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Cite as: [2005] ScotHC HCJAC_114, [2005] HCJAC 114

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Sinclair & Anor v. Her Majesty's Advocate [2005] ScotHC HCJAC_114 (20 October 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Hamilton

Lord Wheatley

Lord Macphail

[2005HCJAC114]

Appeal Nos: XC822/04

XC823/04

OPINION OF THE COURT

delivered by LORD MACPHAIL

APPEALS AGAINST CONVICTION

(1) KEVIN ANDREW SINCLAIR and (2) DEVON LLOYD HARVEY

Appellants;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellants: (1) A.L. Brown; Campbell Smith: (2) S. Fraser; Balfour & Manson

Respondent: Beckett, Q.C., A.D.; Crown Agent

20 October 2005

Introduction
[1] On 10 September 2004 both appellants were convicted in the High Court at Stonehaven of a charge of contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. The charge was in these terms:

"on 2 May 2002 at Union Grove, Aberdeen, you were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part I of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of the said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."

Each appellant was sentenced to imprisonment for three years and six months, and appealed against conviction and sentence. The first sift judge refused the first appellant leave to appeal against sentence, and at the hearing of the appeals the second appellant's appeal against sentence was not insisted in. Each appellant appeals against conviction on the ground that the trial judge erred in rejecting a submission of no case to answer made on his behalf under section 97 of the Criminal Procedure (Scotland) Act 1995. The first appellant states as a second ground of appeal that the trial judge erred in sustaining an objection by the second appellant to a line of evidence which the first appellant sought to elicit. It will be convenient to set out the evidence on which the Crown relied when opposing the submissions of no case to answer, and to consider the second appellant's appeal first.

The evidence for the Crown
[2] It was submitted on behalf of each appellant that the judge should have upheld the no case to answer submission which was made on his behalf at the close of the evidence for the Crown. The question for this Court, accordingly, is whether the evidence led by the Crown was insufficient in law to justify the appellant concerned being convicted of the offence charged (1995 Act, section 97(2)). It is therefore necessary to determine whether the Crown had adduced evidence which, if believed, and on the most favourable view or "taking it at its highest", would have entitled a reasonable jury to proceed to conviction (Williamson v Wither 1981 SCCR 214; Cassidy v Normand 1994 SCCR 325 at 328C-D).

[3] The Crown relied on the evidence of police officers and a forensic scientist, and the contents of a joint minute. Detective Constable Alexander Dowall gave evidence to the following effect. At about 11 p.m. on 2 May 2002 he was on duty with colleagues in an unmarked police vehicle in Union Grove, Aberdeen. He saw a Ford motor car parked at the side of the road. The police vehicle stopped in front of it and reversed back towards it. D C Dowall got out of the police vehicle. He could see that there were three people in the Ford. The second appellant was in the driver's seat. The front seat passenger was a man named Stuart Field. Field got out and stood on the pavement, allowing the rear seat passenger, a third male, to emerge. (There was other evidence that the car was a 3-door hatchback). D C Dowall and his colleagues identified themselves as police officers to the three men. The rear seat passenger walked casually round the back of the Ford, then started walking across the road. The second appellant shouted, "Run, run." The rear seat passenger then broke into a run. D C Dowall and Detective Sergeant Nicholas Thom chased him for about 200 yards, but failed to catch him. During the chase, the man threw something in the direction of a bush. After the chase, D S Thom recovered a package from the bush. The man was black, of medium to heavy build and approximately 5'10" in height. D C Dowall did not identify the first appellant as that man.

[4] It was agreed by joint minute that the package contained 20.89 grams of cocaine with a purity of 85%, and that that quantity of cocaine was in excess of what would be possessed for personal use and would be intended by the possessor for onward sale or supply to others.

[5] Detective Sergeant Neil Kennedy gave evidence that he had been in the police vehicle with D C Dowall and D S Thom. He also saw the second appellant in the driver's seat in the Ford car. He saw the rear passenger sitting in the rear nearside seat. He was bending down, looking towards the rear offside footwell. He got out, walked round the rear of the Ford and across the road, and began to run. D S Kennedy heard the second appellant shouting, "Run, run." The man was black, in his 20's, and between 5'8" and 5'10" in height.

