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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General
Lord Nimmo Smith
Lady Paton
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[2008] HCJAC 7
Appeal No: XC13/04
OPINION OF THE COURT
delivered by LADY PATON
in
APPEAL AGAINST CONVICTION
by
MURDO SMITH
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Shead, M.C. MacKenzie; McClure Collins (Appellant)
Alt: Bain, Q.C., A.D.; Crown Agent
7 February 2008
Introduction
[1] The appellant
is an off-shore worker in his fifties.
He has no previous convictions.
In early 2002 his home was searched.
Bank-notes totalling £81,300 were found secreted in a hidden safe, a
briefcase, and a carrier bag in a cupboard in the main bedroom. When the bank-notes were subjected to
sophisticated scientific examination, they were shown to be heavily
contaminated with heroin. No other
illegal drugs, traces of such drugs, tick-lists, or paraphernalia normally associated
with drug-dealing were found in the appellant's home. No surveillance of the appellant's activities
had taken place.
[2] The appellant
was subsequently charged with being concerned in the supplying of heroin
contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. At his trial, at the close of the Crown case,
defence counsel submitted that there was no case to answer in terms of section
97 of the Criminal Procedure (Scotland) Act 1995. That submission was rejected. The appellant then gave evidence. He admitted that the bank-notes were his, but
denied any involvement in drug-dealing.
[3] The appellant
was ultimately convicted by majority verdict, and sentenced to five years
imprisonment. He appealed against
conviction and sentence, and was granted interim liberation. Extensive defence preparations for the appeal
then began, and took some time to complete.
The appellant's advisers were ultimately in a position to present the
appeal in 2007.
The trial judge's report
[4] The trial
judge gave the following details in his report:
" The
appellant is an off-shore worker. A lady
friend held a key for the house. She
would occasionally allow workmen access to carry out work there. Her son's partner would occasionally do that
for her. Both gave undisputed evidence
that the appellant lived alone at 481 North Anderson Drive, Aberdeen.
In
the course of February, while the appellant was working off-shore, Transco
staff forced entry to the house because a smell of gas had been detected and
reported by a plumber working there.
Thereafter the outside door had been secured by a padlock, the key for
which was held at Bucksburn Police Office.
On 28 February 2002 a plumber and joiner, whom the
appellant had instructed to carry out certain work in his kitchen, collected
the key from the police office and gained access to the house. Later that morning, while the plumber was
working in the house alone, officers of Grampian Police Drug Squad arrived with
a warrant to search the house. The drug
squad officers were assisted in their search by two specially trained search
officers. In the course of that initial
search they found two substantial quantities of cash. The first was just under £70,000, which was
in a locked safe concealed behind a chest of drawers forming part of a unit in
the main bedroom. The safe was concealed
within a small cupboard which had apparently been created there to contain the
safe. It was fronted by a panel of
chipboard. To gain access to the safe,
it was necessary to remove the drawers from the unit and the drawer runners
from one side of the unit and then to unscrew the chipboard panel. The second quantity of cash amounted to
£4,000, which was contained in a plastic bag within a locked leather briefcase
on the upper shelf of the same unit.
Having recovered these sums the officers left the premises. Later that evening they returned to carry out
a further search in the same bedroom.
This time they found over £7,000 concealed within a carrier bag behind
the kick-plate at the base of the wardrobe.
To gain access to the £7,000 it was necessary to unscrew the
kick-plate. All three sums of money were
in bundles. There were fifty in the
safe, four in the briefcase and seven in the bag under the wardrobe. The officers were wearing latex gloves
throughout both searches. The evidence
indicated that the money was carefully handled throughout the search and
recovery process.
When
the appellant returned on-shore on 1 March, he was met by police officers at Aberdeen airport and detained. In his possession were three receipts for
deposits which he had made into an account in his name with Lloyds TSB
Bank. Each of the receipts was for
£4,000. Two were for deposits made on 21
and 24 January 2002.
Following his detention, the appellant was interviewed. In a trial within a trial, I sustained the
appellant's objection that the interview had been conducted unfairly and ruled
it inadmissible.
