Scottish High Court of Justiciary Decisons

ELAINE PATTERSON v. PROCURATOR FISCAL, DUMFRIES [1998] ScotHC 9 (12th November, 1998)

The appellant in this appeal by Stated Case is Elaine Patterson who was convicted in the District Court at Annan of a contravention of Section 1(1) of the Dogs (Protection of Livestock) Act 1953, in that she was the owner of two dogs which worried sheep by attacking them. She was granted leave to appeal in respect of the issues focused in the first three questions only. When she opened the appeal, Miss Scott indicated that she intended to argue the points raised in the first two questions only.

At the trial the principal issue between the Crown and the defence related to the identity of the dogs which had been worrying the sheep and, in particular, whether the dogs doing the worrying had been two dogs, Simba and Scrumpy, which belonged to the appellant. Unfortunately, the dog said to be Scrumpy had had to be shot by one of the farmers whose sheep had been worried. While the appellant denied that this dog was Scrumpy, she accepted that Scrumpy had disappeared. Simba is still alive and two witnesses had seen him at the police station and had identified him as one of the dogs concerned.

Immediately before the start of the trial, the Crown lodged two photographs of the dog which had been shot. They had previously supplied photocopies to the defence. In the course of cross-examining the first witness for the Crown, the agent for the defence sought to introduce into evidence three photographs which were said to show Scrumpy and one of which, at least, also showed Simba. The Crown objected, the Procurator Fiscal apparently taking the view that he did not know when, for example, the photographs had been taken and therefore whether Scrumpy would necessarily have looked the same at the time of the sheep-worrying incident. The defence agent accepted that the photographer was not in court and could not attend the proceedings that day. The agent did not move the Justices to adjourn the trial to another date to allow the photographer to give evidence. The Justices refused to allow the photographs to be lodged. In the Stated Case they explain their decision in this way:

At the hearing of the appeal the Advocate Depute accepted that this was too extreme a view. Frequently, of course, it will be necessary for the photographer to give evidence to explain the time and circumstances in which particular photographs were taken. But, where the only issue is the identity of a person, or in this case an animal, shown in a photograph, then a witness can speak to that identity even though the photographer is not led. In the present case it appears moreover that a breeder would have been able to give evidence identifying the appellant's two dogs, Simba and Scrumpy, from the photographs. We are therefore satisfied that in these particular circumstances the Justices misdirected themselves in law in reaching their decision to exclude the photographs.

We must then consider whether we can say that excluding the photographs might not possibly have affected the conclusion arrived at by the Justices (Hogg v. Clark 1959 J.C. 7 at page 10). In the case of the dog said to be Scrumpy, since the dog had been shot, the Crown relied on the photographs of the dead dog and it was on the basis of these photographs that the Procurator Fiscal led the evidence that that dog had been Scrumpy. In that situation we cannot say that the conclusion of the Justices might not have been different if the defence photographs had been admitted, since they might have played a significant role both in cross-examination of the Crown witnesses and in the examination of the appellant. So far as Simba is concerned, as we have explained, two Crown witnesses had seen him at the police station and had identified him as one of the dogs which had been worrying the sheep. That was the starting point of the Crown case in relation to Simba and in our view the photographs would not have played the same role in relation to him.

We answer the first Question in the case in the negative and the second by saying that, had the photographs been admitted, the Justices might possibly have reached a different verdict. We shall therefore quash the conviction of the appellant in respect of the two dogs and substitute a conviction on the basis that she was the owner of one dog which on the date in question worried livestock, namely sheep, by attacking them. Since the conviction now relates to a single dog, we shall quash the fine of £125 and substitute a fine of £75. The compensation order made by the Justices is unaffected.