Scottish High Court of Justiciary Decisons

THOMAS GALLACHER v. PROCURATOR FISCAL, PAISLEY [2000] ScotHC 42 (29th March, 2000)

The appellant in this appeal by Stated Case is Thomas Gallacher who, along with a co-accused, was convicted after trial at Paisley Sheriff Court of a charge that on 19 September 1998 at premises occupied by Asda in Paisley he stole two T-shirts. The appellant was sentenced to sixty days imprisonment. He has appealed against conviction.

The sheriff's findings disclose that on 19 September the appellant and his co-accused entered the supermarket and took a trolley and walked round the store. As they did so they were watched by two employees of Asda. The co-accused selected a case of lager and placed it in the bottom of the trolley. They then went to the men's clothing department where the appellant selected a packet of two T-shirts and placed it in the bottom of the trolley. Later the co-accused selected various items of food and these were also placed in the trolley. At one point the co-accused removed the packet of T-shirts from the bottom of the trolley and placed it within the folded baby-seat. That remained in an upright position effectively pinning the packet of T-shirts between the baby-seat and the handle of the trolley. The two men then arrived at a check-out. The co-accused removed the provisions from the trolley and placed them on the conveyor belt, but did not touch the packet of T-shirts. After the provisions had been placed on the conveyor belt by the co-accused, the appellant, who had been standing behind and beside the co-accused, walked passed him and the trolley towards the front of the check-out. As he did so he placed his hand on the baby-seat as if to push it forward and then appeared to change his mind and left it in its upright position. At this point his hand would have been either on or very close to the packet of T-shirts. The items which had been placed on the conveyor belt were paid for by the co-accused but the T-shirts were not paid for. The provisions were then placed in carrier bags and returned to the trolley. The sheriff found that the packet of T-shirts was visible throughout the exercise of unloading the provisions from the trolley and placing them on the conveyor belt and then replacing them in the trolley after they had been paid for. The trolley was wheeled towards the exit of the store by the appellant, the packet of T-shirts still being in the same obvious position. On the basis of these findings the sheriff decided that the appellant had stolen the T-shirts.

Counsel for the appellant submitted in the first place that the sheriff had been in error in repelling a submission of no case to answer. The appellant had placed the T-shirts originally in the bottom of the trolley and it was the co-accused who had moved them to a position beside the baby-seat. The fact that the T-shirts were visible in the trolley throughout did not advance the Crown case. Counsel submitted that the findings had not been such as to entitle the sheriff to draw the inference that the accused had taken the T-shirts out of the supermarket and had not intended to pay for them. He also pointed out that the sheriff had given no reasons for rejecting the evidence of the appellant and had made no reference to the evidence given by the co-accused. His general submission was that the sheriff had not been entitled to convict.

The advocate-depute submitted that there had been ample evidence entitling the sheriff to convict. The appellant had originally selected the two T-shirts and placed them in the trolley and therefore presumably knew that he had to pay for them. They had later been placed beside the baby-seat. Finding 9 was to the effect that after the provisions had been placed on the conveyor belt by the co-accused the appellant had, when walking past him and the trolley, placed his hand on the baby-seat as if to push it forward and then appeared to change his mind, his hand having been either on or very close to the packet of T-shirts. The advocate-depute also founded on finding 13, which was to the effect that when the trolley was wheeled towards the exit by the appellant the packet of T-shirts was still in the same obvious position. The advocate-depute submitted that there was clear evidence that the appellant had been involved in taking the items in the first place and involved in having his hands on or close to them at the check-out, but had taken no steps to attempt to pay for them and when he had wheeled the trolley out the T-shirts were still in the same obvious position. It was clear that the sheriff had not accepted his evidence and had rejected the explanation which he had given, referring at one stage to an apparent contradiction in his evidence.

Having considered the submissions which have been made to us, we have reached the conclusion that the submissions made by the advocate-depute were well founded. In our view, the sheriff was entitled on the findings which he made to draw the inference that the appellant knew that the T-shirts had not been paid for and that he did not intend to pay for them. That being so, the sheriff was entitled to convict the appellant. We will answer questions 1, 2 and 3 in the affirmative and refuse the appeal against conviction. Question 4 is superseded.

DL