Alexander Philip Millar V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Bonomy,Lord Kingarth,Lord Reed |
| Neutral Citation | [2010] HCJAC 60 |
| Court | High Court of Justiciary |
| Docket Number | XC17/09 |
| Date | 09 June 2010 |
| Published date | 05 October 2010 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Kingarth Lord Reed Lord Bonomy | [2010] HCJAC 60 Appeal No: XC17/09 OPINION OF THE COURT delivered by LORD KINGARTH in APPEAL AGAINST CONVICTION by ALEXANDER PHILIP MILLAR Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Shead, Wilson McLeod
Respondent: Cherry, Q.C.; Crown Agent
9 June 2010
[1] On 21 November 2008 at the High Court in Edinburgh, the appellant was found guilty as libelled by a majority verdict of the jury. The charge was in the following terms:
"on 19 June 2008 at 14/1 Baltic Street and Assembly Street, both Edinburgh and elsewhere you ALEXANDER HASTINGS MCNEILL AND ALEXANDER PHILIP MILLAR were concerned in the supplying of a controlled drug, namely Cocaine, a Class A drug specified in Part 1 of Schedule 2 to the aftermentioned Act, to another or others, in contravention of Section 4(1) of said Act: CONTRARY to the Misuse of Drugs Act 1971, Section 4(3)(b)."
[2] The jury returned a not proven verdict in respect of the co-accused.
[3] The appellant has appealed against his conviction.
[4] The nature of the evidence given in the trial is set out in the trial judge's report, as follows:
"Background
The appellant is a widower aged 66 in general poor health. One of his health problems is that he is a diabetic who requires regular injections of insulin. He formerly occupied the ground floor flat at 14/1 Baltic Street ('the Subjects'). It is a modern flat consisting of a galley kitchen, a living room, a bedroom and a bathroom. The bedroom has a fitted wardrobe with a sliding door. It was also described in the evidence as a 'walk-in-cupboard'.
The appellant and McNeill have known each other for several years. Their link is McNeill's wife. She was formerly married to the appellant's son. The appellant is the grandfather of her children. Prior to the offence, both she and McNeill provided care and support to the appellant. McNeill visited the appellant frequently at the Subjects.
McNeill was close friends with an individual called Michael Clancy. In June 2008, the police were conducting surveillance on Clancy. The surveillance was part of 'Operation Nuclear' a large-scale investigation into a drugs network in Edinburgh, which was believed to be supplying heroin and cocaine..
19 June 2008
At 8.30am on 19 June 2008, Clancy was observed driving a silver BMW motor car from the Muirhouse area of Edinburgh. Soon afterwards, he collected McNeil and the two men drove to Leith. They arrived at about 9.45am to buy provisions for breakfast. The appellant left the Subjects on his own at about 11.48am.
At about 12.15pm, Clancy and McNeill left the Subjects by the rear footpath. McNeill was carrying a Farmfoods plastic carrier bag. Four police officers in plain clothes approached them. As they did so, McNeill was seen to drop the Farmfoods bag. Both men were detained under section 23 of the Misuse of Drugs Act 1971. The Farmfoods bag was found to contain (a) various items of diabetic medication; and (b) another carrier bag, within which were 4 blocks of white powder.
McNeill also had a set of house keys on him, which he said belonged to the Subjects. The Subjects were opened using the house keys and the following items were found during the course of a police search at which the appellant was present:
Kitchen Worktop
· a food mixer
Kitchen Cupboard
· three bags of white powder
· digital scales
· a box of Creatine body-building power
· plastic bags
Kitchen Bin
· Plastic bags
Bedroom Wardrobe
· A hydraulic press with mould containing white powder
Police officers gave evidence that the items inside the kitchen cupboard were on full view and the first things you saw when the cupboard was opened. The purpose of the hydraulic press was to compact powder in the moulds into small blocks. It was very heavy. One person could only lift it with a lot of effort. It was sitting on the floor of the bedroom cupboard and had white powder on it. The police officers gave evidence that there was men's clothing in the cupboard.
The appellant was detained at 12.28pm by other officers at the Kirkgate Shopping Centre in Leith. No drugs or drugs paraphernalia were found on his person. A search of Clancy's flat found four tick lists within a DVD case in the living room and £350 cash in a kitchen cupboard.
