Scottish High Court of Justiciary Decisons

BRIAN ROBERT McLEAY v. HER MAJESTY'S ADVOCATE [2000] ScotHC 19 (18th February, 2000)

The appellant Brian MacLeay stood trial in the Sheriff Court at Tain, on an indictment containing 15 charges, between 31 August and 21 September 1998. The Crown did not insist on charge 7, and the jury found charge 10 not proven. On the other 13 charges the jury returned unanimous verdicts of guilty. On 14 October 1998, the sheriff imposed a cumulo sentence of 15 months imprisonment, as from that date.

In his Grounds of Appeal against conviction, the appellant appeals in respect of all 13 charges on the ground that a miscarriage of justice has occurred. Eight separate grounds are set out, but in the event, counsel on his behalf maintained only ground 1 and ground 6. In addition, in relation to sentence, the Note of Appeal sets out five numbered heads, on the basis of which the sentence is said to be excessive.

With the exception of charge 15, all the charges contained in the indictment were charges of reset, at various dates between January 1992 and December 1996. Charge 15 is to the effect that on 16 November 1996 the appellant pretended to two employees at a farm in Stirlingshire that a cheque for £4,379.60 drawn on a National Westminster bank account would be honoured on presentation, the truth being that the account had been closed, and that the cheque would not be honoured: the employees were thus induced, in exchange for the cheque, to hand to the appellant four paintings, which he thus obtained by fraud. Of the 12 reset offences of which the appellant was found guilty, each of charges 1, 2, 3, 4 and 6 was concerned with reset of a motor vehicle, and each of charges 8 and 9 was concerned with reset of a Honda All Terrain Vehicle. Charge 5 involved reset of a test certificate, charge 11 a pressure washer, charge 12 a diesel generator, charge 13 a quantity of shellfish and charge 14 a painting. All the offences were committed in Caithness or Sutherland.

The first Ground of Appeal against conviction is in the following terms:

Ground 6 was in the following terms:

In the report submitted to us by the sheriff, after noting certain general difficulties and some errors in the transcript of his charge, he points out that counsel for the accused said to the jury that much of what the procurator fiscal had put before the jury was accepted by the defence, and "that the nub of the reset charges was quite simply: Did the accused know that the articles were stolen or was he wilfully blind to the fact that they were stolen?" Counsel had also said that he had no intention of trawling through the evidence since most of it was accepted. Against that background, in dealing with the first three sentences of the appellant's first Ground of Appeal, the sheriff notes that it is not said what evidence in support of the appellant's defence was adduced from Crown witnesses, and that he cannot deal with that Ground of Appeal without knowing to what the appellant is referring. In relation to the final sentence of that Ground of Appeal, the sheriff quotes or refers to certain passages in his charge from page 80C onwards, saying that he is not sure what can be described as disparaging, and observing that the relationship of the witness to the accused was a matter which the jury were entitled to take into account.

In advancing this first Ground of Appeal, counsel for the appellant did not elaborate upon the last sentence, treating this matter essentially as a part of the

general claim that the sheriff had not given a balanced picture. The passages in question contain the direct comment that the jury might well think that Douglas MacLeay was a less than honest witness, an observation that he clearly was very uncomfortable in dealing with a particular piece of evidence, and quite detailed references to his evidence which might justify such comments. It may be that the sheriff went further than is usual, or perhaps desirable, in thus focusing upon unsatisfactory defence evidence. But the evidence was plainly important, and in relation to the charge in question (charge 13) it is not apparently suggested that there was any other evidence, favourable to the appellant, which the sheriff failed to mention. These passages, although not perhaps "disparaging", are certainly critical of the appellant's brother's evidence. But in the context of the sheriff's general directions as to his own functions and those of the jury, it does not appear to us that they reveal any unjustified imbalance, or can be regarded as leading to a miscarriage of justice.

