Man found with unlicensed shotgun in back of van loses appeal against conviction

About this case:

• Citation:
  [2024] HCJAC 42
• Judgment:
  External link
• Court:
  Appeal Court of the High Court of Justiciary
• Judge:
  Lord Carloway

Stuart McMillan was convicted of a contravention of section 1(1)(a) of the Firearms Act 1968 and sentenced to two years’ imprisonment after pleading guilty to another charge under the Misuse of Drugs Act 1971. He argued that the trial judge had misdirected the jury by telling them they were entitled to infer knowledge of the contents of a package he had picked up in his van for a person unknown to him which was found to contain the gun.

The appeal was heard by the Lord Justice General, Lord Carloway, with Lord Matthews and Lord Armstrong. S Collins, solicitor advocate, appeared for the appellant and Mohammad KC, advocate depute, for the Crown.

Ended up with a shotgun

The appellant was stopped by the police after visiting a house that had been put under surveillance after intelligence was received that a shotgun was to be collected from that address. His van, which he had for his work as a builder, was searched, and a sawn-off shotgun wrapped in a black bin bag was found along with a set of wheels. At trial, the principal issue was whether the appellant knew that a package he had picked up in his van earlier in the day contained the shotgun.

While the appellant did not give evidence at trial, he gave an explanation for his movements during his police interview. His account was that earlier that day he had received a telephone call from a prisoner known to him asking him to hire a vehicle, which he declined. He then received another call from the same number from a different prisoner, who was unknown to him, asking him to collect an alloy wheel for an urgent repair to a car. He agreed to collect the wheel and was provided with an address by another man while he was in transit.

Once he was at the address, the appellant was directed to park his van in another nearby location by another man. The other man went into a garage and put something, which the appellant said he assumed to be the wheel, into the back of the van. He told the police that he did not look at the package in the back of his van, nor were the contents visible to him.

The PFD invited the jury to consider that this version of events did not happen and that the appellant must have had knowledge of the package. In his address, he asked the jury rhetorically how many times they had been out driving and ended up with a shotgun in their car. The appellant’s solicitor advocate submitted to the jury that they should not draw any inference of knowledge in the circumstances

Unexceptional directions

In his charge to the jury, the sheriff explained that inferences required to be drawn from the provided facts and circumstances. In particular, he said that the jury would be “entitled to infer that he was in possession of the package” because it was found in his van with other items belonging to him, and they could come to their own conclusion about whether they believed what the appellant told the police.

For the appellant it was submitted that the sheriff’s direction went beyond telling the jury that there was a sufficiency in law to allow them to convict, as it directed the jury that they would be entitled to do what the fiscal depute had asked them to do. This was sufficiently material to have influenced the verdict.

The Crown replied that parts of the charge should not be taken in isolation but viewed as a whole and in context. The sheriff had made it clear that it was entirely a matter for the jury to decide what it made of the evidence. He made it clear that he was not saying that they had to draw an inference of knowledge.

Lord Carloway, delivering the opinion of the court, said of the appellant’s argument: “The sheriff’s directions to the jury, set in the context of a short trial in which the jury had heard the evidence and the speeches, were unexceptional. He correctly told the jury that they were entitled to infer from the facts and circumstances that, notwithstanding what the appellant had said during his interview with the police, he knew that he was carrying the package in which the shotgun was wrapped. He told them that they did not have to draw this inference. It was made clear to the jury that this was a matter of fact for their determination.”

The appeal against conviction was therefore refused.