Stuart Dempsey McMillan v. His Majesty’s Advocate [2024] HCJAC 42

Note of appeal against conviction:- On 1 February 2024, following a trial on indictment at Edinburgh Sheriff Court, the appellant was convicted of being in possession of a shotgun without a firearms certificate contrary to section 1(1)(a) of the Firearms Act 1968. The appellant also pled guilty to a charge under the Misuse of Drugs Act 1971. Following the obtaining of a Criminal Justice Social Work Report, the trial sheriff sentenced the appellant to a cumulo sentence of two years imprisonment. The appellant appealed against his conviction on the ground of an alleged misdirection by the trial sheriff who directed the jury that they would be “entitled to infer” knowledge and thus possession of a package containing the shotgun recovered from within his van. The issue at the trial had been whether the appellant knew that the package containing the shotgun was in the back of his van. On behalf of the appellant it was submitted that by directing the jury that they were “entitled to infer” knowledge went further than advising the jury that there was a sufficiency in law to allow them to convict. On behalf of the Crown it was submitted that the particular direction referred to should not be viewed in isolation and the charge should be viewed as a whole and in the context of the parties’ speeches and the evidence led. It was submitted that the trial sheriff made it abundantly clear, both in his opening and closing directions, that they alone were responsible for decisions of fact and that it was entirely a matter for them whether they could make the necessary inference of knowledge from the surrounding facts and circumstances. Here the court refused the appeal and described the sheriff’s directions, in the context of a short trial in which the jury had heard the evidence and speeches as “unexceptional”. The court noted the jury were directed that they were entitled to infer, notwithstanding what the appellant had said to the police in his police interview (he did not give evidence on his behalf at trial), that he knew what the package he was carrying contained. The court also noted the trial sheriff directed the jury that they did not have to make such an inference, making it clear that such matters of fact were for their determination alone.