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APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 62

HCA/2016/3/XJ

Lord Justice General

Lord Menzies

Lord Bracadale

OPINION OF LORD CARLOWAY,
 the LORD JUSTICE GENERAL

in

APPEAL BY STATED CASE

by

WILLIAM DICK

Appellant;

against

PROCURATOR FISCAL, DUMFRIES

Respondent:

Appellant: Jackson QC; John Pryde & Co (for Levy & McRae, Glasgow)

Respondent: Brown QC AD; the Crown Agent

15 July 2016

Introduction
[1]        This appeal raises a question of whether the sheriff has satisfactorily explained the basis for a particular finding-in-fact.  The issue is whether he has provided adequate reasons for accepting evidence of identification from two eye-witnesses to the crime and rejecting a body of testimony in support of an alibi.

 

General
[2]        On 2 September 2015, at the sheriff court in Dumfries, the appellant was convicted of charges which libelled that, on 4 April 2014, at a field near to Sunnybrae, Kirkmahoe:

“(1)      ... you ... did intentionally or recklessly injure and kill a wild bird, namely a buzzard ... in that you did repeatedly throw stones at it, stamp on it, wrap it in a dark coloured coat ... and remove it from the location; CONTRARY to the Wildlife and Countryside Act 1981, Section 1(1)(a);

(2)        ... you ... did have in your possession and control a wild bird, namely a buzzard ... in that after acting in the manner libelled in charge 1 you did wrap said bird in a dark coloured jacket or similar and remove said bird from that location; CONTRARY to the Wildlife and Countryside Act 1981, Section 1(2)(a).”

 

The appellant was fined £1,500 on charge (1) and £500 on charge (2).

 

Findings-in-fact
[3]        The sheriff found in fact that, at between 4.40 and 5.00pm on the date libelled, a couple, living near the locus, had been walking their dogs near a field.  Their cottage was part of the Newlands Estate, whose occupiers breed pheasants for sporting purposes.  The appellant was a gamekeeper on the Estate.  He was known to the couple prior to the incident, as they had met him, albeit only in passing, in his capacity as a gamekeeper, on about six occasions.

[4]        The couple heard a gunshot.  They noticed that a large pickup truck, of the type used by workers on the Estate, was positioned at the top of the field.  It had not been there earlier, but a similar vehicle had been in an adjoining field.  As they approached the truck, the couple saw the appellant standing outside it, next to a wall.  A large bird of prey was hopping about on the ground next to the vehicle.  It was unable to fly away.  The appellant took some stones from the wall, threw them at the bird and struck it.  He then stamped his foot deliberately onto the bird a number of times.  The bird stopped moving.  The appellant wrapped the bird in a coat, placed it in the back of the vehicle and drove away.  He waved to the couple as he did so.  At this stage, although the couple knew that the perpetrator was a worker on the Estate, and later stated to the police that they would be able to identify him, they did not know his name.

[5]        The couple noted blood and feathers at the locus and a dead hare, which had also not been there earlier.  They reported the incident to the Scottish Society for the Prevention of Cruelty to Animals at 5.31pm.  Thereafter, the SSPCA attended and retrieved a number of the feathers and stones with feathers attached.  The feathers were later analysed and determined to be those of a buzzard.

[6]        On 11 April 2014, the couple were taken by the police to the Newlands Estate with a view to identifying the culprit.  At one point, after 2 or 3 hours of searching, they noticed a Mitsubishi pickup truck, with a single occupant.  From within the police car, both identified the driver as the man whom they had seen attacking the bird during the previous week.  This was the appellant. 

