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Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY DARRELL MITCHELL AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_60 (18 August 2017)
URL: http://www.bailii.org/scot/cases/ScotHC/2017/2017_HCJAC_60.html
Cite as: 2017 GWD 26-430, 2018 JC 67, [2017] ScotHC HCJAC_60, [2017] HCJAC 60, 2017 SCL 896, 2017 SCCR 485
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Menzies
Lord Brodie
Lady Clark of Calton
[2017] HCJAC 60
HCA/2016-000515/XC
OPINION OF THE COURT
delivered by LORD BRODIE
in
APPEAL AGAINST CONVICTION
by
DARRELL MITCHELL
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: Paterson (sol adv); Paterson Bell
Crown: Borthwick AD; Crown Agent
18 August 2017
Introduction
[1] The appellant is Darrell Mitchell. His date of birth is 9 February 1973. On 22 August
2016 he went to trial, together with his former co-accused and nephew, David Buchanan, at
Kilmarnock Sheriff Court on an indictment containing four charges of being concerned in
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the supply of, respectively, cocaine, cannabis, cannabis resin and methylethcathinone. On
23 August, the second day of the trial, David Buchanan pled guilty to charges 1, 2 and 4.
The appellant maintained his plea of not guilty to all charges. The appellant had lodged a
special defence of incrimination against his co-accused. He had intimated his intention to
attack his character.
[2] The trial continued against the appellant. The Crown led David Buchanan and other
witnesses. One of these witnesses was Police Sergeant Kenneth Simpson who gave evidence
under reference to a report entitled “Statement of Opinion” in relation to drugs and certain
other articles which had been seized by other police officers in the course of their
investigations (“the STOP report”). The STOP report was lodged as a Crown production.
The appellant gave evidence on his own behalf. Other witnesses were led for the defence.
On 26 August 2016, the jury, by a majority verdict, found the appellant guilty of charge 1
and by a majority found charges 2, 3 and 4 to be not proven.
[3] Charge 1 was in the following terms:
“(1) between 8 November 2013 and 19 June 2015, both dates inclusive at Belleview
Road, Kilmarnock and elsewhere you DARRELL MITCHELL and DAVID ROBERT
BUCHANAN were concerned in the supplying of a controlled drug, namely
Cocaine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act
1971 to another or others in contravention of Section (4)(1) of the aftermentioned Act;
Contrary to the Misuse of Drugs Act 1971, Section 4(3)(b).”
[4] The sheriff adjourned the diet for the preparation of Criminal Justice Social Work
Reports in respect of the appellant and his co-accused. On 20 September 2016 the appellant
was sentenced to 30 months’ imprisonment. His co-accused was sentenced to 37 months’
imprisonment, discounted from 42 months’ imprisonment to reflect his guilty plea.
[5] A note of appeal against conviction was lodged on 14 November 2016. Leave to
appeal was granted in respect of two grounds, although Mr Paterson, who appeared before
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us on behalf of the appellant, intimated that he intended only to argue the first ground. It
was in these terms:
“The sheriff misdirected the jury by failing to direct the jury about the use of opinion
evidence. In particular how they should evaluate the evidence of a police officer,
Kenneth Simpson and how it might be used in the determination of the issues in the
case. The officer’s evidence is summarised by the sheriff at page 26 line 17 to page 28
line 19 [of the transcript of the sheriff’s jury charge]. The sheriff gave no directions to
the jury about the opinion evidence, the directions on evidence run from page 1
line 15 to page 7 line 5. The opinion evidence was crucial in this case, it was disputed
and was indicative of guilt. As a result of the failure to properly direct the jury there
has been a miscarriage of justice.”
Evidence at Trial
[6] A summary of the evidence led at trial is contained in the sheriff’s supplementary
note produced at the request of this court and dated 4 May 2017. The salient parts of that
evidence are as follows.
[7] A number of police witnesses had carried out surveillance on David Buchanan, the
appellant’s nephew. They had seen Mr Buchanan at a particular location obtain a black bag
from two men who were suspected of being involved with drugs. Mr Buchanan then drove
off in his SAAB motor car towards his home but, as he was to explain when he gave
evidence, on his approach to his house he noticed what he thought was an unmarked police
vehicle and fearing that he was under surveillance he telephoned the appellant and drove
his SAAB to the appellant’s lock-up garage. The appellant drove there in his van. He and
his nephew met. Photographs which were part of Crown production 5 lodged at trial show
the SAAB and the van parked close to each other and in near proximity to the garage door.
