Scottish High Court of Justiciary Decisons

DAVID METHVEN GONSALES O'NEILL v. PROCURATOR FISCAL, DUNFERMLINE [1999] ScotHC 132 (27th May, 1999)

This is the appeal of David Methven Gonsales O'Neill who was convicted of reckless discharge of a firearm.

The Sheriff in her findings tells us that two complainers, Inglis and Walker, were railway workers working in a field beside a railway line which runs from Cowdenbeath to Lochgelly. At the time of the incident they were facing towards a field in which there was a hill to the east of Lumphunnan Farm. At this time the appellant was engaged in shooting rabbits in the area. At a point when the appellant was about 200 yards from the complainers, but outwith their sight, he fired shots at two further rabbits. He was shooting into the field with the hill and it is said that he was near the brow of the hill. The finding is that the appellant took no steps to check whether any person was within range of his rifle. In fact two shots fired by the appellant whistled past the complainers travelling in their direction and to their danger.

The Sheriff has made a finding that a rifle such as the rifle used and carried by the appellant has a potential range of at least half a mile. She has found that for the appellant to fire his rifle towards any target, such as the rabbits, in the circumstances narrated was a reckless discharge.

Counsel on the appellant's behalf today has argued that there are two grounds for saying that the Sheriff misdirected herself.

The main ground is that there was no proper evidence of the range of this rifle or that the appellant knew what the range of the rifle was. If the appellant did not know that persons some 200 yards away could be within range of the rifle then he could not be convicted of recklessness.

The second ground is that the Sheriff in making the finding that the rifle had a potential range of at least half a mile was founding upon evidence which she herself had discounted. The reason for that suggestion is that evidence was given to the Court by Police Constable Gray who was a trained firearms officer but only in relation to hand guns and not rifles. When asked what the range of the 0.22 rifle was he said he would be guessing and an objection was taken as to any expertise of this witness in relation to rifles. He was, however, able to say that there were three categories of weapons, hand guns, carbines and rifles. From his basic training in firearms he was able to say that whereas a hand gun could hit a target 25 metres away, a rifle could hit a target half a mile to one mile away. Presumably that is where the Sheriff got the evidence to make her finding that the appellant's rifle had a potential range of at least half a mile.

While it may be that the witness was unable to say what the precise range of this particular rifle may have been, he was at least able to give general evidence as to the range of rifles in general. It cannot be said that the Sheriff has discounted the evidence of the witness when she says in her note that as to the evidence of the range of the 0.22 rifle P.C. Gray could not assist the Court. He may not have been able to assist the Court as to the matter of precise range but he was at least able to assist the Court, in our view, to the extent of being able to say that a rifle would have a range of at least half a mile.

The next question is whether the appellant knew what the range of the rifle was. In our view what the appellant might have thought himself is neither here nor there because any person who is engaged in using a rifle which is obviously a dangerous weapon ought to ascertain, before using it, what its potential range was in order that he could satisfy himself that when he fired it it was safe to do so. Quite plainly this rifle did have a range of at least 200 yards because of the evidence of the witnesses who heard the bullets whistling past them.

The material factor is this case, however, is that the appellant fired his gun when he was near the brow of a hill towards the brow of the hill at rabbits which were between him and the brow of the hill. At the time when he fired he had not the slightest idea what was on the other side of the brow of the hill. For all he knew there may have people a few yards on the other side of the brow of the hill. In fact they were about 150 yards away, judging by the markings on the ordnance survey map and the bullets did in fact whistle past them.

In these circumstances we are entirely satisfied that the Sheriff was fully entitled to take the view that the appellant in this case fired in a way which was plainly reckless within the appropriate definition.

We shall accordingly refuse this appeal. We find the question asked unanswerable because it asks two questions in one, but we shall hold that the Sheriff did apply the correct test and did not err in law in convicting the accused.