On the main point raised by the first Ground of Appeal, counsel for the appellant acknowledged that the Note of Appeal gave no indication of evidence favourable to the appellant which the sheriff had omitted to mention, and which, if mentioned, would have produced a more "balanced" picture. While it was said that evidence in support of the defence had been adduced from Crown witnesses in the course of both evidence in chief and cross-examination, counsel acknowledged that there was no indication of which witnesses were being referred to, or which passages in their evidence were said to be in support of the defence. In the absence of such indications, it was understandable that the sheriff had not been able to comment; and it was acknowledged also that without comment from him, this court would be at a disadvantage if counsel were now permitted to point to particular passages. In addition, it was accepted that in addressing the jury, counsel for the appellant had, as the sheriff points out, told the jury that much of the evidence led by the procurator fiscal was accepted. Nonetheless, counsel sought leave to draw our attention to certain matters, said to be favourable to the appellant, which had been relied upon at the trial by defence counsel, and which it was suggested should have been dealt with in the sheriff's charge - particularly, as was in a sense inevitable, if the bulk of the evidence of fact was undisputed Crown evidence.

Having been allowed to proceed in spite of the defects in the Grounds of Appeal, counsel drew our attention to a number of matters which he claimed would have restored balance to the charge. First, evidence as to what the appellant had said at interview showed that he had been entirely open as to where he had bought vehicles, and to whom he had sold them. His conduct had not been covert. Secondly, Crown witnesses had indicated that they had, as the case might be, bought vehicles in good faith or sold them in good faith. Thirdly, an expert witness, Mr. McNulty, giving evidence in relation to charges 2, 3 and 4, had spoken to the professional quality of certain alterations to the vehicles, which meant that there were not visual indications that these were stolen, and that they were "very good ringers". Fourthly, in relation to charge 4, a witness who had subsequently bought the vehicle from the appellant had given evidence showing an absence of guilty knowledge on his part. Fifthly, in relation to charges 2 and 3, a witness, Ian Angus Mackay, had given evidence, claiming that the appellant had made certain incriminating remarks. The sheriff had said to the jury that if they held that these things had been said "It's a very, very powerful piece of evidence pointing to Mr. MacLeay's knowledge that that was a stolen car." If the sheriff wished to go so far in emphasising the incriminating potential of Mr. Mackay's evidence, then it was submitted that in order to maintain balance, he should have drawn the jury's attention to the fact that Mr. Mackay's wife effectively contradicted him, not as to the appellant's words but as to the facts underlying the alleged conversation between the appellant and Mr. Mackay. (Mr. Mackay said that he had had two vans, with the same number plate. Mrs. Mackay said that Mr. Mackay had only ever had one van). Sixthly, the Crown's case depended on prices being paid for vehicles which were not appropriate to their age. An unduly low price might indicate that seller and buyer knew that the vehicle was of dubious origin. But there was evidence, which the sheriff should have mentioned, that one could not tell the age of a vehicle from its looks. In summary, the sheriff had set out all the evidence from which one could infer guilt, but had not touched upon those matters which might raise doubts as to guilt or indicate innocence. Only at the 95th page of his charge did the sheriff turn to the defence case, and when he did so, briefly over five pages, he dealt with the crucial question of whether one could infer knowledge from the facts, but did not concern himself with these various underlying issues of fact. Most of what he said about the defence case was concerned with charges 14 and 15, rather than with the overall problems of knowledge in relation to the earlier charges of reset.

In reply, the Advocate depute emphasised not only that most of the evidence was agreed and that the appellant had not given evidence, but that he had had no notice in advance of the alleged elements of imbalance, and was unable to comment in any detail upon the matters mentioned by counsel for the appellant. One could not know what the sheriff's observations on these new submissions might be. Overall, the structure of his charge involved devoting several pages to each of 15 charges, and in that context his comments on the inferential issue as to knowledge were not open to criticism. Most of the matters now raised by counsel did not raise genuinely exculpatory issues. They merely identified areas which might have given rise to further incriminating material, but did not. One could not know whether Mrs. Mackay's evidence was at all significant: if there were two successive vans with the same plate, and she thought there had only ever been one, that was not of course wholly irrelevant to an assessment of Mr. Mackay's evidence. But that evidence was very direct evidence of a specific conversation, and it could not be said that the sheriff was positively obliged to mention this additional matter or that its omission produced any imbalance or miscarriage of justice.

