APPEAL COURT, HIGH COURT OF JUSTICIARY
Appeal No: 2441/98
OPINION OF THE COURT
delivered by LORD KIRKWOOD
SHAUN VAN LIEROP (known as BATCHELOR)
PROCURATOR FISCAL, Perth
Appellant: Moir; Purdie & Co.
Respondent: Mulholland, A.D.; Crown Agent
26 May 1999
The appellant in this appeal by stated case against conviction is Shaun Van Lierop, known as Batchelor, who was convicted at Perth Sheriff Court of theft by housebreaking and theft of a motor car at 21 Brompton Terrace, Perth on 28 April 1997.
The sheriff's report informs us that the house at 21 Brompton Terrace was broken into during the night, some time after 1.30 a.m., and certain property was stolen. The occupiers were Mr. and Mrs. Lamond and they were in the house but they were unaware of the break-in until about 6.30 a.m. Mr. Lamond's car, a BMW 523i, which had been locked and parked outside the rear of the house, was also stolen, the keys of the car having been stolen from the house. The keys included a locking device and if the car had been broken into a very loud alarm would have sounded but no alarm sounded that night. The car was about ten days old and had travelled approximately 700 miles. In the car there were a number of compact discs, one of which was entitled "Hot Rats" by Frank Zappa. It had been in the driver's door pocket. Mr. Lamond had ordered it from a specialist dealer and it had been imported from the United States. At about 3 a.m. the BMW car was being driven in Errol when it struck a barrier, went through a fence into a garden and hit a summerhouse. A neighbouring proprietor went out but there was no-one in the car which was not in public view. At about 7.45 a.m. the police came and found the car to be insecure and later that day it was removed on the instructions of the police to a garage in Perth. The Frank Zappa CD was found in the front passenger footwell and when it was examined a thumb print was found on the CD box.
The appellant's fingerprints were not taken until 29 September 1997 after he had been arrested on an initiating warrant in connection with the two offences and taken to police headquarters. His fingerprints were there taken by Detective Constable Ross. When he was taking fingerprint impressions from persons in custody, D.C. Ross was in the habit of engaging them in conversation. He found that that led to less trouble from persons who had been detained or arrested. While he was taking the appellant's fingerprints D.C. Ross asked him what it was in connection with. He was aware that the appellant was there in connection with an initiating warrant, but he did not know the nature of the alleged offences. The appellant replied that it was in connection with theft by housebreaking and theft of a motor car. He went on to say something to the effect that the police must have his fingerprints or must have fingerprint evidence because he wasn't caught in the car or wasn't caught with the car. D.C. Ross later checked and found that the appellant's fingerprints were being taken in connection with the charges with which this appeal is concerned. The right thumb print found on the CD box was found to be identical to the right thumb print of the appellant. The sheriff held that there had been no opportunity for the appellant's thumb print to get onto the CD box unless he had been in the BMW between 1.30 a.m. and the time when the thumb print was lifted.
We are informed by the sheriff that after the appellant made the statement to D.C. Ross to which we have already referred, D.C. Ross went on to ask the appellant if he had done it, i.e. whether he had committed the offences in question. D.C. Ross gave evidence that the appellant replied that he had taken the keys and the car and had driven the car at 100 mph and crashed it. Objection was taken to that evidence and the sheriff decided that the reply was inadmissible and he paid no regard to it. The sheriff observed that it appeared that the appellant had been arrested on a warrant in connection with the present complaint and, while no evidence had been led that he had been charged with the offences, he was a person against whom the procurator fiscal considered that there was sufficient evidence to justify the commencement of a prosecution. The sheriff expressed the opinion that the appellant fell to be treated in the same way as a person who had been charged by the police.
After the Crown case had closed there was no defence evidence. The procurator fiscal, in inviting the sheriff to convict the appellant, founded on the fact that the thumb print of the appellant had been found on the CD box in the car and on the replies which the appellant had made to D.C. Ross's first question. On behalf of the appellant it was submitted that, so far as the thumb print was concerned, there was no evidence as to what had happened to the car between 3 a.m. and 7.45 a.m. and the car, still unlocked, had later been moved to the garage in Perth. It was also submitted that the status of the appellant, when his fingerprints were being taken, was that of a person who had been charged and the sheriff had correctly proceeded on that basis. In these circumstances any statement made by the appellant thereafter was inadmissible unless it was made spontaneously and voluntarily. Any questioning of the appellant, particularly in the absence of a caution, was unfair. D.C. Ross had asked him a question which related to the alleged offences and invited a reply and neither the question nor the answer was admissible. As there was insufficient other evidence to entitle the sheriff to convict, the appellant should have been acquitted.
