APPEAL AGAINST CONVICTION BY DARRELL MITCHELL AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC

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	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> APPEAL AGAINST CONVICTION BY DARRELL MITCHELL AGAINST HER MAJESTY'S ADVOCATE [2017] ScotHC HCJAC_60 (18 August 2017) URL: http://www.bailii.org/scot/cases/ScotHC/2017/2017_HCJAC_60.html Cite as: 2018 JC 67, 2017 GWD 26-430, 2017 SCCR 485, [2017] HCJAC 60, [2017] ScotHC HCJAC_60, 2017 SCL 896

[1] The appellant is Darrell Mitchell. His date of birth is 9 February 1973. On 22 August

2016 he went to trial, together with his former co-accused and nephew, David Buchanan, at

Kilmarnock Sheriff Court on an indictment containing four charges of being concerned in

the supply of, respectively, cocaine, cannabis, cannabis resin and methylethcathinone. On

23 August, the second day of the trial, David Buchanan pled guilty to charges 1, 2 and 4.

The appellant maintained his plea of not guilty to all charges. The appellant had lodged a

special defence of incrimination against his co-accused. He had intimated his intention to

[2] The trial continued against the appellant. The Crown led David Buchanan and other

witnesses. One of these witnesses was Police Sergeant Kenneth Simpson who gave evidence

under reference to a report entitled “Statement of Opinion” in relation to drugs and certain

other articles which had been seized by other police officers in the course of their

investigations (“the STOP report”). The STOP report was lodged as a Crown production.

The appellant gave evidence on his own behalf. Other witnesses were led for the defence.

On 26 August 2016, the jury, by a majority verdict, found the appellant guilty of charge 1

“(1) between 8 November 2013 and 19 June 2015, both dates inclusive at Belleview

Road, Kilmarnock and elsewhere you DARRELL MITCHELL and DAVID ROBERT

BUCHANAN were concerned in the supplying of a controlled drug, namely

Cocaine, a Class A drug specified in Part I of Schedule 2 to the Misuse of Drugs Act

1971 to another or others in contravention of Section (4)(1) of the aftermentioned Act;

[4] The sheriff adjourned the diet for the preparation of Criminal Justice Social Work

Reports in respect of the appellant and his co-accused. On 20 September 2016 the appellant

was sentenced to 30 months’ imprisonment. His co-accused was sentenced to 37 months’

imprisonment, discounted from 42 months’ imprisonment to reflect his guilty plea.

[5] A note of appeal against conviction was lodged on 14 November 2016. Leave to

appeal was granted in respect of two grounds, although Mr Paterson, who appeared before

us on behalf of the appellant, intimated that he intended only to argue the first ground. It

“The sheriff misdirected the jury by failing to direct the jury about the use of opinion

evidence. In particular how they should evaluate the evidence of a police officer,

Kenneth Simpson and how it might be used in the determination of the issues in the

case. The officer’s evidence is summarised by the sheriff at page 26 line 17 to page 28

line 19 [of the transcript of the sheriff’s jury charge]. The sheriff gave no directions to

the jury about the opinion evidence, the directions on evidence run from page 1

line 15 to page 7 line 5. The opinion evidence was crucial in this case, it was disputed

and was indicative of guilt. As a result of the failure to properly direct the jury there

[6] A summary of the evidence led at trial is contained in the sheriff’s supplementary

note produced at the request of this court and dated 4 May 2017. The salient parts of that

[7] A number of police witnesses had carried out surveillance on David Buchanan, the

appellant’s nephew. They had seen Mr Buchanan at a particular location obtain a black bag

from two men who were suspected of being involved with drugs. Mr Buchanan then drove

off in his SAAB motor car towards his home but, as he was to explain when he gave

evidence, on his approach to his house he noticed what he thought was an unmarked police

vehicle and fearing that he was under surveillance he telephoned the appellant and drove

his SAAB to the appellant’s lock-up garage. The appellant drove there in his van. He and

his nephew met. Photographs which were part of Crown production 5 lodged at trial show

the SAAB and the van parked close to each other and in near proximity to the garage door.

