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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord Justice General
Lord Osborne
Lord Wheatley
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[2008] HCJAC70Appeal No: XC200/07OPINION OF THE COURT delivered by THE LORD
JUSTICE GENERAL in APPEAL by DEREK HENRY CARSWELL Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Ram; McClure, Collins
Alt: Ogg, Q.C., A.D.; Crown Agent
21 November 2008
Introduction
[1] The appellant
was on
[2] At the
opening of the appeal hearing the appellant was represented by Ms Ram,
Advocate - as he had been at the trial.
She addressed us first on ground of appeal 2 and then proceeded to
ground of appeal 3. While she was
in the course of addressing us on that ground, the appellant signalled that he
wished to consult Ms Ram. The court
adjourned to allow him to do so. When it
reconvened, Ms Ram announced that the appellant had withdrawn his
instructions from her, though not from her instructing solicitor. She sought leave to withdraw. The court, having ascertained that the
appellant had been advised that, if he insisted in this course, there was a
real prospect that the court would require him to present the remainder of his
argument himself, and the appellant having confirmed that he was ready to do
so, Ms Ram was granted leave to withdraw.
She having done so, the court then called upon the appellant to
proceed. In the event he said little in
relation to the grounds in his note of appeal but maintained that there were other
grounds (in relation to a witness having been forced to give a statement and in
relation to DNA matters) which he wanted advanced. He sought an adjournment to obtain
alternative representation. He stated
that for some months he had been unhappy about the grounds of appeal which had
been presented by his legal advisers and that he had informed these advisers
accordingly. Nothing had, however, been
done to address his concerns.
[3] The court
refused to grant an adjournment. Having
regard to the facts that the note of appeal had been lodged as long ago as May
2007, that the appellant had, on his own statement, been dissatisfied for some
time with what was to be argued on his behalf and that he had taken no steps
until some distance into the hearing of the appeal to withdraw his instructions
from counsel with a view to having alternative representation, the court
considered that it was not in the interests of justice that an adjournment be
granted.
Submissions for the
parties
[4] In addressing
us on ground of appeal 2 Ms Ram submitted that there had been a clear
infringement of section 99(2)(b) of the Criminal Procedure (Scotland) Act
1995 - a juror had left the room for a purpose other than one authorised by
that subsection. She submitted that
section 92(1) was also engaged.
Words had passed between the sheriff clerk and the juror, but there was
no written record of what had been said.
A breach of that subsection fell within the category of cases which
necessarily gave rise to a miscarriage of justice (Renton & Brown - Criminal
Procedure para.19.14.2). Reference
was made to McColl v HM Advocate 1989 S.C.C.R. 229, McLeod v HM Advocate 2006 S.C.C.R. 679 and Thomson v HM Advocate 1997
S.C.C.R. 121. As to ground of
appeal 3, the Crown had at no time laid a foundation in evidence for the
witness McGee being qualified to identify as heroin any substance she had
seen. Her purported identification of it
could not be regarded as reliable or of any weight. Reference was made to King v HM Advocate 1999
S.C.C.R. 330, where a restrictive test had been applied to
section 106(3)(b). The test used in
E v HM Advocate 2002 S.C.C.R. 341 had been less restrictive. The present case was not like King where the jury's choice was between
two inconsistent bodies of testimony.
The circumstances were closer to those in E.
[5] At this point
the appellant made his interjection. The
only additional factor which he relied on thereafter - in relation to ground of
appeal 2 - was a suggestion that the juror who had emerged from the jury
room might have overheard conversation between the appellant and his
mother. He said nothing about grounds of
appeal 1 or 3.
[6] The Advocate
depute, addressing us on ground of appeal 2, accepted that there had been
an irregularity in that the juror had come out of the room other than for a
purpose authorised by section 99(2)(b).