[8] A number of police officers attended the appellant’s lock-up garage (situated in a
row of similar lock-ups). They saw both David Buchanan and the appellant.
David Buchanan threw two bags, a black bag and a green and white carrier bag, into the
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appellant’s garage. It looked as though both men were moving things from the vehicles into
the garage. The police intervened, detained Mr Buchanan and the appellant, and seized the
bags and other items found in the garage and the appellant’s van. The seizures included
quantities of cannabis bud, cannabis resin, methylmethcathinone and cocaine. Cannabis
bud weighing 985 grams was found in the boot of the SAAB. Twenty blocks of cannabis
resin was found in the green and white carrier bag. Four smaller bags found in the green
and white carrier bag contained, respectively, 497.05 grams, 497.84 grams, 332.16 grams, and
498.24 grams of methylmethcathinone.
[9] Among the drugs found in the green and white bag was 9.52 grams of cocaine in a
plastic bag. Also within the green and white bag was 387.47 grams of benzocaine. Finger
prints of the appellant were found within the green and white bag. A sieve, a plastic
container and lid, a ceramic bowl and a roll of clear plastic bags, were found in the
appellant’s van. Trace amounts of cocaine were found on the sieve, plastic container and
ceramic bowl. There were traces of cocaine on the first bag of the roll of plastic bags. Three
finger prints and five palm prints of the appellant were found on the roll of plastic bags.
Also recovered from the van were brown tape and packaging. A hydraulic press was found
in the garage which had trace amounts of cocaine and benzocaine on the surfaces of one of
its plates and within the metal mould unit. A plastic bag containing cocaine was found
under the press. It contained 4.53 grams of cocaine.
[10] The Crown’s position throughout the trial was that both the appellant and his
nephew were concerned in the supply of drugs. When giving evidence, David Buchanan
admitted that he had been concerned in the supply of cocaine, cannabis and
methylethcathinone between 8 November 2013 and 19 June 2015. He explained that on
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19 June 2015 he had picked up a black bag from a man he did not know. He was aware that
the bag contained drugs. On noticing what he took to be an unmarked police car near his
home, he panicked. According to Mr Buchanan, he then telephoned the appellant and asked
him if he could put “something” in his garage for a “wee while”. He did not tell the
appellant what this “something” was but he accepted that his uncle would have a fair idea
that it was drugs; certainly that it was something illegal. He then drove to the appellant’s
garage. The appellant was there with his van. He thought that the appellant opened the
door of the garage. Mr Buchanan threw the bags into the garage. He was the only person
who had touched the green and white bag that night. He did not know where he had got
the plastic bag. He did not know who else used his uncle’s garage. He did not have a key to
the garage. He was asked if he had ever used his uncle’s van for the preparation of cocaine
or other drugs and he said no, he had never seen drugs in the van. He said that he did not
know how there came to be drugs in the van and he said that they were not his drugs. He
was asked about the sieve, ceramic bowl and clear plastic bags found within the van but he
did not know anything about them. He was also asked about the hydraulic press found
within the garage and denied that he used it for the preparation of drugs. He had no idea
how drugs would get onto the hydraulic press. The press belonged to the appellant.
Mr Buchanan denied knowing anything about the bag of cocaine found in the garage.
[11] Evidence was led of text messages received and sent by the appellant. Examples of
the texts included a number of texts between the appellant and another person on
8 November 2013: “have you got 5 red ones”, reply “no red ones, only green and blue, have
more red in next week”, “both banging, blue slightly better. 5 blue bud, give you a text.” A
text received on 23 May 2015 read “chomp, can you grab me ½ a quarter mate?” One
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message sent from the appellant’s phone was: “have you got snow?” A message received by
the appellant’s phone was: “can you get my drugs?” to which the response was: “no
problem”.
[12] As mentioned in the ground of appeal, evidence was also given by Police
Sergeant Kenneth Simpson. He explained that he had been in law enforcement for 38 years
and had gained experience in the values of drugs, how they are used and imported, and that
he had provided information to courts on this in the past. No objection was taken to his
evidence at any stage.
