WILLIAM CAIRNS v. HER MAJESTY'S ADVOCATE
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Marnoch Lord Macfadyen Lord Clarke | [2005HCJAC22] Appeal No: XC235/03 OPINION OF LORD MARNOCH in APPEAL AGAINST CONVICTION and SENTENCE by WILLIAM JAMES CAIRNS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Kerrigan, Q.C., Miss Mitchell; Liam O'Donnell & Co., Glasgow
Respondent: Mackay, A.D.; Crown Agent
11 March 2005
[1]In this case the appellant was convicted, along with two co-accused, of having been concerned in the supplying of "Ecstasy" contrary to section 4(3)(b) of the Misuse of Drugs Act 1971.
[2]The factual background to the present appeal is conveniently summarised by the trial judge in the following passage which appears at page 2 of his Report to this court:
"The evidence disclosed that the police were undertaking a surveillance operation in respect of certain individuals and motor vehicles on 25 January 2001 concerning illegal drugs. This appellant was a target of their operation. He was first sighted by police officers shortly after 5.00pm. He was driving his BMW motor car, registered number F502 ASJ, and was followed through various streets on to the M80 motorway and thereafter from the M80 motorway to Alexandra Parade. At Alexandra Parade the BMW stopped and thereafter moved off followed by a VW Passat, registered number P67 WYS, owned by the co-accused Boal's wife and driven by the co-accused, Summers. The co-accused Boal was a passenger in said vehicle. The BMW and VW Passat drove through various streets of Glasgow and ultimately turned into Marwick Street where they stopped. The appellant got out of his vehicle, removed his child who was a passenger in the vehicle and carried her towards a tenement in Cumbernauld Road. Shortly thereafter the appellant re-emerged from the tenement carrying the child. He placed the child in the BMW motor car and thereafter walked up the street carrying a bag. He stopped at the VW Passat and leaned into the front passenger side. He handed the bag to the co-accused Boal. Thereafter both vehicles again set off in convoy through various streets until they stopped behind each other in Mallaig Road shortly before 7.00pm. At that time police officers detained all three accused and recovered from the VW Passat the bag which had been handed into the car by the appellant Cairns. The bag was found to contain 2,060 Ecstasy tablets. The estimated value of the drugs recovered was in the range of £10,300 to £20,600."
[3]In summing up the case against this appellant the trial judge, at p. 38 of his Charge, says this:
"As I said, if you answer any of these questions in the negative you would require to acquit but if you had answered both of these questions in the affirmative, namely that he handed a bag in and that you are satisfied it was Label 1, you would be entitled to conclude that he was concerned in the supplying of the controlled drug specified because it is a matter of agreement that Label 1 contains 2,060 Ecstasy tablets and you would therefore reach the conclusion that he had supplied them, he had actually supplied them, to another person. In that regard he was involved in the process of supplying. So in summary, ladies and gentlemen, you can only convict the third accused if you concluded that he handed over a bag to another person or persons in the VW Passat and that bag was Label No. 1".
[4]The only ground of appeal with which the court is presently concerned is Ground 2(a) of the original Grounds of Appeal which, in relation to the above passage, makes the following complaint:
"The trial judge failed to direct the jury at that critical stage in terms of Sharkey v. H.M. Advocate 2001 S.C.C.R. 290 that the jury would also require to be satisfied that the accused had knowledge that he was involved in 'supplying something' in the course of passing the bag, prior to proceeding to conviction of the appellant."
[5]At one point in his submissions Mr. Kerrigan, Q.C., for the appellant, submitted that there had to be knowledge that the "something" was a "substance of some kind" but, following reference to the authorities referred to later in this Opinion, I did not understand him to insist in that contention. In any event, it is, in my view, wholly without foundation.
[6]Reverting to the Ground of Appeal as formulated, the precise direction desiderated is, as it happens, given by the trial judge some seven pages earlier in his charge where he is dealing generally with the requirements of section 4(3)(b) of the 1971 Act and where he puts the matter thus:
"It is of the essence of this charge that there is active participation and that involves knowledge that what was happening was an aspect of the process of supply of something."
