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Cite as: [2005] ScotHC HCJAC_4, [2005] HCJAC 4

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Fulton v. Her Majesty's Advocate [2005] ScotHC HCJAC_4 (25 January 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk Lord Kirkwood Lord MacLean Lord Osborne Lord Hamilton	[2005HCJAC4] Appeal No: XM2/03 OPINION OF THE COURT delivered by THE LORD JUSTICE CLERK In Referral by THE SCOTTISH CRIMINAL CASES REVIEW COMMISSION in the case of STEWART FARQUHARSON FULTON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

For the appellant: Shead; Drummond Miller

For the Crown: Murphy QC, AD; Crown Agent

25 January 2005

Introduction
[1] The appellant went to trial at Glasgow High Court in March 1998 along with Thomas Anthony Donnelly on five charges. Charges (1), (2) and (3) related to drugs offences. Charges (4) and (5), so far as relevant to these proceedings, were in the following terms:

"(4) On 6 March 1997 at 53 Newton Avenue, Barrhead you STEWART FARQUHARSON FULTON and THOMAS ANTHONY DONNELLY did have in your possession a firearm, namely a shotgun to which Section 1 of the Firearms Act 1968 applies without holding a firearms certificate: CONTRARY to Section 1(1)(a) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988 ...

(5) On 6 March 1997 at 53 Newton Avenue, Barrhead you STEWART FARQUHARSON FULTON and THOMAS ANTHONY DONNELLY did shorten the barrel of a shotgun to a length less than 24 inches (609.6mm): CONTRARY to the Firearms Act 1968, Section 4(1) as amended by the Firearms Amendment Act 1988 ..."

Both accused gave notice of intention to incriminate the other on these charges.

[2] At the start of the trial, Donnelly pled guilty to charges (1), (2) and (3) and not guilty to charges (4) and (5). The advocate depute accepted these pleas.

[3] The appellant proceeded to trial. The trial judge found that there was no case to answer on charge (5). On 12 March 1998 the appellant was found guilty on the remaining charges. He was sentenced to five years imprisonment on charges (1), (2) and (3) and to three years imprisonment on charge (4), those sentences to run consecutively.

[4] The appellant appealed against his conviction on charge (4). As we shall explain, the appeal was presented on narrow grounds and on a restricted presentation of the evidence. Counsel for the appellant submitted inter alia that evidence that his co-accused had been shocked at the discovery of the sawn-off shotgun at the locus was not capable of corroborating the co-accused's evidence that he had no knowledge of the presence of the gun. On 19 August 1999 the appeal court refused the appeal (Fulton v HM Adv, 1999 SCCR 851).

[5] The Scottish Criminal Cases Review Commission has referred the case in relation to the conviction on charge (4). At a procedural hearing on 31 January 2003 the Crown indicated that it now accepted that the trial judge had misdirected the jury on that charge and that it no longer supported the conviction. The court declined to allow the appeal at that stage. Since the appellant sought to challenge the ratio decidendi of the appeal court on the point of law to which we have referred, the court remitted the case to a hearing before five judges.

The proceedings at the trial
Outline of the evidence on charge (4)
[6] Donnelly was the tenant of the flat at the locus libelled. In about August 1996 the appellant left his wife and went to live there. Soon after, his two sons and his daughter joined him there. The elder son, Stewart, and the daughter later returned to their mother.

[7] On 10 January 1997 the police searched the flat in execution of a warrant and found a quantity of drugs. Donnelly, his girl friend Julie Lawrence, the appellant, his son Stewart, and three other men named Brian Kelly, Graham Gorrie and Brian Connelly, were all in the flat at the time.

[8] On 6 March 1997 the police again searched the flat. They found a quantity of drugs and, in an unlocked cupboard in the hall, a sawn-off shotgun and cartridges. This is the occasion to which charge (4) related. At that time, the flat was occupied by Donnelly, the appellant and his younger son, Gary Fulton, who was then aged 14. The Crown led three witnesses on charge (4), namely DS William Miller, who led the searches, his colleague WPC Lisa Alison and Donnelly.

[9] We have read the transcripts of the evidence of Donnelly and of DS Miller. From these and from the Commission's Reference we have fuller information than the appeal court had as to the circumstances of the second search.