On
6 March the money was delivered to Mass Spec Analytical Limited for examination
for possible traces of controlled drugs.
Before it was taken to the laboratory, each of the three quantities of
money was separately packaged as dictated by the company. The top note from each bundle was separated
from the others for fingerprint analysis.
There was no evidence of the result of that analysis. A proportion of the remainder of the notes
was analysed for the presence of various controlled drugs.
Evidence
about that analysis was given by two forensic scientists employed by Mass Spec
Analytical Limited, namely Neil Ciaran Ronan, BSc (Hons) MSc GrandInstP and
Matthew James Hickson BSc (Hons) MSc.
The evidence of the latter was confined to confirming that the report
which he had compiled jointly with Neil Ronan was an accurate report of his
findings. The terms of the report were
spoken to in detail by Ronan. The report
recorded that a representative proportion of the bank notes was examined which
was sufficient in the opinion of both forensic scientists to establish the
nature of any illicit drug contamination and the proportion of contaminated
bank notes. That representative
proportion consisted of 798 notes from the safe, 89 from the briefcase and 155
from the bag under the wardrobe. In
relation to each of the three quantities of notes the principal conclusion set
out in the report was that the amount and frequency of diamorphine
contamination was very much greater than that typically found on bank notes
from general circulation. It was
explained that it was common for bank notes to be contaminated with cocaine, because
it is a very stable drug and bank notes are used to snort cocaine. It was unusual to find diamorphine
contamination, because heroin degrades much more quickly and bank notes are not
generally used in the abuse of diamorphine.
One might expect anything from zero to three percent of bank notes in
general circulation to show signs of diamorphine contamination. Ronan had never seen any more than five
percent contamination in any sample in 7 years of experience of carrying out
this work. In contrast to that, in the
region of 95% of the notes examined on this occasion were contaminated with
diamorphine, and the quantities on each note, while invisible to the naked eye,
were quite large. These findings were
very significantly different from what Ronan would expect in any analysis of
bank notes in the United Kingdom.
The witness had previously analysed only three quantities of cash
recovered in Scotland, two from Edinburgh and one from Paisley.
He had much more experience of examining money recovered in England.
He had not done any previous studies in relation to money from the north
east of Scotland.
However, he had never experienced any localised variations. He also did not consider that the high use of
diamorphine in the area where the notes were recovered could possibly explain
the level and extent of contamination."
Submissions for the appellant
[5] The appellant
has several grounds of appeal, relating to sufficiency of evidence; directions given by the trial judge; and an argument in terms of section 106(3)(b)
of the Criminal Procedure (Scotland) Act 1995 that no reasonable jury properly
directed could have returned the verdict they did. The appellant intends to seek leave to add a
fourth ground of appeal, concerning fresh evidence.
[6] Only the
first ground of appeal was argued at this stage, namely Ground of Appeal A,
which is in the following terms:
"A. INSUFFICIENT
EVIDENCE:
1. This
was an entirely circumstantial case.
There was it is submitted
insufficient evidence to entitle the
jury to convict. It is submitted that
the circumstances relied upon by the Crown were too remote, ambiguous and
insufficiently incriminatory to form a sufficiency.
2. At
the conclusion of the Crown case, a submission was made in terms
of section 97 of the Criminal
Procedure (Scotland) Act 1995, ("the Act"). It was submitted that there had been
insufficient evidence led by the Crown to establish ... the facta probanda of the statutory crime of being concerned in the
supplying of controlled drugs; viz
that the Appellant was knowingly concerned in the supplying of controlled
drugs. Reference is made to the case of Salmon and Moore v HMA 1999 JC 67.
In the absence of actual supply of a
controlled drug by an individual there must be an identifiable act of
participation, established by sufficiently relevant corroborative
evidence. The Crown led evidence from
two skilled witnesses in relation to their examination of Crown Labels 12, 13
and 14. Said labels were a quantity of
money recovered from the Appellant's home.
Whilst the skilled witnesses confirmed that there were trace amounts
(measured in nanograms) of diamorphine on the Crown Labels, what the skilled
witnesses could not say was when or how the said labels came to be
contaminated. The skilled witnesses furthermore
made various concessions in relation to the scientific empirical databases
against which their conclusions were drawn.
