William Gavin Grant V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Penrose,Lord Macfadyen |
| Judgment Date | 31 May 2006 |
| Neutral Citation | [2006] HCJAC 42 |
| Date | 31 May 2006 |
| Docket Number | XC734/03 |
| Court | High Court of Justiciary |
| Published date | 31 May 2006 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Macfadyen Lord Penrose | [2006] HCJAC 42 Appeal No: XC734/03 OPINION OF THE LORD JUSTICE CLERK in APPEAL AGAINST CONVICTION and SENTENCE by WILLIAM GAVIN GRANT Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
For the Crown: KD Stewart AD; Crown Agent
31 May 2006Introduction
[1] On 16 May 2003 the appellant was convicted at Glasgow High Court of a charge of drug smuggling. He was sentenced to 18 years imprisonment. A co-accused, James Mair, was convicted on the same charge and was given the same sentence. Two co-accused, David Frew and Sean McAdam, were convicted of the charge under certain deletions. All four have appealed.
[2] The appellant has appealed against conviction on the grounds of insufficiency of evidence, misdirection of the jury and defective representation (the Anderson ground). He was given leave to appeal on all of these grounds. We now have to decide whether the appellant should be granted leave to amend the Anderson ground. For this purpose we are concerned with the evidence only so far as it gives the background to the proposed amendment.
The evidence
[3] The Crown case was that the appellant and his co-accused were concerned in the importation of cocaine, with a retail value of over £24.7m, concealed in a cargo of raw rubber that was shipped from Panama to Scotland.
[4] The Crown evidence was to the effect that Mair ran a transport business, J & L Transport (J & L), from premises at Stepps. J & L did not deal in international imports. It dealt almost solely with deliveries within Scotland.
[5] Among other enterprises, the appellant ran a transport business. He had an office in the attic of his home in Bothwell; but he operated the transport business mostly from J & L's premises and he had a close working relationship with Mair. When Mair was on holiday, at the critical stage when the rubber arrived in the United Kingdom, the appellant played an important part in running J & L's office; for example, by making up the wages, instructing the drivers and writing out cheques already signed by Mair.
[6] Among the witnesses who spoke to the appellant's active role in the running of J & L were David Carroll, who drove lorries for both J & L and the appellant. He said that Mair and the appellant worked for each other. Benjamin Eadie was the fleet controller of BTM Storage and its associated business Weaver Pallet Express, whose premises were next to J & L and who rented space to J & L. He said that the appellant was an associate of Mair and was in J & L's office every day. He formed the impression that the appellant owned the business and that Mair was a front man.
[7] In March 2002 faxes were exchanged between Norman Anderson, purportedly Head of Purchasing at Gates Rubber Company, Dumfries (Gates), and J & L regarding the delivery by J & L of certain containers. The faxes from Norman Anderson had headers purporting to show that they were sent by Gates. These faxes were forged. They were not sent from Gates' premises or with Gates' knowledge. No one called Norman Anderson worked for Gates; but the late husband of the appellant's godmother was called Norman Anderson. The appellant had attended his funeral less than two months earlier. On 12 August and 4 September 2002 further faxes from Norman Anderson at Gates were sent to Mair at J & L.
[8] On 4 September 2002 the rubber arrived at Felixstowe. On 5 September officers of Customs and Excise found the cocaine in one of the containers. They repackaged the bales of rubber in which it was concealed. The rubber was then trans-shipped to Grangemouth. On 7 September Mair went on holiday to Spain, leaving the J & L business in the hands of his secretary, Nicola Smith, and the appellant. It was not in dispute that before he left, Mair told the appellant of the impending arrival of the rubber.
[9] On Friday 13 September, before the rubber reached Grangemouth, the police had the appellant under surveillance. They followed a van in which he was a passenger out of a car park in Hillington. According to DS John Wylie, the appellant looked in the passenger-side wing mirror. The driver of the van drove right round a roundabout and then onto a second roundabout. He then suddenly changed from the offside to the nearside lane and took an exit onto the A8, running parallel to the M8 eastwards. 150 metres further along the A8, the driver executed a U-turn through a gap in the central reservation. The police officers decided that these were anti-surveillance manoeuvres. They therefore called off the surveillance.
[10] On the same day, the appellant contacted the shipping company and postponed the delivery of the rubber by a week. On 23 September, Mair having by then returned, the shipment was paid for and delivery was authorised. Both the appellant and Mair were present when the rubber was delivered at Stepps.
[11] Some days later, after the appellant and Mair had been involved in loading the rubber onto a truck for transfer to storage at Kilwinning, the police arrested the appellant, Mair and others and searched their homes. Fax machines were recovered from the offices of the appellant and J & L. A forensic technician, Hannah Clark, examined the appellant's machine. She printed out an activity report from it. Her evidence implicated the appellant as the sender of the forged Gates faxes.
[12] In his defence, the appellant incriminated Mair. He did not dispute that the faxes were sent from his machine, but he said that Mair had on occasions used the machine.
The appeal
[13] The Anderson ground in its present form is based on the allegation that trial counsel could and should have led evidence from certain specified witnesses to demonstrate that Mair knew the name Norman Anderson; that the appellant had a limited role in the J & L business; that the appellant had separate business commitments and was of good character; that it was Mair who told the appellant of the consignment of rubber; that Nicola Smith knew of it before Mair went on holiday, and that David Carroll was the driver of the van on the occasion of the police surveillance. It is also alleged in this ground that certain evidence could have been led from two defence witnesses, Martin Conlon-King, an employee of the manufacturers, and Connie Spencer, both of whom were experts on fax machines, to support the appellant's claim that the faxes were not connected with him; but neither was called.
The proposed additional Anderson grounds
[14] On 1 March 2006 a proposed amended note of appeal was lodged in substitution for the existing note of appeal. The proposed amendment adds certain further complaints against trial counsel, namely that they failed (1) to challenge the evidence of Benjamin Eadie to the effect that the appellant seemed to own the J & L business and in general to challenge it so far as it...
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