Graham Carroll v. Her Majesty’s Advocate [2015] HCJAC 75

Note of appeal against conviction:- The appellant was convicted after trial of two contraventions of section 4(3)(b) of the Misuse of Drugs Act 1971, namely, that he was concerned in the supply of two types of controlled drugs, pentylone, a class B drug and methylmethcathinone or mephedrone a class B drug. The appellant appealed against his conviction on various grounds:- (a) that there was insufficient evidence to prove that the drug in question was pentylone as it was possible to have a compound whose molecules contained exactly the same atoms as pentylone but was a different isomer and these other possible isomers were not eliminated by the process of testing used it was not possible to be satisfied that the drug tested was pentylone; (b) on the evidence led the verdict on charge 1 was one that no reasonable jury, properly directed, could have returned and amounted to a miscarriage of justice in terms of section 106(3)(b) of the Criminal Procedure (Scotland) Act 1995 in that there existed the possibility that the drug recovered was an isomer of pentylone and the expert witnesses were unable to confirm that the drug analysed by them was pentylone; (c) there was no evidence of the quantity of mephedrone that had been found, as it was mixed with pentylone and other substances and a submission made under section 97A of the 1995 Act in relation to charge 2 on the indictment ought to have been upheld; (d) the jury’s verdict on charge 2 was one that no reasonable jury, properly directed, could have returned and this ground was dependent on the proposition that there was insufficient evidence to prove the supplying of mephedrone on the basis that the quantity of that drug recovered had not been established; (e) the sheriff had not given proper directions to the jury in respect of the expert evidence and the sheriff should have reminded the jury that special caution was required when expert evidence was vital to the prosecution and here proof that the drug in charge 1 was pentylone was critical to the prosecution and reliance was placed in particular to the decisions in Liehne v HMA, 2011 SCCR 419, and Hainey v HMA, 2013 SCCR 309; (f) the sheriff had misdirected the jury in relation to a statement made by the appellant to a police sergeant when he said “I have obviously pissed off the guys who are selling mephedrone”as he directed the jury that that was a comment that could be interpreted as pointing either to guilt or innocence and it was submitted that the remark was entirely exculpatory; (g) the sheriff misdirected the jury in relation to the evidence of the appellant’s former girlfriend, who had told the police about drugs in their home and in the appellant’s car and the issue for the jury was not whether the witness was “grassing” as the sheriff indicated but whether the Crown had proved its case beyond reasonable doubt. In addition, the expression used by the sheriff “the accused would probably largely be guilty” was criticised as showing the sheriff believed that the appellant was guilty if the jury accepted his former girlfriend’s evidence; (h) it was submitted that the manner in which the trial sheriff had answered a question raised by the jury during their deliberations in relation to the packaging of tubs was inadequate and it was submitted on behalf of the appellant that the evidence about the packaging was important because the address where the tubs were found was linked to another man but the company DFK Supplies Ltd was linked to the appellant and the jury obviously had some doubt in their recollection of the evidence and it was not the function of the presiding sheriff to provide the jury with his own recollection; and (i) the sheriff in his charge referred to drug supply paraphernalia and it was submitted on behalf of the appellant that the question as to whether or not the items recovered during a search were drugs paraphernalia was a matter for the jury and not for the sheriff. Here the court refused the appeal for the following reasons:- (a) there was sufficient evidence in law for the sheriff to reject the submission of no case to answer and whilst the Crown and defence experts all accepted that the two isomers could exist in theory, none of them had ever encountered those compounds in practice and there is previous authority that lay identification of drugs is sufficient to allow a case to go to the jury; (b) that sufficient evidence was led to permit a jury to conclude beyond reasonable doubt that the drug recovered was pentylone and the jury were properly directed in relation to the expert evidence; (c) given the court rejected the submission in relation to charge 1, the submission in relation to charge 2 must also fail and the court considered that it was not necessary for the Crown to prove the quantity of each powder as both pentylone and mephedrone were mixed together and there was an inference that they would be sold in that form and the quantity of mixed powder recovered was indicative of supplying; (d) the controlled drugs in powder form were mixed and it is the total quantity recovered that allows an inference of supply and a jury to conclude that it is the mixed powder that will be ultimately supplied; (e) the sheriff gave adequate general directions on the approach to expert evidence by referring to the issues considered by the experts and the issues involved were simple which distinguished the case from both Liehne and Hainey; (f) the statement could be interpreted as either exculpatory or incriminatory and it was for the jury to consider the different potential interpretations; (g) whilst the court considered that the use of the expression “the accused would probably largely be guilty” was regrettable the passage did not lead to a miscarriage of justice; (h) this ground should also be rejected as the question raised by the jury indicated that they must have recalled the relevant passage in the evidence and how the sheriff answered the question was factually correct whilst also reminding the jury that they should consider all of the evidence; and (i) the court considered that the reference to “drug supply paraphernalia” was neutral and consistent with the appellant’s defence given that the appellant admitted supplying the drugs, albeit at a time when to done so was legal.