The Crown did not cite or call any
officers from the drugs squad to give evidence.
There was no positive evidence led before the jury as an explanation as
to the potential manner in which contamination could arise. No drug related paraphernalia or drugs were
recovered from the Appellant's possession;
nor was any lifestyle evidence led indicative of an individual being
involved in drugs. Accordingly there was
a hiatus in the Crown case.
In the foregoing circumstances there
was no evidential foundation before the jury against which they could apply the
evidence of the skilled witnesses. It
was left for them to speculate as to the possible reasons why the Crown labels
were contaminated. The mere possession
of money was insufficient in law to establish that the Appellant was knowingly
concerned in the supplying of drugs.
It is submitted that in the foregoing
circumstances ... the learned Judge erred in law in repelling a submission made
in terms of section 97 of the Act."
[7] Counsel for
the appellant accepted that the discovery of such an amount of money gave rise
to suspicions of some sort of criminality.
But it did not indicate the kind of criminality, nor did it prove the
charge of being concerned in the supplying of heroin. The Crown case was a circumstantial one. The evidence of the Crown expert Mr. Ronan
did not assist in proving mens rea, for
there was no evidence that the appellant knew that there was heroin on the
bank-notes. The Crown could have led the
evidence of a drugs expert to assist the jury when assessing the significance
of the heroin on the bank-notes; but no
such evidence was led. Even applying the
guidance given in Al Megrahi v H M
Advocate 2002 JC 99, 2002 SCCR 509, paragraphs [31] to [36], there
was insufficient evidence to prove the crime charged. The necessary conjunction and coherence of
testimony had not been achieved. The
reasoning of the court in Salmon v H M
Advocate 1999 J.C. 67, 1998 S.C.C.R. 740, at pages 754 to 757, might be of
some assistance. One could not be
concerned in the supplying of a controlled drug if one was not aware of being
involved in the supplying of something.
No drugs had been found in the present case. Small particles of heroin on bank-notes did
not give rise to an inference of being concerned in the supplying of
heroin. Drawing an analogy with Lord Justice
General Rodger's reasoning in Salmon in
relation to section 5(3), it could be argued that the "container" was the
bank-note, but that it had not been proved that the appellant knew that there
was anything in the container.
[8] The amount of
heroin in the present case was tiny: cf.
the flakes of cannabis in Tudhope v McKee
1987 S.C.C.R. 663. While the circumstances
in which the money had been found raised the taint of illegitimacy, the money
could have emanated from money-laundering, armed robbery, prostitution, or
illegal gambling, and not necessarily from the supplying of heroin. While therefore Mr. Ronan's evidence was
superficially attractive, it did not cast light on the appellant's state of
knowledge. The circumstances of the
present case were very different from those in Maguire v H M Advocate 2003 S.C.C.R. 758, where DNA was found on a
piece of clothing used in the crime.
Reference was made to paragraphs [4] to [5], [12] to [15], and [18] to
[20] of Maguire. By contrast, in the present case the primary
question was whether there had been a crime at all (and, in addition, whether
the appellant had committed it). There
was no evidence establishing how or when the bank-notes had been
contaminated. No evidence had been led
from a drugs expert explaining how money might come to have traces of drugs on
it. Ultimately, the Crown had not met
the requirements of proof as set out in Salmon
in relation to either the actus reus or mens rea. There were very
few external circumstances of any significance pointing to the fact that the
heroin contamination was related to an operation the object of which was the
supplying of heroin. The evidence led
gave too limited and indistinct a picture.
[9] Counsel
invited the court to conclude that there was no proper basis for inferring the
necessary mens rea. That element had to be proved from
corroborated evidence. Mr. Ronan had
conceded that the heroin involved was in tiny quantities, invisible to the eye,
a concession which tended to point away from the inference of knowledge on the
part of the appellant. The real question
in the case was ultimately one of knowledge (a requirement emphasised by Lord
Bonomy in the case of Salmon, cit. sup.) What was missing was proof of the nature of
the operation; the part which the
appellant was said to have played in it;
and whether the appellant was knowingly involved in an operation. There was insufficient evidence. The defence submission of no case to answer
in terms of section 97 should have been sustained.
