APPEAL AGAINST CONVICTION BY BRIAN ROBERTSON AGAINST HER MAJESTY'S ADVOCATE
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 57
HCA/2015/3395/SC
Lord Justice General
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
APPEAL AGAINST CONVICTION
by
BRIAN ROBERTSON
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: C Fyfe, Solicitor Advocate; Paterson Bell (for Bruce Short, Dundee)
Respondent: A Prentice QC (sol adv) AD; the Crown Agent
9 June 2016
[1] On 21 October 2015, at Alloa Sheriff Court, the appellant was found guilty of a charge which libelled that:
“(2) between 23 ... and 24 June 2015 at Craighall Street, ... and Drip Road, Stirling you ... were concerned in the supplying of a controlled drug, namely Diamorphine, a Class A drug specified in Part 1 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) ...”.
He was sentenced to 3 years imprisonment.
[2] The appeal raises two issues. The first is whether the sheriff erred in repelling an objection, said in the Note of Appeal to have been taken by way of a preliminary issue minute, to the evidence of DC Plank that the appellant was involved in the supply of heroin as libelled. The second relates to the adequacy of the sheriff’s directions on how to treat DC Plank’s opinion evidence.
[3] An objection was raised as a preliminary issue. The minute stated that the objection was to allowing DC Plank to give opinion evidence “outwith his area of expertise”. It continued by stating that, although DC Plank could be regarded as an expert if his credentials and experience were established, it was not for him to “usurp the function of the jury”. He ought not to be permitted to go through the contents of an interview of the appellant by the police and make comments on parts of it. That was the focus of the objection. It does not feature in this appeal. The minute did not raise any objection to evidence about inferences which might be drawn from the quantities of drugs found on the appellant. However, the sheriff records that, during the course of the debate on the preliminary issue, the appellant’s agent expanded the objection to one complaining of evidence being elicited from DC Plank “that the appellant was dealing in heroin”. The sheriff states that he “repelled” this submission because he considered that it was entirely proper to enquire of an expert whether, in his opinion, “the appellant could have been dealing in drugs” and whether a quantity of drugs found in possession of an accused could be for personal use. It would seem that, notwithstanding the terms of the actual objection before him, it was the sheriff’s view that DC Plank could give evidence that the appellant had been dealing in heroin.
[4] It is worth pausing to observe that it is important, when sustaining or repelling an objection to evidence as a preliminary issue, that the court should take care to ensure that the nature of the objection and the court’s determination upon it is properly recorded. The sheriff entertained an objection which was not contained in the minute. The problem with that is that the court minutes record only that the sheriff “repelled the minute”. This says nothing about the objection raised at the bar and ruled upon. Such a deficiency could cause a problem for a trial court presided over by a different sheriff and did cause a problem for this court in trying to understand the precise nature of the objection and ruling. At best, the court could proceed only on the basis of the sheriff’s report, which states that he did repel an objection of the nature now insisted upon but which, contrary to the Note of Appeal, was not contained in the minute.
[5] At the trial, it was not disputed that the appellant was found in possession of 9 individual wraps of heroin on one morning, and 4 wraps the next morning. The wraps each contained between 0.2 and 0.25 grams and would cost £20 each. DC Plank, who had not been involved in the finding of the wraps, gave evidence. Over a period of some considerable time in examination-in-chief, it was established, although it does not appear to have been seriously disputed, that he had substantial experience in drugs matters. He had spent some half of his 16 years service in the drugs environment. He spoke to the normal quantities of drugs which a user would have on his person in the street and to the quantities which might be involved in street level dealing. He described the lifestyle of drug users, essentially indicating that a user would not normally carry several drug wraps in the street, for a variety of different reasons. Ultimately, having adduced this evidence of a general nature from the witness, the procurator fiscal depute asked specifically:
“So, in relation to this case, can you give your opinion as to whether or not you consider that ... Brian Robertson was concerned in the supply of Diamorphine?”
To this the witness replied: “Yes, I would, yes.” and then explained the reasons why he was, essentially, expressing an opinion that the appellant was concerned in drug supplying. Not long after that, towards the end of examination-in-chief, the procurator fiscal depute asked a further, leading, question as follows:
“And just finally ... in your opinion ... Brian Robertson was concerned in the supply of Diamorphine, am I correct in saying your opinion is also that you would class him as a, you know, street dealer of ... Diamorphine, given the circumstances?”
to which the witness replied:
“Yes, I would ...”.
