Brian Robertson v. Her Majesty’s Advocate [2016] HCJAC 57

Note of appeal against conviction:- On 21 October 2015, at Alloa Sheriff Court, the appellant was convicted after trial on indictment of being concerned in the supply of diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant was sentenced to 3 years imprisonment. The appellant appealed against his conviction on the following grounds:- (1) that the sheriff erred in repelling an objection to the admissibility of evidence relating to the evidence of DC Plank who gave opinion evidence in relation to the drugs industry; and (2) criticisms of the sheriff’s directions on how to treat DC Plank’s opinion evidence. The preliminary issue had been debated in advance of the trial and the sheriff considered that it was appropriate for DC Plank to give opinion evidence that the appellant had been dealing in heroin, albeit the objection had not been framed in those terms. The point originally taken was that DC Plank should not give opinion evidence outwith his area of expertise and it was not for him to usurp the function of the jury by going through the contents of the appellant’s police interview and making comments on it. The court observed here that care needs to be taken in relation to the precise nature of the objection raised and ruled upon as there appeared to be a difference between what the minute stated, what the sheriff decided upon and what was considered at the appeal. The circumstances of the case were that the appellant had been found in possession of 9 individual wraps of heroin on one morning and 4 wraps the next morning each containing between 0.2 and 0.25 grams valued at £20 each. DC Plank gave evidence that the quantities, values and manner of packaging were consistent with them being for onward sale and supply. Towards the end of his examination in chief DC Plank was asked whether in his opinion the appellant was concerned in the supply of diamorphine to which he stated he thought the appellant was. In his directions to the jury the sheriff directed the jury that they were not bound to accept DC Plank’s opinion evidence that the appellant was concerned in the supply of diamorphine. Here it was submitted on behalf of he appellant that the exchange between the fiscal depute and DC Plank resulted in his evidence usurping the function of the jury as he had not limited his opinion evidence to drug quantities and packaging but had provided an opinion that the appellant had been concerned in the supply of diamorphine. On behalf of the Crown it was conceded that part of the examination in chief quoted was inappropriate but that the same answers would have been given had the correct questions been asked. Here the court refused the appeal. Whilst the court considered that the direction given by the sheriff that DC Plank’s evidence corroborated other evidence in the case was inappropriate that evidence was not necessary for the conviction to result. The court considered that where there are a number of wraps of drugs found it is not necessary for there to be expert evidence of normal user quantities in order to prove the supply of the drugs. The court stated that in the present case, where there was no competing opinion evidence, the directions given were adequate and, given the quantity of diamorphine recovered and the competent evidence given by DC Plank, the court did not consider that a miscarriage of justice had occurred.