Nelson v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1994 |
| Neutral Citation | 1994 SCCR 192 |
| Docket Number | No 16 |
| Date | 20 January 1994 |
| Court | High Court of Justiciary |
FULL BENCH
LJ-G Hope, LJ-C Ross, Lords Allanbridge, Cowie, Murray
Evidence—Admissibility—Misuse of drugs—Concern in the supply—Evidence of pannel attempting to conceal evidence of possession of drugs by swallowing them—Whether evidence admissible where no charge of or reference to obstructing police in exercise of their statutory powers of search libelled—Misuse of Drugs Act 1971 (cap. 38), secs. 4(3)(b) and 23
The pannel was tried with being concerned in the supply of controlled drugs contrary to sec. 4(3)(b) of the Misuse of Drugs Act 1971. Police suspected him of this and went to a public house to detain him in order to search him for drugs. A police officer testified that the pannel had run into the toilet, got down on his hands and knees at the drain of a urinal and swallowed something which was believed to be a controlled drug. The pannel objected to this evidence on the ground that it tended to show the commission of an offence of obstructing the police in the execution of their powers under sec. 23 of the Act which had not been charged, although such a charge had appeared at the petition stage of proceedings. The sheriff (Stirling) repelled the objection. On being convicted, the pannel appealed to the High Court on the ground that the evidence had been improperly admitted.
Held (by a court of five judges) (1) that although the rule was that it was not competent to lead evidence of anything done or omitted to be done by the pannel which constituted a crime and which did not appear on the indictment, it would not be in the interests of justice for the rule to be applied too generally in circumstances which did not warrant its application for the rule was founded in the principles of relevancy and fair notice; (2) that, accordingly, the Crown could lead any evidence relevant to the proof of a crime charged, even although it might show or tend to show the commission of another crime not charged, unless fair notice required that that other crime should be charged or otherwise referred to expressly in the complaint or indictment; (3) that such a requirement existed if the evidence sought to be led tended to show that the pannel was of bad character, and that other crime was so different in time, place or character from the crime charged that the libel did not give fair notice to the pannel that evidence relating to that other crime might be led, or if it was the intention as proof of the crime charged to establish that the pannel was in fact guilty of that other crime; (4) that, in the present case, fair notice had been given of the intention to lead evidence of what happened when the appellant was seen by the police officers as reference was made in the indictment to the date and location; and (5) that the pannel's actings in attempting to conceal from the police officers possession of controlled drugs were relevant to the question of whether he was guilty of the crimes libelled and it was not necessary for the Crown to prove that the pannel was guilty of the offence of obstruction, which was not what the evidence sought to establish as a fact; and appealrefused.
Authorities reviewed.
John Holmes Nelson was charged at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, on an indictment the libel of which set forth that: "On 31st December 1991 at the Hilltop public house, Mill Road, Hamilton, (1) you were concerned in the supplying to another or others, to the petitioner unknown, a controlled drug, namely, methylenedioxymethylamphetamine,
a class A drug specified in Pt. I of Sched. 2 to the aftermentioned Act in contravention of sec. 4(1) of said Act: contrary to the Misuse of Drugs Act 1971, sec. 4(3)(b); (2) you were concerned in the supplying to another or others, to the petitioner unknown, a controlled drug, namely, amphetamine sulphate, a class drug specified in Pt. I of Sched. 2 to the aftermentioned Act in contravention of sec. 4 (1) of said Act: contrary to the Misuse of Drugs Act 1971, sec. 4(3)(b); and (3) you were concerned in the supplying to another or others, to the petitioner unknown, a controlled drug, namely cannabis resin, a class drug specified in Pt. I of Sched. 2 to the aftermentioned Act in contravention of sec. 4(1) of said Act: contrary to the Misuse of Drugs Act 1971, sec. 4(3)(b)."
The pannel pled not guilty and came to trial in the sheriff court at Hamilton before the sheriff (H. Stirling) and a jury. During the course of the trial the pannel objected to the leading of certain police evidence. The sheriff repelled the objection and, on being convicted, the pannel appealed to the High Court of Justiciary by way of note of appeal against conviction.
The cause originally called before the High Court of Justiciary on 25th June 1993 for a hearing. Eo die their Lordships remitted the cause to be heard by a quorum of five Lords Commissioners of Justiciary.
The cause subsequently called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Justice-Clerk (Ross), Lord Allanbridge, Lord Cowie and Lord Murray on 7th January 1994 for a hearing. On 8th January 1994 their Lordships made avizandum.