[6] D S Kennedy also said that the Ford was taken to police headquarters and searched. A duffle bag was recovered from the rear offside footwell. The duffle bag contained items of clothing, including jogging trousers, shorts and T-shirts. The clothing could have provided a change of clothing for a couple of days. The bag also contained a Pepsi bottle which was half full; a plastic bank card for Barclays Bank in the name of K A Sinclair which was valid between 10/01 and 12/03; and two sets of train tickets. One set related to journeys between Edinburgh and Aberdeen (outward) and Aberdeen and Edinburgh (return) and had been issued on 27 April 2002. The other set related to journeys between Aberdeen and Wolverhampton via Doncaster (outward) and Wolverhampton and Aberdeen (return), and had been issued on 1 May 2002. The ticket from Aberdeen to Wolverhampton bore a stamp, which suggested that it had been used.

[7] Mr Martin Grundy, a forensic scientist, gave evidence that he found traces of the first appellant's DNA on the following contents of the duffle bag: a pair of shorts, Nike bottoms, and the Pepsi bottle.

[8] D S Thom gave evidence that he had been in the unmarked police car. He identified the second appellant as the driver of the Ford. He also said that a black male had got out of the rear of the Ford, walked round the rear of the Ford, quickened his pace and ran off. The second appellant shouted, "Run, run," when the man ran off. D S Thom chased him and saw him throwing a package into a garden. After he lost sight of the man, he returned to the garden and recovered the package. The man was in his 30's, 5'10" and of heavy build. He did not identify the first appellant as that man. D S Thom also spoke to the searching of the car and the finding of the duffle bag and its contents.

[9] D S Dowall also gave evidence that he had detained the first appellant in Wolverhampton on 8 October 2003, interviewed him under caution, and cautioned and charged him. In reply to caution and charge the first appellant denied the charges against him and stated that he had never been to Aberdeen. He admitted that the duffle bag was his and said that it had been stolen from him.

[10] D S Kennedy gave evidence that he was present when the second appellant was interviewed under caution at police headquarters in Aberdeen on 3 May 2002. The second appellant admitted that he had been the driver of the Ford. He said that Stuart Field had been in the back and a third man had been in the front passenger seat. The second appellant said that the third man was called Kevin, that he did not know his last name and that the man was a friend of a man called Cliffy. The second appellant said that he had met the third man in Northfield, Aberdeen. The man had flagged him down and asked him if he would give him a lift into town. The man had asked him to drop him off, round by Union Grove. He did not know why the man had run off. He said he did not know Kevin Sinclair, and he denied shouting anything at the man when he had run off.

The second appellant's appeal
[11] Counsel for the second appellant submitted that it had been necessary for the Crown to prove that the second appellant had personal knowledge of a supply enterprise which was ongoing. There was no evidence that drugs had been found in his possession, or of any ongoing transaction. The quantity of the drugs found indicated possession for onward supply, but there was no evidence that the second appellant had ever seen them or had been aware of the quantity involved, or that they had been visible in the car or recognisable as drugs of a quantity appropriate for supply, or that they had been in the duffle bag. There was no additional evidence to show that he was aware that the man had a dealer's quantity of a controlled drug with him, as in Duffin v H M Advocate 2000 SCCR 224, or to indicate that there was an ongoing transaction, as in Smith (S) v H M Advocate 2002 SCCR 1059. The second appellant's shouting of "Run, run" could found the inference that he knew the man had drugs, but it did not indicate knowledge of the man's possession of a dealer's quantity.