[13] Sergeant Simpson was shown a report relating to the appellant’s phone which
included the contents of certain text messages. He gave his opinion as to what the content of
the various messages meant, for example, that the reference to “1/2 a Q” referred to an
amount of either a powdered drug or cannabis resin, and that “have you got any snow”
might mean cocaine. The officer suggested the messages were consistent with someone
trying to source controlled drugs but could make no comment as to whether the drugs were
for personal use from the content of the report.
[14] Sergeant Simpson was then taken through the terms of the STOP report. He
explained how drugs in powder form could be adulterated and then compressed into blocks
of a particular weight, half a kilo being the most common. A hydraulic press is commonly
used for this purpose. He was shown Crown label 27 which was agreed to be 4.5 grams of
cocaine which was found on the floor under the hydraulic press (referred in his report as a
“spillage” amount). He said that this drug’s proximity to the hydraulic press meant, in his
experience, that the press was being used to press blocks of cocaine. He was shown Crown
label 15 which was agreed to be 387.4 grams of benzocaine. He explained that this is not a
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controlled drug, but it is commonly used to adulterate cocaine. In his experience benzocaine
would not be bought for personal use, it is usually used by dealers, particularly an amount
as large as this.
[15] The sergeant was shown a photograph of Crown production 28, the hydraulic press.
He said that in his experience, such presses were commonly recovered in large scale drug
operations. There would normally be a base plate and a top plate. The handle activated
pressure. The sergeant said that the press would be used for re-blocking cocaine for onward
supply. He was shown the sieve and he stated that it could be used to sieve cocaine as the
cocaine would come in hard form and then it would be broken up into powder, sieved into a
bowl, and the adulterant added. The mixture would be put into a bag, then into a mould,
then into the press. In Sergeant Simpson’s experience personal users did not use such a
press.
[16] The witness was shown a plastic tub with a lid. Cocaine had been found in the
inside of the tub. In Sergeant Simpson’s experience people stored drugs or mixed them in
plastic tubs prior to the next stage in the process of supply. He was shown brown packaging
tape and he stated that such tape could be used to wrap a block of pressed drugs to make
the block stronger. He was asked, when considering all of the items found at the scene,
what was his analysis of the situation. He stated that in his experience, the amount of
cannabis, cannabis resin and methylmethcathinone, were supply amounts. The amount of
cocaine found in the bag in the garage was not excessive and could be for personal use but
its recovery in a position near the moulds and the press indicated to Sergeant Simpson that
this was for onward supply, and was therefore not for personal use.
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[17] In cross examination, Sergeant Simpson was tested on the extent of his experience. It
was put to him that the fact that the hydraulic press had not been covered up and that the
bag of cocaine was lying on the floor in open view would not indicate a supply operation.
The officer agreed with the cross-examiner that the amount of cocaine found in the garage
could be for personal use. He also agreed that if a press was being used, the cocaine would
usually come in larger amounts within brown packaging, and that this would indicate a
supply operation. He also agreed that brown tape and plastic bags were common
household items.
[18] In the course of his cross-examination Sergeant Simpson was referred to the
appellant’s telephone records. The sergeant had not seen them before he came to court and
they had not formed part of his consideration when preparing the STOP report. In his view,
some of the text exchanges referred to drug transactions, but he could not comment on
whether they related to larger amounts or to smaller amounts. It was accepted that in some
of the exchanges it looked as if the appellant was the buyer. In reference to texts asking for
an ounce of cannabis or cocaine, Sergeant Simpson said that an ounce of cannabis would be
for personal use, but that an ounce of cocaine would not (its value would be £1200 to £1300).
On re-examination, the officer’s final position was that in his experience the text messages
were not clear and they could refer to the recipient of the messages attempting to acquire
drugs for his personal use.
