HAMILLvHM ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 17 March 1999 |
| Docket Number | No 30 |
| Date | 17 March 1999 |
| Court | High Court of Justiciary |
JC
LJ-C Cullen, Lord Caplan and Lord Philip
Evidence—Admissibility—Hearsay—Exception to the rule against hearsay—Pannels appearing on same charge of being concerned in the supply of a controlled drug—One pannel making statement implicating co-accused outwith his presence but at locus where and at a time when alleged offence was being committed—Whether evidence of statement admissible as evidence against co-accused in absence of concert—Whether trial judge's direction that statement part of the res gestae misdirection—Whether miscarriage of justice
The pannels were charged with being concerned in the supply of a controlled drug in contravention of sec 4(3)(b) of the Misuse of Drugs Act 1971. They appeared on the same charge, but were not charged with acting in concert. Part of the evidence consisted of surveillance observations at a particular telephone box in a street in Glasgow. On one occasion, soon after an alleged courier had been picked up from the telephone box by the first appellant, the second appellant arrived and asked of an undercover police officer present
there “You here for gear frae Hammy?”, mistaking the officer for somebody else. At trial, the officer spoke to that statement and indicated that “gear” was drugs. No objection was made by the first appellant to the evidence of the statement being elicited. The trial judge (Lord Marnoch) held that the statement was evidence against both pannels as it constituted part of the res gestae and was thus an exception to the rule against hearsay. The pannels appealed.
Held (1) (Lord Philip diss) that although the statement was closely associated with the second appellant's actions and could be regarded as incriminating him, it could not incriminate the first appellant in the absence of the pannels being charged with acting in concert and, accordingly, there had been a misdirection by the trial judge; but (2) that there had been no miscarriage of justice; and appeals refused.
Opinion (per Lord Philip diss) that the statement had formed part of the res gestae and was evidence against both pannels so that there had been no misdirection.
James Joseph Hamill and James Burns Gemmill were charged on an indictment at the instance of the Rt Hon the Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, a contravention of sec 4(3)(b) of the Misuse of Drugs Act 1971.
The pannels pled not guilty and the cause came to trial before Lord Marnoch and a jury in the High Court of Justiciary at Aberdeen.
On being convicted, the pannels appealed to the High Court of Justiciary.
Cases referred to:
Advocate (HM) v Docherty 1980 SLT (Notes) 33
Advocate (HM) v HamillUNK 1998 SCCR164
Advocate (HM) v Hunter (1838) 2 Swin 1
Buchan v HM AdvocateUNK 1993 SCCR 1076
Greer v Stirlingshire Road TrusteesUNK (1882) 9 R1069
McLaren v MackodSC 1913 SC (J) 61
Salmon v HM AdvocateSC 1999 JC 67
Textbooks referred to:
Alison, Criminal Law, ii 518–519
Dickson on Evidence (3rd edn), secs 254,256 and 363
Walker & Walker on Evidence, secs 35,37 and 377
The cause called before the High Court of Justiciary, comprising the Lord Justice-Clerk (Cullen), Lord Caplan and Lord Philip for a hearing.
At advising, on 17 March 1999—
LORD JUSTICE-CLERK (Cullen)—On 24 February 1998, at the conclusion of a trial at which they appeared along with a number of other accused, the appellants were convicted of a charge that on various occasions between 1 November 1996 and 17 September 1997 at various addresses in Glasgow they were concerned in the supplying of diamorphine (heroin) to another or others, and in particular to certain named individuals, in contravention of sec 4(3)(b) of the Misuse of Drugs Act 1971. The appellants have appealed against their convictions on a number of grounds in which it is claimed that the trial judge misdirected the jury. Before coming to them, it is convenient for me to set out an overall view of the evidence relied on by the Crown. In seeking the conviction of the appellants the Crown case did not rest on each of the appellants being party to the actings of the other and hence responsible for those actings on the ground of concert, but relied on evidence which showed that each of them as an individual had been concerned in the supplying of heroin. It may be noted that during the course of the trial the trial judge repelled an objection to a question put to a witness by the Advocate-depute on the ground that the nature of the offence under sec 4(3)(b) was such that there was no place for the application of the common law doctrine of concert (HM Advocate v Hamill). In the course of his charge the trial judge summarised for the jury the evidence in respect of each of the appellants in turn, emphasising that they should look at the evidence against each of them as an independent exercise (p 21D–E). Because of the nature of the grounds of appeal it will be necessary for me to give an outline of the so-called chapters under which the trial judge assembled that evidence.