[10] WPC Alison and DS Miller spoke to the finding of the shotgun. The undisputed evidence was that the appellant and Donnelly were in the flat, along with Gary Fulton and the appellant's girl-friend, Lisa Thomson. WPC Alison searched the cupboard in the presence of DS Miller. She found an object wrapped in a towel. Four cartridges fell out of the towel. DS Miller found the sawn-off shotgun and two more cartridges inside the towel. The appellant was asked if he could account for the presence of the shotgun. He made no reply. He was asked if he had a firearms certificate. Again he made no reply. The appellant was cautioned and made no reply. Donnelly too was asked about the shotgun and cartridges and gave no explanation. DS Miller said that when he was shown the gun, Donnelly was "visibly shocked."

[11] Donnelly denied that he had been in possession of the shotgun. He said that a couple of days earlier he had seen the appellant with it. The appellant had brought it out of the flat occupied by George Pollock, his neighbour across the landing, and had come into Donnelly's flat. He pointed the gun in the air and said "This will win wars." He then took the gun back to Pollock's flat. Donnelly said that on the day of the search he did not know that the shotgun was in his flat and did not know how it got into the cupboard.

[12] Donnelly also gave some background evidence, which we need not rehearse in detail, to the effect that the appellant's son Stewart was regularly in the flat in connection with drug dealing activities on behalf of the appellant; that sales of drugs were taking place at the flat; and that at least three others were coming to the flat while acting as distributors. They included Graham Gorrie and Barry Connelly. He said that Connelly was in the flat "all the time."

[13] Despite this evidence, both sides presented the issue to the jury as being whether it was the appellant or Donnelly who was in possession of the gun.

The submission of no case to answer
[14] At the conclusion of the Crown case counsel for the appellant made a submission of no case to answer. He submitted that there was no evidence, other than Donnelly's, to connect the appellant with the gun. The cupboard was accessible to any of the occupants of the flat. The mere presence of the gun was not sufficient corroboration of Donnelly's evidence. The advocate depute submitted that Donnelly's evidence, together with the fact that the appellant was living in the flat, the only other regular occupant being Gary Fulton, constituted a sufficiency of evidence.

[15] At this stage the advocate depute did not rely on DS Miller's evidence about Donnelly's reaction to the finding of the gun.

[16] The trial judge repelled the defence submission. He said "There is sufficient to corroborate Donnelly in that Fulton was one of the two or possibly three people who could have put the gun in the cupboard ... " (Reference, p 5). In his report to the appeal court the trial judge said that under reference to Bath v HMAdv (1995 SCCR 323) and White v HM Adv (1991 SCCR 555) it would be arguable that the evidence that the appellant was an occupier of the flat and the evidence of Donnelly to the effect that the gun was not his and that he had previously seen it in the possession of the appellant would be sufficient to entitle the jury to convict. But in addition there was the evidence of DS Miller to which we have referred. The trial judge regarded that evidence as being independent of Donnelly (Report, pp 2-3).

The trial judge's directions
[17] The trial judge first raised the question of the finding of the gun when he was directing the jury on the drugs charges. He said the following.

"Then, in relation to the gun, the Crown also found, in addition to those general matters, on the fact that Sergeant Miller gave evidence that when he found the gun, showed it to Donnelly, Donnelly's reaction was one of shock and surprise. Now, that is an independent piece of evidence because it is Sergeant Miller's assessment of Donnelly's reaction to the production of this gun, and the Crown say that this shows that Donnelly didn't know that the gun was there and that Sergeant Miller provides the evidence for that proposition." (Charge, pp 20-21).

The advocate depute accepts that the Crown's reliance on the evidence about Donnelly's reaction must have been raised for the first time in the advocate depute's speech.

[18] When he came to deal with the firearms charges, the trial judge, having directed the jury on the concept of possession, said the following.

"Now, ladies and gentlemen, let's try and bring this down to what the position is in the present case. Was Fulton in possession of the sawn-off shotgun? Well, that, as I say, implies the two things, knowledge and control. Did he know that it was there and did he have control over it? If he knew it was there and if, as Donnelly's evidence suggests, it was in fact Fulton's shotgun, then you will have no difficulty in holding that he knew about it and you might have no difficulty in holding that he was in control of it because if it was his shotgun, he could do with it what he liked. It was in this cupboard and he could have gone into that cupboard at any time, taken the gun out and done with it what he wanted to do. So, ladies and gentlemen, what it again boils down to, after all these technicalities of definition and possession, what it again boils down to is do you accept Donnelly's evidence because the Crown are dependent entirely on the evidence of Donnelly in this matter.