[7]        On being detained on 22 April 2014, the appellant was interviewed in relation to the matter, but he made no comment.  A few days later, on 2 May, GL, the head gamekeeper, was asked by the police about the incident.  He made no mention of a course which, sometime later, it was said that the appellant had attended on the day of the incident.  This was a “LANTRA” training course, organised by the British Association for Shooting and Conservation, on wild game meat hygiene.  It took place on 4 April 2014 near Dunkeld.  This course had been scheduled from 10.00am until 2.00pm.  In March 2015, GL told the police that both he and the appellant had been at the course until 3.00pm.  They had not returned to the Estate until 5.40pm.  Following the course, a wild game meat hygiene certificate was issued to the appellant.  This was dated 24 April 2014.  The journey time between the course and the locus was 2 hours and 21 minutes. 

 

The alibi evidence
[8]        The appellant lodged a special defence of alibi, wherein he maintained that he was at the course in Dunkeld until “approximately 3pm”.  In his testimony, the appellant accepted that he had met the couple “a few times in the passing”.  He had spoken to them.  He drove his employer’s Mitsubishi L200; it being one of four used by the Estate.  On the day in question he had gone to the course.  The journey took 2 hours 40 minutes, there and back.  He had only left the course at around 3.00pm, arriving back at the Estate with GL at about 5.40pm.  He had gone back out onto the Estate to bait traps for pests at about 6.15pm.  He did not regard buzzards as a particular problem.  On the day after his detention, the appellant had explained to both his employer and GL that he had been on the course at the time of the incident.

[9]        GL testified that he and the appellant had left the course when it had finished at 3.00pm.  He had received documentation in advance, stating that the course would finish at 3.00pm.  He had arrived home with the appellant at 5.40pm.  He could not explain why he had not mentioned this when spoken to by the police on 2 May.  A former police officer gave evidence that the journey from the location of the course to the Estate had taken him 2 hours and 41 minutes, but that was because he had been held up in a traffic jam.  It would ordinarily take 2 hours 21 minutes, if the speed limits had been adhered to.

[10]      Three persons who had attended the course gave evidence.  One, DD, said that the course had finished at between 3.30 and 4.00pm.  It had run to schedule, but he doubted whether that had meant that it had ended at 2.00pm.  CF said that the course had run to schedule and that had involved a 3.30, and not a 2.00pm, finish.  DM, who was the organiser, said that the course had involved a 2-2.30 hour presentation by him, followed by lunch and then an exam.  The earliest that anyone had left the course had been 2.30pm and some were present until 3.00pm.  During cross-examination, a screenshot from the website of the course promoters (BASC) was put to him.  This stated that the course had been scheduled to run from 10.00am to 2.00pm.  DM said that he did not know that this had been the advertised schedule.  He accepted that he did not know when the course had finished.  None of these three witnesses was asked whether they had seen the appellant on the course after 2.00pm.  None identified the appellant at all.

 

The sheriff’s reasoning
[11]      Ultimately, the sheriff accepted the evidence of the couple in their identification of the appellant as credible and reliable.  He did so for a number of reasons, which he detailed in the stated case.  The couple both knew the appellant.  They bore no ill-will towards him.  They had recognised the pickup vehicle, which they had seen at the locus, as an Estate vehicle and of the same type as the one in which the appellant was ultimately located.  The appellant had acknowledged them by waving, suggesting mutual recognition. 

[12]      The sheriff describes the husband as thoughtful and careful in his evidence.  When he had first been taken out by the police to identify the Estate worker, one such worker had been pointed out, but he had correctly not identified him as the culprit.  His later identification of the appellant to the police had been immediate.  He had been apprehensive about identifying an Estate employee because he thought that it might affect his tenancy. The sheriff considered that the wife had been thoughtful and deliberate in her evidence.  She too had been taken out by the police, on her own, and declined to identify several Estate workers.  She had not been influenced by her husband first identifying the appellant.  Both in her evidence and at the time of the initial identification, she had been tearful.  The sheriff regarded this as the natural reaction of an honest witness recognising the importance of what she was doing.