[12] The Advocate depute submitted that if it was shown that the other man was engaged in a drug-supplying operation, the second appellant's association with him, taken in the context of evidence as to the second appellant's own activities, might be relevant to infer that he had been actively and knowingly concerned in the prohibited activity (Clark v H M Advocate 2002 SCCR 675 at 682, paragraph 14). Evidence that the second appellant had seen the drugs was not a vital basis for inferring knowledge. A drug-supplying operation could be inferred from the quantity of the drug. The second appellant had been the driver of the car. He had chosen to give the other man a lift. As the driver, he could be inferred to have knowledge of what was within his vehicle. According to D S Dowall, he had exhorted the man to run when the police intercepted the car and its contents and before the man had started running. The man had then thrown away the package of drugs. It was not difficult to infer that the second appellant had been concerned in the transportation of the drugs, which was a necessary part of the process of supply. All the circumstances looked at as a whole might or might not be capable of an innocent explanation, but that was for the jury to determine: alternative explanations were neither here nor there when the issue was sufficiency of evidence (Fox v H M Advocate 1998 SCCR 115; Al Megrahi v H M Advocate 2002 SCCR 509).

[13] In our opinion it cannot be said that the evidence led by the Crown was insufficient in law to justify the second appellant being convicted. The jury were obliged to accept the statement in the joint minute that the quantity of cocaine in the package the man threw away was in excess of what would be possessed for personal use and would be intended by the possessor for onward sale or supply to others. They were accordingly entitled to infer that the man who ran off was concerned in a drug-supplying operation. On the second appellant's own account, he knew that man and had given him a lift in his car. When the car was intercepted by the police officers, he told the man to run away. It was for the jury to decide what inference was to be drawn from this circumstantial evidence. They were entitled to infer that the second appellant knew who and what he was carrying in his car, knew that the man was engaged in a drug-supplying operation and intended that he should escape from the police. They were accordingly entitled to convict the second appellant of the charge. We shall therefore refuse his appeal on this ground. This appellant has also stated as a second ground of appeal that the trial judge misdirected the jury when he directed them that there was sufficient evidence in law to convict him. It follows from our decision on the first ground that this ground also fails. We shall accordingly refuse the second appellant's appeal.

The first appellant's appeal
[14] The first appellant also stated two grounds of appeal. The first was that the judge had erred in rejecting the no case to answer submission made by his counsel under section 97 of the 1995 Act. In his submissions to us counsel pointed out that none of the witnesses had identified the first appellant as the man who had run off. The first appellant was linked by the DNA evidence only to the shorts, bottoms and Pepsi bottle in the duffle bag. It could not be said when the DNA traces had been left on the bottle. It was accepted that the bag and the bank card were his. But no connection had been established between the contents of the bag and the drugs recovered from the bush, and there was no DNA, fingerprint or other forensic link between the drugs and the first appellant. No intimate connection had been established between him and the crime (cf Maguire v H M Advocate 2003 SCCR 758 at 763, paragraph 18, per Lord Hamilton). There had been no evidence to indicate from which part of the car the drugs had come. That D S Kennedy had seen the man bending down, looking towards the rear offside footwell where the bag had been found, was not sufficiently sinister. The man would have had to bend down in order to get out of the back seat of the hatchback.

[15] The Advocate depute submitted that it was not necessary for each item of circumstantial evidence to be itself incriminating: the question was whether when all the adminicles of evidence were taken together, it was open to the jury to hold it proved that the first appellant was guilty of the crime charged (Curley v H M Advocate 1999 SCCR 467 at 469-470). Here, there was an association in time and place with the first appellant. The duffle bag was his bag, and it contained the items with his DNA on them, his valid bank card, the recently issued railway tickets and changes of clothing for a couple of days. There was evidence from his police interview that the first appellant resided in Wolverhampton. The man in the rear of the car had looked in the direction of the bag. In all the circumstances it was a legitimate inference that that man had been the first appellant.

[16] We accept the submissions of the Advocate depute. The circumstances that the duffle bag was the first appellant's bag and contained items belonging to him including sufficient clothing for a couple of days, together with his current bank card and the railway tickets for journeys to and from his home town of Wolverhampton, and that the bag was in the rear of the car where the man was sitting before he got out of the car and ran off, were sufficient to entitle the jury to infer that that man was the first appellant. In our opinion, accordingly, the judge was correct to repel the submission of no case to answer.

