Peter Mcgartland Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Eassie,Lord Wheatley,Lord Malcolm |
| Neutral Citation | [2015] HCJAC 23 |
| Court | High Court of Justiciary |
| Date | 13 March 2015 |
| Year | 2015 |
| Published date | 13 March 2015 |
| Docket Number | HCA/2014 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2015] HCJAC 23
HCA/2014/2547/XC
Lord Eassie
Lord Malcolm
Lord Wheatley
OPINION OF LORD EASSIE
in
APPEAL AGAINST CONVICTION
by
PETER McGARTLAND
Appellant;
against
HER MAJESTY’S ADVOCATE
Respondent:
Appellant: S Whyte Solicitor Advocate; Beltrami & Co, Glasgow
Respondent: Scullion QC, AD; Crown Agent
13 March 2015
[1] In his opinion in this appeal Lord Malcolm helpfully summarises the evidence in the case and the submissions made to the sheriff and to this court.
[2] The first of the two grounds of appeal argued on behalf of the appellant is directed to the rejection by the presiding sheriff of the submissions made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995. The initial contention advanced to the sheriff was that there was no case to answer as respects charges 1 to 6 on the indictment. The first charge alleged a contravention of section 41(1)(a) of the Prisons (Scotland) Act 1989 by introducing into HM Prison, Bowhouse, Kilmarnock a drug, namely Tamoxifen. Charges 2 to 7 inclusive alleged a contravention of section 4(3)(b) of the Misuse of Drugs Act 1971 by being concerned in the supplying, at the prison, of a control drug. Each charge related to a different controlled drug. In advancing the submission restricted to charges 1 to 6 inclusive it was not disputed by the appellant’s solicitor, Mr Whyte, that there was a sufficient basis for allowing charge 7 to be considered by the jury. Charge 7 related to a package containing the drug Trifluoromethylphenylpiperazine - “TFMPP”. The plastic “cling film” package in which the TFMPP tablets were contained had been found to have, at the knot, some cellular material yielding a DNA profile which had a match with a profile derived from a sample of a body fluid taken from the appellant. However, in the course of the submission the sheriff by reference to Campbell v HM Advocate 2008 SCCR 847 suggested that the submission might be extended to embrace also charge 7. That suggestion was adopted by Mr Whyte.
[3] The reasons given by the sheriff in her report for rejecting the submissions include the observation that the “DNA [on the package with which charge 7 was concerned] was very strongly linked to the accused so much that it could be said to be a match”. Given the probability results spoken to by the forensic scientist, the solicitor advocate for the appellant did not take issue before us with that observation. The thrust of his argument – as respects charge 7 – was largely reflective of Campbell v HM Advocate and was to the effect, put shortly, that the plastic material on which the cellular material yielding the DNA profile was found was a similar moveable item to the black refuse bag in that case; and the scientific evidence in the present case was not able to determine when or how the cellular material in question was deposited upon the plastic film.
[4] It is, I think, obvious that the extent to which the surface upon which such cellular material is found can be said to be a moveable item with possibilities for prior innocent contact or secondary transfer of materials depends in the large measure on the nature of the article itself. In the present case, in contrast to the item in issue in Campbell v HM Advocate, the package containing the TFMPP tablets was fashioned out of the plastic film, commonly described as cling film, and sold in rolls for domestic or other wrapping uses. The evidence, from the scientists who examined the article, was that the cellular material was on the outside of the portion of the film in which the knot securing the package was formed. One of the forensic scientists explained that she “targeted” the knot area, because that was the area handled by the person making such a package; and while she could not exclude other possibilities, including a secondary transfer, tying the knot was a possible explanation for the presence thereon of the cellular material yielding the DNA profile.
[5] In my view, given the particular nature of the article on which the relevant cellular material was found, namely cling film, I have come to the view that it was open to the jury to conclude that the material had been deposited during the act of making the knot in the cling film, or after the knot had been fashioned. It was unlikely that the piece of cling film would have had any prior discrete circulation other than within a roll of film. The facts of the present case thus appear to be more similar to McPhail v HM Advocate (XC558/11) unreported, than Campbell v HM Advocate. But, that said, each case may depend on its particular facts.