[8] A number of police officers attended the appellant’s lock-up garage (situated in a

row of similar lock-ups). They saw both David Buchanan and the appellant.

David Buchanan threw two bags, a black bag and a green and white carrier bag, into the

appellant’s garage. It looked as though both men were moving things from the vehicles into

the garage. The police intervened, detained Mr Buchanan and the appellant, and seized the

bags and other items found in the garage and the appellant’s van. The seizures included

quantities of cannabis bud, cannabis resin, methylmethcathinone and cocaine. Cannabis

bud weighing 985 grams was found in the boot of the SAAB. Twenty blocks of cannabis

resin was found in the green and white carrier bag. Four smaller bags found in the green

and white carrier bag contained, respectively, 497.05 grams, 497.84 grams, 332.16 grams, and

[9] Among the drugs found in the green and white bag was 9.52 grams of cocaine in a

plastic bag. Also within the green and white bag was 387.47 grams of benzocaine. Finger

prints of the appellant were found within the green and white bag. A sieve, a plastic

container and lid, a ceramic bowl and a roll of clear plastic bags, were found in the

appellant’s van. Trace amounts of cocaine were found on the sieve, plastic container and

ceramic bowl. There were traces of cocaine on the first bag of the roll of plastic bags. Three

finger prints and five palm prints of the appellant were found on the roll of plastic bags.

Also recovered from the van were brown tape and packaging. A hydraulic press was found

in the garage which had trace amounts of cocaine and benzocaine on the surfaces of one of

its plates and within the metal mould unit. A plastic bag containing cocaine was found

[10] The Crown’s position throughout the trial was that both the appellant and his

nephew were concerned in the supply of drugs. When giving evidence, David Buchanan

admitted that he had been concerned in the supply of cocaine, cannabis and

methylethcathinone between 8 November 2013 and 19 June 2015. He explained that on

19 June 2015 he had picked up a black bag from a man he did not know. He was aware that

the bag contained drugs. On noticing what he took to be an unmarked police car near his

home, he panicked. According to Mr Buchanan, he then telephoned the appellant and asked

him if he could put “something” in his garage for a “wee while”. He did not tell the

appellant what this “something” was but he accepted that his uncle would have a fair idea

that it was drugs; certainly that it was something illegal. He then drove to the appellant’s

garage. The appellant was there with his van. He thought that the appellant opened the

door of the garage. Mr Buchanan threw the bags into the garage. He was the only person

who had touched the green and white bag that night. He did not know where he had got

the plastic bag. He did not know who else used his uncle’s garage. He did not have a key to

the garage. He was asked if he had ever used his uncle’s van for the preparation of cocaine

or other drugs and he said no, he had never seen drugs in the van. He said that he did not

know how there came to be drugs in the van and he said that they were not his drugs. He

was asked about the sieve, ceramic bowl and clear plastic bags found within the van but he

did not know anything about them. He was also asked about the hydraulic press found

within the garage and denied that he used it for the preparation of drugs. He had no idea

how drugs would get onto the hydraulic press. The press belonged to the appellant.

Mr Buchanan denied knowing anything about the bag of cocaine found in the garage.

[11] Evidence was led of text messages received and sent by the appellant. Examples of

the texts included a number of texts between the appellant and another person on

8 November 2013: “have you got 5 red ones”, reply “no red ones, only green and blue, have

more red in next week”, “both banging, blue slightly better. 5 blue bud, give you a text.” A

text received on 23 May 2015 read “chomp, can you grab me ½ a quarter mate?” One

message sent from the appellant’s phone was: “have you got snow?” A message received by

the appellant’s phone was: “can you get my drugs?” to which the response was: “no

[12] As mentioned in the ground of appeal, evidence was also given by Police

Sergeant Kenneth Simpson. He explained that he had been in law enforcement for 38 years

and had gained experience in the values of drugs, how they are used and imported, and that

he had provided information to courts on this in the past. No objection was taken to his

