Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2017] HCJAC 36

HCA/2016/166/XC

Lord Justice General

Lord Malcolm

Lord Woolman

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

NOTE OF APPEAL AGAINST CONVICTION

by

LORENO CARLO RIAVIZ

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Graham; John Pryde & Co (for Brazenall Orr, Dumfries)

Respondent: Farquharson AD; the Crown Agent

23 May 2017

General
[1]        On 24 March 2016, at the High Court in Glasgow, the appellant was found guilty of a charge which libelled that, between 8 April and 15 May 2015 at Lochside Road and 84 Kennilworth Road, Dumfries, he was concerned in the supplying of diamorphine (heroin), contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.  He was sentenced to 7 years imprisonment, that being the statutory minimum, given that he had previous convictions for Class A drug dealing in 2005 and 2007. 

[2]        The point which arises in the appeal is whether certain labels, said to contain heroin, were adequately identified as being in the possession of the appellant, or on a table in his house, when it was searched on 15 May 2015.

Evidence
[3]        It is not disputed that, on 8 April 2015, the appellant was stopped in Lochside Road, Dumfries, carrying a bag of powder (label 4) and £775 in cash.  It was agreed by joint minute that label 4 was a plastic container within which there was a polythene bag containing 3.35 grams of heroin.

[4]        It was also not disputed that, on 15 May 2015, the police arrived at the appellant’s flat.  He was in the company of two women, including JW.  JW was found to have a bag of powder (label 16) in her underwear.  She said that the appellant had given that to her.  It was assumed to be heroin.  It was agreed in the joint minute that label 16 was a plastic container within which there was a plastic package containing 1.48 grams of heroin.

[5]        DS Andrew McDowall gave evidence about the general procedures for the recovery and preservation of items adopted by the police.  These involved seizing the item, putting it in a bag, filling in a description of the article on the bag and signing the bag as a means of future identification.  During the course of the search of the flat, a number of items were found on a wooden table.  These were shown in a photograph (production 19).  Their appearance suggested that they were controlled drugs and associated drug dealing paraphernalia.  They included plastic bags, scales and a Kinder egg holder, which was a recognised container used for concealing drugs. 

[6]        DS McDowall was shown label 19.  He said that this was, as the label itself recorded, 4 clingfilm wraps in which there were paper wraps containing an unknown substance.  This was found on the table.  He said that label 20 was 5 paper wraps, each containing brown powder, also found on the table.  The labels could be seen in the photograph.  DS McDowell had signed these labels.  The bags containing the items had been sealed.  He accepted that the contents of the labels in court looked different because they contained little phials.  He said that he was identifying the labels as the items that had been seized; albeit that they looked different. 

[7]        It was agreed by joint minute that label 19 was a plastic container, within which there was a paper wrap containing 0.15 grams of heroin and 3 paper wraps, each containing about 0.2 grams of heroin.  Label 20 was a plastic container containing 4 wraps, each with 0.15 to 0.2 grams of powder and an open paper wrap with loose powder, weighing the same amount.

[8]        DC Rowan Buckley had handcuffed the appellant at the start of the search in the flat.  He spoke to the appellant having had his left hand clenched around two items.  The first was another Kinder egg holder (label 7), which contained 3 plastic bags containing a brown powder.  The second was a plastic bag containing brown powder (label 8).  He had signed the labels before handing them to DC Gregg Armstrong. 

[9]        It was agreed in the joint minute that label 7 was a Kinder egg containing a package of 6.78 grams of heroin, another plastic package containing 1.72 grams and a further bag with 1.97 grams; the latter having a much higher proportion of heroin in the powder than the other substances.  DC Buckley recovered a black wallet containing £415 from the appellant. 

[10]      In due course, DC Armstrong spoke to the recovery of labels 7, 8, 19 and 20.  He too accepted that the content of the bags in court looked different from those which he had processed. 

[11]      Objection was taken to the evidence of DC Greig Baxter, who had produced a “statement of opinion” about the various items recovered.  In relation to label 7, namely the Kinder egg holder, the 6.75 gram package was identified as a quarter ounce deal, with a value of £240.  The 1.72 and 1.97 gram bags were described as sixteenth ounce deals, each worth about £70 each.  Label 8 was also a quarter ounce deal.  Label 16, which was the quantity found on JW, was another sixteenth ounce deal.  Labels 19 and 20 consisted of tenner bag deals.  The general opinion given by DC Baxter was that the quantities of heroin found were excessive for personal use and indicated onward sale or supply. 

Submissions
[12]      The contention for the appellant, put shortly, was simply that the trial judge had erred in repelling an objection to the admissibility of DC Baxter’s evidence on the basis that there was no evidence to link his evidence with the labels produced in court.

Decision
[13]      The case involves police officers recovering a number of items during the course of a search.  The officers spoke to putting these items into bags, duly sealing the bags with a description of the items on them and signing the bags themselves.  The content of these labels was agreed by joint minute.  DC Baxter was speaking, not so much to the labels themselves, but to the descriptions of the items found, as no doubt originally determined by forensic scientists, but, for trial purposes, contained in the joint minute.  There was no sound basis for an objection to his evidence about the inferences which might be drawn from possession of the various drug quantities.  The essence of the appeal remains, however, whether the labels, as produced in court, were adequately identified by the police officers who said that they had recovered them.  The answer to that is straightforward.  Each item was duly identified by each police officer.  The fact that the items inside the bags looked different was explicable by the fact that the various packages had been unwrapped, powder had been removed from its packaging for the purposes of analysis and the powder had been duly put into phials.  In such circumstances, the jury were entitled to conclude that the items, as produced in court, were indeed those recovered during the course of the search.  This appeal is accordingly refused.