[19] The appellant gave evidence. According to him it was his nephew who was
responsible for all the drugs found at the scene. The appellant stated that David Buchanan
had often borrowed his vehicle, and, therefore, could have used the bowl, the tub, and other
items which had traces of cocaine on them. He had never seen them before. He explained
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that he had used the garage for storage and held a key which was on the same key ring as
the key to his van but he denied that the drugs found in his garage had anything to do with
him, and, again, he blamed his nephew for their presence. Mr Buchanan had had use of the
van a few days beforehand and therefore would have had access to the garage key. The
appellant accepted that the hydraulic press was his, but said that he used it to press ball
bearings. He had no explanation for the traces of cocaine found on the plates of the press.
The appellant explained the text messages by stating that he was a user of ecstasy and
cocaine. The text messages were instances of his sourcing drugs for his personal use. He
accepted that messages had been received by his phone asking for drugs; however, he said
these were all from David Buchanan’s friends. His explanation was that he took them to be
a wrong number and ignored them.
The Sheriff’s Charge to the Jury
[20] The sheriff’s charge to the jury included the following passages.
At page 2 at line 13 to page 3 at line 4:
“Two aspects to the evidence of any witness, ladies and gentlemen, that’s credibility
and reliability…You judge all the witnesses in the same way, whether they’re lay
people, police officers, scientists or the accused.”
At page 26 at line 17 to page 28 at line 19:
“Kenneth Simpson came in and he gave - he’s known as a STOP officer, he gives a
statement of opinion, he’s the Crown expert. He’s been in law enforcement for
30 years, and he went through the various number of Crown productions with you,
and you’ll remember his evidence, ladies and gentlemen. His conclusion was that
the drugs found at the garage were of a substantial value. He’d referred you [to] the
hydraulic press and the white powder found on the press. The white powder on the
plastic bags on the sieve and in the ceramic bowl and his conclusion was, taking all
these together, it was a large scale drugs operation. He explained to you what
benzocaine is, and it’s used as an additive. He used the word ‘adulterant’, and that
mixes it with cocaine and thins it out so you can get more for it. It was his view
that’s that what the hydraulic press was used for. He explained what cannabis bud
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is and its value, cannabis resin and its value. His view was that the drugs were not
for personal use. He explained [what] methylmethcathinone is and that it, too, could
be used as an adulterant. He concluded that the presence of drugs in the hydraulic
press and plates was indicative of it being used to press drugs. His final position
was the amount of drugs found, namely, cannabis, cannabis resin and
methylmethcathinone could of themselves indicate supply. In relation to the cocaine,
the amount found in the garage was not an excessive amount and, indeed, it could be
personal but in the circumstances of the recovery in the proximity of the press with
white power in a bag under the press, it’s his opinion that it indicated supply of
cocaine. In cross-examination, it was put to him that one ounce of cannabis is a
personal amount, and he agreed, and it was put to him that an ounce of cocaine
could be personal, but he disputed that. This was due to the value, he said, when it’s
split. Indeed, he went to say that 100 grams of pure cocaine is a dealer’s amount.
He’d been referred to the text, the i-messages and he explained these were open to
various interpretations and he gave you some examples.”
At page 31 at lines 1 to 11:
“So, ladies and gentlemen, that’s all of the evidence. You consider all of the evidence
the Crown relies on, the submissions made by the procurator fiscal. Give your equal
consideration to the defence case and in reaching your verdict, you assess the
quality, strength and effect of the evidence and you decide if the case against
Mr Mitchell in each charge has been proved or not. It’s your decision what
conclusion you reach.”
Submissions
[21] On behalf of the appellant, Mr Paterson submitted that the sheriff had failed to direct
the jury about the use of opinion evidence. She had identified what was meant by direct
evidence and circumstantial evidence but she had said nothing about opinion evidence. In
particular, she had failed to direct the jury as to how they should evaluate the opinion
evidence of the STOP officer, and how his evidence might be used in the determination of
the issues in the case.
[22] Mr Paterson submitted that the function of expert testimony in a case such as this is
to assist the jury when considering whether they can draw the inference of supply from all
the evidence led. In any case, it is generally necessary for the sheriff to explain to the jury
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how they are to evaluate expert or skilled evidence, and how it might be used in the
at para [37]. Sergeant Simpson had stated that this was a large scale drugs operation, and
that his conclusion was that the presence of the drugs on the hydraulic press and plates was
indicative of it being having been used to compress blocks of cocaine adulterated with
benzocaine. Whilst the amount of cocaine found in the bag in the garage could be a personal
amount, Sergeant Simpson had stated as his opinion that given its recovery in proximity to
the press, the finding of the bag indicated supply of cocaine. The officer’s evidence did not
provide corroboration, nor did it add weight to the Crown case: Robertson v HM Advocate
[2016] HCJAC 57 at para [11]. The evidence of Sergeant Simpson was simply available to
assist the jury in considering the other evidence led in the case. However, the jury were not
directed to that effect, as they should have been. This failure was material and, Mr Paterson
submitted, had led to a miscarriage of justice.
