APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Smith Lord Abernethy	[2010] HCJAC 129 Appeal No: XC191/10 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by WILLIAM STUART THOMSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: C M Mitchell, Advocate; Capital Defence

Respondent: G Mitchell QC, Advocate depute; Crown Agent

23 December 2010

Introduction

[1] On 26 January 2010 the appellant was convicted after trial at Hamilton Sheriff Court of the following offences:

"(1) On 25 October 2006 at [various locations including] Roundknowe Road, Glasgow ... you ... having received criminal property, namely a quantity of money amounting in cumulo to £120,000 or thereby, did conceal and transfer said criminal property; contrary to the Proceeds of Crime Act 2002, section 327(1)(a) and (d);

(2) On 25 October 2006 at [various locations including] Roundknowe Road, Glasgow ... you ... did acquire and possess criminal property, namely a quantity of money amounting in cumulo to £120,000 or thereby; contrary to the Proceeds of Crime Act 2002, section 329(1)(a) and (c)."

[2] The events in Charge 2 occurred chronologically prior to the events in Charge 1.

[3] The appellant appeals against conviction on three grounds: first, insufficiency of evidence; secondly, misdirection in relation to circumstantial evidence; and thirdly, misdirection in relation to the lack of any explanation from the appellant.

The evidence

[4] The following are excerpts from the evidence as summarised by the sheriff in his report:

"An authorisation for directed surveillance under the Regulation of Investigatory Powers (Scotland) Act 2000 granting authorisation for directed surveillance in pursuance of operation "ACRID" in respect of the Appellant was granted on 12^th September 2006...

On 25^th October 2006 a number of officers of Strathclyde Police in their surveillance team were taking observations on the Appellant...A summary of the evidence led about the observations which were made by the surveillance officers is as follows:-...

16:01 hours Witness DS Wallace saw a white transit van driven by the Appellant, whom he identified, stop outside Angels Public House in Main Street, Uddingston. At this stage there was no one else in the van. The Appellant left the van and entered the front passenger seat of a silver Vauxhall Zafira Taxi driven by another male. The taxi left, performing a u-turn, followed by [a blue] Peugeot, both now heading west. The white transit van was left unattended.

16:06 hours Witness Detective Sergeant Wallace observed both the Zafira Taxi and the Peugeot enter the car park of the Mail Coach Public House in Hamilton Road. The Zafira Taxi entered first followed by the Peugeot. DS Wallace instructed that surveillance continue on the Peugeot motor car...

16:19 hours Witness DC Hendry saw the Peugeot motor vehicle entering Roundknowe Road, Glasgow proceeding towards a golf course. This was a very quiet country road. There was no traffic on it.

16.20 hours Witness DC Hendry saw the Peugeot motor vehicle performing a u-turn and park behind a white van. One of the occupants of the Peugeot came out of the vehicle with a dog.

16.21 hours Witness DC Hendry saw the Zafira Taxi come along Roundknowe Road travelling towards the golf course. It performed a u-turn. There was an unidentified rear seat passenger who had a dark black or blue sports bag on his lap.

16.22 hours Witness DS Weir saw the Zafira Taxi stopping behind the Peugeot in Roundknowe Road. The Appellant, whom he identified, came out of the rear of the taxi carrying a dark coloured holdall. The Appellant walked up to the Peugeot, and handed the bag over to the driver who was sitting in the driver's seat, by passing it through the opened window of the vehicle. The Appellant turned round and walked back to the taxi which then performed a three point turn and headed off in the direction it had come. The only persons in the taxi were the driver, and the Appellant in the rear."

[5] What happened next was agreed by parties in a joint minute as follows:

"(1) At 16.25 hours on 25^th October 2006, the Peugeot was stopped by police officers on the M74 southbound just prior to the Bothwell Services. It had in it two occupants, one female front seat passenger and a male driver. Both were detained.

(2) The vehicle and driver were conveyed to Hamilton Police Office and the vehicle was searched. Behind the driver's seat in the rear passenger footwell was a blue and black Nike sports holdall. Inside the bag was a large quantity of cash in bundles of mixed notes. No other bags or holdalls were found within the vehicle. The bag and contents were placed into a single production bag and kept within the production room at Hamilton Police Office...

(6) At 15.40 hours on 27^th October 2006 the Appellant was detained and taken to Hamilton Police Office..."