[17] The first appellant's second ground of appeal is that the judge erred in disallowing a line of evidence to the effect that the duffle bag had been stolen from his sister's house in Wolverhampton before 2 May 2002. In his report, the judge explains the matter in this way:

"During the course of the appellant's evidence in chief, the appellant admitted that the bag and certain contents of the bag were his. He gave evidence that the bag, which had been recovered from the Ford car, had gone missing from his sister's house, between 29 April and 5 May 2002. He was asked whether he had any idea how it went missing and he replied 'No'. He went on to state that the bag had been stolen. He was then asked by his own counsel 'Do you have any suspicions as to who took it?' That question was objected to by counsel for the co-accused, on the ground that the question could elicit evidence that amounted to an attack on the character of the co-accused, Harvey. Counsel for the co-accused expressed her concern that if the jury heard evidence from which they could infer that the co-accused had stolen the bag from the appellant, from within the appellant's sister's house during the period between 29 April and 2 May 2002, that would entitle the jury to infer that the co-accused had recently been in Wolverhampton and was aware of the contents of the bag, which had been recovered from his car on 2 May 2002. Concern was also expressed about pursuing such a line of evidence, in the absence of a notice under section 78 of the 1995 Act, indicating an intention on the part of the appellant to incriminate his co-accused.

During the course of the submissions relating to the objection, counsel for the appellant confirmed that if the appellant was allowed to answer the question objected to and did so by naming his co-accused, the follow on questions would include whether the appellant was aware that the co-accused had been in Wolverhampton, around the time the bag had gone missing. By this stage I was aware from the transcript of the appellant's interview under caution, that the appellant and his co-accused were cousins. Whilst that fact had not yet been spoken to in evidence before the jury, I was concerned that the appellant was going to speak to having seen his co-accused in his sister's house, between 29 April and 2 May. The appellant's counsel confirmed that the appellant was able to do so. It was maintained, however, that there was no intention to incriminate the co-accused.

Counsel for the co-accused submitted that whilst it was accepted that there was no intention on the part of the appellant to incriminate the co-accused that was what was going to happen. If the jury heard evidence from which they could infer that the co-accused had taken the bag from the appellant's sister's house in Wolverhampton, a short time before it was recovered from the Ford car in Aberdeen on 2 May 2002, such evidence was capable of being founded on by the jury in acquitting the appellant and putting the co-accused in possession of the bag and the train tickets between Aberdeen and Wolverhampton, which were in the rear of the car from which the man carrying the cocaine had emerged. Such evidence could be relied upon by the jury as demonstrating the co-accused's involvement in the supply of cocaine and accordingly the line of evidence did raise the issue of incrimination, whatever the avowed intention of the appellant and his counsel might have been.

I sustained the objection on behalf of the co-accused. I did so because it was acknowledged by counsel for the appellant that the jury would hear evidence (i) that the co-accused had been in Wolverhampton between 29 April and 2 May 2002, during which period it was alleged that the duffle bag had gone missing from the appellant's sister's house, (ii) that the evidence would relate to the co-accused being in a specific place, namely Tracy Sinclair's house, and (iii) that the evidence would relate to the appellant seeing the co-accused in his sister's house around the time the bag went missing. I took the view that the admission of such evidence was calculated to exculpate the appellant by incriminating the co-accused, by placing the co-accused in Wolverhampton and linking him with possession of the duffle bag from Wolverhampton, which had been in the rear of the car in proximity to the man, who had emerged with the drugs. In my opinion, such evidence was capable of incriminating the co-accused notwithstanding the fact that the Crown had not led any evidence establishing a forensic link between the package of drugs that had been recovered and the duffle bag found in the rear footwell of the car."

[18] Section 78(1) of the Criminal Procedure (Scotland) Act 1995, as in force at the date of the trial, provided, so far as material:

"(1) It shall not be competent for an accused to state a special defence or to lead evidence calculated to exculpate the accused by incriminating a co-accused unless -

(a) a plea of special defence or, as the case may be, notice of

intention to lead such evidence has been lodged and intimated in writing in accordance with subsection (3) below -

(i) where the accused is cited to the High Court for the trial

diet, to the Crown Agent;

[ . . . ]

and to any co-accused not less than 10 clear days before the trial diet; or

(b) the court, on cause shown, otherwise directs."

