Alexander David Williamson Atkinson V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Mackay of Drumadoon,Lord Clarke,Lord Malcolm |
| Judgment Date | 22 July 2010 |
| Neutral Citation | [2010] HCJAC 77 |
| Court | High Court of Justiciary |
| Date | 22 July 2010 |
| Published date | 22 July 2010 |
| Docket Number | XC523/09 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Clarke Lord Mackay of Drumadoon Lord Malcolm | [2010] HCJAC 77 Appeal No: XC523/09 OPINION OF THE COURT delivered by LORD MACKAY OF DRUMADOON in NOTE OF APPEAL by ALEXANDER DAVID WILLIAMSON ATKINSON Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Appellant: Renucci; Capital Defence Lawyers, Edinburgh
Respondent: Mackay, A.D.; Crown Agent
22 July 2010
Introduction
[1] During July 2009, the appellant stood trial in Perth Sheriff Court on an indictment libelling two charges. On 17 July 2009, after a trial lasting 7 days, the appellant was convicted on charge 1 in the following terms:
"(1) between 3 March 2009 and 19 March 2009, both dates inclusive, at the North Inch Park and South William Street, both Perth and elsewhere in Scotland you were concerned in the supplying of a controlled drug, namely Diamorphine (Heroin), 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)."
The other charge the appellant faced had been withdrawn by the Crown during the course of the trial. On 17 July 2009 the sheriff imposed a sentence of five years imprisonment on the appellant. That sentence was backdated to 20 March 2009.
[2] The jury were empanelled on 9 July 2009. Although there had been various first diet and continued first diet hearings prior to that date, the appellant had not raised by way of preliminary plea any matter relating to the relevancy of the charge on which he was subsequently convicted. Nor had the appellant raised by way of a preliminary issue any objection to the admissibility of any evidence that the Crown proposed to lead during the trial about the surveillance operation carried out on the appellant between the dates and at the locations specified in charge 1 on the indictment.
Note of appeal
[3] Following his conviction the appellant lodged a Note of Appeal. It contained four grounds of appeal. Leave was granted in relation to ground 1 only. The issues raised in that ground of appeal include the following:
"During the course of the trial, objection was taken to the evidence which indicated actual supply of drugs by the Appellant to any other person, on the basis that the libel of the charge in the indictment was, in terms of Section 4(3)(b), not Section 4(3)(a). Reference was made to HM Advocate v Grant 2008 SLT 339 and in particular their comments at paras 20 and 21. The objection was noted, but by agreement, the evidence was heard under reservation on the basis that the matter would be dealt with at the conclusion of all the evidence. The basis of the objection was (a) that there was no fair notice, as referred to in HM Advocate v Grant, in this case, that the Crown intended to rely on specific incidences of supply of heroin by the Appellant to named persons and, as such, that evidence was inadmissible; and (b) that if the Crown evidence amounted only to supply to one person, possibly the witness Santos, then there would be insufficient in law to allow the matter to proceed to the jury in respect of charge 1.
The evidence was concluded and the objection was considered together with a submission of no case to answer which was also made. ..... "
The ground of appeal then articulates a number of submissions in support of the foregoing contentions. The ground also notes that after the Crown evidence had been concluded a submission of no case to answer had been made on behalf of the appellant and refused by the sheriff.
Report by the sheriff
[4] In his very full report to this court the trial sheriff has reported on the evidence which was before the jury:
" The Crown led evidence from Detective Constables Alan Wilkie, Kevin Johnstone, Sadie Allan, Samuel Woods, Russell Gillespie, Mark Stephen, Gavin Duncan, Gordon Peebles, Detective Sergeant Marshall McKay, Carlos Santos, Amanda Mackay, and Tracey Shields.
Detective Constable Alan Wilkie identified the Appellant. He had been a member of a surveillance operation, the subject of the operation being the Appellant. The operation had the requisite authorisation. He was referred to the surveillance logs. In particular, during surveillance on 19th March 2009 the officer had observed the Appellant in the company of a female, Morgan Pritchard, between 12.33pm and 12.50pm. During that period they visited inter alia 'the known address' in 21, South William Street, Perth and left it after a minute. The Appellant remained under observation. Tracey Shields, having been seen using a public telephone in Victoria Street, Perth at 11.08am, met the Appellant's son, Alexander Atkinson. She gave him something and he handed something to her. They parted company, Mr Atkinson junior entering 'the known address'. At 1.37pm a female entered this address, the Appellant having entered 'the known address' at 1.21pm. Later, at 1.58pm, the Appellant's son left 'the known address' and met Miss Shields a minute later, handing her something, before he returned to 'the known address'. The Appellant met Miss Pritchard at 3.23pm and he was detained by the officer at 3.54pm. As he was being detained the Appellant put a cling film package in his mouth and swallowed. The officer carried out a search of the Appellant's room, namely Room 109, in the Waverley Hotel, York Place, Perth. Mobile telephones, Crown labels 6 and 8, and tin foil, Crown label 11, were recovered from the room. He further tested a foil wrap found in the possession of Tracey Shields when she was detained.