Submissions for the Crown
[10] The Advocate
Depute referred to the outline of evidence given in the trial judge's report. The Crown's position was that the case was a
circumstantial one. Reference was made
to Al Megrahi, cit. sup., paragraphs
[31] to [36]. It was necessary to look
at the evidence as a whole. It was
possible that there might be more than one interpretation of the evidence.
[11] In the present
case, there were several sources of evidence.
(i) The evidence that the appellant lived alone at the address of the
search. (ii) The evidence that a large
amount of money had been recovered at that address. (iii) The evidence that the money had been
secreted in three different locations.
(iv) The evidence about the method of secretion. The person hiding the money had gone to significant
lengths to hide it. (v) The appellant,
when stopped by the police, had in his possession bank receipts dated 21 and 24
January 2002
showing that he had deposited £8,000 in an account in his own name with Lloyds
TSB bank. On another date, he had
deposited £4,000. The appellant
therefore had and used a bank account.
(vi) The bank-notes found in each secret location were heavily
contaminated with heroin. Many notes
were contaminated, and those that were contaminated were heavily
contaminated. (vii) The level of heroin contamination was very
much greater than that typically found in currency circulating in the United Kingdom.
95% of the notes examined were contaminated with heroin, which was the
highest level encountered by Mr. Ronan in his seven years experience.
[12] The Advocate
Depute submitted that, taking all those factors into account, there was a
sufficiency of evidence. The court could
draw the necessary inferences that the appellant was concerned in the illegal
supplying of diamorphine. In particular,
the following inferences could be drawn:
The money in the appellant's house had been placed there by the
appellant. He had gone to significant
lengths to hide the money from other people.
He had no reason to hide legitimate money, as he had a bank account in
his own name. The money therefore came
from an illegitimate source. A further
inference could be drawn, namely that the appellant knew that the money had
been obtained by illegitimate means.
From the other evidence led, it was open to the jury to infer that cash
can be obtained through the sale of drugs, and cash obtained through the sale
of drugs is illegitimate money. Drugs
such as heroin are packaged and sold for cash.
During that process, cash could become contaminated with heroin, either
through handling both the drugs and the money, or through some other
process. When considering the process of
the supplying of drugs, it was open to the jury to infer that any money
involved could be contaminated by the drugs involved in the transaction. Reference was made to pages 26 and 27 of the
transcript of Mr. Ronan's evidence. It
was an obvious inference that cash involved in the process of supplying an
illegal drug could become contaminated with that drug, for example, during the
handling of the drugs and the money, or if drugs were cut up, money might be
laid down on the area where the drugs were cut.
The money from each of the three secret locations was heavily
contaminated with heroin, and it was reasonable to infer that the illegitimate
means by which the money had been made related to the drugs trade.
[13] A further
inference which could be drawn was that the appellant knew that the money was
the product of the drugs trade. That
inference could be drawn from all the evidence, including evidence about the
amount of money; the diligent efforts
made to hide the money; and the
unusually heavy level of heroin contamination of the notes described by the
experts. A jury would be entitled on the
evidence to conclude that the appellant knew that the money related to drugs,
and that he was concerned in the illegal supplying of the drug heroin. Reference was made to Salmon v HM Advocate 1999 J.C. 67, 1998 S.C.C.R. 740, at page
756E-F. It was accepted that
circumstantial evidence could be open to more than one interpretation: for example, illegitimate money could have
its source in an armed robbery. However
the heroin contamination entitled a jury to conclude that the illegitimate
operation in which the appellant was involved was the supplying of illegal
drugs. The evidence had to be considered
in a two-stage process: first, it was
for the judge to assess the sufficiency of the evidence, and then it was for
the jury to decide whether they were satisfied of the appellant's guilt to the
standard beyond reasonable doubt. The
Crown therefore accepted that the hidden money could give rise to an inference
that the source of the money was some illegal operation other than drugs, but
the heroin contamination permitted the inference that the operation was the
illegal supplying of drugs and that the appellant knew that he was concerned in
the supplying of drugs. Illegal drugs
such as heroin were packaged and sold for money, and during that process the
money could become contaminated with the drug.