At advising, on 20th January 1994, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—The appellant went to trial in the sheriff court at Hamilton on an indictment which libelled three charges against him under sec. 4(3)(b) of the Misuse of Drugs Act 1971. These offences were all said to have been committed on 31st December 1991 at the Hilltop public house, Mill Road, Hamilton. The appellant was said to have been concerned, on that date and at that place, in the supplying to another or others of three different controlled drugs. In the course of the trial objection was taken to the evidence of a police officer who went to the public house on the date libelled in the indictment and detained the appellant for the purpose of searching him. He gave evidence about things done by the appellant in the toilet of the public house when the police suspected that he had a controlled drug in his possession. The contention was that this evidence was inadmissible, because it suggested that the appellant was intentionally obstructing the police officer in the execution of his powers under sec. 23 of the Misuse of Drugs Act 1971, this being an offence with which he had not been charged in the indictment. The sheriff repelled the objection, and at the end of the trial the appellant was found guilty of the three charges which had been libelled against him. He has now appealed against conviction on the ground that there was a miscarriage of justice because the evidence about his actions in the toilet should have been held to be inadmissible.
The point raised in this appeal is an important one relating both to the admissibility of evidence and to the proper practice in the framing of indictments. The hearing of the appeal was remitted to a court of five judges on the motion of the Lord Advocate so that a full review might be undertaken of the relevant authorities. We have now had the benefit of the detailed argument from counsel on the appellant's behalf and also from the Lord Advocate, and we are grateful to them both for their assistance.
Before we examine the particular point on which the objection was taken we should say a little more about the facts of the case on which the Crown relied. There was evidence that the appellant was found to be in possession of a tick list from which it could be inferred that he was dealing in the various controlled drugs named in the indictment. The Crown relied on four other pieces of evidence in support of the case that the appellant was concerned in the supplying of these controlled drugs. These were (1) the evidence of the police officer that as he approached the door of the public house he saw through the glass of the door the appellant running into the toilet, (2) evidence that the appellant then took up a position in the toilet on his hands and knees at the drain of the urinal, (3) evidence that the appellant swallowed something while he was in the toilet on being confronted by police officers, and (4) the finding of a quantity of money in his possession which amounted to £1,324.18.
The first Crown witness was Constable Francis Greenshields. He said that when he entered the public house he immediately went to the gents' toilet. He saw a person there who was on his hands and knees at the urinal drain. He said that that person turned and looked at him as he entered the toilet, and he identified him as the appellant. At this stage the appellant's solicitor took objection to the line of evidence. He described his objection as a warning shot, and it does not...
To continue reading
Request your trial
-
Diamond v HM Advocate (No.2)
...the Crown from leading that evidence in a subsequent case in support of a different charge; and appeal refused. Nelson v HM AdvocateSC 1994 JC 94 applied. Observed that, in any event, as the Crown wished to lead the evidence not in support of the same charge of obstruction of which the pann......
-
Raymond Willian Jude V. Her Majesty's Advocate
...understood the text message was evidence of a crime not charged and therefore inadmissible. Reference is made the case of Nelson v HMA 1994 JC 94 at p104 [then follows a quotation commencing with the last paragraph on page 103 (not 104) and ending with the paragraph which concludes at 104 D......
-
Luke Mitchell V. Her Majesty's Advocate
...nevertheless such that evidence could not be led in the absence of a charge on the indictment. Reference was made to Nelson v HM Advocate 1994 J.C. 94. The absence of notice meant that evidence in relation to the obtaining of the tattoo could not be led except in relation to the credibility......
-
Notes Of Appeal Against Conviction And Sentence By William Hugh Lauchlan And Charles Bernard O'neill Against Her Majesty's Advocate
...event, either by including it as a charge in the libel (as here) or by narrative in a separate docquet (see Nelson v HM Advocate 1994 SCCR 192, LJG (Hope) at 203; HM Advocate v Cairns 1967 JC 37). [27] If the Crown maintain that evidence of facts, which could constitute a separate crime, is......
-
Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
...‘gateways’ (set out in section 101 of the 2003 Act) can be passed through.1411 See, also, 1995 Act, s 270(2). cf Nelson vHM Advocate 1994 JC 94 (Nelson), 103–104 per the LordJustice-General (Hope) (juxtaposing ‘bad character’ and ‘trivial’ offending).12 Other statutes allow the admission of......