The sheriff found the appellant guilty of both charges. He pointed out that the house was broken into some time after 1.30 a.m. and the car crashed at Errol at about 3 a.m. It was not in public view thereafter. The appellant must have handled the CD box and he could only have handled it if he had been the thief or if he had come across the car in the garden in Errol and had handled it there. However, there was no suggestion that he had come across the car at that stage or that he was involved in the removal of the car to the garage. In the circumstances the only plausible explanation was that he had handled it after he had stolen the car. With regard to what the appellant had said to D.C. Ross after the first question, the sheriff took the view that the question which had been asked was unobjectionable despite the fact that the appellant had not been cautioned. The question had been an innocent one, and the answer was admissible and was incriminating to the extent that it more or less amounted to an admission of his involvement in the charges. On the whole matter the sheriff concluded that there was sufficient evidence to establish the appellant's guilt on both charges.
At the hearing of the appeal counsel for the appellant accepted that the sheriff had been entitled to infer that the same person had committed both offences. He also accepted, on the basis of the evidence relating to the thumb print, that the appellant must have been in the car after it was stolen and no innocent explanation had been put forward at the trial. However, it was submitted that the evidence of the appellant's thumb print, and the circumstances in which it was found, was not sufficient to entitle the sheriff to convict. There had to be corroboration of that evidence. The statement which the appellant had made following D.C. Ross's first question, which had been relied upon as providing the necessary corroboration, had not been admissible. Counsel stated that he was content to proceed on the basis that the appellant had not been charged with the two offences but he submitted that the sheriff had been correct when he had observed that the appellant in this case fell to be treated in the same way as a person who had been charged by the police. There was no doubt that the appellant's second statement, in reply to D.C. Ross's second question, was inadmissible and that ruling had been made on the basis that the appellant should not at that stage have been questioned by the police about either of the offences. However, the appellant's statement which followed the first question which D.C. Ross had asked should equally have been ruled to be inadmissible. In that connection the sheriff's position had been contradictory. It was submitted that D.C. Ross had not been entitled to ask the appellant any questions relating to the alleged offences in connection with which he had been arrested. The question which D.C. Ross had put to the appellant, while being apparently innocent, was objectionable because it related to the offences and invited a reply. What the appellant had said in reply could not be treated as being either spontaneous or voluntary (Wade v. Robertson 1948 J.C. 117). Counsel accepted that the statement which the appellant had made following the first question had been incriminating and he conceded that, if the statement was admissible, there had been sufficient evidence to entitle the sheriff to convict the appellant on both charges.
In reply, the advocate depute submitted that, even if the first statement which the appellant had made to D.C. Ross was inadmissible, the sheriff would nevertheless have been entitled to convict on the basis of the evidence relating to the thumb print, taken along with the evidence as to the circumstances in which it had been found. Reference was made to Hamilton v. H.M. Advocate 1934 J.C. 1 and Rolley v. H.M. Advocate 1945 J.C. 155. In particular, the car had originally been parked on private property and after it had crashed some 90 minutes later it had finished up in a garden and had not been in public view. The compact disc, which was a very unusual one having recently been imported from the United States by a specialist dealer, had been moved from the driver's door pocket to the passenger footwell after the car had been stolen and the appellant had not put forward any innocent explanation to account for his thumb print being on the box containing the CD. The sheriff would have been entitled to infer that the thumb print had been made by the person who had committed the two offences (cf. Slater v. Vannet 1997 S.C.C.R. 578 and Reilly v. H.M. Advocate 1986 S.C.C.R. 417). The advocate depute went on to submit that the sheriff had been correct to hold that the first statement which the appellant had made to D.C. Ross had been admissible, although he had done so for the wrong reasons. The factual situation was that there was no evidence that the appellant had ever been charged with the two offences and the sheriff had erred when he stated (1) that the appellant fell to be treated in the same way as a person who had been charged and (2) that the issue of admissibility should not be tested by the normal rules of fairness to an accused. The sheriff had clearly been entitled to rule that the appellant's statement in answer to D.C. Ross's second question was inadmissible as it had been elicited by a direct question as to whether the appellant had committed the offences in question and without a caution having been administered. However, the earlier statement was in a different position. The appellant had been arrested but not charged and the test was one of fairness to an accused, there being no absolute bar to questions being put. On the other hand, once an accused had been charged, he was under the protection of the court and could not be interrogated about the offences with which he had been charged (Johnston v. H.M. Advocate 1993 S.C.C.R. 693). In the present case the appellant had not been charged and the first question which D.C. Ross had put to him had been an innocent one in an attempt to put the appellant at his ease and it had not been designed to elicit the response made by the appellant to which objection had been taken. There had been no unfairness to the appellant and the sheriff had been correct to hold that the reply was admissible.
