Scottish High Court of Justiciary Decisons

DON IAN AARON McNAUGHTON v. PROCURATOR FISCAL, FALKIRK [1999] ScotHC 17 (26th January, 1999)

This is an appeal by Don Ian Aaron McNaughton by way of stated case. He appeared in the District Court at Falkirk on 20 February 1997 and was found guilty of wilful and reckless damage. The court deferred sentence for six months so that he would have an opportunity to be of good behaviour and to repay the amount of the damage. What had happened was that a snowball was thrown through a window.

The only point now taken in the appeal is whether there was sufficient conjunction of testimony between the two witnesses whose evidence was the foundation of the conviction. These were a witness Martin and a witness Burnett. The witness Martin gave simple and direct evidence identifying the appellant as the person who had thrown the snowball. The witness Burnett gave an account which did not involve recognition of him in that way. She did not see the snowball being thrown. On the other hand, she said that he was the only one who would or could have thrown it because the rest were too far away, and she also refers to him as having been the only one with the snowball in his hand. It appears to us therefore that she has, in sum, identified him: she says that there is only one with a snowball, there is only one near enough, and that is the appellant.

The findings in fact are not framed as well as they might have been. Finding 5 says that both witness Martin and witness Burnett identified the appellant as the boy who threw the snowball. The word "identified" is perhaps not ideal in describing the evidence of the witness Burnett, and in any event this should plainly have been made a finding of fact rather than a finding of evidence.

However, the point is one of conjunction of testimony. Mr Shead endeavoured to find discrepancies which the court might feel amounted to inadequate conjunction but it is hard to see what these really are. The witness Martin described the appellant as wearing a blue jacket with "red shoulder bits" and said that the other boys were wearing blue jackets; whereas the other witness could only say that he was wearing dark clothes at the time. That is not a significant discrepancy in our view. There were also slightly differing accounts of what the group consisted of: that again is not a discrepancy of the kind which produces an insufficient conjunction of testimony.

We are satisfied that there was here sufficient conjunction of testimony and the questions in the opinion of the court as to sufficiency are accordingly answered in the affirmative.