[7]It may well be that that general direction can be assumed to have remained in the minds of the jury when listening to the summary referred to above. In my opinion, however, a better ground of decision is that the direction in question was, so far as this appellant was concerned, quite unnecessary. For my part, I entirely agree with how the trial judge deals with the matter in his Report. He says this:
"In the context of evidence of actual supply I do not consider it necessary to repeat the requirement of knowledge on the part of an accused person that he was involved in the process of supply, particularly when the item in question was a carrier bag containing in excess of 2,000 tablets. It is inconceivable that someone handing over such a bag would be unaware that it contained something and that he was involved in the process of supplying something."
The logic of that passage is, I believe, irrefutable.
[8]In so far as counsel for the appellant sought to rely on Sharkey v. H.M. Advocate cit. sup. I am, myself, clearly of opinion that what was said in that case in regard to directions should not be taken as being generally applicable to all prosecutions under section 4(3)(b) of the 1971 Act. On the contrary, Sharkey has already been distinguished by this court in e.g. Smith v. H.M. Advocate 2002 S.C.C.R. 1059 and, in my opinion, it will always be a question of circumstances whether a direction such as there desiderated is either necessary or appropriate. In that connection, it should be borne in mind that the direction in question originally emanated from opinions delivered in Salmon v. H.M. Advocate 1999 J.C. 67 which were directed to particular problems arising in what might loosely be described as "container type" cases. In other types of case, however, - and there are many - the focus may not be on the stage of transferring the drugs and the accused's knowledge of being involved in a supply operation may well be an inevitable inference from other facts established in the evidence. In such circumstances, just as in Smith and in the present case, a Salmon or Sharkey type direction may, it seems to me, be entirely otiose and quite possibly confusing.
[9]In the result my motion to your Lordships is that this Ground of Appeal be rejected and, that having been done, the appeal should be continued to a Procedural Hearing in order that the outstanding application under section 107(8) of the Criminal Procedure (Scotland) Act 1995 can be determined.
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Marnoch Lord Macfadyen Lord Clarke | [2005HCJAC22] Appeal No: XC235/03 OPINION OF LORD MACFADYEN in APPEAL AGAINST CONVICTION and SENTENCE by WILLIAM CAIRNS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Kerrigan, Q.C., Miss Mitchell; Liam O'Donnell & Co., Glasgow
Respondent: Mackay, A.D.; Crown Agent
11 March 2005
[10]I agree with your Lordship in the chair that ground of appeal 2(a) should be refused, and that the appeal should be continued for the purpose which your Lordship identifies.
[11]In ground 2(a) it is submitted that the trial judge misdirected the jury in respect that, at page 38 of his charge, in summarising the questions which the jury would require to answer in the affirmative in order to be entitled to convict the appellant, he omitted to direct the jury that they would require to be satisfied that the accused had knowledge that he was concerned in "supplying something" in the course of passing the bag (Crown Label 1) into the car.
[12]In order to put that submission in the context of the charge as a whole, it is in my view necessary to note the directions given to the jury by the trial judge in the following passage at pages 30 to 31 of his charge:
"So what is it that the Crown have to prove under section 4(3)(b)? In this charge, ladies and gentlemen, in a charge of this nature, the facts that have to be proved are firstly that the accused ... was in fact concerned in supplying something. Something, whatever it was. Secondly, you have to be satisfied or the Crown has to prove that the thing that was being supplied or with which the accused was concerned in supplying was the controlled drug specified in the charge and the final thing is that the accused knew that he was involved in supplying of a controlled drug or alternatively there are two possibilities: either he knew he was involved in the supply of a controlled drug or that he knew that what he had or she had was a substance of some kind which the Crown subsequently proved to be the controlled drug. So it is enough that if he knew that he had something and then the Crown subsequently proved that what it was is a controlled drug. It is of the essence of this charge that there is active participation and that involves knowledge that what was happening was an aspect of the process of supplying something. The Crown does not have to prove that the accused knew that what was being supplied was in this case Ecstasy or any controlled drug. All that has to be proved about the substance itself is that it was in fact Ecstasy."
[13]In that passage, the trial judge in my opinion gave unexceptionable directions informing the jury in general terms of the facta probanda of the offence of contravening section 4(3)(b). The facts which he identified were: (1) that the accused person was concerned in supplying something; (2) that that "something" was the controlled drug libelled; and (3) that the accused knew that he was concerned in the process of supplying something. Mr Kerrigan, who appeared for the appellant, did not suggest that there was anything wrong with those general directions.
