APPEAL COURT, HIGH COURT OF JUSTICIARY
|
Lord Justice General
Lord Kingarth
Lord MacLean
|
[2006]
HCJAC 80
Appeal
No: XC436/05
OPINION OF THE COURT
delivered by LORD KINGARTH
in
NOTE OF APPEAL
by
LEONARD SMITH GREENAN
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
_______
|
Act: Forbes, Advocate; Balfour & Manson
Alt: Murphy, Q.C., A.D.; Crown Agent
13 October 2006
[1] On 29
April 2005
at Kilmarnock Sheriff Court the appellant was found guilty of
the following charge:
"between 15 October 2003 and 15
January 2004, both dates inclusive, at 77 Fergushill Road, Kilwinning you
LEONARD SMITH GREENAN did produce a controlled drug, namely cannabis, a class C
drug specified in Part III of Schedule 2 to the Misuse of Drugs Act 1971, in
contravention of section 4(1) of said Act; CONTRARY to the Misuse of Drugs Act
1971, section 4(2)(a)".
He has appealed against this conviction.
[2] The case
against the appellant was that he was the owner and occupier of the premises
named in the charge. On the night of
14-15 January 2004 two police officers, apparently engaged on a search for
other purposes, discovered a well-lit room in the loft, which was warm and
humid, had walls lined with tinfoil or similar material and which was filled by
an array of plants growing in pots.
Subsequently, a more formal drugs search disclosed that there were 44
growing cannabis plants in the room, together with harvested plant material,
heaters, electrical transformers and specialist lighting systems. Also found were various personal papers made
out in the name of the appellant.
[3] The
appellant's position in evidence was that, although he was the owner and
occupier of the premises, he did not grow the cannabis in the house and did not
know that the plants were growing there.
He said that his son, Robert Greenan, and his daughter, Katriona Greenan,
were the persons involved in the production of cannabis there, unknown to him
at the time. Prior the trial, a notice
of special defence of incrimination was lodged on his behalf, naming both of
his said children.
[4] The appellant's
daughter Katriona Greenan was led as a witness for the defence. As appears from the transcript of her
evidence, she was warned at the outset by the presiding sheriff that she was
not obliged to answer any question the answer to which might tend to
incriminate her or to suggest that she was guilty of a criminal act. She indicated that she understood. Thereafter, having indicated that she
understood what her father was charged with, and having been shown certain
photographs of the scene discovered by the police in the room in the loft, she
said that her father did not grow the plants or have anything to do with the
growing of the plants or with the setting up of the room. When asked "Who was responsible for the scene
depicted in these photographs?" she replied, so far as relevant, "I was ... " and
"I was responsible for the cannabis plants which was (sic) grown in that house".
Thereafter, in evidence in chief, she answered a number of questions
designed apparently to provide some more detail of her claimed responsibility. For example she said that she grew the
cannabis herself rather than buy it off the street; that she learned how to grow it off the internet;
that she bought materials off the internet and in shops; and that she had access to the flat by a key.
[5] The witness
was cross-examined by the procurator fiscal depute at some length. It is clear from the transcript that the
nature of the questioning was designed to challenge the credibility and
reliability of the witness's claimed responsibility. In the main the witness answered freely the
questions which were put to her. At some
points, however, she declined to do so.
And at some of these points, although not all, she was directed by the
presiding sheriff that she was required to answer the questions, and having
been directed to do so, she duly did.
[6] It is plain
by their verdict that the jury did not accept her evidence as being credible
and reliable.
[7] In the
hearing before us counsel for the appellant advanced essentially two arguments
in support of the appeal.
[8] In the first
place, it was submitted that the sheriff erred in directing the witness
Katriona Greenan to answer a number of questions which she should not have been
required to answer, given her right not to incriminate herself. Although counsel referred to a number of
questions and answers in the transcript where the sheriff had directed the
witness to answer, despite the witness's apparent wish not to do so, it is
enough, for present purposes, to note that counsel accepted that all were
questions designed to elicit, and which did elicit, more apparent detail of
what she had already admitted. For
example, when asked who provided the money for all the equipment, the witness
initially said "no comment". When
directed to answer the question she indicated that the money came from savings
from benefits of £120 per week which she received. Again, by way of example, when asked where
she bought the transformers from, the witness again initially said "no
comment". When directed to answer the
question she said she bought them second-hand but that she did not "exactly
know the person". Reference was made to Dickson, The Law of Evidence in Scotland (Grierson's edition) paras. 1789-90; Walker
and Walker, The Law of Evidence in Scotland, 2nd edition, para. 12.13.2 and Macphail on Evidence at para. 18.06 -
all for certain general comment on the privilege under consideration. Reference in particular was made to Dickson at para. 1789, where it is said:
"The right of declinature extends to
examination on facts which indirectly infer guilt, or which may form links in a
chain of circumstantial evidence against the witness, as well as to the direct
question, whether he committed a specified crime".