[13]      The sheriff rejected the testimony of the appellant for a number of reasons.  One of these was the fact that both the appellant and GL maintained that the journey time between the two locations had been precisely 2 hours and 40 minutes.  This was also the exact time spoken to by the former police officer called by the appellant.  However, that officer had testified that the normal journey time was 20 minutes shorter than that (even on the assumption that all speed restrictions had been complied with).  The appellant accepted that he had been on the Estate carrying out pest control on the relevant date, albeit later in the day.  He did drive a vehicle of the type described by the couple.  He did know the couple.  The sheriff comments that the appellant did not accept that a buzzard had been attacked, notwithstanding the evidence.  He thought that the appellant had minimised the risk posed to pheasant chicks from buzzards.

[14]      The sheriff did not accept the evidence of GL.  This witness had not mentioned the course, when initially interviewed four weeks after the event and two weeks after the appellant’s detention on a matter of significance to the Estate.  He had only mentioned the course a year later when the police were investigating the alibi.  None of the three witnesses on the course had identified the appellant.  Their evidence about the finish time was not consistent.  The sheriff concluded that there was no reliable evidence of the appellant’s presence at the course at a time which would have meant that he could have been the perpetrator of the offence.

[15]      The sheriff notes that the Crown “produced official notification” from the course promoters which stated that the course finished at 2.00pm and not, as the appellant would have it, sometime later.  The sheriff reports that he “preferred this evidence led by the Crown about the scheduled finish at 2.00pm to the differing recollections of the attendees 16 months later”.  This information from BASC undermined the appellant’s position that he did not leave until 3.00pm.

 

Submissions

[16]      The appellant accepted that a case such as the present involved issues of credibility and reliability which were normally for the sheriff to resolve.  However, the sheriff had erred in a number of ways in rejecting the alibi.  First, he had reached the view that the appellant had underplayed the risk that buzzards posed to pheasant chicks, without an evidential a basis.  This was not a matter of judicial knowledge.  In fact only 200 out of 15,000 chicks bred on the Estate were lost as a result of buzzard activity.  Secondly, the sheriff had founded upon the appellant’s statement that he did not know whether a buzzard had been killed.  That was a reasonable position for the appellant to have taken, given that he had not been at the scene at the time.  He could not speak to the event.  Thirdly, the sheriff had regarded the absence of a reference to the course by GL in his first interview as significant, but it was only when he was interviewed later specifically about the alibi that he had had the opportunity to speak to it.  Fourthly, the sheriff had regarded it as significant that the three witnesses at the course had not identified the appellant.  However, the fact that he had been on the course had not been disputed at the trial.  The sheriff had not been entitled to hold that he had not been on the course at all.  Fifthly, in relation to the certificate, these were not issued on the day but later.  Attendance forms and related materials were produced at the appeal hearing indicating that the appellant had been on the course, although these had not all been available at the trial.  Sixthly, the sheriff had erred in preferring the evidence in the screen shot to that of the course organiser in relation to the finishing time.  No-one had spoken to this screen shot.  Finally, in relation to the timings, the sheriff had not taken into account the significance of the dead hare on the alibi timings.

[17]      The Advocate Depute maintained that the dead hare was a red herring.  The screen shot had been spoken to in evidence.  The person who had recovered it had spoken to its provenance and it had been put to the course organiser without objection.  No-one had said that the screen shot was not accurate in its statement of the scheduled timings.  The sheriff had not said that the appellant had not been on the course at all.  He had been entitled to take the view that the three persons who had been on the course had given three different accounts of when the course had finished. The significance of their evidence had been that none had testified to seeing the appellant at the course after 2.00pm. The sheriff had given adequate reasons for rejecting the alibi.

 

Decision

[18]      The issue is one of whether the sheriff was entitled to accept the evidence of the couple who identified the appellant as the culprit and to reject the evidence of alibi given by the appellant and his superior, GL.  Decisions upon credibility and reliability are primarily matters for the court of first instance.  In the context of a stated case and the overarching ground of appeal, which is a miscarriage of justice, this court will not normally interfere with a sheriff’s finding-in-fact unless it can be shown either that: (a) his reasons for it are not adequately stated; or (b) the finding lacked any evidential base.  In certain circumstances, it may be that an appeal may be grounded upon a contention that certain evidence was not admissible, but that is not the position here.

