Usman Wali V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice Clerk,Lord Johnston,Lord Osborne |
| Judgment Date | 02 February 2007 |
| Neutral Citation | [2007] HCJAC 11 |
| Published date | 02 February 2007 |
| Docket Number | XC833/05 |
| Court | High Court of Justiciary |
| Date | 02 February 2007 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Osborne Lord Johnston | [2007] HCJAC 11 Appeal No: XC833/05 OPINION OF THE COURT delivered by LORD OSBORNE in APPEAL AGAINST CONVICTION and SENTENCE by USMAN WALI Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______ |
Act: Miss A. Ogg, Sol. Adv.; Capital Defence Lawyers, Edinburgh
Alt: K. Stewart, A.D.; Crown Agent
2 February 2007
The background circumstances
[1] On 7 October 2005 at Glasgow Sheriff Court the appellant was found guilty as libelled by a majority verdict on the following charges:
"(1) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession without the authority of the Defence Council or the Scottish Ministers a prohibited weapon, namely a CS aerosol spray canister, being a weapon designed or adapted for the discharge of any liquid, gas or other thing; CONTRARY to the Firearms Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968; you did commit this offence while on bail, having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court;
(2) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession a firearm, namely a CS aerosol spray canister, to which Section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time; CONTRARY to section 1(1)(a) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988; you did commit this offence while on bail having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court;
(3) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession without the authority of the Defence Council or the Scottish Ministers a prohibited weapon, namely a CS aerosol spray canister, being a weapon designed or adapted for the discharge of any liquid, gas or other thing; CONTRARY to the Firearms Act 1968, section 5(1)(b) as amended by the Transfer of Functions (Prohibited Weapons) Order 1968; you did commit this offence while on bail having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court; and
(4) on 4 February 2005 at Flat 2/R, 47 Melville Street, Glasgow you did have in your possession a firearm, namely a CS aerosol spray canister, to which Section 1 of the aftermentioned Act applies without holding a firearms certificate in force at the time; CONTRARY to section 1(1)(a) of the Firearms Act 1968 as amended by the Firearms Amendment Act 1988; USMAN WALI did commit this offence while on bail, having been granted bail on 16 July 2004; 1 September 2004 and 2 November 2004, all at Glasgow Sheriff Court."
On 28 October 2005, the presiding sheriff, Deirdre M. MacNeill, Q.C., sentenced the appellant to three years detention on each of the foregoing charges, said sentences being ordered to run concurrently and to commence from 7 October 2005.
[2] The circumstances of these offences, as described in the sheriff's Report, were as follows. Certain police officers, in particular Detective Sergeant Mason and Detective Constable Kyle, attended Flat 2/R, 47 Melville Street, Glasgow on the date in question, along with other officers in an attempt to execute a warrant in respect of the appellant's brother Ballal Ali. The appellant answered the door. Detective Sergeant Mason testified that he thought that the appellant was Ballal Ali. The police officers were admitted to the flat by the appellant. Thinking that the appellant was indeed Ballal Ali, Detective Sergeant Mason asked the appellant if he had any identification. The appellant told him that he had a bank card in the livingroom. Detective Sergeant Mason asked if anyone else lived in the flat, to which the appellant replied "No just me." They then went into the livingroom where the appellant took a bank card with his name on it from the mantelpiece. The police officer's evidence was that the flat appeared to be unoccupied. There were no ornaments or photographs in it. It was bereft of personal property. In the livingroom a rucksack was lying on the floor next to a chair which was next to the television set. Detective Sergeant Mason asked the appellant if the rucksack was his. The appellant replied "Aye - oh, I don't know." Detective Sergeant Mason testified that the appellant appeared hesitant, which raised his suspicions. He then asked if the appellant had a passport or driving licence in the rucksack. The appellant replied "I don't know what is in the rucksack. Look at it if you want." The police officer opened the rucksack and found within it a number of items including two CS gas canisters, a gas mask, a box of handcuffs, latex gloves and a folding knife which could be used as a saw, items which the officer described in evidence as "an abduction kit". The appellant was asked about the contents of the rucksack by the police officers, but made no comment. He was then detained. The remainder of the flat was then searched for Ballal Ali. The only things within the flat were denim jeans on a bed, put on by the appellant over his boxer shorts to go with the police officers, a partly consumed can of Coke, cigarettes and lighter, both of which were taken by the appellant with him.
[3] At the trial, the appellant was led in evidence. He said that he had never seen the rucksack before it was brought to him by the police when they were searching the flat. He denied that it was his. He said that he had been at the flat to clean it. The appellant's brother also gave evidence. He had been at the flat on the previous evening but had left. He had asked his brother to clean the flat for incoming tenants. He said that the previous tenants had left rubbish in the flat, much of which he had tidied up. He had seen the rucksack lying in one of the rooms and had moved it to the hallway and then to the livingroom. He did not look into the rucksack and thought nothing of it.
The grounds of appeal
[4] On 7 February 2006 the appellant lodged a Note of Appeal against conviction and sentence. In relation to conviction, the following grounds were stated:
"It is submitted that the learned sheriff mis-interacted (sic) the jury in a response put to the learned sheriff by the foreperson in the jury during the course of their deliberation. The learned sheriff instructed the jury that it was the rucksack and the contents in this case that were vital to the jury's consideration as to whether there was possession of the items contained in the libel. It is submitted that in this case this was the wrong instruction. It is submitted that the learned sheriff was required in the circumstances in this case to instruct the jury that there had to be evidence from which they could infer knowledge of the contents of the rucksack. Those contents being the items referred to in the libel.
This was the case where the appellant faced charges of possession of firearms contrary to section 1(1)(a) of the Firearms Act 1968. The evidence against him was that the rucksack containing these items was found within a room within a flat owned by the accused. This was a flat according to the evidence (sic) but not inhabited by the accused. The evidence was that the accused had been in the property from the preceding night only and had therefore been in the property for a number of hours before the arrival of the police. The rucksack was within a room separate from the belongings of the accused. The rucksack was closed and the contents of the rucksack were not visible without opening the rucksack. There was no forensic evidence linking the accused to the contents of the rucksack. There was no admissions by the accused that he had any knowledge whatsoever of the rucksack itself or indeed its contents. There was no other evidence from the contents of the rucksack that the accused had any link to the rucksack or its contents.
It is submitted that the proper approach had it been taken by the learned sheriff would have been to explain to the jury that they must be satisfied that there was evidence from which they could infer that the accused had knowledge of the contents of the rucksack rather than simply knowledge of the rucksack itself. It is submitted that this is a case very different from a situation where an allegation is made and the accused is guilty of...
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