Scottish High Court of Justiciary Decisons

DEREK BOYD v. PROCURATOR FISCAL, GLASGOW [2000] ScotHC 72 (5th July, 2000)

[1] On 29 January 1999 the appellant appeared for trial before the sheriff at Glasgow Sheriff Court charged with having, on 22 May 1997, stolen a motor vehicle registered number K979 RGD, or alternatively having resetted the said vehicle. During the course of the trial the sheriff allowed the procurator fiscal to amend the charge to the effect that the appellant had resetted the said motor vehicle, the same having been dishonestly appropriated by theft. The trial thereafter continued and at the conclusion of the Crown evidence the appellant's solicitor submitted that there was no case to answer. However, that submission was repelled. The defence led no evidence and the appellant was found guilty of the amended charge of reset. After the matter was continued for reports the sheriff made a community service order for 150 hours of unpaid work.

[2] The sheriff sets out in the stated case his findings in fact and to a large degree these are not disputed by the appellant. On 22 May 1997 the complainer Alastair Tompkins parked his car, a Suzuki Vitara registration number K979 RGD outside his house in Netherview Road, Glasgow. The car was stolen on 22 May 1997 and the theft was reported to the police. Some months later on 3 February 1988 the complainer attended at the police stolen car depot where he viewed a white Suzuki Vitara which he identified as being the car which had been stolen from him. In identifying the said vehicle as being his own car the complainer relied upon 13 points of identification which were set out by him in an Identification Log which is Crown production No. 6. At the end of the day we did not understand the appellant's counsel to dispute that the motor car viewed by the complainer was in fact the car which had been stolen from him. Subsequent to the original theft some items had been taken from Mr. Tompkins' car and others added to it. When the complainer identified his car at the stolen car depot it was bearing the number plate K632 RNL. When this car was first traced by the police it was parked outside the appellant's house. When the car was examined in the presence of the appellant it was found that the number on the front off side chassis leg was missing. There was sealant on the chassis leg. Underneath, where an identifying number should have been stamped, there was a hole. Under the bonnet of the car the number (known as the vin-plate) had been replaced with a new vin-plate which had been supplied from a firm called "Tag". The number on the front of the chassis leg had been removed by punching it out and creating a hole which was then sealed. The vin-plate on the bulkhead had been removed by grinding or chiselling it off. The sheriff found that there was no reason for removing a number on the bulkhead or chassis leg except to disguise a stolen vehicle. When asked by the police for an explanation as to his possession of this car the appellant indicated that on 24 April 1997 he had paid cash amounting to £2,850 for a Suzuki Vitara bearing the number plate K632 RNL. The sheriff accepted that on the date in question (which as it happens precedes the date when the complainer's car was stolen) the appellant had bought a Suzuki Vitara motor car bearing the number K632 RNL for £2,800 from Burnside Motors as salvage without any interior. The appellant had told the police that a local garage had rebuilt the motor car (purchased from Burnside Motors) for him but he refused to identify the garage which had allegedly carried out this work. The police then caused a search to be made. There was no record of K632 RNL being stolen but the police national computer brought up one white Suzuki Vitara which fitted the description of the car in the appellant's possession by way of mileage, marks and dents, (the car being K979 RGD).

[3] On 12 February 1998 the appellant was detained by the police and taken to London Road Police Office where he was cautioned and interviewed on tape. During his interview the appellant was repeatedly asked to provide details of the garage which he claimed had reconstituted K632 RNL for him. He refused to give any details of this garage. He did, however, state at the interview that he had got the wing of the car re-sprayed at the front driver's side since there was a new wing on the car which had not been re-sprayed. While being pressed by his interviewers to disclose the identity of the garage which allegedly repaired the car he had bought, the appellant indicated that he would be in serious trouble "if they knew I'd stuck them in". He maintained that he was frightened to reveal the said garage.

[4] The sheriff accepted that the cost of the repairs which the appellant claimed he had instructed would be in the order of £5,000.

[5] On 14 May 1997 the appellant made an application for a replacement vin-plate. This was said to be for a Vitara Suzuki registration number K632 RNL. In the form it was claimed that the vehicle was purchased with the plate missing. The appellant indicated thereafter in the form that the plate had been lost due to theft and that the vehicle was "stolen recovered". It was not disputed that such a description would fit a vehicle which had been stolen and, after recovery by the insurers, was found to be effectively so damaged that they passed it on to dealers to dispose of. It should perhaps be noted that in the receipt from Burnside Motors which the appellant produced, and which purported to relate to K632 RNL, there was no indication that the car had been sold as "stolen recovered". On 16 June 1997 an application was made to Messrs Tag Plates in Nottingham for vin-plates bearing the numbers set out in the appellant's original application of 14 May 1997. In this application the customer was stated to be I. Renfrew, 10 New Street, Paisley, Renfrewshire. When originally questioned by the police the appellant had maintained that Suzuki were taking too long to provide a tag plate and his sister's ex-boyfriend had obtained a plate for him from the "tag shop".