Because there are the two of them in this house, Donnelly and Fulton, leaving aside for the moment Stewart Fulton Junior [sic], because there are the two of them there, if that was all the evidence that there was, that there was a gun in the cupboard, that there were drugs under the floorboards and that there were two people living in that house, then you couldn't in fact charge anybody with anything effectively. There is no evidence in this case to suggest that the two of them were acting together; in other words, that they were partners in some criminal enterprise for selling drugs and hanging on to a shotgun for their own protection if there was any trouble. That is a type of case which can arise, but there is no evidence to suggest it in this case.

As far as putting the matter to one of them as an individual is concerned, you would have to have had evidence to show that it was that individual who was guilty of the offence and not the other one. In this case the Crown say they can do that because they lead the evidence of Donnelly and say, 'I had nothing to do with these drugs. I had nothing to do with that gun. The only other person who was available to be put in the frame for these offences is Fulton', and that is the way the Crown approaches the case and that is why it is essential for the Crown that you have to accept Donnelly's evidence and that you have to find corroboration from the other bits and pieces, such as in this case that Fulton was in the house, that he did have access to all the relevant parts of the house and so on and, in relation to the gun, there is the evidence of Sergeant Miller that I've already referred to (ibid, pp 26-29) ...

... In relation to Charge 4, you have to be satisfied that Fulton knew of the existence and whereabouts of that shotgun and that he was in a position to exercise control over that shotgun. If you are satisfied about that, again on the evidence of Donnelly, and can find corroboration, then you could convict of that charge" (ibid, p 29).

[19] After they were secluded, the jury returned to the court and asked for "a clear definition of the term 'possession'" as it related to charge (4). The trial judge directed them on the essential elements of knowledge and control and continued as follows.

" Now, the reality of the situation in the present case, of course, is that the only evidence relating to Fulton even knowing of the gun, let alone being in possession of it, comes from Donnelly because Donnelly says it was Fulton's gun and he says that he saw it; it was in Fulton's possession. The rest of the evidence would indicate that Fulton knew nothing about the gun and that Donnelly was the owner of the gun. That was the effect of the evidence from Pollock, Connelly and I think Ferguson was the other one.

So although the definition of 'possession' may be a somewhat technical one and it may create certain difficulties in law, the reality of the situation in the present case is you would have to be satisfied on Donnelly's evidence in effect that it was Fulton's gun because, if it was Donnelly's gun, even if Fulton knew that it was in the house, then Fulton would not be in possession of it. It wasn't Fulton's house. That is where he is in a different position from Donnelly because if Donnelly knew that the gun was in the house, then Donnelly would be guilty of possession because he would be in control. He's in control of his own house. He can tell somebody to get out, he can tell somebody to take his gun with him and, if he doesn't do so, he is guilty of the offence and he is guilty of possession. Fulton is in the different position that he is just the lodger. He has, therefore, no control over what goes on in the house, apart from what goes on in his own room perhaps and, therefore, unless it was effectively his gun, then he would not be in possession of it if all that he knew was that there was a gun in the house which didn't belong to him."

It is not surprising, in the light of counsel's presentation of the issue, that the trial judge did not refer in this passage to the accessibility of the cupboard to those other persons who were regularly in the flat.

The decision of the appeal court
[20] The issue presented to the appeal court was whether the appellant or Donnelly was in possession of the shotgun. The possibility that Gary Fulton, or any other party, could have been in possession of it was not raised by either side. The appeal court did not have transcripts of any of the evidence; and it appears that, because of the way in which the appeal was presented, none of the evidence about the others who frequented the flat was brought to its attention.

[21] The central issue in the appeal was whether it was open to the jury to treat DS Miller's evidence about Donnelly's reaction to the finding of the gun as an independent adminicle pointing to the fact that Donnelly did not know that the shotgun was in the flat.

[22] The majority of the court considered that it was for the jury to decide whether DS Miller was speaking of genuine shock on the part of Donnelly and, if so, whether Donnelly was shocked because he did not know that the shotgun was in the flat rather than because the police had found the shotgun, with all the possible consequences for him of that discovery (Lord Justice General Rodger at p 853E-G). If the jury decided that DS Miller's evidence was evidence of a genuine, spontaneous reaction on Donnelly's part, they were entitled to treat it as an independent adminicle indicating that Donnelly had been unaware of the presence of the shotgun in the flat (Lord Justice General Rodger at pp 853F-G, 854C-D; Lord McCluskey at pp 854F-855A).

