William Carmichael v. Her Majesty’s Advocate [2020] HCJAC 4

Note of appeal against conviction:- The appellant was convicted after trial on indictment at the sheriff court of being concerned in the supply of diamorphine contrary to section 4(3)(b) of the Misuse of Drugs Act 1971. The appellant appealed against his conviction it being contended the sheriff erred in repelling a ‘no case to answer’ submission made on behalf of the appellant in terms of section 97 of the Criminal Procedure (Scotland) Act 1995 at the close of the Crown case, on the basis there was insufficient evidence to convict the appellant. The circumstances were that a quantity of diamorphine was recovered from a vehicle during the arrest of another individual. The drugs were found within a knotted clear plastic bag, within a knotted blue plastic bag within a canvas bag. The quantity of diamorphine recovered had a maximum value of around £15,000 and was considered to be excessive for personal use by a STOP expert. During the trial a joint minute of agreement was entered into agreeing that the knot of each bag was untied and a DNA sample taken from the previously knotted area as a result of which a mixed DNA profile was identified on each sample which was explainable by the presence of DNA from the appellant as the major contributor to a very high degree of probability. At trial evidence was led from a police officer who had presumptively tested the powder using a spatula, however, the officer could not recall whether she had untied the bags or slit them. The forensic scientists who carried out the forensic examination of the powder could not recall in evidence whether the bags had been cut or damaged. In the appeal against conviction it was submitted that in light of the evidence led it could not be said that the knots examined by the forensic scientists were the same knots which had been used originally to seal the bags. The submission made at the close of the Crown case in terms of section 97 of the 1995 Act, however, had concentrated on the contention that the presence of the DNA on a moveable items was insufficient, in the absence of supporting evidence, to allow an inference of guilt to be drawn. No reference was made to the basis of the present appeal to the jury at the trial. Here it was conceded on behalf of the appellant that the presence of DNA on the knots could allow a reasonable inference to be drawn against the appellant and provide a sufficiency of evidence. It was submitted, however, that it was central to the Crown case that the DNA was recovered from the knots of the two bags to allow the inference that he had placed the drugs in the bags and knotted them. As such it was necessary for the Crown to lead clear evidence that the DNA came from the original knotted areas and the evidence led only showed the presence of DNA on a moveable object. It was further contended that the trial sheriff had misdirected the jury by mentioning in his charge to 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 as there was no evidence linking the appellant to the vehicle or the items recovered and they were irrelevant in the case against him. Here the court refused the appeal. The court noted that no objection had been taken on behalf of the appellant in relation to the line of evidence, in particular, no notice was given in terms of section 68(3) relating to the productions lodged with the Court and any issue which the defence might have in relation to them. The court did not have to consider the issue in light of the decision it came to in relation to other aspects of the appeal. The court reiterated that the concept of being concerned in the supply covers a broad range of conduct and the presence of the appellant’s DNA on the outside surface of both bags, regardless of whether it was obtained from the knots, was of significance. The court highlighted that the two bags were of a different kind so it could not be said that DNA was on a roll of the same bags. The court considered there to be a clear sufficiency of evidence and referred to MacPherson v HMA 2019 JC 171. In addition, the court considered that there was evidence from which the jury would be entitled to infer that the DNA had come from the original knots of the bag. In relation to the recovery of the sword and the cocaine, the court noted that the trial sheriff did not indicate to the jury that the evidence was capable of providing corroboration of the case against the appellant or direct them that it was open to them to use it as a factor in assessing whether they had a reasonable doubt. The court considered that the presence of these items was relevant in supporting that the heroin was part of a drug supplying operation when it was seized and it was a matter for the jury to determine what weight to attach to that evidence. The court noted that the trial sheriff had clearly directed the jury on the critical evidence available in the case against the appellant, namely, the presence of the DNA on the two bags along with the quantities of drugs recovered and what inferences may be open to them.