McIntosh v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 01 August 1986 |
| Docket Number | No. 29. |
| Date | 01 August 1986 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Robertson, Sutherland.
Evidence—Admissibility—Evidence of crime not charged—Charge ruled incompetent—Whether evidence in relation to incompetent charge admissible to prove other charges in indictment.
Evidence—Admissibility—Statement of co-accused outwith presence of accused—Accused allegedly involved art and part in crime committed by co-accused—Whether statement of co-accused admissible to prove commission of crime.
The appellant was charged on indictment, with several co-accused, with a number of offences under the Misuse of Drugs Act 1971. One of the charges was a charge, under sec. 23 of the Act, of obstructing police officers in the exercise of their powers at the Abercorn Bar in Paisley. Before the accused were called on to plead the court sustained a defence submission to the effect that that charge was fundamentally null in respect that the Crown had advised that no proceedings were to be taken in relation to it. The charge was therefore deleted from the indictment. After trial the appellant was convicted of having been concerned in the supply of drugs at the Abercorn Bar (charge 1 in the indictment) and of having unlawfully supplied a controlled drug to another person at a house in Paisley (charge 5 in the indictment). The Crown case on the latter charge had been that the actual supply had been effected by one of the co-accused and that the appellant had been involved art and part.
On appeal the appellant contended inter alia that the trial judge had wrongly admitted evidence of the facts libelled in the deleted charge, which evidence had been adduced by the Crown for the purpose of proving charge 1. He also contended that there had been insufficient evidence to support his conviction on charge 5. The only evidence that supply had taken place had been the evidence of the person to whom the supply had allegedly been made and evidence of a statement said to have been made outwith the appellant's presence by the co-accused. The appellant contended that the co-accused's statement was not admissible against him. The Crown contended that the statement was admissible for the purpose of proving the fact of supply.
Held, refusing the appeal so far as relating to charge 1 andallowing it in relation to charge 5, (1) that evidence in relation to the deleted charge was admissible for the purpose of proving other charges in the indictment and that the inclusion of the deleted charge in the original indictment gave sufficient notice of the Crown's intention to lead such evidence; and (2) that the statement of the co-accused was admissible only against the co-accused; the case of each co-accused had to be considered separately with reference to the evidence against him and the Crown were not entitled to rely on the statement as evidence against the appellant.
Tobin v. H.M. AdvocateSC 1934 J.C. 60 applied;H.M. Advocate v. CameronsSC 1911 S.C. (J.) 110 andStark and Smith v. H.M. AdvocateSC1938 J.C. 170referred to.
Grant Sutherland McIntosh was charged along with others on indictment in the High Court in Paisley before Lord Wylie and a jury with various contraventions of the Misuse of Drugs Act 1971. He was convicted of two charges and appealed against his conviction. The appeal was heard before the High Court of Justiciary on 11th July 1986. The facts of the case and arguments of the parties appear from the opinion of the Lord Justice-Clerk (Ross).
At advising on 1st August 1986,—
LORD JUSTICE-CLERK (Ross).—The appellant is Grant Sutherland McIntosh who went to trial along with James Kelly, Norman Stewart Spiers, Gary Clark and Deborah Ann Campbell on an indictment which libelled various contraventions of the Misuse of Drugs Act 1971; Clark also faced a charge of a contravention of sec. 3 (1) (b)of the Bail etc. (Scotland) Act 1980. The trial lasted from 22nd August 1985 to 5th September 1985.
The jury found the appellant guilty of charge 1 under deletion, not guilty of charges 2, 3 and 4 (which were withdrawn by the Crown) and guilty of charge 5; they found charge 6 not proven against the appellant. The appeal relates to his conviction of charges 1 and 5.
Before the appellant and his co-accused were called upon to plead at the trial diet, counsel for the appellant stated an objection to charge 6 of the indictment, and submitted that that charge was fundamentally null in respect that a letter from the procurator-fiscal at Paisley had advised that no proceedings were to be taken in respect of that charge. Reference was made to H.M. Advocate v. CairnsSC 1967 J.C. 37 and Thom v. H.M. AdvocateSC 1976 J.C. 37 andThom v. H.M. AdvocateSC 1976 J.C. 48. After hearing counsel for the appellant and the advocate-depute, the trial judge sustained the objection. Charge 6 was in the following terms:—"(6) On 8th February 1985 at the said Abercorn Bar, Paisley you Grant Sutherland McIntosh did intentionally obstruct Dennis Buckell and William Jones, both constables, Strathclyde Police, then in the exercise of their powers in terms of sec. 23 of the Misuse of Drugs Act 1971 and did pull the arm of the said Dennis Buckell, throw a bag containing money to another person, namely Thomas Lavelle, an employee there, with the intention that said bag containing money should not be seized as evidence by said officers: contrary to the Misuse of Drugs Act 1971, sec. 23;". After the objection had been sustained, the remaining charges were renumbered, and charges 7, 8 and 9 became 6, 7 and 8.
Charge 1 libelled a contravention of sec. 4 (3) (b) of the Act of 1971 i.e. that the accused were concerned in the supply of controlled drugs namely cannabis resin and amphetamine, both class B drugs, in contravention of sec. 4 (1) of the said Act. The allegation was that this had occurred between 24th August 1983 and 3rd May 1985 at the following places, namely Glasgow Airport, Paisley; 48 Penilee Road, Paisley; the Abercorn Bar, Gauze Street, Paisley; 12 Almond Crescent, Paisley; H.M. Prison, Lowmoss, Bishopbriggs; H.M. Prison, Dungavel, Strathaven; 11 Clarence Street, Paisley; 13 Clarence Street, Paisley; 47 Glencairn Drive, Glasgow; and elsewhere in Paisley and Glasgow. The jury found the appellant guilty of charge 1 under deletion of the references to Glasgow Airport, 48 Penilee Road, Paisley, H.M. Prison Lowmoss, Bishopbriggs, H.M. Prison Dungavel, Strathaven, 11 Clarence Street, Paisley, 13 Clarence Street, Paisley, 47 Glencairn Drive, Glasgow, and also under deletion of the words "elsewhere in Paisley and Glasgow". Accordingly, as regards charge 1, he was convicted of this charge only in relation to the...
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