[19]      Although it is true that, as a matter of onus and standard of proof, the sheriff would have to have been satisfied beyond reasonable doubt that the appellant had not been at the course in Dunkeld at, say, 3 o’clock, it is important to bear in mind that the rejection of the alibi is not based solely upon an analysis of the evidence given in its support.  It is based upon an overall assessment of all the evidence in the case, including, crucially, that of identification by the couple set against the background circumstances.  The reliability of the couple’s identification was accepted by the sheriff partly because of the manner in which the husband and wife each gave their evidence but partly also because of certain other features in the case, including the wave and presence of the truck.  These circumstances included the location of the crime on a shooting Estate upon which the appellant worked as a gamekeeper.  In this connection, it is within the knowledge of a resident sheriff in a rural area, such as Dumfries, that buzzards are a significant threat to pheasant chicks, even if the precise degree of that threat may be a matter for proof.  The sheriff has adequately explained why he accepted the couples’ identifications.

[20]      In relation to the evidence in support of the alibi, the sheriff explains in detail why he did not accept it.  He deals with it in a separate chapter of his note, but, as already observed, its rejection ought not to be seen in isolation from the evidence of identification itself.  Again, the sheriff has adequately explained why he rejected this evidence.  First, it was not mentioned when the police were initially investigating the crime.  That is so whatever GL had been thinking about when first interviewed.  Secondly, the timings given by the appellant and his witness were suspiciously similar not only to each other but to those given by the former police officer in his delayed journey.  These timings were not consistent with the norm.  Thirdly, there were inconsistencies amongst the three witnesses about when the course had actually ended.

[21]      Fourthly, such evidence of timings as was given did not coincide with the advertised time on the screen shot from the BASC website.  It may be that no-one from BASC was called to speak to this screen shot or to the source and accuracy of its data.  However, the provenance of the screen shot is not raised as a ground of appeal in the stated case.  The sheriff has not been asked to deal with such a point.  It appears, in any event, that the screen shot was spoken to by the police officer, who printed it from what appeared to be the BASC website, without objection.  Its significance is not in relation to its accuracy but that, whatever time the course was scheduled for according to its organiser, its promoters had advertised it as finishing at 2.00pm, thus undermining any evidence of any later time spoken to by any of those attending.  Fifthly, none of the three witnesses, who were on the course, was ever asked to identify the appellant either at the course generally or after 2.00pm.  The effect of this is that no-one, other than the appellant and his line manager said that he had been at the course and, in particular, that he had been at Dunkeld after 2.00pm.  That has to be regarded as significant in a situation where there are independent witnesses led in support of an alibi.  The sheriff did not state that he disbelieved the appellant and GL about the appellant being at the course at all, although he may have been entitled to do so.  In that regard, any failure to put such a contention to the appellant and GL could only have been a matter for comment.  The putting of the date on the certificate to the appellant rather suggests that his credibility on this was challenged.  It is of some passing note that the copy of the certificate, which was produced at the appeal hearing, states not simply that it was issued on 24 April 2014 but that the award was obtained on that date.  The sheriff did not make any finding in fact that the appellant had been on the course.  That would appear to reflect his view on the evidence to the contrary. 

[22]      The sheriff’s comments on the appellant’s testimony were merited.  He was entitled to the view that it was odd for a gamekeeper on a shooting estate to express the view that birds of prey, and in particular buzzards, were not a significant problem.  He was equally entitled to say that the appellant was not being at all reasonable in denying that a buzzard had been killed, in circumstances where two entirely independent people had said that they had seen this happening and blood covered stones and buzzard feathers, had been found at the locus.  This was a factor which legitimately coloured the sheriff’s view of the appellant and his attitude to what had happened.

