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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 WILLIAM CARMICHAEL AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_4 (16 January 2020)
URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_4.html
Cite as: [2020] HCJAC 4, 2020 GWD 4-58, [2020] ScotHC HCJAC_4
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice Clerk
Lord Brodie
Lord Malcolm
OPINION OF THE COURT
[2020] HCJAC 4
HCA/2019/215/XC
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
WILLIAM CARMICHAEL
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: A Ogg, Sol Adv; Renfrew Defence Lawyers
Respondent: S Borthwick AD; Crown Agent
16 January 2020
[1] The appellant was convicted of being concerned in the supply of a quantity of heroin
recovered from a vehicle during the arrest of another individual. The heroin was inside a
canvas bag. Inside the canvas bag was a knotted blue plastic bag, and inside that was a
knotted clear plastic bag containing the heroin. The street value of the drug was just over
£15,000, and there was evidence from a duly qualified officer that this was in excess of what
might be considered for personal use.
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[2] A joint minute agreed that the knot of each bag was untied and a DNA sample taken
from the previously knotted area. A mixed DNA profile was identified on each sample,
which could be explained by the presence of DNA from the appellant as the major
contributor, to a very high degree of probability.
[3] A police officer carried out a presumptive test for drugs. Although forensically
aware she could not recall whether she untied the bags, or slit them and used a spatula. The
scientist who examined the bags could not remember either bag being cut or damaged. This
essentially led to the primary point in this appeal, namely that it could not be said that the
knots examined by the forensic scientist were those which had originally sealed the bags. It
should be noticed that the line of evidence was not pursued to a significant extent and no
conclusive recollection was spoken to by any witness.
[4] A section 97 submission was made, that the presence of the DNA on moveable items
was not sufficient, in the absence of other evidence, to allow an inference of guilt, under
which forms the basis of the appeal did not form part of the defence submission to the jury.
Sufficiency
[5] It was accepted that the presence of DNA on the knots could lead to a reasonable
inference against the accused constituting a sufficiency of evidence against him. However,
the fact that the DNA was recovered from the knots was a central plank of the Crown case
that the jury could infer that the appellant was involved in a supply operation, since it
allowed the inference that he had placed the drugs in the bags and knotted them. Without
evidence showing clearly that the DNA came from the original knotted areas the evidence
simply showed the presence of DNA on a moveable item. It was also argued that it could
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not be known what significance the jury put on the presence of the DNA on the knotted
areas.
Ground 2 (b) directions
[6] It was submitted that the Sheriff erred in directing the jury that the presence of
cocaine and a sword in the vehicle where the heroin was recovered added weight to the
potential inference the jury could draw that the appellant was concerned in the supply
chain. In the absence of evidence linking the appellant to the vehicle or the items they were
not relevant in the case against the appellant.
Analysis and decision
[7] It should be noted that there was no objection taken to the line of evidence about the
examination of the bags, and the crown did not place reliance on section 68(3) of the
Criminal Procedure (Scotland) Act 1995. Nor was it suggested that any question of leading
evidence contrary to the joint minute arose, the reference to knots simply being a reference
to the knots in place when the scientists examined the bags. We are far from accepting the
Crown’s position that section 68(3) is of no moment in the circumstances of this case, but
given the view we have reached we do not require to consider that matter any further.
[8] The concept of being concerned in the supplying of a controlled drug is a broad one
covering not only actual physical supply but any link in the chain of distribution from the
producer to the ultimate consumer. In the present case the heroin contained within the bags
was of such a quantity as to suggest that those intromitting with it, as the crown put it, were
involved in a drug supply operation (Haq v HMA 1987 SCCR 433). Evidence that DNA of
the appellant was found within the knotted area of each bag would of course be strong
evidence that he was one of those individuals. However, even if the evidence could only
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show that the appellant’s DNA was on the surface of each bag this was still, in our view,
sufficient. The point here is that there were two bags and the DNA was found on the
outside surface of both of them. Moreover, the bags were of different kinds, one clear and
one blue, meaning that it could not, for example, simply be suggested that the DNA got
there by being on a roll of bags from which both were taken. There was a clear sufficiency of
simply to the weight to be attached to the evidence.
[9] In any event, the evidence did allow the Crown to submit that the DNA came from
the original knotted areas of the bag, not just from the evidence noted above, assessment of
which was a matter for the jury, but taking account of the inherent improbability, had the
knots been re-done, of the appellant’s DNA being found on both knots.
[10] As to the argument that it could not be known what significance the jury put on the
presence of the DNA on the knotted areas, it was entirely open to the defence to submit to
the jury that the Crown submission that the DNA was taken from the knotted area of the
bags could and should not be accepted on the evidence; to submit that the most which could
be said was the DNA was on the surface of the bags; and that these being moveable the jury
should not draw an inference of guilt from the evidence. It would then be a matter for the
jury to consider what weight was to be given to the evidence in light of these submissions.
What is not legitimate is to refrain from making a submission on weight which was perfectly
available on the evidence and then seek, without justification, to turn it into an argument on
sufficiency which it patently is not.
[11] As to the sword and cocaine in the vehicle, the sheriff noted only that the crown
relied on the finding of the cocaine as one of the circumstances of the case. He did not, as
the grounds of appeal suggest, indicate to the jury that this evidence was capable of
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constituting corroboration of the case against the appellant; nor did he direct them that it
was a factor for them to take into account in determining whether they had a reasonable
doubt in the case. What he in fact directed them was:
“It is the presence of what the Crown say is the accused’s DNA on both bags which
enables the adverse inference to be drawn against the accused.”
In any event, it was open to the Crown to suggest that the finding of these items along with
the heroin lends some weight to the argument that the heroin was part of a drug supplying
operation at the time of its discovery. It would be a matter for the jury to determine what
weight, if any, they should attach to that evidence. There was otherwise clear evidence that
the quantity of drugs could only be for onward supply. The critical evidence against the
appellant, however, as the sheriff made very clear, at repeated stages of his charge, namely
pp 22, 23, and 24 and especially p 25 lines 4-15 and p 27 lines 12-18, was the DNA on both
bags and the quantity of the drug involved. The sheriff clearly directed the jury (pp 25 and
27) that it was the DNA on the bags from which the inference of guilt could be drawn. In
our view there is no merit in this appeal which must be refused.