Scottish High Court of Justiciary Decisons

STEVEN ROBERT TAYLOR v. PROCURATOR FISCAL, EDINBURGH [1999] ScotHC 13 (22nd January, 1999)

The appellant and his co-accused appeared together on a charge in a summary complaint that on 6 March 1996 in the flat at 11/1 Wauchope Place, Edinburgh, occupied by them they conducted themselves in a disorderly manner, handled and exposed their private parts at a window overlooking a primary school playground at a time when they knew children and staff at the school were looking at them, rubbed their buttocks at said window at said time and committed a breach of the peace.

At the conclusion of the Crown case the sheriff upheld a submission of no case to answer made on behalf of the co-accused, and he was acquitted. He rejected a similar submission made on behalf of the appellant. The appellant thereafter did not lead evidence. After hearing parties on the evidence the sheriff convicted the appellant of the offence as libelled, but subject to deletion of the words "rub your buttocks at said window at said time".

Miss Scott, who appeared for the appellant, informed us that she intended to argue only one ground of appeal, namely that there was insufficient evidence of the conduct charged, and that the sheriff therefore erred in refusing to uphold the submission of no case to answer. She did not intend to argue that there was insufficient evidence of identification of the appellant acting in a certain manner. In that connection she accepted that when witnesses spoke about seeing a man in boxer shorts, they were referring to the appellant.

The sheriff first sets out the submission he heard of no case to answer; he then gives his reasons for rejecting that submission; and proceeds to state the case for the opinion of this court. That is followed by a note in explanation of the findings of fact in the Stated Case. It cannot be said that the ten pages taken to cover this read easily.

Miss Scott first criticised findings in fact 4 and 5 and said that the evidence the sheriff set out at page 13D of the print did not support the findings. Since these findings are not essential to the convictions, as Miss Scott conceded, we need not consider the criticism she made of them.

Miss Scott's essential attack was concentrated on finding in fact 6. There the sheriff found that the appellant was in the window with nothing on but boxer shorts, which he took off, exposing his private parts. This finding, said Miss Scott, was dependent upon the evidence of three witnesses - M.B., a 12 year old pupil; J.S., another 12 year old pupil; and Donna Stanton, a member of staff. All these witnesses were in the school playground and said that they observed the conduct of the two men at a window overlooking the playground. Miss Scott submitted that, when one looked at the summary of these witnesses' evidence, there was insufficient conjunction of testimony to support the charge of the conduct complained of.

The sheriff said that M.B. first said that the man with the boxer shorts took them off but said later (something which he accepted) that he was about to take off his shorts and had his thumbs in the waistband of his shorts when she turned away. She then heard someone say, "It's OK you can look now". According to the sheriff, J.S. said that the two men were at the window exposing themselves; the men were naked from the knees up and she saw their private parts. Donna Stanton said that the man in shorts was pulling his pants down and was gyrating; when his pants were down his penis was out of his shorts.

As it seems to us this was clearly a case where, as the sheriff put it, "Different witnesses saw different parts of the libel". What the witnesses in our opinion saw at the window was not a static tableau, but a moving act or acts. We are satisfied in the circumstances that the sheriff was entitled to make finding in fact 6 on the basis of these three witnesses' evidence.

We therefore answer the three questions in the Stated Case in the affirmative, and refuse the appeal.