[23]      Finally, in relation to the dead hare, whilst it may not be the Advocate Depute’s red herring, its significance is uncertain.  No doubt the suspicion is that before the viewed incident, the hare had been shot, eviscerated and placed at the locus to entice the buzzard, but exactly when that might have occurred and who might have done it are matters of some speculation.

[24]      In short, the issue in this case was one of fact for the sheriff to resolve satisfactorily.  He has done so.  The three questions in the stated case should therefore be answered in the affirmative and the appeal refused.


APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 62

HCA/2016/3/XJ

Lord Justice General

Lord Menzies

Lord Bracadale

OPINION OF LORD MENZIES

in

APPEAL BY STATED CASE

by

WILLIAM DICK

Appellant;

against

PROCURATOR FISCAL, DUMFRIES

Respondent:

Appellant: Jackson QC; John Pryde & Co (for Levy & McRae, Glasgow)

Respondent: Brown QC AD; the Crown Agent

15 July 2016

[25]      I have had the advantage of reading in draft the Opinion of your Lordship in the chair.  I am grateful for the clear and helpful exposition contained in that Opinion regarding the findings-in-fact, the alibi evidence, the sheriff’s reasoning and the submissions.  However, I regret that on this material I have reached a different conclusion from your Lordship in the chair.

[26]      I agree that decisions upon credibility and reliability are primarily matters for the court of First Instance.  Whether to accept, in whole or in part, or reject evidence is a matter for the sheriff.  However, it must be borne in mind that, when faced with a defence of alibi, a sheriff is not engaged in a straightforward exercise of deciding whether to believe the evidence led on behalf of the Crown or the evidence led in support of the alibi; the sheriff does not need to believe all the alibi evidence for the defence to be successful.  All that is required is that the alibi evidence must raise a reasonable doubt in the sheriff’s mind as to the guilt of the accused.  If it raises such a doubt, then the sheriff is bound to acquit. 

[27]      Moreover, in an appeal by way of Stated Case to this court, if a sheriff has rejected alibi evidence and proceeded to convict the accused (as happened in the present case), the sheriff must set out his reasons for doing so sufficiently clearly that they may be understood by the informed reader. 

[28]      In the present case, the sheriff set out his reasons for rejecting the alibi evidence in paragraph [32] of the Stated Case.  He listed five factors which caused him to reject the alibi evidence. 

[29]      The first factor was that he did not accept the evidence of the appellant as credible or reliable.  Senior counsel for the appellant argued before us that there were two aspects of the sheriff’s reasoning in this regard that were flawed – (a) the sheriff stated that the appellant “appeared to minimise the question of any risk presented to pheasant chicks from buzzards”, and (b) the sheriff observed that the appellant’s evidence “was that he did not know if an attack on a buzzard had taken place in a field on the Estate on that day, despite being presented with the evidence of tyre tracks in the field and buzzard feathers on rocks found at the scene.”  With regard to the first of these observations, the sheriff summarised the evidence of the appellant (at para [27]):

“that pheasant welfare was a bigger part of his job than pest control; when pest control duties were part of the job, carrion crows and foxes were the main problem; Larson traps and snares were used.  There were buzzards around the Estate, although they were not a particular problem.  He had not killed a buzzard and was not aware of any incident on 4 April except what he heard when detained by the police”.

 

[30]      Senior counsel for the appellant observed that there had been no evidence to contradict the appellant’s evidence that buzzards were not a particular problem.  There was no material to justify the sheriff’s observation that the appellant appeared to minimise the question of any risk presented to pheasant chicks from buzzards.  There was no evidence before the sheriff to suggest that the risk presented to pheasant chicks from buzzards was greater than stated by the appellant.  This was not a matter within judicial knowledge.  The sheriff was not entitled to draw an adverse inference against the appellant in support of his view that the appellant was not credible.  Furthermore, it was not proper for the sheriff to draw an adverse inference from the appellant’s statement that he did not know if an attack on a buzzard had taken place in a field on the Estate on that day – the appellant’s evidence in this regard amounted to no more than “I cannot speak to that”.  The appellant was not suggesting that the Crown had not proved that this had happened, but merely stating that he himself knew nothing about it except what he had heard when detained by the police.  