The evidence was open to other possible interpretations, but the
guidance in Al Megrahi v HM Advocate, cit. sup., allowed the jury to draw the inference they did. The jury did not have to define the
appellant's precise role. It was open to
the jury to infer that the appellant was a banker or a collector in the
operation for the supplying of heroin.
As was made clear in Kerr v HM
Advocate 1986 J.C. 41, 1986 S.C.C.R. 81, at page 87, being concerned in the
supplying of drugs included all sorts of activities at the centre and at the
fringes of drug-dealing. A financier, or
someone holding the proceeds of sale of illegal drugs, was involved in the
supplying of drugs: cf. Douglas v Boyd 1996 J.C. 10, at page 12.
[14] The defence
relied upon Salmon v HM Advocate, cit.
sup., and the dicta of Lord
Bonomy at pages 772 to 773. But in the
present case, one could infer the appellant's knowledge of being concerned in
the supplying of drugs from the forensic evidence, the quantity of money
involved, and the manner in which it was hidden. The Crown had accordingly led sufficient
circumstantial evidence. The trial judge was correct to repel the defence
submission in terms of section 97.
Discussion
[15] As Lord
Justice General Rodger explained in Fox v
HM Advocate 1998 J.C. 94, 1998 S.C.C.R. 115 at page 126F:
"[I]t is of the very nature of circumstantial
evidence that it may be open to more than one interpretation and that it is
precisely the role of the jury to decide which interpretation to adopt."
That case concerned circumstantial evidence supporting or
confirming direct eye-witness evidence.
But the Appeal
Court cited the
passage with approval in the context of wholly circumstantial evidence: Al
Megrahi v HM Advocate, cit. sup., at paragraph [34]. Thus where the Crown, as in the present case,
relies upon wholly circumstantial evidence, that evidence may be open to more
than one interpretation, and it is for the jury, viewing the circumstantial
evidence as a whole, to decide what inference to draw. It is not necessary that each piece of
circumstantial evidence is incriminating in itself, but rather that the pieces
of evidence, when looked at as a whole, give rise to an inference of
guilt: cf. Al Megrahi, cit. sup., at paragraphs [31] to [36].
[16] Accordingly
we accept the Advocate Depute's approach, namely that circumstantial evidence may
give rise to a number of inferences, but if at least one inference is
indicative of guilt of the crime charged, then there is a case to answer which
should go to the jury.
[17] In the
present case, the crime charged is being concerned in the supplying of heroin
contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. Proof of that crime requires corroborated
evidence (a) that the accused knew that he was playing some part in an
enterprise which had as its objective the supplying of a material or substance
to another or others; and (b) that the
material or substance was in fact the controlled drug heroin: cf. Salmon
v HM Advocate, cit. sup. It is a
defence if the accused, on the evidence, although knowing that he was involved
in some sort of enterprise the objective of which was the supplying of a
material or substance to another or others, nevertheless did not know what was
being supplied, or did not know or suspect, or have reason to suspect, that the
material or substance being supplied was a controlled drug: section 28 of the Misuse of Drugs Act 1971; Henvey
v HM Advocate 2005 SCCR 282. By
contrast, it is no defence if the accused thought that he was involved in the
supplying of one type of controlled drug, such as temazepam, and it eventually
transpired that the drug in question was another type of controlled drug, such
as ecstasy: section 28(3)(a) of the 1971
Act and the observations of Lord Justice General Rodger in Salmon.
[18] Further, it
is well settled that many functions and roles may qualify as "being concerned
in the supplying" of a controlled drug.
As Lord Hunter observed in Kerr v
HM Advocate, at page 87:
"... section 4(3)(b) was purposely enacted
in the widest terms and was intended to cover a great variety of activities
both at the centre and also on the fringes of dealing in controlled drugs. It would, for example, in appropriate
circumstances include the activities of financiers, couriers and other
go-betweens, lookouts, advertisers, agents and many links in the chain of distribution
..."
Thus knowingly acting as a custodier of, or a banker for,
money used in heroin-dealing activities will amount to being concerned in the
supplying of heroin.
