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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Creevy v. Her Majesty's Advocate [2005] ScotHC HCJAC_25 (17 March 2005) URL: http://www.bailii.org/scot/cases/ScotHC/2005/HCJAC_25.html Cite as: [2005] HCJAC 25, [2005] ScotHC HCJAC_25 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY |
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Lord MacLean Lady Cosgrove Lord Abernethy |
[2005HCJAC25] XC105/02 OPINION OF THE COURT delivered by LORD MacLEAN in NOTE OF APPEAL AGAINST CONVICTION by EDWARD MARTIN CREEVY, Appellant; against HER MAJESTY'S ADVOCATE, Respondent. |
Appellant: Shead; George Mathers & Co., Aberdeen
Respondent: Mitchell, A.D.; Crown Agent
17 March 2005
[1] On 4 October 2001 the appellant, Edward Martin Creevy, was convicted of dealing in diamorphine on 31 August 2000 at 396 Great Western Road, Aberdeen, in contravention of section 4(3)(b) of the Misuse of Drugs Act 1971. During the course of the trial he pleaded guilty to a contravention of section 27(7) of the Criminal Procedure (Scotland) Act 1995 in that he failed to appear on 16 May 2001 at a sitting of the High Court in Aberdeen in respect of the same solemn proceedings which brought him before the Court in October 2001. He was sentenced to four years imprisonment on the charge of which he was convicted by the jury and to nine months imprisonment on the charge to which he pled guilty, the sentences to be served consecutively. Pending the appeal he was granted interim liberation on 4 July 2002. [2] The evidence in the case was indeed in short compass, as the trial judge describes it in his report. When police officers armed with a search warrant broke into premises at 396 Great Western Road, Aberdeen and entered one of the rooms there, they found three beds; two single beds each of which was occupied by a male who was asleep, and a double bed in which the appellant lay, apparently asleep, according to his counsel. A fourth man carrying a knife and who was insubstantially dressed, was attempting to leave the room by a window. In the bed in which the appellant was lying there was found an opened plastic bag containing 24.6gms of diamorphine of 37% purity. Some of the powder had spilled on to the sheets. The appellant, according to the evidence, must have been lying either on or in close proximity to the bag. Underneath the bed there was found a closed plastic bag containing 27.04gms of diamorphine of identical purity. The street value of the powder found in the bed was about £8,000 and that in the bag found under the bed was about £9,000. At the end of his police interview the appellant said that they were not his drugs. [3] At the close of the Crown case defence counsel submitted that there was no case to answer on the ground that there was insufficient evidence that the appellant was in possession of either quantity of drugs. The trial judge rejected that submission. Thereafter the appellant did not give evidence. Counsel for the appellant submitted that the trial judge erred in failing to uphold the submission. Knowledge and control on the part of the appellant could not, he said, be inferred from the circumstances which are set out above and which were, the trial judge says, non-contentious. We are satisfied that the trial judge did not err in refusing to accept the submission. If the appellant was lying on or in very close proximity to the bag of diamorphine which was open, and from which some of the contents had spilled on to the sheets, that was in our opinion sufficient to entitle the jury to infer that in these circumstances the appellant possessed the drugs, in the sense that he had both knowledge and control of them. [4] It was also argued that the trial judge had misdirected the jury because he suggested that in the circumstances there was an onus on the appellant to give an explanation for his possession of the drugs. He said (at pages 12 to 13):"Now, on the matter of drawing inferences, ladies and gentlemen, you will no doubt have regard to the arguments of the Advocate Depute and Mr. Jackson respectively yesterday and I remind you, as did Mr. Jackson, that the onus of proof is throughout on the Crown. Having said that, and this may simply be a statement of the obvious but nonetheless I think in this case it is a statement that should be made, having said that, if, and I say only if, but if you think that the facts as established by you do give rise to an inference of guilt and the accused is the only or obvious person who could displace that inference then in the absence of any explanation from the accused all I say is that you are clearly entitled to draw the inference in question. Put the matter this way, you are not disabled from drawing the inference in question because it is one which could be removed by the accused, and I hope you understand that, but whether, of course, you decide to do that, whether you do decide to draw the inference and in so doing to hold the case proved by the Crown according to the standard of proof which I have mentioned, is obviously a matter for you".