[13] Sergeant Simpson was shown a report relating to the appellant’s phone which

included the contents of certain text messages. He gave his opinion as to what the content of

the various messages meant, for example, that the reference to “1/2 a Q” referred to an

amount of either a powdered drug or cannabis resin, and that “have you got any snow”

might mean cocaine. The officer suggested the messages were consistent with someone

trying to source controlled drugs but could make no comment as to whether the drugs were

[14] Sergeant Simpson was then taken through the terms of the STOP report. He

explained how drugs in powder form could be adulterated and then compressed into blocks

of a particular weight, half a kilo being the most common. A hydraulic press is commonly

used for this purpose. He was shown Crown label 27 which was agreed to be 4.5 grams of

cocaine which was found on the floor under the hydraulic press (referred in his report as a

“spillage” amount). He said that this drug’s proximity to the hydraulic press meant, in his

experience, that the press was being used to press blocks of cocaine. He was shown Crown

label 15 which was agreed to be 387.4 grams of benzocaine. He explained that this is not a

controlled drug, but it is commonly used to adulterate cocaine. In his experience benzocaine

would not be bought for personal use, it is usually used by dealers, particularly an amount

[15] The sergeant was shown a photograph of Crown production 28, the hydraulic press.

He said that in his experience, such presses were commonly recovered in large scale drug

operations. There would normally be a base plate and a top plate. The handle activated

pressure. The sergeant said that the press would be used for re-blocking cocaine for onward

supply. He was shown the sieve and he stated that it could be used to sieve cocaine as the

cocaine would come in hard form and then it would be broken up into powder, sieved into a

bowl, and the adulterant added. The mixture would be put into a bag, then into a mould,

then into the press. In Sergeant Simpson’s experience personal users did not use such a

[16] The witness was shown a plastic tub with a lid. Cocaine had been found in the

inside of the tub. In Sergeant Simpson’s experience people stored drugs or mixed them in

plastic tubs prior to the next stage in the process of supply. He was shown brown packaging

tape and he stated that such tape could be used to wrap a block of pressed drugs to make

the block stronger. He was asked, when considering all of the items found at the scene,

what was his analysis of the situation. He stated that in his experience, the amount of

cannabis, cannabis resin and methylmethcathinone, were supply amounts. The amount of

cocaine found in the bag in the garage was not excessive and could be for personal use but

its recovery in a position near the moulds and the press indicated to Sergeant Simpson that

this was for onward supply, and was therefore not for personal use.

[17] In cross examination, Sergeant Simpson was tested on the extent of his experience. It

was put to him that the fact that the hydraulic press had not been covered up and that the

bag of cocaine was lying on the floor in open view would not indicate a supply operation.

The officer agreed with the cross-examiner that the amount of cocaine found in the garage

could be for personal use. He also agreed that if a press was being used, the cocaine would

usually come in larger amounts within brown packaging, and that this would indicate a

supply operation. He also agreed that brown tape and plastic bags were common

[18] In the course of his cross-examination Sergeant Simpson was referred to the

appellant’s telephone records. The sergeant had not seen them before he came to court and

they had not formed part of his consideration when preparing the STOP report. In his view,

some of the text exchanges referred to drug transactions, but he could not comment on

whether they related to larger amounts or to smaller amounts. It was accepted that in some

of the exchanges it looked as if the appellant was the buyer. In reference to texts asking for

an ounce of cannabis or cocaine, Sergeant Simpson said that an ounce of cannabis would be

for personal use, but that an ounce of cocaine would not (its value would be £1200 to £1300).

On re-examination, the officer’s final position was that in his experience the text messages

were not clear and they could refer to the recipient of the messages attempting to acquire

[19] The appellant gave evidence. According to him it was his nephew who was

responsible for all the drugs found at the scene. The appellant stated that David Buchanan

had often borrowed his vehicle, and, therefore, could have used the bowl, the tub, and other

items which had traces of cocaine on them. He had never seen them before. He explained

that he had used the garage for storage and held a key which was on the same key ring as

the key to his van but he denied that the drugs found in his garage had anything to do with

him, and, again, he blamed his nephew for their presence. Mr Buchanan had had use of the

van a few days beforehand and therefore would have had access to the garage key. The

appellant accepted that the hydraulic press was his, but said that he used it to press ball

bearings. He had no explanation for the traces of cocaine found on the plates of the press.

