APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lord Brodie Lord Wheatley	[2011] HCJAC 82 Appeal No: XC808/10 OPINION OF THE COURT delivered by LADY PATON in NOTE OF APPEAL AGAINST CONVICTION AND SENTENCE by RAMESH KAINTH Appellant; against HER MAJESTY'S ADVOCATE Respondent:

Appellant: C Fyffe, Solicitor advocate; Paterson Bell, Edinburgh (for Messrs Gail Goodfellow & Co, Solicitors, Aberdeen)

Respondent: A Prentice QC, Advocate depute; Crown Agent

23 August 2011

Introduction

[1] On 28 October 2010, the appellant was convicted of being concerned in the supplying of heroin and crack cocaine at Merkland Road and Castle Terrace, Aberdeen, and elsewhere in the United Kingdom, during the period from 1 April 2009 to 3 February 2010 (charges 3 and 4 on the Indictment). He was sentenced to 9 years imprisonment. He now appeals against conviction and sentence, contending (i) that there was insufficient evidence and that a "no case to answer" submission made at the close of the Crown case in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 should have been sustained; (ii) in any event the libel should have been restricted to a period between 29 October 2009 and 30 December 2009; and (iii) the sentence of 9 years was excessive.

Evidence led by the Crown

[2] Evidence was given by inter alios police surveillance officers; residents of 4 Merkland Road and of Castle Terrace; an Aberdeen letting agent Mr Ross Watt; and an individual named Stephen Harman who was detained outside 4 Merkland Road in possession of a dealer quantity of heroin and cocaine. During the appeal, reference was made to the report and supplementary report of the trial judge. No productions or transcripts were available. On occasions the judge's reports were supplemented by the recollection and notes of Mr Fyffe, solicitor-advocate, who had represented the appellant at the trial. Mr Fyffe was able to advise the court that the apartment building at Castle Terrace was fairly modern, containing eight flats, two on each landing. The landings were square in shape, with the entrance door of each flat situated opposite the other on either side of the square. Beside each entrance door was an unsecured service hatch giving access to inter alia domestic meters. Flats numbers 60 and 62 were on the same landing; flats numbers 56 and 58 were situated on the landing below.

[3] The evidence led by the Crown established inter alia the following.

[4] The co-accused Mtara lived in a flat at 62 Castle Terrace, Aberdeen. On 29 December 2009, at 21.35 pm, he received a telephone call from a mobile telephone with the number 07938428624 ("the 624 mobile"). On the following day, 30 December 2009, Mtara again received a call from the 624 mobile. About one minute after that call, the appellant drove up to Castle Terrace in a BMW car. He got out of the car and went to the boot. There he was seen placing something in a blue drawstring bag. The appellant carried the blue bag and was seen to meet with Mtara. The two men went behind some parked cars. When they emerged, Mtara was holding the blue bag with its contents. Mtara then went into his block of flats and the appellant drove away. Shortly thereafter, when Mtara's flat at number 62 was searched by the police, the blue bag was found there with a white polythene bag inside but otherwise empty. On the landing outside his flat, in the service hatch beside the front door of number 60, was found heroin with a value of £25,380, cocaine with a value of £38,500, and scales. The police officers also found a personal quantity of cocaine in the service hatch beside number 58 on the landing below. The search of Mtara's flat at number 62 produced cash of £850, and drugs paraphernalia (a roll of clingfilm, tin-foil, and latex gloves). The occupiers of number 60 gave evidence that they sometimes found mail or deliveries of on-line shopping in their service hatch, but they knew nothing of the Class A drugs found there.

[5] Subsequently, on 21 January 2010, the appellant was detained at 4 Lulworth Walk, Wolverhampton. That address was significant in the context of an earlier discovery of heroin and crack cocaine in Aberdeen on 29 October 2009. The relevant evidence established that in September 2008 a letting agent in Aberdeen, Ross Watt, met with a man whom he described at the trial as "of Middle Eastern appearance". The man gave his name and address as Ramesh Kainth, 4 Lulworth Walk, Woverhampton. He also provided two telephone numbers, one of which was the 624 mobile number referred to in paragraph [4] above. Mr Kainth wished to rent the ground flat left at 4 Merkland Road, Aberdeen. The rent was agreed at £600 per month. Mr Kainth signed the lease in Mr Watt's presence. There were no further meetings between the two, but the rent was paid by amounts ranging from £400 to £1,000. When giving evidence at the trial, Mr Watt identified the lease and the signature thereon as that of Mr Kainth; confirmed the personal details given by Mr Kainth; and gave the description of Mr Kainth referred to above but did not identify Mr Kainth in court.