[6] Thereafter the sheriff noted that:

"Witness DS Wallace drove past the Peugeot after it had been stopped by the police and observed that it had the same occupants as he had earlier observed. Following the Appellant's detention, DS Wallace interviewed him. The Appellant declined to answer any questions about the police observations and the cash which was recovered."

The Crown jury speech

[7] The sheriff's report noted that the procurator fiscal depute, in her speech to the jury, relied inter alia upon the following:

"The absence of explanation - the circumstances called out for an explanation. The Appellant had given no answers to the police under questioning about the holdall and he had not given evidence. The jury were entitled to draw the conclusion that there was no innocent explanation."

The sheriff's charge

[8] The sheriff directed the jury inter alia as follows:

"The fourth rule is this: nobody can be convicted on the evidence of one witness alone, no matter how credible or reliable that witness may be. The law requires a cross-check, which is called, in Scotland, corroboration. So there must be evidence that you accept as credible and reliable which comes from another separate source which confirms or supports the principal source of evidence. And that can be direct evidence, coming from another eye witness, or it could be indirect, it could be facts and circumstances which can be spoken to by one witness only. And individually these facts and circumstances might establish little, but put together in combination they may support the principal source of evidence. And, of course, there might be a combination of direct and indirect evidence in a case. So be clear about this: every incidental detail of a charge, such as the narrative of how the crime was committed, does not need evidence from two sources. But there are two essential matters that must be proved by corroborated evidence, and the first of those is that the crime was committed, and secondly, that the accused was responsible for committing it....

In this case the accused has not given evidence. You cannot draw any adverse inference from that; he does not need to prove his innocence, that is presumed for the purposes of trial. He can leave it to the prosecution to prove his guilt.

Here there has been evidence that the accused gave a holdall to another person in a car in Roundknowe Road. It is for you to decide, ladies and gentlemen, but you might think that was a matter about which the accused might have knowledge. The absence of explanation from him may make it easier for you to accept inferences of guilt from other evidence in the case than might have been the case had the accused given an explanation. That is a matter for you....

Now, there has been evidence of what the accused said when he was questioned by the police...

Now, no-one is obliged to speak to the police or answer their questions when crimes are being investigated. The police have a right to detain suspects for up to six hours and they can question them. Before an interview starts the suspect should be cautioned and told he is not obliged to answer any questions but if he does his answers may be noted, tape recorded and used in evidence. Now, insofar as the accused made no comment when interviewed, that was his right and you should attach no significance to it. You cannot draw any adverse inference from that."

Submissions

Submissions for the appellant

[9] Ground 1: It was accepted that there was sufficient corroborated evidence of the identification of the appellant, and of his possession of the holdall. However there was insufficient corroborated evidence of his transfer of the holdall to the driver of the Peugeot. Only one witness spoke to the actus reus of the transfer, namely Detective Sergeant Weir. Accordingly the defence submission of "no case to answer" should have been sustained in relation to charge 1. The conviction in respect of that charge should be quashed.

[10] Ground 2: The Crown relied upon a mixture of eye-witness and circumstantial evidence. The sheriff should have given the jury more assistance with the concept of circumstantial evidence, referring to the cable (or jigsaw) analogy and explaining the guidance given in Al Megrahi v HM Advocate 2002 SCCR 509, paragraphs [31] to [36]. The sheriff had not done so. As a result, a miscarriage of justice had occurred, and both convictions should be quashed.

[11] Ground 3: The words used by the sheriff when commenting upon the absence of any explanation from the appellant would have been acceptable in many trials: cf McIntosh v HMA Advocate 1997 SCCR 68. However in this particular case, a passage in the procurator fiscal depute's jury speech (see paragraph [7] above) went too far and suggested that an inference of guilt could be drawn from the appellant's silence. It was therefore necessary for the sheriff to direct the jury that no such adverse inference could be drawn. He had not done so. Again a miscarriage of justice had occurred, and both convictions should be quashed.

Submissions for the respondent

[12] Ground 1: The Advocate depute rehearsed the evidence as summarised in the sheriff's report, and submitted that there had been a sufficiency of evidence relating to the first charge. The Crown relied upon the eye-witness evidence of Detective Sergeant Weir, supported by other facts and circumstances. The sheriff had been correct to repel the submission of "no case to answer".