[19] Before us, counsel for the first appellant submitted that the first appellant had not been seeking to incriminate the second appellant. The first appellant had stated a special defence of alibi to the effect that at the time when the alleged crime was committed he was at an address in Wolverhampton in the company of two people, one of whom was his sister. He could not say anything about the offence. His defence could not be properly considered without the evidence the judge had excluded. He had been limited to saying that the bag had been his and that it had been stolen, without giving any further explanation. Evidence that the second appellant had stolen the bag would have indicated dishonesty on his part, but the judge could have given the jury appropriate directions about that. There had been no link between the bag and the cocaine. A notice in terms of section 78 had not been necessary because the first appellant had not been seeking to remove the blame from himself and to place it on to his co-accused (McQuade v H M Advocate 1996 SCCR 347 at 353A-C). He had had no idea who had been responsible for the alleged offence and could not positively attribute blame for it to anyone else. He could only say that the bag had been in the car because the second appellant had stolen it. The second appellant and the Crown would have been aware from the transcript of his police interview that that was his position. The excluded evidence had been fundamental to a proper consideration of his defence, and there had been a miscarriage of justice.

[20] The Advocate depute submitted that the judge had been entirely correct to sustain the objection to the line of evidence. No notice had been lodged and intimated in terms of section 78(1)(a), and no attempt had been made to show cause in terms of section 78(1)(b). It was therefore not competent for the first appellant to lead evidence from which it could be inferred that the second appellant had stolen the bag. That evidence would have been "calculated" to exculpate the first appellant by incriminating the second appellant. "Calculated" in this context meant "of a nature likely to" (Oxford English Dictionary (2^nd edn), s v "calculated"). It was untenable that the first appellant could not incriminate the second appellant because he had been in Wolverhampton at the time of the offence. He had been legally represented, and the case against the second appellant could have been ascertained in the ordinary course of preparation of the first appellant's defence which must have involved precognition of witnesses and the ascertainment of the Crown case. It would have been clear that the proposed evidence relative to the theft of the bag would have incriminated the second appellant. The first appellant had therefore been obliged to lodge a notice or to show cause before such evidence could competently be led. No notice had been required in McQuade because the evidence had not been exculpatory. In any event the reality was that it had been enough for the first appellant to give evidence that the bag had been stolen: evidence identifying the thief would not have taken him much further.

[21] In our opinion the evidence which it was intended to elicit from the first appellant would have been likely not only to exculpate the first appellant but also to incriminate the second appellant. The first appellant had said that the bag had been stolen from his sister's house in Wolverhampton between 29 April and 5 May 2002. It was proposed that he should go on to say that the second appellant had been in Wolverhampton between 29 April and 2 May 2002, the date of the offence. He was also able to say that the second appellant had been in his sister's house between those dates. The jury would have been entitled to infer from that evidence that it was the second appellant who had stolen the bag in Wolverhampton and that since then he had been in possession of its contents including the railway tickets. They would also have had before them the evidence of the police officers that the bag had been in the rear of the second appellant's car near the man who had run off and thrown away the cocaine. It appears to us that the jury would have been entitled to conclude from all these circumstances that the second appellant was implicated in the offence libelled of being concerned in the supply of cocaine, while the first appellant had nothing to do with it. We have some difficulty in accepting that the first appellant had no intention of incriminating the second appellant by leading the proposed evidence relative to the theft of the bag. In any event, however, the intention of the party tendering the evidence is irrelevant. In our view the word "calculated to" in the context of section 78(1) means "likely to": it does not refer to the state of mind of the party tendering the evidence. If that had been the intention of Parliament, it would have been simple to use the words "intended to". Instead, section 78(1) infers that is sufficient that the evidence should be likely to exculpate the accused who tenders it by incriminating a co-accused. We therefore consider that the trial judge was right to sustain the objection which was taken to this line of evidence.

[22] The first appellant tabled a further ground of appeal to the effect that when his sister was giving evidence the judge had made an interjection about the absence of a notice under section 78(1). The judge has informed us in his report that he has no note or recollection of having done so, and that no such interjection is recorded on the tape of the proceedings. Before us, counsel did not mention this ground of appeal, and we say no more about it.

[23] We are accordingly satisfied that none of the first appellant's grounds of appeal has been established. His appeal must therefore be refused.