That irregularity had not, however, been in circumstances which led to a
miscarriage of justice. Renton & Brown - Criminal Procedure
at para.19.14.2 did not suggest that a breach of section 99(2)(b) had such
an effect. Section 92(1) was not
engaged. What had occurred was not "part
of the trial" within the meaning of that subsection. There had been no communication with the jury
as a whole, merely an instruction to the individual juror to return immediately
to the jury room; that was not something
"in the cause". The giving of that
instruction had been an innocent and proper course of action. Unsurprisingly, counsel appearing at the
trial, who had observed what had happened, had not raised any issue about it
before the sheriff. Section 99(5)
was not engaged. That provision, which
was of ancient origin, was directed against the prosecutor or anyone in his
interest communicating with an enclosed juror (Thomson v HM Advocate,
per Lord Justice General Roger at p.129).
[7] As to grounds
of appeal 1 and 3, there had been a sufficiency of evidence and the
verdict was not unreasonable. The
commission of an offence of being concerned in the supplying of a controlled
drug could competently be proved by evidence of actual supplying (HM Advocate v Grant 2008 S.C.C.R. 143, disapproving HM Advocate v McCormack
1995 S.C.C.R 477). The character of the
substance supplied could be proved by lay evidence (McCallum v McKay 1997
S.C.C.R. 558; Main v PF, Cupar, High
Court of Justiciary, 23 February 1997, unreported). The principal witness (Rachel Whyte), who was
a regular drugs user, had spoken to the appellant dealing in drugs including
heroin, which she had sampled. The other
witness (Pamela McGee) had spoken to the same type of activity and had
testified that the drug being dealt in was heroin. No objection has been taken to the competency
of her giving evidence identifying that drug;
nor had she been challenged as to her qualification to do so. Reference was made to Martin v HM Advocate,
High Court of Justiciary,
The statutory
provisions
[8] The Criminal
Procedure (
"92(1) ... no part of a trial shall take place outwith the presence of the
accused.
...
99 ...
(2) ... while the jury are enclosed
and until they intimate that they are ready to return their verdict -
...
(b) no juror shall come out of the jury room
other than to receive or seek a direction from the judge or to make a request -
(i) for an instruction [of a particular
kind]; or
(ii) regarding any matter in the cause.
...
(5) If the prosecutor or any
other person contravenes the provisions of this section, the accused shall be
acquitted of the crime with which he is charged."
Discussion
[9] After the jury had been secluded, a
juror emerged from the jury room. It was
apparently his intention to go out of the building to smoke. His emergence was immediately detected by the
sheriff clerk who instructed him to return forthwith to the jury room. He did so.
There is no reason to suppose that the juror, when out of the jury room,
communicated with any other person nor that his communication with the sheriff
clerk extended beyond his receiving the instruction referred to. In these circumstances, while there was a
breach of section 99(2)(b), it did not lead to a miscarriage of
justice. By contrast, in McColl v HM Advocate the sheriff clerk had communicated with the jury on a
matter going directly to their deliberations (how they might arrive at a
majority verdict) and it was unclear what precisely had been the terms of that
communication. Similarly, in McLeod v HM Advocate the communication by the bar officer was about what the
jury should do in the event of a division of view. Such matters, which go to the heart of the
functioning of the jury, are integral to the trial and should not take place
outwith the presence of the accused.
Here, the communication with the single juror was purely of an
administrative character and did not touch upon the issues with which the jury
were concerned. No breach of
section 92(1) occurred. Regard
being had to the interpretation of section 99(5) given in Thomson v HM Advocate,
the appellant is not entitled by reason of the breach of section 92(2)(b)
to be acquitted. We would only observe
that we are surprised that a jury attendant was not stationed immediately
outside the jury room to prevent unauthorised exit or entry while the jury
deliberated. Such an arrangement would
reduce the risk of infringement of the statute.
[10] There was
clearly a sufficiency of evidence to allow the jury to convict the appellant of
a contravention of section 4(3)(b) of the 1971 Act. Although there was no expert evidence
identifying as heroin any substance which the appellant was concerned in
supplying, proof by lay testimony is competent and may, in appropriate
circumstances, be sufficient (McCallum v
McKay; Main
v PF, Cupar). The principal witness (Rachel Whyte) was a
heavy user of heroin. On a number of
occasions during the period libelled she had travelled with the appellant in
his car to the north-east of
Disposal
[11] In all the
circumstances this appeal must be refused.