The issues in this Reference
[23] The Reference and the new grounds of appeal have raised numerous issues relating to the trial judge's directions, the sufficiency of the evidence, the fairness of the manner in which the Crown elicited DS Miller's evidence; and the conduct of the appellant's defence. We need not deal with all of these issues in view of two crucial concessions made by the Crown both of which, in our opinion, were correctly made.

[24] The advocate depute renewed the concession on the question of misdirection. He accepted that "insufficient directions were given to the jury on the issue of the reaction of the witness Donnelly in the circumstances of the case." We agree with that. Since the only corroboration of Donnelly's denial was to be found in one possible interpretation of his shocked reaction to the finding of the gun, the trial judge ought, in our view, to have directed the jury that other inferences could be drawn from it that were adverse to Donnelly, and therefore favourable to the appellant. He should have directed the jury that, in that situation, it was for them to decide which inference they drew, but that there would be corroboration of Donnelly's denial only if they drew the inference that Donnelly did not know that the gun was in the flat.

[25] The direction on the point was also inaccurate, in our view. Although DS Miller had spoken only of Donnelly's being "visibly shocked," the trial judge said that Donnelly's reaction was one of "shock and surprise" (Charge, p 20, supra). The word "surprise" had not been mentioned in the evidence. In our opinion, the word "surprise" pointed more strongly than the word "shock" to the inference that Donnelly did not know that the gun was in the flat. To that extent, the use of it was adverse to the case for the defence. Neither of these points was taken at the appeal.

[26] Since there was no corroboration of Donnelly's evidence other than the evidence of DS Miller, we are satisfied that the deficiency of the trial judge's directions in these respects caused a miscarriage of justice and that, on that ground alone, the appeal should be allowed.

[27] The second concession for the Crown was made at the outset of the hearing. The advocate depute conceded that "evidence excluding the witness Donnelly from responsibility for the possession of the firearm cannot of itself identify the appellant as being responsible. Since others with access to the locus, including adults, had not been excluded from such responsibility, there was an insufficiency of evidence to identify the appellant as the perpetrator."

[28] In the result, counsel for the appellant confined himself to three submissions, namely (1) that the evidence of Donnelly's reaction to the finding of the gun could not corroborate his evidence that he did not know that the gun was in the flat; (2) that even if the evidence of his reaction could corroborate his own evidence, and even if Gary Fulton's presence in the flat could properly be disregarded, there was still insufficient evidence to entitle the jury to convict the appellant; and (3) that, in any event, in view of the number of people who had access to the flat, it was not open to the jury to convict the appellant by a process of exclusion. Since this last submission in substance adopted the Crown's second concession, we invited counsel for the appellant to deal with it first. Having heard him on the point, we concluded, for the reasons that we shall give, that the second concession for the Crown was also well founded. It was therefore unnecessary for us to hear counsel for the appellant on his other submissions, the first of which raised the point on which the case had been remitted to five judges.

Conclusions
[29] We assume for the purposes of this Reference that the evidence of Donnelly's reaction to the finding of the gun was an independent source of evidence capable of the interpretation that he did not know that the gun was in the flat, and therefore capable of corroborating Donnelly's own evidence on the point. That took the Crown only part of the way. There remained the crucial question whether the exclusion of Donnelly as the possessor of the gun necessarily implied that the appellant was the possessor of it. In our opinion, it did not.

[30] There was no direct evidence, other than Donnelly's, to link the appellant with the gun. Nor, in our view, did the evidence justify the inference that the appellant, and no other, must have put the gun in the cupboard. The cupboard was unlocked and in a part of the flat that was accessible to the numerous callers to whom we have referred. Gary Fulton and the girlfriends of the appellant and Donnelly were perhaps unlikely candidates for possession of the gun; but that cannot be said of those callers who, according to the Crown evidence, were actively concerned in the drug dealing operation that was being conducted on and from the premises.

[31] We conclude therefore that the jury were not entitled to infer, from the exclusion of Donnelly alone, that the appellant must have been the person who committed the offence libelled (cf White v HM Adv, 1991 SCCR 555).

[32] For these reasons we shall quash the conviction on charge (4).