Scottish High Court of Justiciary Decisons

GORDON FERRIES v. PROCURATOR FISCAL, ABERDEEN [1999] ScotHC 112 (12th May, 1999)

This is the appeal of Gordon Ferries, who was convicted under sections 3, 170(2), 170(3) and 4(1) of the Road Traffic Act. Mr Duguid, on the appellant's behalf today has restricted his appeal to the conviction under section 4(1). The circumstances were that the appellant was driving his car in a 30mph limit. The car left the road and was found on its roof in a ploughed field some 50-60 feet from the road. There were no markings in the field, and this indicated a considerable velocity of the car in order to get to the position in which it was ultimately found without touching the ground on the way. The application for the Stated Case asks one question and one question alone, which is whether in the case where the issue was one of credibility, the accused having given evidence, the Sheriff was entitled to prefer the evidence of two witnesses whose evidence was under section 259 by statement, and therefore they were not present and not liable to cross-examination. The short answer to that question is, of course, in the affirmative. The Sheriff would be entitled to do this. In so far as the question implies that it is in some way incompetent for the Sheriff to prefer written evidence to oral evidence, we simply cannot agree. Quite obviously, however, in such a case the Sheriff must weigh the evidence carefully, bearing in mind in relation to the written evidence, that it was not on oath and that it was untested in cross-examination, but if having done so, the Sheriff comes to the conclusion that he finds this evidence acceptable and that he does not find the evidence of the accused acceptable, then he is undoubtedly entitled to convict. The question therefore in this case really is whether the Sheriff applied the right test, applied his mind to the fact that the Crown case was almost entirely reliant on written evidence, and whether there were grounds upon which he was entitled to hold that this was reliable evidence. Mr Duguid on the appellant's behalf has said that the Sheriff appears to have approached the matter on the basis of preference. He uses the word "prefer" on a number of occasions in the case and this was the wrong test because the proper test was, of course, whether he was satisfied beyond reasonable doubt that one version was correct rather than the other. The Sheriff gives us in the Stated Case six reasons for adopting the preference which he did and Mr Duguid argued that each of these reasons were flawed to a greater or lesser extent. If the Sheriff had simply said that he did not accept the appellant's evidence as being either credible or reliable, then that would have been an end of the matter, but the Sheriff does not appear to have done so. Mr Duguid accepted if that had been the way in which the Sheriff had approached the matter, he could not have complained about the six reasons which were given. In our view, having read the whole of the Sheriff's note, we are satisfied in the first place that the Sheriff was well aware of the fact that the main part of the Crown evidence was by way of witness statements and was well aware of the fact that he had to approach these statements with particular care, because they were not tested in cross-examination. It is also clear from the Sheriff's note and his findings that there were certain aspects of the appellant's evidence which he regarded as unreliable, and that could not be properly challenged. Further, he gives reasons why he considers that the written evidence was of good quality and he refers, in particular, to the evidence of the two witnesses that the appellant had made it clear to them that he did not wish the police to be called and then when the ambulance did arrive, having been requested by the two witnesses, the appellant had departed from the scene. The Sheriff was, of course, fully entitled to draw the conclusion from that that the appellant was anxious about his st

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