APPEAL COURT, HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
THE HONOURABLE LORD SUTHERLAND
PROCURATOR FISCAL, HAMILTON
Appellant: A. Ogg, Solicitor Advocate; Brodies, W.S.
Respondent: F. Mulholland, A.D.; Crown Agent
27 May 1999
This is the appeal of Kevin Gillespie who was convicted of theft of a car.
The car was stolen between 9.00pm and 12.30am in Glasgow. At about 12.40am the police on mobile patrol on the M74 saw it being driven at high speed. It was chased into Hamilton where it crashed. There were five occupants in the car, the appellant being one of the occupants of the back seat. During the chase the three back seat passengers had been seen gesticulating at the police car.
Miss Ogg on the appellant's behalf today has said that the only evidence before the Sheriff was that the appellant was a passenger in the car and under reference to Hipson v Tudhope 1983 S.C.C.R. 34 mere presence in the car cannot infer guilt.
The Sheriff accepted that mere presence in the car would not be enough, but what he founded on was damage to the cowling and the exposure of the ignition wiring. In finding in fact 5 he says:
"The plastic cowling in the vehicle surrounding the steering column was missing and the ignition wiring was exposed. There was extensive damage to the front external of the car and the internal dashboard or fascia of the car was buckled."
Miss Ogg emphasised that the Sheriff was conflating all of this damage into the one finding. Quite plainly the extensive damage to the front of the car would be accident damage and the probability is that the internal dashboard or fascia buckling would also be accident damage. There is nothing to suggest that the absence of the plastic cowling and consequent exposure of the ignition wiring could not also be accident damage. She submitted that the Sheriff was not entitled to infer that the plastic cowling had been removed for the purpose of exposing the ignition wiring and starting the car by that means. She submitted that this would merely be speculation on the Sheriff's part.
In reply the Advocate Depute argued that the cowling was not just damaged or buckled but was in fact missing, which was a significant factor. The joint minute which was lodged in the case indicated that when the car had been parked by the owner on Sunday night the ignition cowling and barrel of the vehicle were undamaged and the wiring was unexposed. In these circumstances he submitted that there was evidence from which the Sheriff could infer, as the Sheriff did indeed infer, that the damage had been occasioned at the time when the car was stolen and not at the time of the accident.
Miss Ogg also argued that even if the Sheriff was entitled to draw that inference, this damage would not necessarily have been visible to someone entering the car.
The Sheriff holds that such damage would have been obvious to anyone within the motor vehicle including the appellant. If the whole of the plastic cowling surrounding the ignition column was missing it is perhaps not surprising that the Sheriff took the view that this would have been obvious to anyone entering the car. In our view that would be an inference which he was entitled to draw.
The difficulty in this case, however, is that having narrated in his note that he took the view that such damage would be obvious to anybody including the appellant he went on to say:
"... consequently he knew from the time he entered the vehicle or very, very shortly thereafter that the vehicle had been stolen. For that reason I convicted the appellant."
The difficulty about that approach, however, is that of course he convicted the appellant of theft which would imply that the appellant was present at the time when the car was removed from its parking place. In the previous sentence, however, he has referred to the fact that the damage to the vehicle would be obvious to the appellant at the time he entered the vehicle or very shortly thereafter. This would imply that the appellant entered the vehicle after it had been stolen. That, indeed, is what the appellant maintained in his defence.
In these circumstances we are satisfied that the Sheriff was not entitled to convict of theft because there was no evidence to show that the appellant was present at the time when the car was stolen. We are satisfied, however, that there was sufficient evidence to justify a verdict of reset and the Advocate Depute accepted that this would be the more appropriate verdict in this case.
Accordingly, the questions asked in the case are not appropriate, and what we shall do is allow the appeal to the extent of substituting a verdict of guilty of reset for the verdict of guilty of theft.