Scottish High Court of Justiciary Decisons

STEWART JOHN NEILSON v. PROCURATOR FISCAL, HAMILTON [1999] ScotHC 151 (8th June, 1999)

This is an appeal by way of stated case by Stewart Neilson. He appeared in the Sheriff Court at Hamilton on 22 June upon a charge of what we may call shameless conduct. There was also another charge with which we are not concerned.

The particular charge of shameless conduct was a charge to the effect that the appellant publicly exposed his person in a shameless and indecent manner in the presence of two female complainers. There was a certain amount of discussion as to quite what the scope might be of a charge of shamelessly exposing one's "person". However, it was accepted that in this case the indecency charged was exposure, and there was no question of indecent exposure of any of part of the appellant's body other than his private member. The Sheriff says that the crucial fact was exposure of the penis and the appeal proceeds upon that basis.

Since that was the crucial fact it required corroboration. What happened was that the appellant had opened his jacket and shown his body clad in women's underwear. The witnesses both spoke to a number of matters such as the movement of the appellant's hand down and inside the front of his pants and one of the witnesses spoke to having seen the appellant's private member. The other, however, described various other events but did not speak to having seen the private member.

As the Advocate Depute pointed out, the offence does not depend upon there being two actual people who could speak to seeing the private member. But it does still depend on there being corroboration of the private member having been exposed. What the Sheriff says is that he considered that the deliberate exposure of the body, the underwear, and the movement of the hand in the pants when the appellant inserted his hand there, constituted sufficient facts and circumstances to corroborate the evidence of the other witness that the appellant had exposed his penis.

We are not persuaded that there was sufficient evidence. Both the witnesses spoke to what could be called an escalating series of events. One spoke of him having reached one stage, the other spoke to him having gone further. We are not persuaded that the evidence of the first can corroborate his having gone further. In these circumstances we are satisfied that there was not sufficient evidence and we will therefore answer the questions to the effect that the Sheriff was not entitled to make the crucial finding in fact and that he was not justified in rejecting the submission of no case to answer.