APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD MILLIGAN
AILEEN AGNES LUMSDEN or DEMPSEY
PROCURATOR FISCAL, HAMILTON
Appellant, Wheatley, Wheatley & Co
Respondent, Cathcart, A.D.
13 May 1999
This is an appeal arising out of the conviction of the appellant on 12 January 1998 at Hamilton Sheriff Court on an amended charge that, between 5 June 1992 and 9 November 1994, while employed as a Clerical Assistant by Motherwell District Council within their Building Control Department, she embezzled £3,260. The appeal has been taken against conviction, which failing against conviction for embezzlement of the full sum of £3,260 charged but before us today Mr Wheatley accepted that, if conviction of the appellant for embezzlement was justified at all, then he could not maintain that conviction for embezzlement of the full sum charged was not also justified. In terms of the sheriff's findings the appellant was, throughout the period charged, a member of staff responsible for collecting fees for applications for building warrants, issuing receipts therefor and completing entries in a cash book to show the details of fees paid (finding in fact 3). The cash book entries were ompiled from carbon copies of receipts issued (finding in fact 2). These were paid in cash or by cheque but this case is concerned only with cash payments. Where cash payments were made at a time when the appellant was absent, the cash was placed in an envelope and put in a cash box for subsequent processing by the appellant (finding in fact 3). This cash box was kept by the appellant in a drawer in her desk. It was invariably locked overnight but not always locked otherwise (finding in fact 4). The appellant required to pay the accumulated fees every two to five days into the Council's bank (finding in fact 3). Following a cash count carried out by two audit staff of the Council on 9 November 1994, it was discovered, in terms of finding in fact 12, that on subsequent full investigation of the paperwork concerned with the processing of building warrant fees that alterations had been made to fee figures on carbon receipts and that fees entered in the cash book did not correspond with fees on the applications. In respect of other applications they were found to have been marked "cancelled" or to have been treated or cancelled by the application of a wavy or straight line or marked as "exempt". In other cases they had not been entered at all in the cash book. In terms of finding in fact 13 the procedure for repayment of fees for cancelled applications involved refund by the Council's Finance Department, the fees being processed and paid in to the bank in the normal way meanwhile. Following the discovery of apparent misappropriation of fees amounting in total to the sum of £3,260 alleged in the charge against the appellant, the appellant was interviewed by police officers and thereafter charged with embezzlement, making no reply to the charge. The sheriff convicted the appellant of the charge as amended. In his note he referred to the position adopted by the appellant in evidence at her trial as follows: "She must have been intimately aware of the office procedure and personalities and the trust that was put in her. In these circumstances her brief and bland denials in the witness box and her contention that someone else must have carried out all the alterations and that she simply entered into the cash book what she found in receipts without asking any question, I was unable to accept. Having rejected her evidence I turned to the Crown evidence and was satisfied that I could draw the inference of her guilt from an accumulation of factors".
Today before us Mr Wheatley, on behalf of the appellant, has referred to what the sheriff said regarding the particular factors which he founded upon in convicting the appellant. The first of these was the level of access to the funds. The sheriff said in his note that while it was clear from the evidence that there may have been others in the department who occasionally attended at the counter, the appellant had almost exclusive responsibility for collecting fees, writing receipts, entering details in the cash book, keeping the cash in the cash box overnight, retaining the cash box in her desk, retaining the keys for the cash box, adding up, squaring and finally banking the funds. He also refers to evidence given by a colleague of the appellant, Mrs Cochrane, who had worked in the department for 21 years and who said that, if cash was taken by anyone else, it required to be handed to the appellant as soon as possible. No one in the office retained money except for the appellant. Mr Wheatley today criticised what the sheriff said with regard to this factor as over-stating the incriminatory nature of the evidence as to the level of access which the appellant had. In particular he said that while he accepted that there was evidence before the Court that money had indeed been misappropriated this could well have been done by other persons. While that is perhaps theoretically possible it does seem that the observations made by the sheriff on this factor are well founded in light of the findings in fact which he has made and his observations about the evidence. The second factor was the question of the balancing of the totals in the cash book. Where a cancellation was shown in the cash book there would be that extra fee in the cash box. The fees are shown against the cancellation in the cash books so that there must have been these extra fees in the cash box when it came to squaring. Despite this, when the appellant took the cash book and fees to Mr Gilmour, who was her head of department, she always had her totals square. Mr Gilmour had said that the appellant was a valued member of staff whom he trusted and he formed the view that the appellant took advantage of this and covered up the appropriation of fees by writing "cancelled" and either not entering these in the cash book or entering reduced amounts when she knew Mr Gilmour would never question her totals if they balanced. That was the view formed by the sheriff. The third factor related to handwriting evidence and that there was handwriting evidence that the appellant had written the receipts and entries marked "cancelled" and recorded two entries where the fee had been falsified and reduced. Mr Wheatley made the point that the handwriting evidence did not extend to any evidence that the appellant had been responsible for alterations on the yellow carbonised copies. While that is so there was nothing in what the sheriff said in setting out the factors upon which he relied to suggest otherwise and indeed no inaccuracy appears in reference to this third factor in particular in the sheriff's note. The fourth factor was the behaviour of the appellant from the day on which the internal auditors arrived at the department to carry out their cash count. When the appellant was asked to produce the cash box and the key, something that on the evidence she would do as a matter of course many times a day, she said that she did not have the key and they could not count the cash. When the request was repeated she became very defensive in her tone of voice and flustered. The auditors went away and came back 10 minutes later and found that the appellant had the cash box opened and was counting the contents before they removed it from her. The sheriff concluded that this entire episode was eloquent of guilty behaviour on the part of the appellant consistent with her having been responsible for the alterations and appropriations