Detective Constable Kevin Johnstone was likewise involved in the surveillance operation. He identified the Appellant. On 4th March 2009 he detained Carlos Santos at 3.17pm at Bridgend, Perth. Mr Santos was found in possession of two foil wraps, Crown label 16. Mr Santos also had a mobile telephone, Crown label 3. He took a statement from Mr Santos at 3.30pm at Police Headquarters. This statement was Crown production 5. The foil wraps were field tested and this suggested both contained heroin. On 6th March 2009 the officer saw the Appellant at 2.09pm. At 2.18pm he was near the monument on the North Inch, Perth using a mobile telephone and appeared to be waiting. He left at 2.23pm and met Andrew Townsley and Joseph Waddell. They separated at 2.30pm and the two males were detained at 2.32pm. The Appellant left 'the known address' at 3.10pm. On 19th March 2009 he saw the Appellant in the company of Miss Pritchard from 12.54pm until 1.19pm. After the detention of the Appellant he searched his hotel room and 21, South William Street, Perth. He confirmed that the foil recovered from the room was the same as the foil of the wraps recovered.
Detective Constable Sadie Allan took part in the surveillance of the Appellant. On 6th March 2009 at 2.30pm she was with Detective Sergeant McKay and detained Messrs Townsley and Waddell. As they approached, Mr Townsley seemed to put an item in his mouth. She noted a statement from Mr Townsley, Crown production 6. On 19th March 2009 she attended after Miss Shields was detained and searched her. Crown label 12, a foil wrap was found in front of her on the pavement. A mobile telephone, Crown label 5, was also recovered from Miss Shields. She further became aware that James Brown had been detained at 3.25pm in Scott Street, Perth. She attended and searched this male recovering a piece of paper, Crown production 18. The paper contained a number of numbers which appeared to be mobile telephone numbers, one 'A 07804607781'. She further attended on Miss Pritchard after she had been detained. She searched her. She then searched 21G, South William Street, Perth. Nothing significant was found. She searched Room 109 in the Waverley Hotel. She confirmed the items recovered there.
Detective Constable Woods was involved in the surveillance of the Appellant. On 6th March 2009 he noted the statement from Joseph Waddell, Crown production 4. On 19th March 2009 he detained Tracey Shields at 2.01pm in Canal Street, Perth. As he did so, Miss Shields dropped a tin foil wrap on the pavement. This wrap contained brown powder. Later at 3.54pm he detained the Appellant in Nelson Street, Perth as he walked towards South William Street. He spoke of the Appellant putting an item in his mouth as he moved to detain him. The Appellant was detained. A mobile telephone, Crown label 7, and £130, Crown label 9, were recovered from the Appellant. He took part in the search of Room 109 and confirmed what had been recovered. He further took a statement from James Brown, Crown production 2.
Detective Constable Gillespie was again involved in the surveillance operation. On 4th March 2009 he saw the Appellant, whom he identified, on the North Inch, Perth between the dry arch and the monument. He was on his mobile telephone at 3.04pm. At 3.08pm he was approached by a 6 foot 2 inch male. The Appellant handed something to this male. At 3.12pm the Appellant met Carlos Santos and handed an item to Mr Santos. They met between the dry arch and the monument under the bridge. Mr Santos left and the officer detained him at 3.17pm in Main Street, Bridgend. Mr Santos was searched and two foil wraps were recovered. These, Crown label 16, were tested and this suggested that the powder in the wraps was heroin. A mobile telephone, Crown label 3, was also recovered from Mr Santos. He took a statement from Mr Santos. This was Crown production 5. On 6th March 2009 he observed the Appellant near the monument of the North Inch at 2.18pm. He was using a mobile telephone and appeared to be waiting for someone. He was there until 2.23pm. On 19th March 2009 he noted the Appellant in the company of Miss Pritchard between 12.39pm and 12.44pm and again between 3.50pm and 3.52pm. At 1.55pm he saw Tracey Shields at the telephone box in Victoria Street. Three minutes later the Appellant's son met her and handed an...
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