[6] There was evidence that the flat at 4 Merkland Road appeared not to be lived in. At least one neighbour also spoke of a series of callers arriving at the flat late at night, each remaining for only about 15 minutes. On 29 October 2009, an individual named Stephen Harman was detained on leaving the flat at 4 Merkland Road. He was found to be in possession of a dealer quantity of heroin and cocaine, and a key which opened the front door of the flat. On using that key to enter and search the flat, the police found heroin and cocaine with a total value of £82,000; scales; and other drugs paraphernalia. At the trial, Mr Harman gave evidence on behalf of the Crown. He stated that he had been instructed by others (unnamed) to travel from his home in Huddersfield to the flat at 4 Merkland Road, Aberdeen, there to cut up, weigh and bag heroin and crack cocaine.

[7] As noted above, the appellant was detained on 21 January 2010 at 4 Lulworth Walk, Wolverhampton. The trial took place at Edinburgh High Court from 23 September 2010 until 29 October 2010.

Submissions for the appellant

[8] Mr Fyffe submitted (i) that the trial judge had erred in repelling a "no case to answer" submission; (ii) that even if the judge had been correct to repel the section 97 submission, he should have directed the jury that they must restrict the libel to a period from 29 October 2009 until 30 December 2009; (iii) finally, the sentence imposed was excessive.

[9] No case to answer: There was insufficient evidence to link the appellant with the drug supply operation taking place at the flat at 4 Merkland Road. The property had been leased in September 2008 to a male named Ramesh Kainth with an address at 4 Lulworth Walk, Wolverhampton. But the letting agent had not identified the appellant in court. He simply described the lessee as "of Middle Eastern appearance". Also while the male had supplied the 624 mobile number, there was no evidence that the appellant had ever used the 624 mobile. Thus there had been insufficient evidence to implicate the appellant in the Merkland Road operation.

[10] There was also insufficient evidence to implicate the appellant in any involvement in Class A drugs at Castle Terrace. It was accepted that the appellant was seen delivering something to Mtara in a blue bag. It was also accepted that the jury were entitled to infer that the something was illegal. But there was no evidence about what the contents of the blue bag were; or what had happened to the contents; or pointing to Mtara as the person who put the drugs in the service hatch. It was accepted that there had been no evidence of the discovery of any other illegal materials, but nothing could be inferred from that. The occupants of number 60 had been unable to say when the drugs had been put in the service hatch. As a result, there was a crucial gap between the blue bag and the recovery of the drugs. There was no evidential link.

[11] While therefore it was correct that in a circumstantial case the evidence had to be viewed as a whole, in the present case there was the lack of identification of the appellant as the tenant in relation to 4 Merkland Road; and there was a gap between the blue bag and the drugs in relation to Castle Terrace. Thus the evidence as a whole was insufficient, and the no case to answer submission should have been sustained.

[12] Period of the libel: Esto the trial judge had not erred in repelling the submission of no case to answer, he had erred in failing to direct the jury that the period of the libel in Charges 3 and 4 (in each case, 1 April 2009 to 3 February 2010) should be restricted to 29 October 2009 to 30 December 2009. Only during the latter period could the inference properly be drawn that the appellant had been concerned in the supplying of drugs. Santini v HM Advocate 2000 SCCR 726 could be distinguished, for in that case there had been ample evidence entitling the jury to infer that the appellant had been concerned in supplying drugs over a six month period. By contrast, in Barr v HM Advocate 2005 SCCR 680, there had been no such evidence available to the jury. The facts proved in the present case did not support drug-dealing from the commencement of the tenancy of 4 Merkland Road in September 2008. The evidence from neighbours about late-night callers was so vague and ambiguous that it could not provide a basis on which the jury could draw the inference of drug-dealing over the period of the libel. Also the evidence only entitled the jury to conclude that the flat was unlived-in on 29 October 2009, when Stephen Harman had been detained and the police had searched the flat. Certain other co-accused had been seen in Merkland Road: Bellot on 7 October 2009; Fox and Slater on 14 October 2009. But that did not really assist the Crown. Bellot had been acquitted; Slater had pled guilty shortly before the Crown case closed, to being concerned in the supplying of heroin and cocaine on 29 October and 30 December 2009; Fox pled guilty to being concerned in the supplying of drugs on 18 October 2009 at HM Prison, Edinburgh. However as a fall-back position, if the first ground of appeal failed, then it was conceded that the period of the libel could be taken back to 7 October 2009 when Bellot had been seen in Merkland Road.

[13] Excessive sentence: The submission that the sentence was excessive was linked to the contention that the period of the libel should be restricted. If the appellant succeeded in restricting the period, his culpability was significantly lessened. However the third ground of appeal was also self-standing, and could be considered independently of Ground 2.