[19] Against that
background, if it were possible in the present case to draw the inference from
the circumstantial evidence that the appellant knew that the bank-notes which
he had secreted in his home were the product of, or associated with or used for
the purposes of, an enterprise which had as its objective the supplying of a
material or substance (ultimately proved by the Crown to be heroin) to another
or others, there would in our view be sufficient corroborated evidence in law to
have allowed the case to go to the jury.
It would not matter that competing inferences could be drawn, suggestive
of innocence or of involvement in crimes other than that charged. It would be the jury's function to decide
what interpretation of the evidence to adopt, and whether they were satisfied
beyond reasonable doubt of the appellant's guilt of the crime charged.
[20] Accordingly
we turn to examine the circumstantial evidence led by the Crown, and the
inferences which might properly be drawn from that evidence.
[21] The Advocate
Depute was, in our view, correct in her submission that the amount of money
found, and the way in which it was hidden, together with the evidence relating
to the appellant's use of a bank account in his own name, was ample
circumstantial evidence from which the jury would be entitled to infer that the
money thus secreted had come from an illegitimate source, and that the
appellant was well aware of that fact.
[22] We have more
difficulty, however, with the next stage, namely the drawing of an inference
that the appellant knew that the bank-notes secreted were the product of, or associated
with or used for the purposes of, an enterprise the objective of which was the
supplying of a material or substance to another or others.
[23] Having
carefully considered the evidence led by the Crown, it is our view that there
was no evidence from which such an inference could properly be drawn. As noted in paragraphs [1] and [4] above,
apart from the heroin contamination on the bank-notes, no illegal drugs, traces
of illegal drugs, tick-lists, or paraphernalia normally associated with illegal
drugs were found in the appellant's home.
That should be contrasted with the circumstances in Salmon, where a search of the accused's home revealed not only a
significant sum of money in cash, but also other items indicative of
participation in a supplying enterprise - and moreover, in that particular
case, participation in a drugs-supplying enterprise. For in Salmon,
not only was a significant sum of money in cash found in the accused's
home, but also other items indicative of participation in such an enterprise,
namely bags in which drugs might be packaged, bulking-out or cutting agents,
and books on the subject of drugs.
[24] Quite apart
from what was found in the appellant's home, there was in the present case no
evidence indicating participation in a supplying enterprise either from
surveillance witnesses or from interviewing police officers (the trial judge
having ruled the appellant's police interview inadmissible: see paragraph [4] above). Nor was there any evidence to suggest that
the bank-notes themselves, by their physical appearance or feel or odour or
some other feature, would have alerted someone such as the appellant to the
fact that they were contaminated with something which made it clear that they
were the product of, or associated with or being used for the purposes of, an
enterprise the objective of which was the supplying of some material or
substance to another or others (rather than, for example, an enterprise the
objective of which was the theft of money from, or the defrauding of, or the
provision of illegal services to, another or others).
[25] Thus
assuming for present purposes that the evidence of the forensic scientists Mr.
Ronan and Mr. Hickson was sufficient, without further evidence from a drugs
expert, to establish that the bank-notes had been in close proximity to heroin
in the course of illegal drug-dealing activities, there was in our view a lack
of evidence from which the inference could be drawn of the appellant's
knowledge that he was in some way a participant in an enterprise which had as its objective the supplying of
some material or substance to another or others. It follows that any inferences which
could properly be drawn from the circumstantial evidence did not, in our
opinion, extend to an inference of knowledge on the part of the appellant
sufficient to establish the mens rea and
actus reus of the crime charged, as explained and defined in Kerr and Salmon, cit. sup. That being
the case, there may, on the circumstantial evidence, have been several
inferences open to the jury, but those inferences did not, on the evidence led
at the trial, include an inference pointing to guilt of the crime charged.
[26] Accordingly
we have reached the view that the defence submission in terms of section 97 of
the Criminal Procedure (Scotland) Act 1995 should have been sustained, and the appellant
acquitted.
Decision
[27] For the
reasons given above, we shall sustain Ground of Appeal A, allow the appeal, and
quash the conviction.
