Darren Mitchell v. Her Majesty’s Advocate [2017] HCJAC 60

Note of appeal against conviction:- On 26 August 2016, at Kilmarnock Sheriff Court, the appellant was convicted after trial on indictment of a charge of being concerned in the supply of cocaine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. He was acquitted by the jury of three other charges of being concerned in the supply of cannabis, cannabis resin and methylethcathinone. The appellant had gone to trial together with his former co-accused and nephew, David Buchanan, who on the second day of the trial pled guilty to being concerned in the supply of cocaine, cannabis and methylethcathinone. On 20 September 2016 the appellant was sentenced to 30 months imprisonment and his co-accused was sentenced to 37 months imprisonment discounted from 42 months imprisonment on account of his guilty plea. The appellant appealed against his conviction on the grounds of alleged misdirections by the trial sheriff in relation to how the jury should approach the evidence of the Statement of Opinion drugs ‘expert’, PS Kenneth Simpson, who gave evidence at the trial, and the absence of any directions to the jury about opinion evidence which, it was contended, was crucial in the case. The circumstances were that in advance of the trial the appellant had lodged a notice of incrimination against his co-accused together with a notice of his intention to attack the character of his co-accused. A considerable amount of evidence was led in relation to the co-accused and to his and the appellant’s attendance at a lock-up and the recovery of quantities of controlled drugs. In addition, a hydraulic press was found in the lock-up 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 4.53g of cocaine was found under the press. It was the Crown case that both accused were concerned in the supply of the drugs and the co-accused in evidence admitted that he had been concerned in the supply of cocaine, cannabis and methylethcathinone. Evidence was led regarding text messages sent and received by the appellant which appeared incriminatory, for example, he received one which stated “chomp, can you grab me 1⁄2 a quarter mate?” Further examples were a text sent from the appellant’s phone “have you got snow?” and a message received by the appellant’s phone “can you get my drugs?” to which the response from the appellant’s phone was “no problem”. PS Kenneth Simpson gave evidence in which he said that “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. He referred to the 4.5 grams of cocaine which found on the floor under the hydraulic press as a “spillage” amount and made reference to the recovery of 387.4g of benzocaine as significant as the substance was a commonly used adulterant in the supply of cocaine. He conceded that in relation to the text messages some of them could relate to someone seeking to acquire drugs for personal use. The trial sheriff gave no specific directions to the jury in relation to how they should approach opinion evidence. Here on behalf of the appellant it was submitted that that failure amounted to a material misdirection and resulted in a miscarriage of justice. In such a case where opinion evidence was so critical, it was submitted, it is generally necessary for directions to be given to the jury about how they are to evaluate expert or skilled evidence, and how such evidence might be used in the determination of the issues in the case. On behalf of the Crown it was conceded that there had been a misdirection in light of the absence of specific directions on opinion evidence, however, there had been no miscarriage of justice in light of the overwhelming evidence implicating the appellant as being concerned in the supply of cocaine. Here the court refused the appeal. The court considered the nature of the evidence that the STOP expert gave. The court observed that the fiscal’s question to the STOP expert “what was his analysis of the situation” was an objectionable question and went beyond the expert’s function of assisting the jury by explaining matters outwith the jury’s experience to usurping the function of the jury and making a determination of the facts himself. The court stated, however, that it was admissible for such an expert to be asked to give his opinion as to whether the amount of drugs found was or was not indicative of personal use rather than supply. The court was of the view that there had been a misdirection by the trial sheriff in failing to give the jury guidance on how to approach opinion evidence, however, the court agreed with the Crown that such a misdirection did not result in a miscarriage of justice. The sheriff ought to have provided the jury with directions in relation to how they should approach the opinion of the STOP expert with a view to assisting them in dealing with the issues in the case, however, the court considered that there was ample evidence to convict the appellant of being concerned in the supply of cocaine, for example, the recovery of a number of highly incriminating items like the hydraulic press and the text messages. In addition, the court noted that there was no contrary opinion evidence for the jury to consider and the issues for the jury were clear in deciding whether the appellant was involved in the supply of controlled drugs.