With regard to the statement which the appellant made to D.C. Ross, which the sheriff held to be admissible, the circumstances in which that statement came to be made were not in dispute. When he was taking the appellant's fingerprints D.C. Ross, who was not aware of the nature of the offences for which the appellant had been arrested, asked him what it was in connection with and the appellant, who had not been cautioned, replied that it was in connection with theft by housebreaking and theft of a motor car. If that had been all that the appellant had said no difficulty would have arisen but the appellant went on to say something to the effect that the police must have his fingerprints or must have fingerprint evidence because he wasn't caught in, or with, the car. It was conceded by counsel for the appellant that that was an incriminating statement which, if admissible, was capable of corroborating the evidence relating to the thumb print on the CD box. The appeal proceeded on the basis that the appellant had not been charged with the two offences but the sheriff, in approaching the issue of admissibility, took the view that the appellant fell to be treated in the same way as if he had, in fact, been charged by the police. The advocate depute and counsel for the appellant were in dispute as to whether the sheriff had been right to adopt that approach and treat the appellant as a "chargeable suspect". In our opinion the sheriff was not justified in taking the view that the appellant had to be treated as if he had been charged with the offences. It is clear that once an accused person has been charged, there is a change in the relationship between the police and the accused. Once an accused person has been cautioned and charged with an offence, he is under the protection of the court and should not be interrogated by the police about the offence with which he has been charged (Johnston v. H.M. Advocate, supra, per the Lord Justice Clerk (Ross) at page 702B-C). If police officers put questions to him which invite, induce or encourage him to make a statement about the alleged offence, any statement which he may make will not be admissible in evidence. After an accused has been cautioned and charged, any statement which he makes will not be admissible unless it is truly a voluntary statement. In the present case the appellant had been arrested on an initiating warrant but not charged. In our opinion, in considering whether a statement made by him was or was not admissible, the test to be applied is simply one of fairness. The question is whether in the particular circumstances of this case it would be unfair to the appellant to admit in evidence the statement which he made. D.C. Ross, who did not know the nature of the offences with which the appellant had been charged, was making conversation when he was taking the appellant's fingerprints. The appellant, after answering D.C. Ross's first question by telling him what charges he was facing, then decided to volunteer the first statement to which objection was taken. Having regard to the nature of D.C. Ross's first question we agree with the sheriff that it was innocent and unobjectionable and that a caution had not been necessary. In the circumstances we are satisfied that there was no unfairness to the appellant and that the first statement which he made to D.C. Ross was correctly admitted in evidence. In contrast, we are of the opinion that D.C. Ross's second question was clearly objectionable and that the sheriff was correct to hold that the appellant's reply was inadmissible.
On the basis that the first statement was admissible it is conceded that there was sufficient evidence before the sheriff to entitle him to find the appellant guilty of both charges. That being so, it is not necessary for us to determine whether the sheriff would have been entitled to convict on the evidence of the thumb print, taken along with the evidence as to the circumstances in which it was found and the absence of any innocent explanation but, as the issue was argued before us, we should say that it seems to us that in the particular circumstances of this case there was sufficient evidence to entitle the sheriff to convict, even if the statement had been held to be inadmissible.
Parties were agreed that we only require to answer questions 2 and 4(a) and (b) and we shall answer these questions in the affirmative and refuse the appeal.