The result, overall, counsel maintained, was that the Crown was
able to found on answers which the witness should not have been obliged to
give, all to the apparent disadvantage of the appellant.
[9] Secondly,
counsel argued that the sheriff had erred in adopting an approach to what the
witness should and should not answer, which was difficult to justify and which
was to a degree confusing. In particular
he took the line (and at one point endeavoured to explain to the witness,
outwith the presence of the jury) that she was not obliged to answer questions
which might provide further detail of her involvement, but she was required to
answer questions the answers to which
were likely to incriminate, not her, but others (for example questions
as to who provided the money). It was
not clear that answers to the latter type of question would not give further
detail of her own involvement, and indeed the answers did. Further, it was submitted, the approach of
the sheriff was not always consistently followed. As a result, it was clear that the witness
was confused to an extent which could be said to have adversely affected her
credibility and reliability in the eyes of the jury - all of which was
detrimental to the appellant's position.
[10] We deal
shortly with the second of these submissions first - a submission which, in the
event, was less strongly founded upon.
It is indeed clear from the sheriff's report that he endeavoured to
follow the approach referred to by counsel.
Although he was plainly seeking to be fair to the witness, we agree with
counsel for the appellant, for the reasons he submitted, that the distinction
which the sheriff sought to observe, between questions which should and should
not be answered, was difficult to sustain, and, in the event, it appears that
it was not, at least in some few instances, always followed. However, we are unable to say, from a study
of the whole transcript, that the sheriff's approach led to any confusion on
her part which could be said to have affected her credibility and
reliability. If there was any confusion
in her mind, it appeared to stem from advice which, she informed the sheriff,
she had had from a solicitor who had told her that she would be entitled to say
"no comment" to any questions she did not want to answer - advice which, if
given, was plainly erroneous, for reasons canvassed below. We say "if there was any confusion" advisedly,
because in re-examination, as the sheriff informs us and as is clear from the
transcript, she agreed that the way she had chosen to respond (or not as the
case may be) to questions had been "a bit piecemeal", and agreed that this was
because she was covering up for her brother Robert.
[11] As to the
first main submission, we do not agree that the witness was required to answer
any questions which she should not have been required to answer. In our view, agreeing with the advocate
depute, the witness having clearly and unequivocally accepted full
responsibility for the cultivation of the cannabis, the procurator fiscal
depute was thereafter entitled to ask the witness, and she (if directed) was bound
to answer, questions seeking to elicit (if possible) detail in respect of her
accepted responsibility. The passage
referred to in Dickson at para. 1789
does not appear to us to address this kind of situation at all. At para 1790, however, it is said, inter alia,
"The right of the witness is limited
to a declinature to answer. He cannot
resist being put on oath and asked the questions to which his privilege applies. Nor has the party against whom he is adduced
any right to interfere. It seems to be pars judicis to inform the witness of
his privilege. If he waives it, as he is
entitled to do, his evidence is competent."
In our view, in claiming full responsibility for the
cultivation of the cannabis on the premises, the witness waived her right not
to answer questions in respect of that responsibility. Looking at it another way, once she accepted
clearly and unequivocally her general responsibility in the matter, the
questions asked thereafter could not be said to be questions the answers to
which would tend to incriminate her. If
that were not so, it would be open to the defence in any trial to lead an
incriminee to claim general responsibility for a crime without the Crown being
able - at least without renunciation of the right to prosecution - effectively to
cross-examine that testimony; a
situation which, on the face of it, would offend against all notions of a fair
and balanced trial. As the advocate
depute acknowledged, the situation would be different if questions were asked
tending to suggest an involvement in a different crime or crimes, but that was
not the situation in this case. Nor is
this a case in which the witness could in any other respect be said to have
been compelled to go beyond the scope of her waiver of privilege. In the result, the approach which the sheriff
sought to adopt in the present case not only did not operate unfairly so far as
the witness was concerned, but was more favourable to her interests than it
should have been.
[12] Even if the
witness was directed to answer questions which she should not have been, we are
quite unable to see how this could found a right of appeal on the basis that
the answers to such questions were unfavourable to the appellant. The privilege against self-incrimination is
that of the witness alone. It is not a
right which the appellant, or anyone else, has any direct interest to
enforce. Indeed, it appears to be his
claim that the more the relevant answers tended to suggest that the witness
herself was not involved (which was the whole point of the
cross-examination), and thus the less the risk that her answers would be used
against her in any future prosecution, the more the appellant could seek to complain
about those answers as being damaging to his interests. That cannot be right.
[13] For these
reasons the appeal is refused.