[14]The passage in the charge which Mr Kerrigan did criticise came later, in the final stage of a discussion of the case against the appellant, who was the third accused. The trial judge began that discussion by dealing first with the evidence of the appellant's involvement in the process of supply. That entailed consideration of whether the appellant had been proved to have handed over a bag to the occupants of a Volkswagen Passat motor car. His Lordship said, at page 35:
"However, if you are satisfied beyond reasonable doubt that the third accused handed a bag into the Passat you could conclude, you could conclude, it is a matter for you, that he was involved in the process of supply of something and if you were satisfied beyond reasonable doubt that he was involved in the process of supply, the next issue for you to consider is whether the Crown has proved beyond reasonable doubt that what was supplied was a controlled drug, in fact was the controlled drug Ecstasy ..."
The trial judge then went on to discuss the evidence relating to a bag (Crown Label 1) which was found to have contained a quantity of Ecstasy tablets.
[15]The trial judge then gave the jury the direction which was said to be incomplete. At page 38 he said:
"As I said, if you answer any of these questions in the negative you would require to acquit but if you had answered both of these questions in the affirmative, namely that he handed a bag in and that you are satisfied it was Label 1, you would be entitled to conclude that he was concerned in the supplying of the controlled drug specified because it is a matter of agreement that Label 1 contained 2060 Ecstasy tablets, and you would therefore reach the conclusion that he had supplied them, had actually supplied them, to another person. In that regard he was involved in the process of supplying. So in summary, ladies and gentlemen, you can only convict the accused if you conclude that he handed over a bag to another person or persons in the VW Passat and that bag was Label No. 1."
[16]The submission for the appellant was that at that stage of his charge the trial judge ought to have directed the jury again that a necessary element of the offence was that the appellant had to be proved to have known that he was concerned in supplying something. In my opinion that submission is not well-founded.
[17]It is not disputed that at page 31 of his charge the trial judge gave appropriate general directions identifying the facta probanda of the offence under section 4(3)(b), including the need for proof of the accused person's knowledge that he was concerned in supplying something. In the passage at page 38, the trial judge was addressing, not the general requirements of section 4(3)(b), but the specific case made against the appellant. He correctly identified the need for proof (1) that the appellant handed a bag in to the car and (2) that the bag in question was Label 1, which admittedly had been found to contain ecstasy. In my opinion, it was quite unnecessary, in the circumstances of this case, for the trial judge to say more about the appellant's knowledge at that stage. It was implicit in a finding by the jury that the accused had handed Label 1 into the car that he knew that he was concerned in supplying something. If the members of the jury were satisfied that he handled the bag, giving it to the occupants of the car, and that the bag was the one which was found to contain 2060 tablets of ecstasy, it is in my opinion inescapable that they must have been satisfied that he knew he was concerned in supplying something. It would therefore, in my opinion, have been otiose for the trial judge to direct the jury at that stage, when they were satisfied on the two matters that together yielded that inescapable inference, to address, as if it were a separate question, whether the appellant knew that there was something in the bag.
[18]I am therefore of opinion that ground of appeal 2(a) is ill-founded. The trial judge gave appropriate general directions as to the requirements of a contravention of section 4(3)(b). It was quite unnecessary for him to direct the jury to address separately the question of knowledge in the event of their having made findings from which the inference of knowledge was inevitable.
| APPEAL COURT, HIGH COURT OF JUSTICIARY |
| Lord Marnoch Lord Macfadyen Lord Clarke | [2005HCJAC22] Appeal No: XC235/03 OPINION OF LORD CLARKE in APPEAL AGAINST CONVICTION and SENTENCE by WILLIAM JAMES CAIRNS Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Kerrigan, Q.C., Miss Mitchell; Liam O'Donnell & Co., Glasgow
Respondent: Mackay, A.D.; Crown Agent
11 March 2005
[19]I agree with the disposal of matters as proposed by your Lordship in the chair.
[20]The submissions of senior counsel for the appellant ultimately came to involve, in effect, one point and only one point, namely that what he accepted was a perfectly sound direction by the trial judge, contained at pages 30 to 31 of his charge, should have been repeated, in substance, later on in the charge, in particular, when the trial judge gave the direction he did at page 38. For the reasons given by Lord Macfadyen I consider that that submission is wholly without merit.