The appellant explained the text messages by stating that he was a user of ecstasy and

cocaine. The text messages were instances of his sourcing drugs for his personal use. He

accepted that messages had been received by his phone asking for drugs; however, he said

these were all from David Buchanan’s friends. His explanation was that he took them to be

[20] The sheriff’s charge to the jury included the following passages.

“Two aspects to the evidence of any witness, ladies and gentlemen, that’s credibility

and reliability…You judge all the witnesses in the same way, whether they’re lay

“Kenneth Simpson came in and he gave - he’s known as a STOP officer, he gives a

statement of opinion, he’s the Crown expert. He’s been in law enforcement for

30 years, and he went through the various number of Crown productions with you,

and you’ll remember his evidence, ladies and gentlemen. His conclusion was that

the drugs found at the garage were of a substantial value. He’d referred you [to] the

hydraulic press and the white powder found on the press. The white powder on the

plastic bags on the sieve and in the ceramic bowl and his conclusion was, taking all

these together, it was a large scale drugs operation. He explained to you what

benzocaine is, and it’s used as an additive. He used the word ‘adulterant’, and that

mixes it with cocaine and thins it out so you can get more for it. It was his view

that’s that what the hydraulic press was used for. He explained what cannabis bud

is and its value, cannabis resin and its value. His view was that the drugs were not

for personal use. He explained [what] methylmethcathinone is and that it, too, could

be used as an adulterant. He concluded that the presence of drugs in the hydraulic

press and plates was indicative of it being used to press drugs. His final position

was the amount of drugs found, namely, cannabis, cannabis resin and

methylmethcathinone could of themselves indicate supply. In relation to the cocaine,

the amount found in the garage was not an excessive amount and, indeed, it could be

personal but in the circumstances of the recovery in the proximity of the press with

white power in a bag under the press, it’s his opinion that it indicated supply of

cocaine. In cross-examination, it was put to him that one ounce of cannabis is a

personal amount, and he agreed, and it was put to him that an ounce of cocaine

could be personal, but he disputed that. This was due to the value, he said, when it’s

split. Indeed, he went to say that 100 grams of pure cocaine is a dealer’s amount.

He’d been referred to the text, the i-messages and he explained these were open to

“So, ladies and gentlemen, that’s all of the evidence. You consider all of the evidence

the Crown relies on, the submissions made by the procurator fiscal. Give your equal

consideration to the defence case and in reaching your verdict, you assess the

quality, strength and effect of the evidence and you decide if the case against

Mr Mitchell in each charge has been proved or not. It’s your decision what

[21] On behalf of the appellant, Mr Paterson submitted that the sheriff had failed to direct

the jury about the use of opinion evidence. She had identified what was meant by direct

evidence and circumstantial evidence but she had said nothing about opinion evidence. In

particular, she had failed to direct the jury as to how they should evaluate the opinion

evidence of the STOP officer, and how his evidence might be used in the determination of

[22] Mr Paterson submitted that the function of expert testimony in a case such as this is

to assist the jury when considering whether they can draw the inference of supply from all

the evidence led. In any case, it is generally necessary for the sheriff to explain to the jury

how they are to evaluate expert or skilled evidence, and how it might be used in the

determination of the issues in the case: Morrison v HM Advocate 2014 JC 74, 2013 SCCR 626

at para [37]. Sergeant Simpson had stated that this was a large scale drugs operation, and

that his conclusion was that the presence of the drugs on the hydraulic press and plates was

indicative of it being having been used to compress blocks of cocaine adulterated with

benzocaine. Whilst the amount of cocaine found in the bag in the garage could be a personal

amount, Sergeant Simpson had stated as his opinion that given its recovery in proximity to

the press, the finding of the bag indicated supply of cocaine. The officer’s evidence did not

provide corroboration, nor did it add weight to the Crown case: Robertson v HM Advocate

[2016] HCJAC 57 at para [11]. The evidence of Sergeant Simpson was simply available to

assist the jury in considering the other evidence led in the case. However, the jury were not

directed to that effect, as they should have been. This failure was material and, Mr Paterson

