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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Johnston
Lord Eassie
Lord MacLean
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[2006] HCJAC 88
Appeal No: XC999/03
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL AGAINST CONVICTION and SENTENCE
by
WILLIAM COCHRANE
Appellant;
against
HER MAJESTY'S ADVOCATE
Respondent:
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Act: Shead; Beaumont & Co., Edinburgh
Alt: Mackay, A.D.; Crown Agent
5 December 2006
[1] On 7
August 2003
at Edinburgh Sheriff Court the appellant was convicted by a
majority on the following charge:
"[On] 6 August 2002 at Dock Place,
Edinburgh you WILLIAM COCHRANE and
BRIAN SCOTT were concerned in the supplying of a controlled drug, namely
Cocaine, a Class A drug specified in Part 1 of schedule 2 to the Misuse of
Drugs Act 1971 to another or others in contravention of Section 4(1) of the
aforementioned Act;
CONTRARY to the Misuse of Drugs Act
1971, Section 4(3)(b)
You WILLIAM COCHRANE did commit this offence while on bail, having been
granted bail on 21 March 2002 at Edinburgh Sheriff Court."
[2] It is to be
noted that the charge was amended at the trial to substitute one single day for
a period that was originally indicted in terms of time. There was a co-accused who was also convicted
of the same offence.
[3] The case has
had a long procedural history which accounts for the delay in this appeal
coming before this court.
[4] The basic
facts are not in dispute.
[5] Receiving
anonymous information the police stopped the appellant while driving his motor
car in Dock Place, Leith and subsequently discovered in the
car, in the central console compartment, a quantity of drugs sufficient to
yield the inference, not disputed, that they were a dealers package. The appellant also had in his possession a
quantity of money. He was the registered
keeper of the car and, not without significance, showed no emotional surprise
when the drugs were discovered.
[6] At the trial
the Crown led a witness, Catherine McGinness, who was the girlfriend of the
accused. However, in evidence she stated
that she was responsible for the presence of the drugs in the car and gave
general exculpatory evidence in favour of the appellant. However, before the jury the fiscal argued
that this was not to be believed and thus the jury was left, which is again a
matter of some importance, with the position that the principal witness, other
than the police, for the Crown was being rejected by the Crown as
credible. However, the Crown also led
evidence from the police officers who conveyed the witness McGinness (then a
suspect) to the police station. The
sheriff allowed the Crown to take from one of the police officers evidence as
to what had allegedly been said by Catherine McGinness in the car park at the
rear of the police station, objection to the admission of that evidence having
been taken by the appellant's solicitor.
The prosecutor elicited from the police officer that Ms. McGinness had told
them that she had been the informant who had made the call which led the police
to the car in question and that furthermore she had done so because she was
concerned about the fact that the appellant was involved in drugs both
personally and as a dealer and this was the best way, she thought, of dealing
with the matter. It appears that it had
not been put in terms to Ms. McGinness when she gave evidence that she had made
those prior statements, inconsistent with her evidence, in the car park at the
police station, particularly the statement that she was concerned about the
appellant's involvement in drugs both personally and as a dealer.
[7] Counsel for
the appellant based his position on three central matters. Firstly, he maintained that there was
insufficient evidence in law to convict the appellant. Secondly, he maintained, in any event, that
the sheriff misdirected the jury when dealing with the question of the evidence
and its sufficiency. Thirdly, and most
importantly, he criticised the sheriff for allowing the evidence of the
statement given by the witness, McGinness, to the police both in respect of its
general content and, more importantly again, in relation to the particular
answers she gave in evidence as to why she had informed upon the appellant.
[8] We can state
the matter shortly because the issue before us focused finally on a narrow but
important point relating to the third aspect of the appeal.
[9] Suffice it to
say, as the advocate depute argued, we consider there was sufficient evidence
in law to convict the appellant, or at least entitle the jury so to do, having
regard to the fact that the drugs were found in his car and that he was the
registered keeper. The quantity of money
upon him would suggest that he, despite any apparent source of income, had a
source of funds and finally, and perhaps most importantly, his general attitude
and demeanour when the drugs were discovered.
No point therefore arises in that respect.
[10] We have some
concern as to how the sheriff handled the matter of the evidence before the
jury. It is at least arguable that she
conflated the submissions of the Crown with the actual state of the evidence,
but we do not need to decide this case on that point and we offer no further
view upon it.
[11] The critical
point in this case is the allowance by the sheriff of the evidence from the
police respecting the statements allegedly made by McGinness in relation to the
making of the telephone call to the police and particularly the reason why the
witness, McGinness, did so. The evidence
was plainly hearsay and in the circumstances the only basis upon which it could
properly have been admitted was that it was evidence of a prior, inconsistent
statement which the witness had denied making.
To make such evidence admissible it is necessary that it be put
specifically, and in terms, to the witness that he made the statement on the
particular occasion, at the particular location to the particular
addressee. This was not done in the
present case, particularly as respects the statement of Ms. McGinness' concern
about the appellant's drug involvement and her desire to stop it. This answer was wholly prejudicial (suggesting
also criminal activity outwith the scope of the libel) and indeed incompetent
evidence. In our opinion the sheriff
should have directed the jury specifically to ignore it once the matter had
come before them, which. The sheriff did
direct the jury that she had allowed the hearsay evidence of Ms. McGinness'
statement allegedly admitting to having been the maker of the telephone call
for the purpose of assessing the credibility of Ms. McGinness. The directions given to the jury are however
unsatisfactory, even were that branch of the statement evidence admissible,
since the jury are given no assistance as to how to go about that
exercise. For example, they are not
pointed to the need first to consider the credibility and reliability of the
police officer's testimony; or to the
need to treat the making of the statement as simply pointing to inconsistency
of position. But nothing was said by the
sheriff respecting the statement attributed to Ms. McGinness of her concerns
regarding the appellant's involvement in drugs.
[12] In these
circumstances, and for this simple reason, we consider that the jury, already
faced with a complicated situation where the principal Crown witness was being
rejected by the Crown, were left in a hopelessly complicated situation when presented
with inadmissible hearsay evidence accompanied by unsatisfactory directions. We consider the sheriff, as we have stated,
should have directed the jury to ignore the evidence in question once it was
out and the failure to give any direction at all is not only a misdirection but
also amounts to a miscarriage of justice.
[13] For this
reason we consider that this conviction cannot stand and it will be
quashed. The appeal is therefore
allowed.