In the case of the appellant Hamill, he referred to ten chapters, which were, in brief, as follows, (i) Evidence was given by a Miss Branigan that she made various payments over a six month period in respect of supplies of heroin from “Hammy” who was based in Glasgow and, according to her, was not present in court; and that she enlisted as couriers Alisdair Maybury and Lynn Millson in that connection. Hamill, for his part, said in evidence that he knew her in connection with his making supplies of alcoholic liquor to her. There was also police surveillance evidence as to her activities in Glasgow. On 10 April 1997 Alisdair Maybury followed or appeared to follow her while a passenger in Hamill's motor car; (ii) Evidence was given by Lynn Millson that on one occasion Hamill took her to a part of Glasgow where she collected some heroin; (iii) A man named Grant Rebecca gave evidence that he was driven by Hamill to a derelict area where he was supplied with heroin, with money changing hands on one occasion; (iv) Lindsay Ann Gordon gave evidence that she introduced Paul Hanratty, John Williams and Nicola Robb as drugs couriers to Hamill and collected money for him. According to Hamill, this was in connection with the supplying of alcoholic liquor; (v) Paul Hanratty gave evidence that over a nine month period he had himself, or through others, collected in Aberdeen and transferred to Hamill in Glasgow £5,000-£6,000 per month, which he assumed was for illicit spirits and cigarettes; (vi) Evidence was given as to an occasion on 17 March 1997 when a co-accused Michael McGougan was collected by Hamill at a telephone box in Southcroft Road, Glasgow. He was found later in the day to be in possession of 5 oz of heroin in Aberdeen. Hamill stated in evidence that they met in connection with the purchase of a van; (vii) There was evidence that on 4 June 1997 Hamill was seen in the company of a Peter Main in Glasgow. The latter was found later in the day to be in possession of almost 1/2 kg of heroin in Aberdeen. Hamill said in evidence that they met in connection with the sale of a motor car; (viii) Police surveillance evidence showed that in Glasgow on 1 July 1997 a co-accused Alan Morrison handed something to Hamill in Glasgow City centre. Hamill drove him to Southcroft Road. Near there Morrison got into a car driven by Gemmill who later handed him a bag. The Crown maintained that the same bag (containing heroin) was seized by the police when they stopped a vehicle in which Morrison was travelling in Aberdeen later on the same day. Hamill gave evidence that Morrison had handed over money for alcoholic liquor and that he asked his friend, Gemmill, who had arrived at Southcroft Road, if he would drop Morrison off in the city centre; (ix) There was evidence that on 30 July 1997 a man Jeffrey Mair, after telephoning Hamill's number and being seen in Southcroft Road, was found to be in possession of 1/2 kg of heroin in Stonehaven and (x) There was also evidence that, when a Michael Sim was detained in Aberdeen on 14 August 1997 with a bag containing 5 oz of heroin, he had on him a note of Hamill's telephone number.
The trial judge later in his charge went on to summarise the evidence relating to the appellant Gemmill, which was, in brief, as follows, (i) There was evidence that on 23 April 1997 Gemmill collected a man Alisdair Maybury outside the telephone box in Southcroft Road. Later in that day Maybury was found to be in possession of heroin in Aberdeen, which he allegedly said he had obtained in Glasgow; (ii) There was evidence that on 29 April 1997, soon after Paul Hanratty, one of the alleged couriers, had been picked up at the telephone box in Southcroft Road by Hamill in his car, Gemmill arrived on the scene and, according to the evidence of Detective Constable Graham asked him: “You here for gear frae Hammy?”. The Detective Constable said in evidence that he assumed that Gemmill had mistaken him for someone else whom he was meeting. He took the reference to “gear” as meaning drugs. When he replied in the negative Gemmill drove off. Five minutes later he drove past with Hanratty beside him in the direction of the city centre. It may be noted that Hamill gave evidence that Hanratty had been in his yard at Southcroft Road to hand over money which he had collected for the sale of alcoholic liquor and cigarettes; (iii) There was evidence that on 1 July 1997 Gemmill gave a lift to the co-accused Morrison from Southcroft Road after his arrival there with Hamill. He later handed to him a bag to which I have referred in chapter (viii) relating to Hamill; (iv) There was evidence that on 11 July 1997 Gemmill was in the company of two co-accused, one of whom was found to be in possession of heroin later that day; and (v) There was evidence that on 5 August 1997 Gemmill drove John Williams and Nicola Robb from Southcroft Road after their meeting...
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