Submissions for the Crown

[14] No case to answer: The Advocate depute referred to Lord Hunter's authoritative and wide-ranging definition of "being concerned in the supplying of" drugs at page 87 of Kerr v HM Advocate 1986 SCCR 81. The definition covered the acquisition and provision of premises for the preparation and distribution of illegal drugs. Further, in a circumstantial case, the evidence had to be looked at as a whole. Independent strands of evidence might not necessarily point to guilt, but the whole body of evidence might entitle the jury to draw that inference. In the present case there was clear and undisputed evidence of drug-trafficking at 4 Merkland Road. There was evidence from which the jury could infer that the flat was not lived in (in the normal sense), but was occupied and used for the purposes of storing and distributing drugs. There was direct evidence of drugs being recovered from number 4. There was evidence of comings and goings of persons which was supportive of the flat being used for drugs. There was sufficient evidence (a distinctive name "Ramesh Kainth", an address in Wolverhampton - at which the appellant was ultimately detained - and the provision of a mobile telephone number for the phone which was used to contact Mtara) to entitle the jury to draw the conclusion that the appellant had leased the premises from the letting agent. It would be artificial to view in isolation the fact that there was no evidence that the appellant had been in possession of, or the user of, the 624 mobile. In relation to Castle Terrace, the appellant had been seen filling the blue bag with something from the boot of his car, and passing that bag with its contents to Mtara in circumstances redolent of something clandestine. Drugs were then found in a place convenient for Mtara: the place did not require to be attached to Mtara's flat. The service hatch was an easy and obvious place, and there was a certain danger in keeping the drugs in one's own flat or property. Thus in the context of Castle Terrace, there had in fact been direct evidence of the appellant's involvement in a drugs transaction. When the evidence relating to Merkland Road and Castle Terrace was viewed as a whole, there was clearly sufficient evidence. The trial judge had not erred in refusing the motion in terms of section 97.

[15] Period of the libel: While it was arguable that the appellant continued to be concerned in the supplying of drugs after his detention and arrest on 21 January 2010 (by reason of inter alia the continued provision of the premises at 4 Merkland Road), the Crown was prepared to concede that it would be appropriate to end the period of the libel with that date, 21 January 2010. Otherwise the Crown's position was that, far from truncating the period, the libel could be extended back to September 2008 when the appellant first took out the lease for 4 Merkland Road. The Crown's choice of 1 April 2009 as the start date of the libel had related to the circumstances of another accused. There was ample evidence of the appellant's being concerned in the supplying of drugs during the period 1 April 2009 until 21 January 2010.

[16] Whether sentence excessive: The Advocate depute properly left the question of sentence for the appeal court to determine.

Discussion

Sufficiency of evidence

[17] Authoritative guidance on the nature of circumstantial evidence was given in Al Megrahi v HM Advocate 2002 JC 99, 2002 SCCR 509 at paragraphs [32] to [36]. At least three principles should be borne in mind. First, the evidence must be viewed as a whole. One piece of circumstantial evidence may not be incriminating. What matters is the coherence and concurrence of testimony, the emergence of a pattern, and the inferences which the jury may draw when viewing the circumstances as a whole. The second principle is that circumstantial evidence may be open to more than one interpretation, but it is for the jury to decide which interpretation to adopt, and whether to draw the inference beyond reasonable doubt that the accused is guilty of the crime. Thirdly, there may be a body of evidence (supportive, for example, of an alternative innocent explanation) which is quite inconsistent with the accused's guilt. A jury must consider all the evidence: but having done so, they are entitled to reject the inconsistent evidence if they so choose.

[18] In the present case we have little difficulty in concluding that the evidence, viewed as a whole, was sufficient to entitle the trial judge to refuse the motion of "no case to answer".