[6] In due course, the sheriff directed the jury that DC Plank was an experienced drugs officer whose duties, amongst others, were to provide expert evidence of the factors be taken into account as indicative of someone concerned in the supply of drugs, as opposed to merely being in possession. He directed the jury that DC Plank’s evidence provided a “second source of evidence” which operated to corroborate the finding of the drugs and thereby establish the case libelled. He stated that the function of DC Plank had been to provide:
“expert evidence to the court on the factors of which account is taken in considering whether, in his opinion, from the facts in this case it is indicative of someone being concerned in the supply of controlled drugs as opposed to being in possession of those drugs for their own personal use”.
[7] Having summarised DC Plank’s evidence, he told the jury that they were not bound to accept it. It was there for them to accept or reject, as with any other witness. He told the jury that DC Plank’s evidence was that the accused had been concerned in the supply of heroin to others. In so doing, he also told them that they required to accept that evidence before they could convict of the charge. On the other hand, he immediately went on to state that they required to consider the evidence of the appellant that the drugs were for his own use. He reminded them that, if they accepted that evidence or had a reasonable doubt about it, they would require to acquit.
[8] The first submission in the appeal was that the quoted questions, which were asked of DC Plank, had prompted the witness to usurp the function of the jury. DC Plank’s evidence had not been confined to his opinion about drug quantities and packaging. He had gone on to provide an opinion that the appellant had been concerned in the supply of controlled drugs. That was a matter for the jury alone. It was said, secondly, that, whilst that might not in itself be indicative of a miscarriage of justice, such a miscarriage had taken place once the sheriff’s failure adequately to direct the jury as to the purpose and scope of opinion evidence was taken into account. The sheriff had not directed the jury about the function of an expert being to assist the jury in an area of specialist knowledge outwith their own experience. Generally, it had been important for the sheriff to direct the jury on how to evaluate this evidence. The sheriff had failed to do so (Morrison v HM Advocate 2013 SCCR 626, Lord Brodie at para 37).
[9] The advocate depute, whilst conceding that the nature of the questions ultimately asked of DC Plank were inappropriate, submitted that the answers to them would have been the same had the right questions been asked. The sheriff had correctly directed the jury about their ability to reject or accept DC Plank’s evidence and, in all the circumstances, no miscarriage of justice had occurred.
[10] It is long established that evidence given by officers specialising in the illegal drugs environment are entitled to provide a jury with what has been described as “received wisdom” from the realms of drugs enforcement (Wilson v HM Advocate 1988 SCCR 384, LJG (Emslie) at 385). It is competent for an experienced officer to give evidence about the amount of controlled drug which a user would normally consume, or indeed carry. Much of the evidence adduced from DC Plank about user and dealer quantities, and about the ways in which drug users indulge their daily habit, was competent and relevant. The sheriff would have been correct to repel a general objection to DC Plank giving opinion evidence on such matters. However, it is not disputed, nor can it be, that the quoted questions ultimately asked by the procurator fiscal depute, which were essentially whether, in the opinion of a police officer, the appellant was guilty of the offence (ie of dealing in drugs), were illegitimate and did usurp the function of the jury. In that respect, the sheriff ought to have intervened. It seems from his previous ruling that he regarded such questions as permissible provided simply that relevant expertise was established.
[11] The direction which the sheriff gave, about the evidence of DC Plank being corroborative of the basic findings, was misguided. It was not necessary, for a conviction to follow, that the jury accepted DC Plank’s evidence. That evidence was not corroborative in that sense. The function of the expert testimony was to assist the jury when considering whether they could draw the inference of supply from what was already sufficient evidence, about the quantity and nature of the drugs. Where there are several wraps found, it is not necessary for there to be expert evidence of normal user quantities in order to prove concern in the supplying of the drugs. That having been said, the issues before the jury were relatively clear. The sheriff told the jury that it was a matter for them to decide whether to accept DC Plank’s testimony, having regard, amongst other things, to his experience (which was not in dispute). The directions on the function of the expert in the particular circumstances of this case, where there was no competing testimony and the issue was straightforward, were adequate.
[12] In all the circumstances, having regard to the quantity of the heroin found and the nature of its packaging, coupled with such evidence as was competently given by DC Plank, the court is unable to say that a miscarriage of justice has occurred. This appeal must accordingly be refused.