[23] The Advocate depute conceded that there had been a misdirection by way of an
omission to say anything about the function of expert evidence. However, there had been
no miscarriage of justice. There had been ample evidence implicating the appellant as being
concerned in the supply of cocaine. In any event by the time the case went to the jury the
issue was not whether there had been an operation for the supply of controlled drugs,
including cocaine, rather it was whether the appellant was concerned in that operation. The
case was very much in line with the situation described in Morrison v HM Advocate at
para [37]: there had been a failure to give an appropriate direction but the failure was not
material. It could not be said that the appellant had suffered prejudice.
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[24] When asked what direction the sheriff should have given, the Advocate depute
replied that she should have given a direction to the effect that an expert is to be treated in
the same way as any other witness; that the function of an expert witness is to provide
information to the jury about an area of knowledge which is outwith their everyday
experience; and that they are free to accept it or reject it as they see fit.
Decision
[25] It is convenient to begin with some general observations about the sort of evidence of
which that given by Sergeant Simpson was an example.
[26] The sergeant testified to his considerable knowledge and experience of the illicit
market for controlled drugs in Scotland and how that market operates. The sheriff reports
that that experience was tested by questioning during cross-examination; it would appear
without it being undermined. Sergeant Simpson had therefore established himself as being
in a position to furnish the jury with general information which was likely to be outside
their experience and yet was necessary if they were to understand the significance of the
whole of the evidence led and so reach a sound conclusion. From that perspective he was an
evidence about the general features of the illicit market for drugs and the behaviours typical
of users and suppliers was admissible. As the Lord Justice General (Carloway) observed in
as to the “received wisdom” from the realms of drug enforcement is long-established (see
Wilson v HM Advocate 1988 SCCR 384 at 385). As noted by the court in Johnston v HM
Advocate 2016 SLT 42 at paras [5] and [6] the practice has to an extent been formalised with
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the establishment of a Statement of Opinion (“STOP”) unit, the officers of which are
available to give evidence on the manner in which controlled drugs are sold and used and
their values on the illicit market. Sergeant Simpson is a STOP officer. The Scottish practice
is not very different to that followed in other jurisdictions (Kennedy v Cordia (Services) LLP
[27] As is very familiar, as well as giving evidence as to fact (either general in the sense of
the state of knowledge within his field, or particular in the sense of observations or
investigations specific to the case before the court), an expert may give his opinion as to
matters necessary for the proper resolution of the dispute. That is in contrast to the position
of other witnesses who are limited to giving direct evidence as to what they have seen,
heard or otherwise experienced. Opinion evidence will very often be of the nature of an
inference or series of inferences from the primary evidence which, because of his special
knowledge and experience, the expert is able legitimately to draw, whereas someone
without that knowledge and experience, such as a member of the jury, is not.