In September 2008, Clancy pled guilty to a charge of being concerned in the supply of controlled drugs arising out of this incident. He was sentenced to a term of imprisonment. He appeared from custody as a Crown witness at the trial of McNeill and the appellant. In short, he claimed that he was solely responsible for the drugs operation that neither McNeill nor the appellant was involved.
Clancy's evidence was that he decided to become involved in drug dealing to make money. He arranged for drugs to be 'laid on' for himself. He chose to use the Subjects because they were on the ground floor. His own flat was on the third floor and the hydraulic press was too heavy to take there. Clancy said that he would sometimes see the appellant 20-30 times per month - probably once every day or every couple of days. He said he bought the mixer about one month before his arrest and put it into the Subjects, telling the appellant it was a present. He put it there on the same day as the Creatine. On Clancy's account, he put the press into the bedroom cupboard sometime in June 2008, although it was not clear precisely when that took place.
On the morning of the offence, Clancy said that he took the cocaine, together with the digital scales and the freezer bags, to the Subjects. He said that he mixed up the drug with the Creatine in the kitchen, when the others were in the living room. He said it was only after the appellant had left the house at about 11.48am that he went to the bedroom to 'block up' the cocaine using the press. He accepted that the tick lists were in his handwriting and belonged to him.
Clancy's general position was that the appellant was an innocent stooge who knew nothing about the drugs operations. However, he also said that both McNeill and the appellant knew he was up to something and words to the effect that it did not take a genius to work out what the Creatine, the mixer and the press were for. Clancy's position was that as they were leaving the Subjects, his mobile phone had rung. He had then asked McNeill to take out the Farmfoods carrier bag at the last minute.
McNeill said that when he went to the Subjects on 19 June 2008, Millar had let them in. The two men went out briefly to buy food for breakfast. After they returned, they remained in the living room talking and reading the newspapers. McNeill's position was that he did not know the whereabouts of Clancy. McNeill stated that he had no knowledge that the Farmfoods bag contained controlled drugs. He had picked it up believing it only to contain insulin, which he had arranged to deliver to the appellant at another address later that day.
The appellant elected not to testify or lead any evidence on his behalf. His taped interview with the police, however, was played in court during the course of the Crown case. During the course of the interview, he denied all knowledge of the operations at the subjects. He also stated that Clancy had never been in his flat.
It was agreed in the Joint Minute (a) that the powder found in the Farmfoods bag was 500g of cocaine; (b) that the powder found in the appellant's kitchen was cocaine with a total weight of 134.2g (55.5g, 17.1g and 61.6g); (c) that the powder found in the mould was 122g of cocaine; and (d) that the bags found in the kitchen bore traces of cocaine. All the cocaine was of relatively low purity. There was unchallenged evidence that the cocaine recovered had a maximum street value of £26,511. The police drugs expert also stated that the presence and use of the press indicated that the Subjects had been used as a 'cutting shop' as part of a large supply operation."
[5] There are four grounds of appeal in the Note of Appeal against conviction. The appellant's counsel indicated that he did not seek to advance argument in support of ground 3.
Grounds 1 and 2
[6] We propose to deal with these grounds together, since they essentially focus on the same broad issue which counsel, in presenting the appeal, sought to raise; that is whether as a result of certain prejudicial evidence having been given, in breach of section 101(1) of the Criminal Procedure (Scotland) Act 1995, or otherwise, the appellant was denied a fair trial and suffered a miscarriage of justice.
[7] As part of the Crown case witness Detective Constable Douglas Bulmer gave evidence of an interview between himself (and another police officer) and the appellant on 19 June 2008, following the appellant's detention. The interview lasted approximately 40 minutes. In the course of the witness's evidence a video tape recording of the interview was played to the jury, who had, at least at that time, transcripts of the interview before them. Although certain passages in the interview were not played and were excised from the transcripts, what was played (and transcribed) included two exchanges which, it appears, neither the Crown nor the defence had intended should be played to the jury or left in the transcripts made available to them. In particular, on page 16 of the...
To continue reading
Request your trial