In our opinion, these comments by the Advocate depute are well-founded. We are not persuaded that any of the items of evidence which he has mentioned were such that the sheriff was obliged to call the jury's attention to them in the course of this long charge, or that their absence from his charge (dealing as it did with a substantial volume of undisputed evidence) either resulted in an imbalance on the purely factual level, or produced a miscarriage of justice in relation to the crucial question of knowledge.

We turn to Ground 6. Counsel for the appellant asked us to ignore the first sentence, which was misconceived. But it was submitted that the sheriff had misdirected the jury as indicated in the second sentence of Ground 6.

In his report, the sheriff tells us that in mentioning the Shropshire connection and the central belt of Scotland, he did so in relation to the sort of evidence which would entitle the jury "to hold that there was a course of criminal conduct and a close inter-relation between the various acts in time, nature and circumstance." He was attempting to assist the jury on the application of the Moorov rule of evidence.

Counsel for the appellant acknowledged that the sheriff had stated the Moorov rule correctly. And he did not suggest that the evidence of regular buying from a particular area such as Shropshire, or a particular source there, was irrelevant to a consideration of whether there was an underlying unity of the type required by Moorov. But however often one bought from Shropshire, or from a particular source, such evidence of a course of conduct was not evidence of any criminality in that course of conduct. Evidence of buying at a low price, and selling on quickly to obtain a profit over that price might help to establish guilty knowledge. But the sheriff had suggested to the jury that the mere fact of vehicles having a common provenance in Shropshire was criminative. There was nothing in the evidence to suggest that it was odd, far less criminative, in itself, for vehicles to be sent from Shropshire, or the west of Scotland, for onward sale by the appellant.

Counsel drew our attention to passages relating to charge 4 (at pages 56-57) and charge 9 (at pages 71-72). In the first passage, counsel pointed out that the sheriff refers to the west of Scotland connection and the Shropshire connection, and tells the jury that what the fiscal points to in the evidence "that he says indicates that Mr. MacLeay must have known that it was stolen" is that it came from a Mr. Stillie and came up in a convoy with other cars. The sheriff, he submitted, was indicating to the jury that such a common source might indeed in itself be criminative. It is, however, to be noted that this passage not merely comes between references to matters which might be unknown to Mr. MacLeay or which could not properly be regarded as incriminating: it is followed by a quite separate reference to the Crown's reliance on matters regarding registration of the vehicle as indicating guilty knowledge that the car was stolen.

So far as charge 9 is concerned, the sheriff refers again to the fiscal's point that "here is the Shropshire connection coming up again", and goes on to remind the jury that "these are factors" from which they might draw the inference that Mr. MacLeay was fully aware that the vehicle was stolen. But that is a reference back not merely to the bare fact of the Shropshire connection. Reference had been made to the evidence that within a week of theft, Mr. MacLeay had the car and had sold it on; and that there had been a very large drop in price. The lowness of the price is indeed the last matter mentioned by the sheriff before reminding the jury that these are factors from which they may infer that the appellant was aware that the vehicle was stolen.

In our opinion, in these instances, the sheriff is not treating the common source of vehicles as itself incriminating. And while "the Shropshire connection" is used to indicate the link between various charges, we do not read the sheriff in these passages, or in the charge as a whole, as indicating that it is per se incriminating. He appears to us to be indicating that this unifying element, along with specific indications of criminal knowledge in particular situations, can be a factor in establishing guilt.

Along with these considerations, it is important to remember that the appellant in no way suggests that there is any underlying insufficiency in the evidence. We are not persuaded that there is any misdirection.

The appeal is refused.