[6] The sheriff found as a fact that the car in the possession of the appellant had never had a re-sprayed wing, although the appellant had claimed to the police that this was so. He also found that the value of K979 RGD as at 22 May 1997 was in the order of £8,000.

[7] In determining the appellant's application for leave to appeal the sifting judge allowed such appeal on the question of the appellant's mens rea only. In finding the appellant guilty the sheriff had no difficulty in concluding that the appellant must have known that the car in his possession was a stolen car which he had no right to possess. He knew that this car had been extensively altered and in particular had been altered in respects which suggested that the car was stolen. He knew that the original engine number had been removed and a new tag plate substituted. The sheriff considered that the appellant's failure to identify the garage which he claimed had repaired the motor car was in itself a suspicious response inconsistent with his being a bona fide purchaser of the car. The sheriff accordingly concluded that the appellant's possession of the car was highly suspicious and indeed that the appellant knew that the vehicle was stolen.

[8] In addressing us, counsel for the appellant maintained that the sheriff was not entitled to conclude that the appellant knew that he had possession of a stolen vehicle. Counsel did not seriously dispute the sheriff's finding that he was satisfied that Mr. Tompkins had properly identified the vehicle found in the appellant's possession as being the vehicle which had been stolen on 22 May. The key to the situation, according to counsel, was that when the appellant had sent out the car he had purchased from Burnside Motors to another garage for restoration, it could not be assumed that he had got the same car back. It was perfectly possible, so it was argued, that the repairing garage had substituted Mr. Tompkins' car for the car which the appellant had originally handed to them. The appellant had originally acquired a salvage condition car and he would not have been sufficiently familiar with the detail of this to have been aware of a substitution. There could be no doubt that the appellant had originally purchased K632 RNL as a "stolen recovered" vehicle but there was not sufficient evidence to suggest that he was aware of any circumstances which led to Mr. Tompkins' vehicle being substituted. The appellant's refusal to name the garage to whom he had entrusted the repairs, was not relevant to his knowledge about the history of the motor car. His assertion that he was afraid to get the repairer into trouble is perfectly plausible. The mens rea of the appellant had not been properly established.

[9] The advocate depute for his part adopted the reasons of the sheriff for concluding that the appellant must have known that he was unlawfully retaining a motor car which had been stolen.

[10] In our view, on the basis of the factual background which he had determined, the sheriff was entitled to conclude that the appellant was guilty of reset in respect of the complainer's motor car. There is no doubt that that car was stolen from the complainer on 22 May 1997. Similarly, it must be acknowledged that the sheriff found that on 24 April 1997, about a month before the theft of the complainer's motor car, the appellant had bought from Burnside Motors a Suzuki Vitara motor car of the same colour as the complainer's motor car and bearing the number plate at that time K632 RNL. The circumstances of the appellant's purchase are perhaps not as clear as his counsel would have led us to believe. There was in fact no evidence that the car had been bought as a "stolen recovered" vehicle, although in circumstances which were never explained in defence evidence, the appellant had claimed that this was so when he made his first application for a new vin-plate. There can be no doubt that the car found to be in the possession of the appellant was the complainer's car. The sheriff accepts the detailed identification carried out by the complainer and counsel for the appellant found difficulty in challenging this identification. However, he maintained that given the fact that it was shown that the appellant had originally bought K632 RNL and had then parted company with the car for the purposes of the repair, it was not possible to reach a conclusion that he knew that the car which had been returned to him was not the car which he had bought. However, in our view on a global consideration of the whole picture it is not feasible to conclude other than that the appellant knew that he was unlawfully in possession of a stolen car. In the total absence of evidence, the suggestion that a car repairer for some unknown reason would substitute another vehicle in his transaction with his customer is highly conjectural at best. However, in the present case the sheriff was perfectly entitled to hold that the appellant was not acting bona fide and that he knew that the car he was using was not that which he had originally purchased from Burnside Motors. He participated in the measures which could help to disguise the identity of the car. He told an untruth to the police when he claimed that the front wing had been re-sprayed since the sheriff has found that no such re-spray ever took place. Moreover, there is no evidence as to the identity of the alleged repairer of the motor car nor indeed evidence that such a repairer ever existed. A bona fide purchaser of the car would have had a receipt for the cost of the repair. When the police questioned the appellant about the identity of the garage he claimed to have instructed, his response was totally inconsistent with that of a bona fide purchaser who had bought a car and repaired it in the way that he maintained. If he had instructed the repair of the original purchase as he contended to the police, then he had lost a substantial sum of money. Yet for no very obvious reason seemed determined to protect the identity of the party who had caused his difficulty. Counsel's suggestion as to how the appellant may have come in to possession of the complainer's car simply do not fit in with the facts and evidence and the sheriff was justified in concluding that the appellant knew that he was unlawfully possessing a stolen car.

[11] In the whole circumstances we find that the sheriff was entitled to repel the submission of no case to answer which was made on behalf of the appellant and that he was entitled upon the facts which he stated to convict the appellant. We shall accordingly answer questions 1 and 4 of the stated case in the affirmative and refuse the appeal.