Scottish High Court of Justiciary Decisons

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Cite as: [2005] HCJAC 95, [2005] ScotHC HCJAC_95, 2005 SCCR 680, 2006 JC 111, 2006 GWD 12-224

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Barr v. Her Majesty's Advocate [2005] ScotHC HCJAC_95 (24 August 2005)

APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice Clerk

Lord Osborne

Lord Johnston

[2005HCJAC95]

Appeal No: XC621/03

OPINION OF THE COURT

delivered by THE LORD JUSTICE CLERK

APPEAL AGAINST CONVICTION

ANTHONY JAMES BARR (aka ANTHONY THOMAS BARR)

Appellant;

against

HER MAJESTY'S ADVOCATE

Respondent:

_______

Appellant: Shead; Franchi Finnieston, Glasgow

Respondent: KD Stewart, AD; Crown Agent

24 August 2005

The conviction

[1] On 16 April 2003 at Glasgow High Court the appellant was convicted of the following charge.

"(1) Between 16 January 2002 and 16 April 2002, both dates inclusive, at 98 Drakemire Drive, Castlemilk, Glasgow and elsewhere in Glasgow you were concerned in the supplying of a controlled drug, namely cocaine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others in contravention of section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, section 4(3)(b)."

The evidence
[2] On 16 April 2002 the police stopped the appellant's car. They found certain drug-related items and quantities of cannabis resin and herbal cannabis. They then searched the appellant's house. They found powder that could have been used as a cutting agent and three sets of electronic scales. In a jacket in the hallway they found two bags of cocaine. The quantities in these bags were not recognised sale quantities.

[3] The appellant pled guilty to two charges relating to the cannabis; but on the first charge (supra) he lodged a special defence of incrimination naming his nephew and someone known to him as Danny, and went to trial.

[4] One of the main evidential issues related to the jacket. The appellant said that about a week before the police search, his nephew and Danny had come to his house. He found that Danny had been smoking drugs in the toilet. He then "kicked them out." He said that when the police searched the house, they found drugs in the jacket. He told them that the drugs were his nephew's. He thought that the drugs were heroin.

[5] These were the relevant passages in his evidence in chief.

" Was Danny in the toilet on his own? - Uh-huh, he was in the toilet smoking.

Was he on his own? - Aye. Yes, I think so. I am not too sure to be ... you know ... (inaudible) ... when I seen him and I seen all the smoke, right, I thought they were taking, smoking, you know, herbal, you know, because that is ... (inaudible). I know that is what, you know, I thought they took and I am totally against that kind of, you know, any kind of drugs like that, you know, and I kicked them out of my house. A scuffle started. I couldn't tell you exactly who was there and who wasn't, know ...

... Did these drugs retrieved from that pocket in that jacket have anything to do with you? - No.

Had you put them there? - No.

Was it your jacket? No.

Did you have knowledge that they were there? - No.

Were you secreting them there? - No. I am totally against, you know ... (inaudible) ... any drugs like that, know. (Inaudible) ... drug."

The trial judge's note of this last answer is "No, I'm totally against any drugs of that kind."

[6] At the conclusion of the evidence in chief, the advocate depute moved in terms of section 266(5) of the Criminal Procedure (Scotland) Act 1995 for leave to put to the appellant that he had a previous conviction for a contravention of the Misuse of Drugs Act 1971. He relied on the fact that the appellant had said that he had thrown his nephew and Danny out of the house for using drugs and had claimed that he was totally against any drugs of that kind. In this way, he had given evidence as to his own good character.

[7] The solicitor advocate for the appellant submitted inter alia that the appellant's statement was qualified. He said that he was totally against any drugs "of that kind." In the circumstances, leave to refer to the conviction should be refused.

[8] The trial judge concluded that the appellant's evidence was capable of being interpreted as being evidence of his own good character and therefore that the Crown motion was well-founded. She then said:

"It remains a matter in my discretion of course and given that the cross-examination which the advocate depute seeks to advance is limited to the issue of contraventions of the Misuse of Drugs Act, I propose to allow the matter."

[9] In the course of cross-examination, there were the following exchanges.

" And you say you threw them out as a result of all that? - Yes.

And you went on to say that you are against drugs, is that right? - Yes, know, I thought he was taking heroin in my house and I am against heroin.

You are against heroin? - Yes.

Previously you said you were against drugs? - Yes, know, I'm against certain drugs and I am definitely against that.

So you are saying you are against certain drugs? - Yes.

But not against all drugs? - Not all drugs. Know, I have took a bit of cannabis here and there.

You take a bit of cannabis here and there? - I have, know" ...

" ... And you said earlier that you were against drugs? - Aye, against heroin and things like that, know.

Well, is that strictly true, Mr. Barr? - Well, I am not against cannabis and things, no.

Because you have a conviction under the Misuse of Drugs Act 1971? - Yes.

Do you not, and you went to prison, you were sentenced to 18 months in prison under section 5(3) of that Act? - Uh-huh.

Didn't you? You did go to prison? - Yes.

So it is not true that you are against drugs, is it? - Yes, it is. I had a heart attack with drugs five years ago.

BY THE COURT: What was that? - I had a heart attack with, know, taking speed and 'eggs', know."

[10] The trial judge expressly directed the jury that the evidence as to the appellant's previous conviction was available to them for the limited use of assessing the appellant's credibility and was not relevant to the proof of the charge.