It was also argued that, especially at the end of this passage, the trial judge's words were liable to confuse the jury into believing that there was an obligation on the appellant to provide an explanation to exonerate or explain his position. In his report the trial judge says that he considered the facts of this case as being within the category of case discussed in McLean v H.M. Advocate 1993 S.C.C.R.605 because arguably if there was an innocent explanation for the appellant lying on or close to an open bag of drugs in his bed, it was an explanation peculiarly within his knowledge. He was careful, he says, to give general directions in accordance with the advice which was given by the Appeal Court in that case. Clearly he referred to an inference and not a presumption of guilt, in accordance with that advice. We agree with the trial judge that the circumstances of this case were comparable to those which the Court had in mind in McLean. In our opinion he did not misdirect the jury by what he said in relation to the appellant providing an explanation.
[5] Mr. Shead urged us to consider what the Court said in Lyttle v H.M. Advocate 2003 S.C.C.R.713, especially at paragraph 21, about the appropriate way to direct a jury with regard to onus of proof. We do not see that there exists a necessary conflict between what was said there and what the Court said in McLean with regard to the special circumstances in that latter case. [6] It may be a little surprising that the trial judge felt it necessary to add the passage on page 13 of the charge which opens with the words "Put the matter this way ....", to which we have already referred. But we accept, as the advocate depute maintained, that he was concerned to say to the jury that they were not prevented from drawing the particular inference if the appellant did not give evidence. [7] It was also maintained the trial judge misdirected the jury in his charge at pages 9 and 12. What he there said was apt to confuse the jury into concluding that if the Crown established that the appellant was aware of the drugs in the room, then that would be sufficient to entitle them to convict. In the first passage the trial judge dealt with the meaning of "supply" and he directed that no one could be concerned in the supplying of drugs unless he knew of their existence. At page 12 he explained to the jury that, if they accepted the appellant was lying in close proximity to the drugs, it would depend upon all the circumstances, including the amount and value of the drugs, whether the appellant knew of the existence of the drugs and, whether in addition, he was concerned in their supply to others, as he had directed them earlier in the charge. [8] Mr. Shead submitted that the trial judge should have directed that the jury had to be satisfied the appellant was knowingly concerned in the supply of the drugs and that he had failed to do. He had to tell them what the law actually was in accordance with the principles in Salmon v H.M. Advocate 1999 J.C.67. In short, he had to direct them that they had to be satisfied that the appellant knowingly had possession of a dealer's quantity of drugs. This case was closer to Sharkey v H.M. Advocate 2001 S.C.C.R.290 than Smith v H.M. Advocate 2002 S.C.C.R.1059 to which the trial judge had referred in his report. [9] We consider that this ground of appeal has no merit. The trial judge correctly directed the jury about what being concerned in the supply meant in law and the knowledge that was required and then reminded them that it was a matter of inference for them to draw or not, depending on all the circumstances, including the amount and value of the drugs, whether the appellant was concerned in their supply to others and had the requisite knowledge. We do not see any misdirection in the passages in the charge which have been referred to. [10] The final ground of appeal, which was lodged as an additional ground, founded on something which the advocate depute said in his speech to the jury at the trial about the appellant's plea of guilty to the last charge on the indictment. It alleged that the appellant, having been granted bail on 1 September 2000, failed without reasonable excuse to appear on 16 May 2001 at a sitting of the High Court at Aberdeen commencing on 8 May 2001, contrary to section 27(7) of the Criminal Procedure (Scotland) Act 1995. The appellant pled guilty to this charge at the close of the Crown case and the plea recording the fact that he failed to appear was included in a joint minute which was read to the jury before the speeches at the end of the trial. It appears from what the advocate depute said that the jury were given copies of the joint minute. [11] What the advocate depute said in his speech in relation to charge 4 was this:"Finally, Ladies and Gentlemen, you have charge 4. Now, Mr Creevy has pled guilty to charge 4, and you saw a joint minute this morning which accepted that he was placed on bail within Aberdeen Sheriff Court on 1st September 2000, last year, and you will appreciate that that was the day after he was detained. So he appears to have appeared in court the day after he was detained and granted bail. You will see from the joint minute that he failed to attend for trial on 16th May this year, having been given proper notice of the calling of that trial.
But charge 4 you will see says that he did, in line 35 - sorry, line 36 - that he did, without reasonable excuse, fail to appear, and it would appear that by the plea of guilty Mr Creevy offers you Ladies and Gentlemen no reasonable excuse as to why he did not appear. Does that sound like the actions of an innocent man who wished to have himself acquitted of a serious crime in the High Court, if he did not attend for trial in May? You may think otherwise, Ladies and Gentlemen."