[31]      I consider that both of these submissions for the appellant are well-founded.  If a sheriff rejects the evidence of a witness as neither credible nor reliable, he must give the informed reader sufficient material to understand his reasons for doing so.  In this case I do not consider that either of the two factors mentioned above, which appear to have influenced the sheriff’s assessment of the appellant’s credibility and reliability, can properly be regarded as factors affecting this assessment.

[32]      The sheriff’s second reason for rejecting the evidence of the appellant and GL, was that their estimates of the time of their journey to and from Trochry on 4 April 2014, were too precise and too similar.  He observes that neither detailed the timing of their journey until after Craig Stewart had undertaken a timed drive of the same route in February 2015, which took him 2 hours and 41 minutes, but involved an unusual delay of 20 minutes, caused by a traffic jam.  However, there is no suggestion that Mr Stewart made this information available to the appellant or GL before they gave their statements to the police.  The fact that both the appellant and GL stated that the return journey took 2 hours and 40 minutes may have been because that was indeed how long it took them.  It does not appear to me that this is sufficient reason to describe the evidence of the appellant and GL as lacking in credibility in the circumstances.

[33]      The sheriff’s third reason for rejecting the alibi evidence was that GL did not make any mention of the appellant having been on a course with him on 4 April 2014, when first interviewed by the police on 2 May 2014; he first provided details of the alibi to the police in a second statement given in March 2015.  However, senior counsel for the appellant pointed out that the sheriff narrates (at para [29]) that Chief Inspector McCallum stated that he attended at the home of the appellant’s employer, the Estate owner, who thought that, around the date which the police were concerned about, some of his staff were at a training course.  Chief Inspector McCallum made no further enquiries on the point, leaving the task to PC Sidebottom.  There was no suggestion that anyone had asked GL about where he and the appellant were on 4 April 2014 until GL gave his second statement in March 2015.  Again, I consider that there is some force in this submission. 

[34]      The sheriff’s fourth reason for rejecting the alibi evidence was that none of the three independent defence witnesses who attended the course on 4 April 2014 identified the appellant as present at the course at a time which would have prevented his return to the locus by the time of the offences.  None identified the appellant at all.  This appears to be a suggestion by the sheriff that the appellant did not even attend the course.  The sheriff was not entitled to make such a suggestion – there had been no dispute between the Crown and the defence at trial that the appellant had indeed attended the course.  The Crown’s position was that the evidence of GL and the appellant as to timings might have been unreliable, but there was no dispute that the appellant was on the course.  This was amply supported by documentary material, and there was no suggestion in cross-examination of the appellant or any of the defence witnesses, nor any hint in the Crown submissions, that the appellant was not there.  The sheriff was not entitled to suggest that he may not have been there.

[35]      The sheriff’s fifth reason for rejecting the alibi evidence was that:

“the Crown produced official notification from the course organisers BASC, which indicated that the course on 4 April 2014 was scheduled to finish at 2.00pm and not at the later time spoken to by defence witnesses.  I preferred this evidence led by the Crown, about the course being scheduled to finish at 2.00pm, to the differing recollections of the attendees 16 months later.  This information from BASC undermined the appellant’s position that he did not leave Dunkeld until ‘approximately 3.00pm’.”