[11] It is agreed that there was no direct evidence of the appellant's having been concerned in the supplying of cocaine on any date earlier than 16 April 2002. The advocate depute informed us that the latitude of three months leading up to that date was taken "at the pleader's discretion" on the basis that it could reasonably be inferred, from the evidence of the search, that the appellant had been concerned in the supply of cocaine during that period.

The issues
[12] There are two issues in this appeal: (1) whether the trial judge was right in allowing the appellant's previous conviction to be disclosed to the jury; and (2) whether there was sufficient evidence to entitle the jury to convict in relation to the whole period libelled.

Section 266
[13] Counsel for the appellant submitted that even if the preconditions of section 266 were met, the trial judge retained an overriding discretion whether or not to allow the question to be put. In the exercise of that discretion, the fundamental consideration was that of fairness (Leggate v HM Adv, 1988 SCCR 391). In evidence in chief, the appellant did not say that he had had nothing to do with drugs. He merely said that he was opposed to heroin. But in cross-examination it became clear that while he was saying that he was against heroin, he was not saying that he had never had any connection with drugs. In the circumstances, section 266 did not apply. In any event, if the trial judge was entitled to rule in favour of the Crown when the matter was raised, she had a continuing duty to consider the fairness of the proposal. In the light of the appellant's answers in cross-examination, she should have directed that the question should not be put. The trial judge had given undue prominence to the appellant's previous conviction by returning to the subject in her charge.

[14] The advocate depute submitted that by putting his attitude to drugs in issue and by distancing himself from hard drugs, the appellant had invited a response from the Crown under section 266. There was no reason why the Crown should have to accept the truth of the modified version of his attitude that he described in cross-examination. The section implied that if the accused gave evidence of his good character, the Crown was entitled to respond. The trial judge exercised her discretion properly by allowing the Crown motion, but restricting it to the question of the appellant's previous conviction under the 1971 Act. Her directions on the subject were not faulted in any way. If she had said nothing about it, the jury might have regarded that evidence as evidence in proof of the offence.

Sufficiency of proof of the period libelled
[15] Counsel for the appellant submitted that, since there was no evidence of the appellant's being in possession of cocaine and drugs paraphernalia any earlier than the date of the police search, there was insufficient evidence to entitle the jury to convict him on charge (1) in respect of the entire period libelled.

[16] The advocate depute said that as to latitude the jury were best placed to decide over what period the crime libelled had been committed. The starting date of 16 January 2002 had no particular significance. It was merely the start of the three months latitude that the Crown had chosen to take. It was for the jury to decide for how long before the search the appellant had been concerned in the supply of the cocaine (Santini v HM Adv, 2000 SCCR 726; White v HM Adv, 1991 SCCR 555).

Conclusions

(a) The application of section 266
[17] In our opinion, the answers of the appellant in evidence in chief that we have quoted constituted the giving of evidence of his own good character. The decision of the trial judge to that effect was therefore correct. But the trial judge nevertheless had a discretion whether or not to allow the question. We are not satisfied that she exercised it correctly. It is not clear to us on what basis she decided at that stage to allow the question, particularly since she was not told any details of the conviction to which the advocate depute proposed to refer.

[18] Moreover, in our opinion, the trial judge had a continuing duty to consider the fairness of the Crown's proposal in the light of the evidence as it subsequently unfolded. We consider that by the point in cross-examination at which the issue again arose the appellant had considerably modified his position, to the extent that he was merely expressing his opposition to heroin while accepting that he had been involved in the use of cannabis. In the light of that evidence, we consider that reference to the appellant's previous conviction was a disproportionate response to what the appellant had said. In our view, the trial judge should have ruled at that stage that the conviction should not be referred to. Furthermore, in referring to the appellant's conviction, the advocate depute did not specify the nature of the conviction or the drug or drugs to which it related. It was therefore open to the jury to speculate as to how serious the offence had been and to what drugs it related. The possibility of such speculation, in our view, should not have been left open to them.

[19] For these reasons, we consider that the allowance of the advocate depute's damaging question deprived the appellant of a fair trial.

[20] We do not accept the submission that the trial judge erred in referring to the matter of the previous conviction in her charge to the jury. In our view she could not possibly have failed to refer to the matter lest the jury might rely on that evidence as an adminicle of proof of the offence libelled. In our opinion, the trial judge's directions on the point were clear and accurate. They cannot be faulted.

(b) Proof of the period libelled
[21] We are further of the view that there was insufficient evidence to entitle the jury to convict the appellant in relation to any period of time other than the date on which the police search was carried out. Santini v HM Adv (supra), on which the advocate depute relied, is materially distinguishable from this case, because in Santini there was ample evidence that the appellant had been involved in the supply of heroin over the period that was libelled.

[22] In a case such as Santini, it is always open to the jury to convict on a restricted latitude if, for example, they do not accept evidence relating to the appellant's involvement during any particular part of the period libelled. But in our view the Crown is not entitled, on the basis of evidence of the accused's involvement in the supply of drugs on a specific date, to libel an arbitrary period leading up to that date and to invite the jury to infer that if on that date the accused was concerned in the supply of the drug libelled, he must have been concerned in the supply of it during the earlier period. Furthermore, we know of no yardstick by which the appropriateness of such a period could be judged. If the preceding three months was an appropriate period, why not six months, or for that matter six years? Since it is admitted that there is no evidence that on any earlier date the appellant was in possession of cocaine or of any of the paraphernalia found on 16 April 2002, we consider that the jury were entitled to convict him in relation to that date only. In our opinion, the trial judge should have directed the jury to that effect.

Disposal
[23] We shall allow the appeal and quash the conviction.