APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Osborne Lady Paton Lord Bonomy	[2010] HCJAC 18 Appeal No: XC784/08 OPINION OF THE COURT delivered by LADY PATON in APPEAL AGAINST CONVICTION by HE DING CHANG Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: Brown, Advocate; Paterson Bell

Respondent: A Mackay, Advocate depute; Crown Agent

18 February 2010

Introduction

[1] 12 Cecil Street in Glasgow is a townhouse divided into flats. On 27 June 2008 the main front door was forced, and the building searched by police officers. The flats were found to contain large numbers of cannabis plants exuding an overpowering smell. There were also special lights and reflectors; cabling; extractor fans; and plant nutrients. At about the time the police arrived, a Chinese man left the premises by a rear window in the ground floor flat, and made good his escape. The appellant, also Chinese, opened the door of the ground floor flat, saw the police, and (according to the police officers), tried to run away, although the appellant in evidence denied doing so. The appellant was detained. During an interview with the police he was assisted by Mandarin interpreter. He stated that he was an illegal immigrant. He had worked in a restaurant kitchen in Manchester. He had been sent to Glasgow by coach. A Vietnamese man ("the boss") met him at the bus station and drove him to Cecil Street. The boss asked him to look after the house for a few days. The appellant told the police that his duties were confined to cooking for anyone who was there, and cleaning the ground floor flat. He said that he was aware of some plants, but did not know what they were. He had not tended the plants or fed them. According to the appellant, another Chinese man already resident at Cecil Street looked after the plants. The appellant lived in the ground floor flat for three days before the police arrived. He denied ever having visited the first or second floor flats.

[2] A jury trial took place at Glasgow Sheriff Court. The Crown sought to prove that the appellant was involved in the cultivation of cannabis plants. The appellant gave evidence confirming inter alia that he had cooked and cleaned, but had never looked after the plants.

[3] Ultimately, on 14 November 2008, the jury returned a majority verdict of guilty of the following offence:

"Between 24 June 2008 and 27 June 2008, both dates inclusive at the ground floor flat, the first floor flat, and the second floor flat at 12 Cecil Street, Glasgow, you were concerned in the production of a controlled drug namely cannabis, a Class C drug specified in Part 3 of Schedule 2 to the aftermentioned Act in contravention of section 4(1) of the said Act in that you did cultivate cannabis; contrary to the Misuse of Drugs Act 1971, section 4(2)(b)."

[4] The appellant appeals against his conviction on two grounds, one relating to the sheriff's answer to a question from the jury; and the other based upon section 106(3)(b), namely that no reasonable jury, properly directed, could have returned a guilty verdict.

The jury's question

[5] After the jury retired to consider their verdict, they formulated a question which they wished to put to the sheriff. The transcript records the proceedings at pages 29-30 as follows:

"Sheriff McFarlane: Ladies and gentlemen, I understand that you have agreed a question which is to be put to me for my consideration, and I am advised that the question is, 'If we believed that he, that is the accused, was cooking and cleaning and was aware of the Cannabis cultivation but are not sure beyond a reasonable doubt that he had any dealings with the plants, can we find him guilty?'

Now is that the question you wish me to answer?

Foreman of the Jury: Yes.

Sheriff McFarlane: The Crown has to prove its case against the accused beyond reasonable doubt by corroborated evidence. It was not the Crown's position, as I understand it from Miss Taggart's address to you, that if you accepted that the accused was cooking and cleaning the [flat] and was also aware of the Cannabis cultivation, that you could hold that simply by cleaning and cooking for someone who was involved in the cultivation process, the accused was, therefore, concerned in that process by facilitating it in that way, that is by cooking and cleaning.

If that had been the Crown's position, there would have been no corroboration of it, because the fact that the accused was cleaning and cooking only came from one source, that is from the accused himself.

Accordingly, there being no corroboration of that position, you could not find the accused guilty on that basis.

So, ladies and gentlemen, I can now invite you to retire again to consider your position."

Submissions for the appellant

[6] Counsel for the appellant submitted that the manner in which the sheriff answered the jury's question ignored the point of the question, namely the appellant's own evidence that he had no dealings with the plants. The effect of the answer was to negate the impact of all the previous directions relating to acquittal in the event of acceptance of the appellant's evidence or that evidence raising a reasonable doubt. If the sheriff had answered the question with a simple negative, there would be no criticism. Alternatively if the sheriff had answered as he did, but reiterated the directions previously given that if the appellant's evidence was believed or raised a reasonable doubt in their minds, the jury should acquit, that too would have been unchallengeable. However the way in which the question had been answered, focusing as it did on the Crown case and on the need for corroboration, could serve only to confuse the jury. The appeal should be allowed and the conviction quashed.

[7] In any event, counsel submitted that the evidence did not entitle a reasonable jury to conclude that the appellant was concerned in the cultivation of cannabis. Reference was made to the sheriff's report, and in particular to numbered paragraphs recording certain aspects of the evidence. The appeal should be allowed for that reason also.

Submissions for the Crown

[8] The Advocate depute contended that the sheriff's answer was clear and unlikely to confuse the jury. The answer did not detract from his previous directions. The sheriff correctly answered the question in the negative, giving the jury an explanation from the point of view of onus, presentation of the case, and evidence. A more detailed response would have been likely to confuse the jury, as there were several options open to them, including the possibility that the appellant not only cooked and cleaned, but also tended the cannabis plants. The sheriff's answer was, if anything, favourable to the appellant.