[23] The Advocate depute conceded that there had been a misdirection by way of an

omission to say anything about the function of expert evidence. However, there had been

no miscarriage of justice. There had been ample evidence implicating the appellant as being

concerned in the supply of cocaine. In any event by the time the case went to the jury the

issue was not whether there had been an operation for the supply of controlled drugs,

including cocaine, rather it was whether the appellant was concerned in that operation. The

case was very much in line with the situation described in Morrison v HM Advocate at

para [37]: there had been a failure to give an appropriate direction but the failure was not

material. It could not be said that the appellant had suffered prejudice.

[24] When asked what direction the sheriff should have given, the Advocate depute

replied that she should have given a direction to the effect that an expert is to be treated in

the same way as any other witness; that the function of an expert witness is to provide

information to the jury about an area of knowledge which is outwith their everyday

experience; and that they are free to accept it or reject it as they see fit.

[25] It is convenient to begin with some general observations about the sort of evidence of

[26] The sergeant testified to his considerable knowledge and experience of the illicit

market for controlled drugs in Scotland and how that market operates. The sheriff reports

that that experience was tested by questioning during cross-examination; it would appear

without it being undermined. Sergeant Simpson had therefore established himself as being

in a position to furnish the jury with general information which was likely to be outside

their experience and yet was necessary if they were to understand the significance of the

whole of the evidence led and so reach a sound conclusion. From that perspective he was an

expert witness (Wilson v HMA 2009 JC 336, Lord Wheatley at para 58). Accordingly, his

evidence about the general features of the illicit market for drugs and the behaviours typical

of users and suppliers was admissible. As the Lord Justice General (Carloway) observed in

Robertson v HM Advocate [2016] HCJAC 57 at para 10, the practice of leading such evidence

as to the “received wisdom” from the realms of drug enforcement is long-established (see

Wilson v HM Advocate 1988 SCCR 384 at 385). As noted by the court in Johnston v HM

Advocate 2016 SLT 42 at paras [5] and [6] the practice has to an extent been formalised with

the establishment of a Statement of Opinion (“STOP”) unit, the officers of which are

available to give evidence on the manner in which controlled drugs are sold and used and

their values on the illicit market. Sergeant Simpson is a STOP officer. The Scottish practice

is not very different to that followed in other jurisdictions (Kennedy v Cordia (Services) LLP

2016 SC (UKSC) 59 at para 42 under reference to Myers and Ors v R [2016] AC 314).

[27] As is very familiar, as well as giving evidence as to fact (either general in the sense of

the state of knowledge within his field, or particular in the sense of observations or

investigations specific to the case before the court), an expert may give his opinion as to

matters necessary for the proper resolution of the dispute. That is in contrast to the position

of other witnesses who are limited to giving direct evidence as to what they have seen,

heard or otherwise experienced. Opinion evidence will very often be of the nature of an

inference or series of inferences from the primary evidence which, because of his special

knowledge and experience, the expert is able legitimately to draw, whereas someone

without that knowledge and experience, such as a member of the jury, is not.

[28] What will often be an issue in cases of which the present is an example is the

significance of the quantity of controlled drugs found in the possession of an accused

person. Where the quantity is relatively large the prosecution will argue that that permits

the inference that the accused is concerned in the supply of the drug and therefore guilty of

contravention of section 4 (3) (b) of the Misuse of Drugs Act 1971. Where the quantity is

relatively small the defence will argue that this fact points to nothing more than the drugs

being for the personal use of the accused with the result that he is only guilty of the lesser

offence of having a controlled drug in his possession in contravention of section 5 (2) of the

1971 Act. Whether a particular quantity of drugs is to be regarded as indicative of a supply

operation as opposed to being merely “personal”, is a question for the jury having regard to

the amount of the drug which has been found and its likely cost, but also to the whole

circumstances. While this is a jury function, it is not one that can be carried out without

some guidance from a witness with experience in the habits of drug users and the market in

which they operate, hence the admissibility of general evidence about the amount of a

controlled drug which a user would normally consume, or indeed carry (see Robertson v HM