[6] In the circumstances I consider that despite her invitation to Mr Whyte to consider extending the submission to charge 7, the sheriff was correct to repel that extended submission of no case to answer.
[7] The focus of Mr Whyte’s initial – and principal – argument confined to charges 1 to 6 was different from what might be said to have been the omnibus submission embracing also charge 7. Put very briefly, the argument was that while the DNA evidence might enable an inference to be drawn that the appellant had some involvement with the package containing the TFMPP tablets with which charge 7 was concerned, there was no such evidence linking the appellant with any of the other packages or with the picture frame within which the drugs had been concealed. None of the other packages contained TFMPP. None of those other packages were constructed from plastic film; each of those packages consisted of a latex finger cut from a rubber glove. There was therefore no evidence demonstrating that the appellant had any involvement with those packages; or that he had any knowledge that the TFMPP tablets might be included in that larger consignment which was received in the prison. In response, the Crown’s contention was that the packages were similarly sized and similarly knotted and all had been carefully placed within the hollowed out wooden picture frame. The appellant’s son was also in the same prison. Those circumstances, it was submitted by the prosecutor, might permit the inference that the appellant was concerned not only in the supply of the TFMPP drugs but also the entire consignment.
[8] I have reached the conclusion that the sheriff was also entitled to reject this branch of the submission for the appellant. There were no doubt distinctions which might be drawn between the plastic package with the TFMPP tablets and the various other drugs found within the wooden picture frame. But there were also certain other features of similarity, to which the Crown drew attention, and in the event I do not think it can be said that a jury could not draw the inference for which the Crown contended. In a situation such as that in the present case, in which the real evidence before the jury was capable of yielding varying inferences, the decision as to which inference, if any, should be drawn was ultimately a matter for the jury.
[9] However, the submission advanced by the defence respecting charges 1 to 6 inclusive did foreshadow an issue which is of some importance in this particular case and which was to exercise the jury when the jury came to deliberate. Plainly, an article supplied to one person may thereafter be included by that person along with other articles in a larger consignment which he then further supplies to another recipient. In my view, at least in the absence of knowledge that the article supplied would be included with such other articles in the larger, ultimate consignment, the person who supplies the first article at the anterior stage cannot properly be said to be concerned in the supply of the other articles. By way of illustration, the baker who simply sells some mince pies which his customer then includes in a Christmas hamper with chocolates and sherry which he gifts to a friend is not concerned in the supply to the friend of the chocolates and the sherry.
[10] Although the issue had been to an extent foreshadowed in the no case to answer submission, in charging the jury the sheriff dealt with matters in very general terms. The material part of the transcript of her charge[1] reads:
“The words ‘being concerned in’ also requires some knowledge on the part of the accused, but it only requires him to have known that he was involved in a drugs supplying operation. It requires proof that what was being supplied was the drugs and here the nature of the drugs found in packages isn’t in dispute. The Crown doesn’t have to prove the accused actually knew it was those specific drugs that were being supplied”.
The ambiguity inherent – in the peculiar circumstances of this case – in the phrase “a drugs supplying operation” troubled the jury. They sought further directions on this matter and carefully formulated in two questions in writing:
“You said ‘knowledge that he was involved in a drug supplying operation’.
Do we need to satisfy ourselves beyond reasonable doubt that he was involved in the supply of each individual package of drugs? Or is the belief that he was involved in the supply of one of the drugs sufficient to cover the charges for all on the basis of being involved in the drug supply chain?
[11] The response given by the sheriff to the jury’s questions gives rise to the second ground of appeal (misdirection). The sheriff said:
“Charges 2 to 7, as I have said to you before, are all the same breach of the same Act. Although in giving you my general directions I had to speak widely to you about selecting evidence, I think I can reasonably say to you in the circumstances of this case the evidence from which you can draw is the very same evidence for each of the charges. It’s not necessarily one where we’ve had witnesses speak to one charge and not another. The evidence that you’ve got relates to all of these, all of these matters.
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