Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/1998/11.html
Cite as: 1999 SLT 883, [1998] ScotHC 11, 1999 GWD 2-82, 1999 JC 63, 1999 SCCR 44

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JISCBAILII_CASE_CRIME_SCOTLAND

ALLAN GORDON CAMERON v. PROCURATOR FISCAL, OBAN [1998] ScotHC 11 (13th November, 1998)

High Court of Justiciary

OPINION OF THE COURT

delivered by LORD MARNOCH

STATED CASE

in causa

ALLAN GORDON CAMERON,

Appellant;

against

BRIAN MAGUIRE, Procurator Fiscal, Oban,

Respondent:

___________

13 November 1998

In this Stated Case the appellant was charged that

"on 31 May 1996 in the yard at the house known as Eastside Cottage, Killiechronan, Isle of Mull, District of Argyll and Bute, he did recklessly discharge a loaded rifle in the direction of open woodland to the danger of the lieges who might reasonably be expected to be walking there."

It appears, however, that in the course of the ensuing trial the evidence, without objection, ranged beyond the strict terms of the libel and it was not disputed that the sheriff was entitled to make the following findings in fact:

"1. The Appellant resided at Eastside Cottage, Killiechronan, Isle of Mull. The area in which he resided is a remote rural area. His cottage formed part of a building in which there were two other dwellinghouses, both occupied. One dwellinghouse, about 15 feet from the Appellant's dwellinghouse, was occupied by Mr Iain Slade and his wife and the other, between these houses by Mrs Ishbel Lamb.

2. Within 300 yards of the Appellant's house was a dense wooded area to which access might be gained by a pathway leading from the Appellant's house into the wooded area. There was a hotel within 200 yards lying on the main road.

3. It was possible for persons to walk within the wooded area and to have used the path to emerge from it at or adjacent to the Appellant's house.

4. The Appellant's house lay about 50 yards from the main public road. Access to the Appellant's house from the said road also gave access to the houses occupied by Mr and Mrs Slade and by Mrs Ishbel Lamb.

5. The Appellant was the owner of Crown Label 1, a high calibre rifle capable of killing a person of (sic) a range of up to 3 miles.

6. On 31 May 1996 in the early hours of the evening the Appellant had fired the said rifle in the yard of his house at Eastside Cottage. He had fired the weapon on up to 10 occasions within the space of 20 minutes both into a high banking of earth and at a target situated in from the of said banking. Said target was situated approximately 1 foot from an open pathway leading into the woodland area which was not obstructed by the said banking.

7. At the time the Appellant was firing his weapon Mr and Mrs Iain Slade were in their dwellinghouse approximately 15 feet from the Appellant's house.

8. There was a danger of ricochet of bullets from the banking in the direction of the public road adjacent to the Appellant's house. A person could have walked round the corner of the Appellant's house into the area where the Appellant was firing his weapon. Persons could have been using woodland area within 300 yards of the Appellant's house unseen by the Appellant. Mr and Mrs Slade used the said woodland area for walking from time to time.

9. Upon being charged with the reckless discharge of the said rifle the Appellant had replied,

'I can't deny I was shooting and at the time I thought it was safe. On looking at it again now, I wouldn't do it again, no.'

10. The Appellant held a firearms certificate for inter alia the said rifle. The Appellant had been shooting for about 30 years. Prior to firing the Appellant had checked the immediate area of his dwellinghouse and had found no persons in the area.

When the Appellant had first shot the said rifle he had not been aware of its accuracy and had been carrying out a 'zeroing' test on the rifle. The Appellant was aware of the risk of ricochet. The Appellant test (sic) the accuracy of the weapon simply by firing it into the banking.

11. Any persons using the woodland area in the direction of the path and out of sight of the Appellant would have been at risk of death or serious injury from any stray bullet fired by the Appellant from his weapon.