[19] What occurred at Castle Terrace on 30 December 2009, with a telephone call to Mtara from the 624 mobile only a minute before the appellant's arrival to meet Mtara; the clandestine circumstances of the transfer of the blue bag with contents from the appellant to Mtara; the finding of the blue bag, empty of its contents, in Mtara's flat at number 62 Castle Terrace; the discovery of heroin (worth £25,380) and cocaine (worth £38,500) in an accessible service hatch only a few steps from Mtara's front door (with the evidence of the occupants of number 60 denying any knowledge of the drugs); and the finding in Mtara's flat of a roll of clingfilm, tin-foil, and latex gloves, amounted in our opinion to sufficient evidence relating to that locus which the judge was entitled to leave to the jury for their decision. If, in addition, the evidence relating to 4 Merkland Terrace were to be considered, not only does a circumstantial case in relation to that locus emerge, but also strands of evidence relating to Merkland Road provide support for Castle Terrace, and vice versa. The jury would be entitled to take into account the evidence from the letting agent that the man who took out the lease of 4 Merkland Road was "of Middle Eastern appearance" - a description which the trial judge, correctly in our view, categorised as "not unreasonable". The man gave a distinctive name, "Ramesh Kainth" and an address 4 Lulworth Walk, Wolverhampton. He provided two telephone numbers, one being the 624 mobile number which was used to contact Mtara as described above. The jury would be entitled to take into account the amount of the rent (£600 per month); evidence relating to the apparently unlived-in state of the flat together with evidence of a series of visitors late at night each of whom stayed for only a short time; the evidence of Stephen Harman (who was detained on 29 October 2009) that he had travelled from Huddersfield with instructions to cut up, weigh, and bag heroin and cocaine within the flat at 4 Merkland Road; the entering of the flat by the police using Mr Harman's key; and the subsequent discovery therein of heroin and cocaine worth £82,000, scales, and other drugs paraphernalia. Finally the jury would be entitled to take into account the fact that on 21 January 2010, when police officers called at 4 Lulworth Walk, Wolverhampton, the appellant who has the name Ramesh Kainth was found there.

[20] Against that evidential background it is appropriate, as the Advocate depute reminded the court, to bear in mind the guidance given by Lord Hunter in Kerr v HM Advocate 1986 SCCR 81. As he explained at page 87:

"....section 4(3)(b) was purposely enacted in the widest terms and was intended to cover a great variety of activities both at the centre and also on the fringes of dealing in controlled drugs. It would, for example, in appropriate circumstances include the activities of financiers, couriers and other go-betweens, lookouts, advertisers, agents and many links in the chain of distribution".

Knowingly providing and financing the premises required for cutting up, weighing, bagging, and distributing heroin and cocaine clearly falls within the definition of being concerned in the supplying of drugs.

[21] In the present case, one individual piece of evidence viewed in isolation might not necessarily seem to support the Crown case that the appellant was concerned in the supplying of heroin and cocaine at 4 Merkland Road and Castle Terrace; but the evidence when viewed altogether produces such a coherence and pattern that it would, in our view, be sufficient to entitle the jury to conclude beyond reasonable doubt that the appellant was concerned in the supplying of heroin and cocaine at both 4 Merkland Road and Castle Terrace.

[22] We accordingly refuse the First Ground of Appeal.

Period of the libel

[23] As already noted, the provision and financing of premises necessary for the cutting up, weighing, bagging, and distributing of illegal drugs falls within the definition of "being concerned in the supplying of" such drugs. The flat at 4 Merkland Road was leased by the appellant in September 2008. In our view, the weight of the evidence pointed to that flat being unlived-in thereafter, although used in the way in which premises providing a location for the preparation and distribution of illegal drugs are used. We tend to agree with the Advocate depute that the period of the libel could have commenced with the month September 2008, and that the libel did not over-state the period of the appellant's involvement by commencing on 1 April 2009. In relation to the termination of the period of the libel, we are content to accept the Crown's concession that the libel in the appellant's case might properly terminate on 21 January 2010 when he was detained and arrested. In the result we shall quash the convictions in respect of Charges 3 and 4 but only to substitute therefor identical convictions save for the end date of the libel in each charge, which should be 21 January 2010 rather than 3 February 2010.

Whether sentence excessive

[24] The appellant was found guilty of being concerned in a substantial drug-distribution network over a period of about ten months. The drugs involved were particularly addictive and dangerous, namely heroin and crack cocaine. The value of the drugs on the occasions when recoveries were made was £25,380, £38,500, and £82,000. This was therefore a major operation, and the appellant's involvement was clearly significant.

[25] We note that one of the appellant's co-accused Munyawiri (a first offender, also convicted of Charges 3 and 4 but under deletion of Merkland Road) was successful in having his 9-year sentence reduced on appeal to 7 years. We refer to the opinion of the court dated 19 May 2011 which explains the reasons for concluding that the sentencing judge had attributed too great a responsibility to Munyawiri. However in the present case we are not persuaded that the judge over-estimated the appellant's involvement, bearing in mind the period and loci of his offending and his provision and financing of premises at Merkland Road used for the distribution of drugs. In all the circumstances, even bearing in mind the lack of analogous previous convictions, we are satisfied that the judge did not err in imposing the sentence he did.

Decision

[26] For the reasons given above, we refuse the First and Third Grounds of Appeal. In relation to the Second Ground of Appeal (the period of the libel) we allow that ground only to the extent that the period of the libel is restricted to the period "1 April 2009 to 21 January 2010". Thus we quash the appellant's convictions in relation to Charges 3 and 4, and substitute therefor identical convictions with the exception of the end date of the period of libel, which shall be 21 January 2010 in place of 3 February 2010.