Advocate at para 10; also White v HM Advocate 1986 SCCR 224, Lord Justice-Clerk (Ross)

at 225 and Ul-Haq v HM Advocate 1987 SCCR 433 at 436, as discussed in Johnston v HM

Advocate at paras [7] to [9]). However, prosecutors and defence representatives do not

always confine themselves to questioning as to purely factual matters “about the amount of

a controlled drug which a user would normally consume, or indeed carry”, to borrow the

description used by the Lord Justice-General in Robertson. They may ask the witness to give

his opinion as to whether the amount of drugs found in the particular case before the court

was or was not such as to indicate personal use rather than supply. Now, it could be said

that that is to invite a witness to give an opinion on an issue which it is for the court to

determine, and for that reason is objectionable (see Hendry v HM Advocate 1987 JC 63 at 69

to 70); also Galletly v Laird 1953 JC 16 at 27, and Kelso v HM Advocate 1990 SCCR 9) but the

eliciting of just such evidence has generally escaped adverse comment by the court (eg Ul-

Haq, Bauros and Farns v HM Advocate 1991 SCCR 768). It may therefore be regarded as

admissible. As is explained in Kennedy v Cordia (Services) LLP at para [49] “on occasion in

order to avoid elusive language the skilled witness may have to express his or her views in a

[29] As can be seen from the extract from the sheriff’s charge to the jury quoted above

Sergeant Simpson was asked (both by the procurator fiscal and the defence agent) to give his

opinion as to whether the amounts of the various drugs found at the garage were such as to

indicate supply or personal use. However, the sheriff tells us in her supplementary note of 4

May 2017 that the procurator fiscal went somewhat further in that:

“[Sergeant Simpson] was asked, when considering all of the items found at the scene

what was his analysis of the situation. He stated that in his experience the amounts

of drugs, cannabis, cannabis resin, methylethcathinone, were supply amounts. In

relation to the cocaine, however, the amount was not excessive, so it could be

personal, but given the circumstances of the recovery, near the moulds and the press,

it indicated to him that this was for onward supply of controlled cocaine, and was,

[30] That was a step too far. Asking the sergeant what was “his analysis of the situation”

was an objectionable question. The witness’s function was to help the jury to analyse the

situation as presented in the evidence by explaining matters which were within his general

experience but which would be likely to be outwith the jury’s experience and, by doing so to

enable the jury to form their own independent judgment by an application of that

explanation to the facts proved in evidence (cf Davie v Magistrates of Edinburgh 1953 SC 34

at 40). His function was not to carry out that analysis and make a judgment himself. A

witness cannot supplant the jury’s role as ultimate decision-maker (cf Kennedy at para [49],

under reference to Davie and Pora v R [2016] 1 Cr App R 3). However, the question to

Sergeant Simpson was not objected to and accordingly, subject to any direction that the

sheriff might give, his answer, together with the answers given to all the other questions he

was asked, was available for consideration by the jury as part of the evidence in the case.

[31] We turn then to the complaint made in the ground of appeal that the sheriff failed

[32] In support of the ground of appeal Mr Paterson referred to what was said in Morrison

v HM Advocate at para [37]: “Where opinion evidence has been led from a skilled witness, it

is generally necessary to explain to the jury how they are to evaluate such evidence and how

it might be used in the determination of the issues in the case.”

[33] We would reiterate what was said in Morrison. Opinion evidence is sufficiently

distinct from evidence as to fact as usually to require a judge to draw the jury’s attention to

that distinction and explain such consequences as it might have for their consideration of the

case. The nature of the explanation which is necessary will depend on the nature of the

expert evidence in question, the extent to which it was challenged and the basis of any such

challenge, the issues to which the evidence is relevant and the ways in which the parties

seek to use it to address these issues. We do not suggest that there is one form of words

which will always suffice. It is to be borne in mind that the purpose of jury directions is to

address the actual issues which have been raised by the evidence in the case and the

submissions of parties in relation to them with a view to assisting the jury in dealing with

[34] What was particularly required in the present case, given the matters on which

