerprint of the appellant. Before this the co-accused had been seen driving a Peugeot 205, of which the appellant was the registered keeper. In the Peugeot 205 the police found electronic scales and a holdall, containing a gun, two vacuum packs and about 15,000 ecstasy tablets. The appellant's fingerprints were on some plastic bags in the holdall.  The appellant's defence was that he knew nothing about the drugs. He said that the Peugeot 205 belonged to Skelly and had been lent by him to the co-accused. The Peugeot 406 had been given to him by Stephen Townsley.
The evidence of Skelly The appellant incriminated Skelly and Millar on charges (2) and (3) and Skelly and Townsley on charges (8) and (9). He also cited Skelly as a defence witness. Some time after the incident on 10 December 2001, Skelly was convicted of drugs offences and sentenced to five years imprisonment. DC Keith Anderson and DC Andrew Miller visited him in Perth Prison with a view to interviewing him. Both officers gave evidence for the Crown. Neither was asked about the visit.  Skelly was not an entirely candid witness. He declined to answer certain questions; but his evidence was in some ways helpful to the defence. The advocate depute put it to Skelly that he told the police officers at Perth Prison that he was unwilling to give a statement until he had spoken to the appellant. Skelly admitted that the visit occurred, but denied having made the alleged remark. The advocate depute did not seek to recall the officers or to lodge any documentary proof of the alleged remark.  The trial judge says in his report that
"when addressing the jury the advocate depute reminded them that he had put to Skelly that he had made a statement to the police. The advocate depute invited the jury to disregard Skelly's evidence as incredible. They should put it aside. There was a possibility that Millar was working for Skelly but the jury could not speculate about that ... In his speech to the jury Mr. Shaffer told them not to forget Skelly. Skelly was a potential source of the drugs. Skelly's evidence raised a question about the Crown's case ... Close to the end of his speech, Mr. Shaffer turned to the criticism of Skelly that had been made by the advocate depute. He reminded the jury that there had been no evidence from the police officers to whom it had been said he had made a statement. It was, said Mr. Shaffer, unsatisfactory to criticise Skelly when the evidence was wholly lacking as to whether he ever gave a statement."
He comments on the ground of appeal as follows.
"I gave the standard charge to the jury that evidence which they could rely on were the answers to questions, not the questions (pp 5-6). I reminded the jury of what I understood to be the defence position at pages 48 to 51 and 54 to 56 of my charge. I mentioned the evidence of Skelly in these passages. I said that his evidence was to be looked at in just the same way as the evidence of any other witness should be looked at. I did not mention what had been put to Skelly in cross-examination. I did not remind the jury that what was said by the advocate depute to be a statement made by Skelly to the police officers had not been spoken to by these officers. Mr. Shaffer, in his speech, had done that."
Submission for the appellant Counsel for the appellant suggested that the advocate depute had told the jury that Skelly was not to be believed when he denied the alleged remark at Perth Prison. Skelly was a key defence witness. The trial judge should have directed the jury that there was no evidence that Skelly had made the alleged remark and that they should not take into account the advocate depute's questions about it when assessing Skelly's credibility. Although counsel for the defence had made that point to the jury, that did not relieve the trial judge of his duty to give the necessary direction (Johnston v HM Adv 1999 SCCR 568, at 576E-F; McArthur v HM Adv, 2000 SLT 694, 695I-J).
Submission for the Crown The advocate depute said that, according to a note by the advocate depute who conducted the trial, his comments to the jury related to the general credibility of Skelly based on the circumstances in which he had been called as a witness, his reliance on his privilege against self-incrimination, and his demeanour in the witness box. The advocate depute submitted that the court did not have before it a sufficient basis for the conclusion that the advocate depute had made the alleged comment to the jury; and in any event, even if it had been the duty of the trial judge to give the direction contended for, there had been no miscarriage of justice.
Decision In our opinion, the advocate depute was entitled to put to Skelly his alleged remark to the police officers; but Skelly denied having made the remark and there was no other evidence about it. There was therefore no evidence that the remark was made. The suggestion in this appeal that the advocate depute told the jury that Skelly's denial should not be believed raises the critical question of what the advocate depute actually said. That has not been established to our satisfaction. There has been no application on behalf of the appellant to have the advocate depute's speech extended. Since we do not know exactly what the advocate depute said, we cannot decide whether the trial judge should have given the jury the direction contended for.  But even if such a direction should have been given, it is plain that there has been no miscarriage of justice given the strength of the Crown case. We therefore refuse the appeal.