[28] What will often be an issue in cases of which the present is an example is the
significance of the quantity of controlled drugs found in the possession of an accused
person. Where the quantity is relatively large the prosecution will argue that that permits
the inference that the accused is concerned in the supply of the drug and therefore guilty of
contravention of section 4 (3) (b) of the Misuse of Drugs Act 1971. Where the quantity is
relatively small the defence will argue that this fact points to nothing more than the drugs
being for the personal use of the accused with the result that he is only guilty of the lesser
offence of having a controlled drug in his possession in contravention of section 5 (2) of the
1971 Act. Whether a particular quantity of drugs is to be regarded as indicative of a supply
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operation as opposed to being merely “personal”, is a question for the jury having regard to
the amount of the drug which has been found and its likely cost, but also to the whole
circumstances. While this is a jury function, it is not one that can be carried out without
some guidance from a witness with experience in the habits of drug users and the market in
which they operate, hence the admissibility of general evidence about the amount of a
controlled drug which a user would normally consume, or indeed carry (see Robertson v HM
Advocate at para 10; also White v HM Advocate 1986 SCCR 224, Lord Justice-Clerk (Ross)
at 225 and Ul-Haq v HM Advocate 1987 SCCR 433 at 436, as discussed in Johnston v HM
Advocate at paras [7] to [9]). However, prosecutors and defence representatives do not
always confine themselves to questioning as to purely factual matters “about the amount of
a controlled drug which a user would normally consume, or indeed carry”, to borrow the
description used by the Lord Justice-General in Robertson. They may ask the witness to give
his opinion as to whether the amount of drugs found in the particular case before the court
was or was not such as to indicate personal use rather than supply. Now, it could be said
that that is to invite a witness to give an opinion on an issue which it is for the court to
determine, and for that reason is objectionable (see Hendry v HM Advocate 1987 JC 63 at 69
to 70); also Galletly v Laird 1953 JC 16 at 27, and Kelso v HM Advocate 1990 SCCR 9) but the
eliciting of just such evidence has generally escaped adverse comment by the court (eg Ul-
Haq, Bauros and Farns v HM Advocate 1991 SCCR 768). It may therefore be regarded as
admissible. As is explained in Kennedy v Cordia (Services) LLP at para [49] “on occasion in
order to avoid elusive language the skilled witness may have to express his or her views in a
way that addresses the ultimate issue before the court”.
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[29] As can be seen from the extract from the sheriff’s charge to the jury quoted above
Sergeant Simpson was asked (both by the procurator fiscal and the defence agent) to give his
opinion as to whether the amounts of the various drugs found at the garage were such as to
indicate supply or personal use. However, the sheriff tells us in her supplementary note of 4
May 2017 that the procurator fiscal went somewhat further in that:
“[Sergeant Simpson] was asked, when considering all of the items found at the scene
what was his analysis of the situation. He stated that in his experience the amounts
of drugs, cannabis, cannabis resin, methylethcathinone, were supply amounts. In
relation to the cocaine, however, the amount was not excessive, so it could be
personal, but given the circumstances of the recovery, near the moulds and the press,
it indicated to him that this was for onward supply of controlled cocaine, and was,
therefore, not for personal use.”
[30] That was a step too far. Asking the sergeant what was “his analysis of the situation”
was an objectionable question. The witness’s function was to help the jury to analyse the
situation as presented in the evidence by explaining matters which were within his general
experience but which would be likely to be outwith the jury’s experience and, by doing so to
enable the jury to form their own independent judgment by an application of that
explanation to the facts proved in evidence (cf Davie v Magistrates of Edinburgh 1953 SC 34
at 40). His function was not to carry out that analysis and make a judgment himself. A
witness cannot supplant the jury’s role as ultimate decision-maker (cf Kennedy at para [49],
Sergeant Simpson was not objected to and accordingly, subject to any direction that the
sheriff might give, his answer, together with the answers given to all the other questions he
was asked, was available for consideration by the jury as part of the evidence in the case.
[31] We turn then to the complaint made in the ground of appeal that the sheriff failed
properly to direct the jury on the use of opinion evidence.
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[32] In support of the ground of appeal Mr Paterson referred to what was said in Morrison
v HM Advocate at para [37]: “Where opinion evidence has been led from a skilled witness, it
is generally necessary to explain to the jury how they are to evaluate such evidence and how
it might be used in the determination of the issues in the case.”
[33] We would reiterate what was said in Morrison. Opinion evidence is sufficiently
distinct from evidence as to fact as usually to require a judge to draw the jury’s attention to
that distinction and explain such consequences as it might have for their consideration of the
case. The nature of the explanation which is necessary will depend on the nature of the
expert evidence in question, the extent to which it was challenged and the basis of any such
challenge, the issues to which the evidence is relevant and the ways in which the parties
seek to use it to address these issues. We do not suggest that there is one form of words
which will always suffice. It is to be borne in mind that the purpose of jury directions is to
address the actual issues which have been raised by the evidence in the case and the
submissions of parties in relation to them with a view to assisting the jury in dealing with
these issues.
