Scottish High Court of Justiciary Decisons

NEIL CAMPBELL McGRORY v. PROCURATOR FISCAL, KIRKCALDY [2001] ScotHC 10 (1st March, 2001)

[1] The appellant was convicted at Kirkcaldy on 14 December 1999 of an offence of careless driving under the Road Traffic Act 1988, section 3. There was, as the case was originally presented, an issue as to the admissibility of a statement made by the appellant but that point was not argued in the appeal. The point which was argued was that there was insufficient evidence to entitle the sheriff to repel a plea of no case to answer under section 160 of the 1995 Act at the conclusion of the Crown case.

[2] The facts are quite simple. A Mrs Chalmers was travelling in the appellant's car, which was a taxi, on 24 April 1999 with two children approximately 9 years of age and one child of 2 years of age. Mrs Chalmers gave evidence that, when they arrived at their destination, she got out of the car to fetch a pushchair from the boot. From the rear, she saw the two older children get out and also saw the 2 year old trying to slide out from the rear seat on to the pavement. She said the appellant was still in the driver's seat and did not get out of the taxi to assist her. She took the pushchair from the boot of the taxi and as she went to the open passenger door, the taxi started to move off. She screamed and the appellant then stopped and it was discovered that the wheel had touched or passed over the younger child's foot, fortunately causing no injury.

[3] It was accepted that, quite apart from the question of injury, it would be careless for the appellant to drive off while the passenger door was still open, but it was submitted that there was no sufficient corroboration of the account given by Mrs Chalmers. The corroboration on which the Crown relied was a statement made by the appellant to a police officer which included the words "At this time the door was meant to be shut.. The mother shut the boot from the back and at that time I started to move off. I immediately braked when I heard her saying stop". The sheriff took the view that that was sufficient to corroborate the fact that the appellant had moved off while the door was still open. It was submitted that the statement was neutral but in our view there is enough in it to give rise to the inference that the appellant moved off while the door was still open and in these circumstances there was sufficient corroboration of Mrs Chalmers' account of the incident.

[4] In these circumstances we shall answer the second question in the case in the affirmative and hold that the sheriff was entitled to convict the appellant. The first question also falls to be answered in the affirmative.

lin