[13] Ground 2: Bearing in mind that the Crown case was based upon one eye-witness and supporting facts and circumstances, the sheriff's directions at pages 7-8 and 19-22 of the charge were correct and sufficient. It was unnecessary to refer to any particular analogy such as the cable analogy, or to give the jury the full details set out in Al Megrahi.

[14] Ground 3: It was clear from the sheriff's charge and his report that he appreciated the distinction between inviting the jury to draw an inference of guilt from the appellant's silence (which would be an erroneous direction) and suggesting to the jury that they might find it easier to draw the inferences which the Crown invited them to draw based on the Crown evidence. The charge, construed as a whole, gave the jury proper guidance on both matters, in accordance with McIntosh. The suggestion that the sheriff should specifically have corrected the fiscal's overstatement had not been included in the appellant's Note of Appeal (resulting in the sheriff's not having had an opportunity to respond); but in any event, the jury must be assumed to have obeyed the sheriff's directions in law, and his directions had been correct.

[15] In conclusion, the Advocate depute invited the court to refuse the appeal.

Discussion

Sufficiency of evidence of transfer of criminal property: first ground of appeal

[16] Detective Sergeant Weir gave positive eye-witness evidence that at 16.22 pm at Roundknowe Road the appellant emerged from the silver Zafira taxi in possession of a dark coloured holdall, which he then handed to the driver of the Peugeot car. Detective Sergeant Weir's evidence was corroborated by evidence of other facts and circumstances. In particular Detective Constable Hendry gave evidence that only one minute earlier, at 16.21 pm, he saw the silver Zafira taxi driven by the driver with a person sitting in the rear seat holding a dark black or blue sports bag on his lap. At 16.25 pm, only three minutes after the transfer described by Detective Sergeant Weir, the Peugeot car was stopped by police officers. A blue and black Nike sports holdall containing £120,000 was the only bag or holdall found in the car. The police officers' evidence was not challenged. In all the circumstances, bearing in mind inter alia the timing of these events, and taking the Crown case at its highest (as the sheriff was bound to do when considering a submission of "no case to answer") we are satisfied that there was a sufficiency of evidence in relation to charge 1, and that the sheriff was correct to repel the submission.

Directions relating to circumstantial evidence: second ground of appeal

[17] The Crown was entitled to rely upon the direct eye-witness evidence given by Detective Sergeant Weir, corroborated by supporting facts and circumstances. As noted above, the evidence given by the police officers was not challenged. In those circumstances we consider that the sheriff's directions at page 8 of the charge (noted in paragraph [8] above) were appropriate and sufficient. It was not necessary that he make reference to any analogy (cable, jigsaw, or other). Nor was it necessary that he gave the jury a more detailed analysis of the nature of circumstantial evidence such as is to be found in Al Megrahi v HM Advocate cit sup - a case based upon wholly circumstantial evidence. In the result we are not persuaded that any misdirection occurred in relation to circumstantial evidence.

Observations about the absence of explanation from the appellant: third ground of appeal

[18] The sheriff's charge must be read as a whole. In his charge, the sheriff made it abundantly clear to the jury that the appellant was not obliged to give or lead any evidence, and that the onus of proof remained squarely upon the Crown. He told the jury in terms that no adverse inference (for example, an inference of guilt) was to be drawn from silence on the part of the appellant, whether during police interview or during the trial itself. His observation that the jury might find it "easier ... to accept the inferences of guilt from other evidence in the case than might have been the case had the accused given an explanation" focused upon the evidence led by the Crown and the inferences which the jury might draw from that evidence. Such an observation cannot be criticised: cf McIntosh v HM Advocate 1997 SCCR 68. Ultimately counsel's contention was that in the particular circumstances of this case, as the procurator fiscal depute had gone too far in her jury speech and had invited an inference of guilt to be drawn from the appellant's silence, more was required from the sheriff in order to correct the fiscal's error. In our view, however, the jury must be assumed to follow the directions in law given by the sheriff, as they are instructed to do. The sheriff's directions, reading the charge as a whole, were correct. It is a matter of judgment whether or not a presiding judge should make express reference to some part of a jury speech when clarifying the correct position in law. In the circumstances of this case, we are satisfied that the sheriff took a proper approach; gave accurate directions in law on the matter; and that his directions superseded any less accurate suggestions made by either the fiscal or the defence lawyer when addressing the jury.

Decision

[19] In the result we are not persuaded that there was an insufficiency of evidence or a misdirection such that a miscarriage of justice occurred. We refuse the appeal.