APPEAL AGAINST CONVICTION BY WILLIAM CARMICHAEL AGAINST HER MAJESTY'S ADVOCATE [2020] 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 WILLIAM CARMICHAEL AGAINST HER MAJESTY'S ADVOCATE [2020] ScotHC HCJAC_4 (16 January 2020) URL: http://www.bailii.org/scot/cases/ScotHC/2020/2020_HCJAC_4.html Cite as: 2020 GWD 4-58, [2020] HCJAC 4, [2020] ScotHC HCJAC_4

[1] The appellant was convicted of being concerned in the supply of a quantity of heroin

recovered from a vehicle during the arrest of another individual. The heroin was inside a

canvas bag. Inside the canvas bag was a knotted blue plastic bag, and inside that was a

knotted clear plastic bag containing the heroin. The street value of the drug was just over

£15,000, and there was evidence from a duly qualified officer that this was in excess of what

[2] A joint minute agreed that the knot of each bag was untied and a DNA sample taken

from the previously knotted area. A mixed DNA profile was identified on each sample,

which could be explained by the presence of DNA from the appellant as the major

[3] A police officer carried out a presumptive test for drugs. Although forensically

aware she could not recall whether she untied the bags, or slit them and used a spatula. The

scientist who examined the bags could not remember either bag being cut or damaged. This

essentially led to the primary point in this appeal, namely that it could not be said that the

knots examined by the forensic scientist were those which had originally sealed the bags. It

should be noticed that the line of evidence was not pursued to a significant extent and no

[4] A section 97 submission was made, that the presence of the DNA on moveable items

was not sufficient, in the absence of other evidence, to allow an inference of guilt, under

reference to Campbell v HMA 2008 SCCR 847. That submission was repelled. The issue

which forms the basis of the appeal did not form part of the defence submission to the jury.

[5] It was accepted that the presence of DNA on the knots could lead to a reasonable

inference against the accused constituting a sufficiency of evidence against him. However,

the fact that the DNA was recovered from the knots was a central plank of the Crown case

that the jury could infer that the appellant was involved in a supply operation, since it

allowed the inference that he had placed the drugs in the bags and knotted them. Without

evidence showing clearly that the DNA came from the original knotted areas the evidence

simply showed the presence of DNA on a moveable item. It was also argued that it could

not be known what significance the jury put on the presence of the DNA on the knotted

[6] It was submitted that the Sheriff erred in directing the jury that the presence of

cocaine and a sword in the vehicle where the heroin was recovered added weight to the

potential inference the jury could draw that the appellant was concerned in the supply

chain. In the absence of evidence linking the appellant to the vehicle or the items they were

[7] It should be noted that there was no objection taken to the line of evidence about the

examination of the bags, and the crown did not place reliance on section 68(3) of the

Criminal Procedure (Scotland) Act 1995. Nor was it suggested that any question of leading

evidence contrary to the joint minute arose, the reference to knots simply being a reference

to the knots in place when the scientists examined the bags. We are far from accepting the

Crown’s position that section 68(3) is of no moment in the circumstances of this case, but

given the view we have reached we do not require to consider that matter any further.

[8] The concept of being concerned in the supplying of a controlled drug is a broad one

covering not only actual physical supply but any link in the chain of distribution from the

producer to the ultimate consumer. In the present case the heroin contained within the bags

was of such a quantity as to suggest that those intromitting with it, as the crown put it, were

involved in a drug supply operation (Haq v HMA 1987 SCCR 433). Evidence that DNA of

the appellant was found within the knotted area of each bag would of course be strong

evidence that he was one of those individuals. However, even if the evidence could only

show that the appellant’s DNA was on the surface of each bag this was still, in our view,

sufficient. The point here is that there were two bags and the DNA was found on the

outside surface of both of them. Moreover, the bags were of different kinds, one clear and

one blue, meaning that it could not, for example, simply be suggested that the DNA got

there by being on a roll of bags from which both were taken. There was a clear sufficiency of

evidence, having regard to MacPherson v HMA 2019 JC 171, and any other matters would go

[9] In any event, the evidence did allow the Crown to submit that the DNA came from

the original knotted areas of the bag, not just from the evidence noted above, assessment of

which was a matter for the jury, but taking account of the inherent improbability, had the

knots been re-done, of the appellant’s DNA being found on both knots.

[10] As to the argument that it could not be known what significance the jury put on the

presence of the DNA on the knotted areas, it was entirely open to the defence to submit to

the jury that the Crown submission that the DNA was taken from the knotted area of the

bags could and should not be accepted on the evidence; to submit that the most which could

be said was the DNA was on the surface of the bags; and that these being moveable the jury

should not draw an inference of guilt from the evidence. It would then be a matter for the

jury to consider what weight was to be given to the evidence in light of these submissions.

What is not legitimate is to refrain from making a submission on weight which was perfectly

available on the evidence and then seek, without justification, to turn it into an argument on

[11] As to the sword and cocaine in the vehicle, the sheriff noted only that the crown

relied on the finding of the cocaine as one of the circumstances of the case. He did not, as

the grounds of appeal suggest, indicate to the jury that this evidence was capable of

constituting corroboration of the case against the appellant; nor did he direct them that it

was a factor for them to take into account in determining whether they had a reasonable

“It is the presence of what the Crown say is the accused’s DNA on both bags which

enables the adverse inference to be drawn against the accused.”

In any event, it was open to the Crown to suggest that the finding of these items along with

the heroin lends some weight to the argument that the heroin was part of a drug supplying

operation at the time of its discovery. It would be a matter for the jury to determine what

weight, if any, they should attach to that evidence. There was otherwise clear evidence that

the quantity of drugs could only be for onward supply. The critical evidence against the

appellant, however, as the sheriff made very clear, at repeated stages of his charge, namely

pp 22, 23, and 24 and especially p 25 lines 4-15 and p 27 lines 12-18, was the DNA on both

bags and the quantity of the drug involved. The sheriff clearly directed the jury (pp 25 and

27) that it was the DNA on the bags from which the inference of guilt could be drawn. In

our view there is no merit in this appeal which must be refused.

Scottish High Court of Justiciary Decisons