[9] In relation to the second argument, the Advocate depute submitted that the test to be met in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 was a high one. The only successful appeal based on that statutory provision (E v HM Advocate 2002 SCCR 341) was a special case involving very different circumstances: in particular the prosecution there depended upon the Moorov doctrine and the evidence of young children, and lacked positive medical evidence to support the Crown case. By contrast in the present case there was ample evidence entitling a jury reasonably to conclude that the appellant had been concerned in the cultivation of cannabis. The jury had of course to take into account what the appellant said in his defence, both during police interview and at trial. But it was for the jury to decide what to accept and what to reject, and what weight to give the various adminicles of evidence. It could not be said in the present case that no reasonable jury could have reached the verdict they did.

Discussion
The jury's question

[10] We do not accept that the sheriff's answer negated the impact of his previous directions. On the contrary, the answer was obviously additional or supplementary to those previous directions, and could not be construed otherwise. The supplementary direction was, if anything, favourable to the appellant, as it gave clear confirmation that one potential route to conviction was not open to them. It is unnecessary for this court to comment upon whether that route had ever been open to the jury, and if so whether further directions might be required, as the sheriff simply instructed the jury that they could not adopt it. The sheriff's answer incidentally reminded the jury of the importance of the onus of proof resting upon the Crown, and the need for the Crown to prove its case beyond reasonable doubt by corroborated evidence. In the result therefore we are not persuaded that the answer given detracted from the previous directions, or was likely to cause confusion.

Whether no reasonable jury could have returned the verdict

[11] Section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995, as amended by section 17 of the Crime and Punishment (Scotland) Act 1997, provides:

"... a person may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage based on - ... (b) the jury's having returned a verdict which no reasonable jury, properly directed, could have returned."

[12] The ambit of section 106(3)(b) was discussed in King v HM Advocate 1999 JC 226, at pages 228G to 229A:

"... The test is objective: the court must be able to say that no reasonable jury could have returned a guilty verdict on the evidence before them. Since in any case where the provision is invoked the jury will ex hypothesi have returned a guilty verdict, their verdict will have implied that they were satisfied beyond reasonable doubt that the appellant was guilty. What the appellant must establish therefore is that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond reasonable doubt that the appellant was guilty ..."

The court went on to state (at pages 229I to 230B):

"It follows from what we have said about the approach which this court should adopt that, although we require to examine the evidence which was before the jury, it is not for us simply to substitute our view of that evidence for the view which the jury took. In particular, a miscarriage of justice is not identified simply because, in any given case, the members of this court might have entertained a reasonable doubt on the evidence. If that were all that was required, Parliament would have gone far towards replacing trial by jury with trial by the judges of this court. The words in the provision were clearly chosen to avoid any risk of that. Applying the words which Parliament has enacted, we can quash the verdict of a jury only if we are satisfied that, on the evidence led at the trial, no reasonable jury could have been satisfied beyond a reasonable doubt that the appellant was guilty."

[13] In a later case, Kerr v HM Advocate 2004 SCCR 319, the court confirmed that issues of credibility and reliability are pre-eminently for a jury to resolve.

[14] Again in Harper v HM Advocate 2005 SCCR 245, the court emphasised the limited nature of the court's powers in terms of section 106(3)(b). Having referred to the approach in King, the court observed at paragraph [35]:

"Following that approach, the question has to be asked whether the verdict in this case, on the evidence before the jury, could have had a rational basis. In that connection it is to be noted that, in a case where there was a body of evidence which was quite inconsistent with the accused's guilt, for example that supporting an alibi, a jury could reasonably reject such evidence precisely because it was inconsistent with Crown evidence which they had decided to accept. No more elaborate explanation for rejection need be sought ..."

Further, the court stated at paragraph [38]:

"As is apparent from the statutory provisions to be found in section 106 of the 1995 Act, the function of this court is not to conduct a general review of jury decisions and, in the event of its being persuaded that they are mistaken, substituting its own view in place of the jury's verdict. The terms of section 106(3)(b) provide the sole criterion for the assessment of a jury verdict in the light of the evidence. If we were to decide on some general basis that the verdict in this case was unsatisfactory in the light of the evidence, and quash the conviction, we would be engaging in an activity which Parliament has not authorised ..."

[15] In the present case, there was evidence that the appellant had lived in the ground floor flat for three days. That flat contained 940 cannabis plants. When the police visited on 27 June 2008, a Chinese man left the premises by a rear window and made good his escape, while the appellant opened the door of the ground floor flat, saw the police, and attempted to run away. The appellant admitted being aware of some of the plants (although he was equivocal about whether or not he had noticed the smell). He admitted being aware of noisy extractor fans and light reflectors. The bathroom used by the appellant contained plant-growing equipment and plant nutrients commonly seen in cannabis cultivations. The plants had been fed and watered during the three days of the appellant's residence.

[16] The jury had of course to take into account all that the appellant said in his defence, both during police interview and at trial. As noted above, his position was that he cooked and cleaned, but had nothing to do with the plants. However questions of credibility and reliability were entirely for the jury. There were undoubtedly discrepancies between the appellant's version of events and other evidence, and also some internal contradictions within his own evidence, all as noted in the sheriff's report. It was therefore for the jury to decide what evidence to accept, what to reject, and what weight to give to evidence which they accepted. If the jury did not accept the appellant's denials of involvement in the cultivation of the plants, there was ample evidence entitling them, properly directed, to conclude that the appellant was concerned in the production of cannabis. We are not therefore persuaded that, on the evidence led at the trial, no reasonable jury properly directed could have reached the verdict reached in this case.

Decision

[17] For the reasons given above we shall refuse the appeal.