12. Any person entering the yard area of the Appellant's house unexpectedly whilst the Appellant was firing his weapon at the banking or in the direction of the target would have been at the risk of injury or death from a bullet ricochet."

The questions stated for the opinion of this Court were:

"(1) Was I entitled to repel the submission of no case to answer?

(2) On the facts found was I entitled to convict the Appellant as libelled?"

Since, however, all the findings, with the exception of the penultimate sentence of Finding in Fact 10, appear to have been made on evidence led by the Crown, it seems to us that in this case these two questions raise precisely the same issue.

Before the sheriff, and before us, reference was made to the case of Gizzi and Another v Tudhope 1982 S.C.C.R. 442 where the appellants were similarly convicted of the reckless discharge of a firearm and where the facts were not wholly dissimilar from the circumstances of the present case. As to the proper test to be applied, reference was made in Gizzi to what had been said by Lord Justice-General (Clyde) in Quinn v Cunningham 1956 JC 22 at p.24 regarding what was required to render recklessness a crime at common law, namely "an utter disregard of what the consequences of the act in question may be so far as the public are concerned". The court in Gizzi did not disapprove that test but, somewhat curiously to our minds, expressed a preference for the form of wording used in relation to a charge of reckless driving under section 2 of the Road Traffic Act 1972 in Allan v Patterson 1980 JC 57 at p.60. What was said in that case was as follows:

"Section 2, as its language plainly, we think, suggests, requires a judgment to be made quite objectively of a particular course of driving in proved circumstances and what the Court or a jury has to decide, using its common sense, is whether that course of driving in these circumstances had the grave quality of recklessness. Judges and juries will readily understand, and juries might well be reminded, that before they can apply the adverb 'recklessly' to the driving in question they must find that it fell far below the standard of driving expected of the competent and careful driver and (our underlining) that it occurred either in the face of obvious and material dangers which were or should have been observed, appreciated and guarded against, or in circumstances which showed a complete disregard for any potential dangers which might result from the way in which the vehicle was being driven".

The difficulty, as it seems to us, - and we say this with great respect to Lord Justice-General (Emslie) who delivered the Opinion of the Court in both Gizzi and Allan v. Patterson - is that while the standard of driving to be expected of a competent and careful driver may well be within the knowledge of judge or juror, the matter of the discharge of a firearm may not be so familiar to either. It follows that expert evidence would be required in every such case and, indeed, evidence, in the form of testimony by a police officer with many years of experience of firearms, was led in the present case. However, in so far as we are dealing here with a crime at common law and in so far as the discharge of a firearm "in the face of obvious and material dangers" must, as it seems to us, always fall within the common law test formulated by Lord Justice-General Clyde, we, for our part, are content to adopt and apply as applicable to cases such as the present the test laid down in Quinn v. Cunningham cit. sup., namely that there should be "an utter disregard of what the consequences of the act in question may be so far as the public are concerned" or, as re-formulated on the following page of the report (p. 25), that there should be "a recklessness so high as to involve an indifference to the consequences for the public generally".

Applying that test, or those tests, to the facts found proved in the present case we are in no doubt that the answer which should be returned to the two questions asked of us is in the affirmative. In saying that we would emphasise, first, that this was a high calibre rifle with a range of three miles; second, that there was clearly a risk that a bullet would miss the target by one foot to the right and that, if it did, it would, as the sheriff says in his note, "have led to a stray bullet travelling in the direction of the track and into the woodland area"; third, that the rifle was new to the appellant and he did not know its accuracy - he had indeed been zeroing it; fourth, that there was in any event a risk of ricochet in the vicinity of other habitations and a public road; and, fifth, that it may not be wholly without significance that in answer to the Charge the appellant himself said:

"I can't deny I was shooting and at the time I thought it was safe. On looking at it again now, I wouldn't do it again, no".

We would add, for the avoidance of doubt, that our conclusions would be the same even if we were to disregard the presence in the vicinity of either or both of the public road and other habitations.