 

[36]      The advocate depute submitted to us that the screenshot issued by BASC regarding the course was recovered by police officers, who spoke to its recovery in their evidence.  However, Mr Jackson QC, for the appellant, observed that Donald Muir, who ran the course and who was a witness for the defence, stated in evidence that he did not know that the screenshot stated that the course was scheduled to run from 10.00am until 2.00pm; he was not responsible for the preparation of this screenshot, nor for the accuracy of its contents.  His only “target end time” was 5.00pm.  The course consisted of a presentation by him on the subject which took between 2 and 2½ hours, then a break for lunch, then an exam.  His recollection was that the earliest that anyone left the course was 2.30pm and that some were present until 3.00pm.

[37]      Mr Muir was the course leader.  David Donley attended the course and thought that it finished between 3.30 and 4.00pm.  Under cross-examination, he agreed that the course ran to schedule; when it was put to him that the course may have finished at 2.00pm as scheduled, he doubted this because of his time returning home.  Catriona Frankitti gave evidence that the course finished at around 3.30pm, that a number of delegates spent 20-25 minutes chatting outside the training centre in Trochry, and that she left the centre shortly before 4.00pm on 4 April.  She did not accept the suggestion that the course had finished at 2.00pm.  The sheriff records no evidence, nor any questioning, from these three independent witnesses to suggest that they were mistaken or lying. 

[38]      As Mr Jackson QC put it, it is difficult to see how a flier which no one speaks to, and is prepared by who knows who, can be preferred to the evidence of the course organiser.  I consider that the criticism of the sheriff’s reasoning in this regard is well-founded, and important.  Although a police witness spoke to the recovery of this screenshot, no witness spoke to who prepared it, nor as to the accuracy of the information contained in it.  The author of the screenshot did not give evidence.  I consider that the sheriff was in error in describing this as “evidence led by the Crown, about the course being scheduled to finish at 2.00pm”, and preferring this to the differing recollections of the attendees.  This was not in my view evidence led by the Crown. 

[39]      I accept the point made by your Lordship in the chair that the rejection of the alibi is not based solely upon an analysis of the evidence given in its support, but rather upon an overall assessment of all the evidence in the case, including the identification by the couple.  I reiterate that I accept that issues of credibility and reliability are primarily matters for the court of First Instance.  However, in this case, I have reached the conclusion that the reasons given by the sheriff for rejecting the alibi evidence are, on close scrutiny, inadequate and insufficient to support his conclusion.  For these reasons, I should be in favour of allowing this appeal, and answering each of the questions in the Stated Case in the negative.

 


APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 62  

HCA/2016/3/XJ

Lord Justice General

Lord Menzies

Lord Bracadale

OPINION OF LORD BRACADALE

in

APPEAL BY STATED CASE

by

WILLIAM DICK

Appellant;

against

PROCURATOR FISCAL, DUMFRIES

Respondent:

Appellant: Jackson QC; John Pryde & Co (for Levy & McRae, Glasgow)

Respondent: Brown QC AD; the Crown Agent

15 July 2016

[40]      I have had the benefit of reading in draft the opinions of your Lordship in the chair and Lord Menzies.  I agree that the appeal should be refused.  As Lord Menzies has come to a different view, I shall briefly set out the reasons for my conclusion.

[41]      The starting point for rejection of the evidence in support of the alibi must be the Sheriff’s acceptance of the evidence of identification of the appellant as the perpetrator of the offences by both of the eyewitnesses.  That, in itself, could in certain circumstances be a basis for rejecting a defence of alibi. As the LJG (Rodger of Earlsferry) noted in delivering the opinion of the court in King v HM Advocate 1999 JC 226 at p. 238:

“… it is by no means unusual to find that there is a body of evidence in a case which is quite inconsistent with the accused's guilt.  Evidence supporting an alibi defence is necessarily of that nature and, while it is often possible for the Crown to undermine alibi witnesses on the ground perhaps that they are partial or untrustworthy, that is by no means always the case.  In such a situation juries may none the less be satisfied of the accused's guilt beyond reasonable doubt on the basis of the Crown evidence and come to the view that they must accordingly reject the alibi evidence as wrong.  The jury must consider all the evidence but, having done that, they can reasonably reject the alibi evidence precisely because it is inconsistent with the Crown evidence which they have decided to accept.”