[34] What was particularly required in the present case, given the matters on which
Sergeant Simpson had been encouraged to give an opinion, was a pointed direction to the
effect that the decision as to whether it had been proved beyond reasonable doubt that the
accused had been concerned in the supply of any of the controlled drugs referred to in the
charges was for the jury to make and not for any witness. Now, to an extent the sheriff can
be said to have done that. Towards the end of her charge, at page 31 and line 10 of the
transcript, she said: “It’s your decision what conclusion you reach” but the context for that
sentence was the sheriff’s exhortation to give equal consideration to the prosecution and
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defence cases. The sheriff accepts that, other than instructing the jury to treat all witnesses
in the same way, “whether they are lay people, police officers, scientists”, she gave no
specific directions as to expert evidence. In the result the jury was left with no guidance as
to what they were entitled to make of the apparently authoritative opinions of
Sergeant Simpson on the various matters in respect of which he was invited to express a
view. We see that as an error on the part of the sheriff.
[35] What was required was a relatively brief explanation of the nature and purpose of
Sergeant Simpson’s evidence and the distinction between his function as a witness and the
jury’s function as decision-makers. The following points should have been made about the
sergeant and his evidence: his function was to provide general information based on his
special knowledge and experience of matters with which the jury would not be familiar with
a view to assisting the jury in assessing the primary evidence led in the case; he was to be
treated in the same way as any other witness in the sense that it was for the jury to assess his
evidence in order to determine whether they believed his evidence and whether they found
it reliable; because of the sergeant’s special knowledge and experience (if accepted by the
jury) he might be asked to give an opinion as to what might be inferred from the primary
evidence; the jury were however free to accept or reject such an opinion, or indeed anything
else said by the witness; and, while the jury were entitled to have regard to what the
witness had to say, the decision as to whether it had been proved beyond reasonable doubt
that the accused had been concerned in the supply of any of the controlled drugs referred to
in the charges was for the jury and for the jury alone. The sheriff did not make these points.
[36] If the sheriff did not give adequate directions to the jury, what then? The question
for this court, when considering an appeal against conviction, is whether there has been a
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miscarriage of justice. While conceding that there had been a misdirection the Advocate
depute submitted that there had not been a miscarriage of justice. We agree.
[37] Here the issues before the jury were relatively clear. Having rehearsed the police
officer’s evidence, the sheriff told the jury that it was their decision as to whether a charge
had been proved. In the circumstances of this case, where there was no competing expert
testimony, no dispute as to the accuracy of the factual matters spoken to by
Sergeant Simpson and the issue had come to be not whether there was an operation for the
supply of controlled drugs (including cocaine) but whether the appellant was concerned in
that operation and in respect of what drugs, the sheriff’s failure to give a direction on the
STOP officer’s evidence was not material.
[38] There was an abundance of evidence before the court for the jury to draw the
necessary inference that the appellant was involved in supply, and their verdict was
discriminating in that the appellant was only convicted of the charge of concern in the
supply of cocaine; he was acquitted of the charges relating to the other controlled drugs. A
number of highly incriminating items were found in the van owned and driven by the
appellant and the garage which he rented and for which he held the key. They included a
sieve, a plastic container and lid, a ceramic bowl and a roll of clear plastic bags, which were
in the appellant’s van. Traces of cocaine were found on all of these items. Three finger
prints and five palm prints of the appellant were found on the roll of plastic bags. Also
recovered from the van were brown tape and packaging. The finger prints of the appellant
were found within the green and white bag brought by Mr Buchanan. There was a
hydraulic press in the garage such as could be used to compress blocks of powder. There
were trace amounts of cocaine and benzocaine on the surfaces of one of the plates of the
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press and within the metal mould unit. A bag found under the hydraulic press contained
4.53 grams of cocaine. In his evidence Mr Buchanan accepted that he was concerned in the
supply of controlled drugs including cocaine but he denied any association with the press,
the cocaine found next to it or the contents of the van. There was also evidence of text
messages sent to and from the appellant’s Iphone which are open to the construction that
requests for the supply of drugs had been directed to the appellant and responded to
positively. One such request was “can you get my drugs?” to which the response was “no
problem”. It is not possible to say that there has been a miscarriage of justice.
[39] The appeal is accordingly refused.