Sergeant Simpson had been encouraged to give an opinion, was a pointed direction to the

effect that the decision as to whether it had been proved beyond reasonable doubt that the

accused had been concerned in the supply of any of the controlled drugs referred to in the

charges was for the jury to make and not for any witness. Now, to an extent the sheriff can

be said to have done that. Towards the end of her charge, at page 31 and line 10 of the

transcript, she said: “It’s your decision what conclusion you reach” but the context for that

sentence was the sheriff’s exhortation to give equal consideration to the prosecution and

defence cases. The sheriff accepts that, other than instructing the jury to treat all witnesses

in the same way, “whether they are lay people, police officers, scientists”, she gave no

specific directions as to expert evidence. In the result the jury was left with no guidance as

to what they were entitled to make of the apparently authoritative opinions of

Sergeant Simpson on the various matters in respect of which he was invited to express a

[35] What was required was a relatively brief explanation of the nature and purpose of

Sergeant Simpson’s evidence and the distinction between his function as a witness and the

jury’s function as decision-makers. The following points should have been made about the

sergeant and his evidence: his function was to provide general information based on his

special knowledge and experience of matters with which the jury would not be familiar with

a view to assisting the jury in assessing the primary evidence led in the case; he was to be

treated in the same way as any other witness in the sense that it was for the jury to assess his

evidence in order to determine whether they believed his evidence and whether they found

it reliable; because of the sergeant’s special knowledge and experience (if accepted by the

jury) he might be asked to give an opinion as to what might be inferred from the primary

evidence; the jury were however free to accept or reject such an opinion, or indeed anything

else said by the witness; and, while the jury were entitled to have regard to what the

witness had to say, the decision as to whether it had been proved beyond reasonable doubt

that the accused had been concerned in the supply of any of the controlled drugs referred to

in the charges was for the jury and for the jury alone. The sheriff did not make these points.

[36] If the sheriff did not give adequate directions to the jury, what then? The question

for this court, when considering an appeal against conviction, is whether there has been a

miscarriage of justice. While conceding that there had been a misdirection the Advocate

depute submitted that there had not been a miscarriage of justice. We agree.

[37] Here the issues before the jury were relatively clear. Having rehearsed the police

officer’s evidence, the sheriff told the jury that it was their decision as to whether a charge

had been proved. In the circumstances of this case, where there was no competing expert

testimony, no dispute as to the accuracy of the factual matters spoken to by

Sergeant Simpson and the issue had come to be not whether there was an operation for the

supply of controlled drugs (including cocaine) but whether the appellant was concerned in

that operation and in respect of what drugs, the sheriff’s failure to give a direction on the

[38] There was an abundance of evidence before the court for the jury to draw the

necessary inference that the appellant was involved in supply, and their verdict was

discriminating in that the appellant was only convicted of the charge of concern in the

supply of cocaine; he was acquitted of the charges relating to the other controlled drugs. A

number of highly incriminating items were found in the van owned and driven by the

appellant and the garage which he rented and for which he held the key. They included a

sieve, a plastic container and lid, a ceramic bowl and a roll of clear plastic bags, which were

in the appellant’s van. Traces of cocaine were found on all of these items. Three finger

prints and five palm prints of the appellant were found on the roll of plastic bags. Also

recovered from the van were brown tape and packaging. The finger prints of the appellant

were found within the green and white bag brought by Mr Buchanan. There was a

hydraulic press in the garage such as could be used to compress blocks of powder. There

were trace amounts of cocaine and benzocaine on the surfaces of one of the plates of the

press and within the metal mould unit. A bag found under the hydraulic press contained

4.53 grams of cocaine. In his evidence Mr Buchanan accepted that he was concerned in the

supply of controlled drugs including cocaine but he denied any association with the press,

the cocaine found next to it or the contents of the van. There was also evidence of text

messages sent to and from the appellant’s Iphone which are open to the construction that

requests for the supply of drugs had been directed to the appellant and responded to

positively. One such request was “can you get my drugs?” to which the response was “no

problem”. It is not possible to say that there has been a miscarriage of justice.

[39] The appeal is accordingly refused.

Scottish High Court of Justiciary Decisons