 

It is clear that the Sheriff found each of the eyewitnesses to be credible and reliable in his or her identification of the appellant.  Each of them knew him by sight and as he drove away from the locus there was an acknowledgement by a wave.  The Sheriff was satisfied that each of the eyewitnesses had taken particular care in his or her identification.

[42]      In addition to his reliance on the quality of the eyewitness identifications, in paragraph 32 of the Note to the stated case the Sheriff identified a number of specific aspects of the alibi evidence which he found unsatisfactory.  While the Sheriff’s views on some of these may be open to criticism, and some may carry greater weight than others, I am satisfied that in a number of respects the Sheriff was entitled to find that the alibi evidence was undermined and did not raise a reasonable doubt in his mind.

[43]      The precise coincidence in the evidence of the appellant and GL as to the time taken for their journey from Dunkeld to the Newlands Estate was, in my view, a consideration which it was open to the Sheriff to take into account in assessing the credibility of both the appellant and GL.  Where two witnesses give precisely the same evidence of fact, it is for the finder of fact to assess whether that is because the evidence of the two witnesses accurately reflects what happened, or whether it is indicative of some degree of collusion.  It was open to the Sheriff, particularly having regard to the evidence in the case which he did accept, to take the latter view.

[44]      I also consider that it was open to the Sheriff to assess the credibility and reliability of GL by reference to the stage at which he provided details of the alibi.  The offence was alleged to have been committed on 4 April 2014.  The appellant was detained on 22 April 2014 at his home on the Newlands Estate.  Twelve days later, on 2 May 2014, GL was interviewed as a potential witness in relation to the circumstances surrounding the events of 4 April and the investigation of the attack on the buzzard.  At that stage, he did not mention the fact that he and the appellant had attended the training course on 4 April.  The Sheriff noted that GL only provided details of the alibi to the police in a statement given in March 2015 after the Crown had instructed the police to conduct investigations in response to the notification of the special defence of alibi.  The evidence disclosed that before the interview of GL on 2 May 2014 the police had some information that members of staff had been at a course on the date of the incident but did not ask GL about that matter.  That was, no doubt, a matter to be included in the mix and might to some extent be thought to diminish the significance to be attached to the failure of GL to mention the course at that stage, but it does not mean that the Sheriff was not entitled to take it into account at all in his assessment of the credibility and reliability of GL.

[45]      I do not read the Sheriff’s Note as indicating that, because none of the defence witnesses who attended the course identified the appellant at all, he took the view that the appellant had not in fact attended the course.  Rather, the point I understood him to be making was that none of them was able to identify the appellant as being present at a time of day that would have prevented his return to the locus by the time of the commission of the offences.  That was a consideration which the Sheriff was entitled to take into account in assessing evidence led in support of a defence of alibi.  The Sheriff was also entitled to found on the inconsistencies in the evidence about the time when the course finished.

[46]      As to the use of the screenshot, Mr Muir, who conducted the course, was shown the screenshot.  His response was that he did not know that 2 pm was the advertised time for the course to finish.  It is implicit in that response that the witness recognised the screenshot as being from the BASC website.

[47]      I do accept that there is some force in the criticism of the Sheriff’s reliance on what he described as the appellant’s minimising of the question of any risk presented to pheasant chicks from buzzards and the evidence of the appellant that he did not know if an attack on a buzzard had taken place in a field on the estate that day.  I am of the view, however, that even if the Sheriff erred in having regard to these considerations, the strength of the evidence of identification of the appellant as the perpetrator of the offences, together with what I consider to be legitimate bases for criticism of the alibi evidence, entitled the Sheriff to reject it.  I am satisfied, therefore, that overall the Sheriff has given adequate reasons for making the findings in fact which he did and rejecting the alibi evidence.