Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Osborne Lord Weir	Appeal No: C510/01 OPINION OF THE COURT delivered by LORD COULSFIELD in NOTE OF APPEAL AGAINST CONVICTION by MANDY HASTIE Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

 

Appellant: N. McCluskey; Beaumont & Co.

Respondent: D. Batchelor, Q.C., A.D.; Crown Agent

18 October 2002

1. The appellant was convicted after trial on 8 May 2001 of two charges of uttering forged cheques. She was sentenced on 5 June 2001 to a period of community service. The only question which arises in the appeal is whether the sheriff was right to reject a defence motion made at the conclusion of the Crown case that there was no case to answer.
2. The sheriff's report could fairly be described as minimalist and provides only a bare skeleton of the circumstances of the case. He has not gone out of his way to assist this court in understanding the full nature of the evidence. Fortunately, with the assistance of counsel, we were able to obtain a sufficiently full picture of the evidence to make it possible to consider and dispose of this appeal without reference back to the sheriff. The charges of which the appellant was convicted were charges 2 and 6 on the indictment against her. The conviction on charge 2 related to two cheques, personalised in the name of Mr. A.J. and Mrs. A.E. Maile and bearing to be signed Ann E. Maile, the signatures being forged. The first was a cheque dated 14 May 1997 for the sum of £87.26 presented at Safeway, Maybury Drive, Edinburgh: the second a cheque dated 15 May 1997 presented at Scotmid, Edinburgh. The conviction on charge 6 related to four cheques, each personalised with the name Mrs. S. Thomson and bearing to be signed Sarah Thomson. The first of these was dated 3 October 1997 for the sum of £83.93, presented at Safeway in Edinburgh: the second, also dated 3 October 1997, for the sum of £96.85 was presented at Safeway, Livingston: the third dated 4 October 1997, presented at Safeway, South Gyle in the sum of £92.02: and the fourth, dated 5 October 1997 also presented at Safeway, South Gyle for the sum of £95.19. In each case, the name of the payee and the amount payable has been mechanically printed on the cheque and the only writing appearing on the cheque is the signature. It was agreed by joint minute that these cheques were uttered at the premises in question.
3. There was, however, no eye-witness evidence from any source to establish that the appellant was the person who uttered the cheques. The evidence on which the Crown relied was fingerprint evidence, spoken to by two police officers. These officers spoke to the presence of fingerprints of the appellant on each of the six cheques. The officers were further able to say from the position of the fingerprints on the cheques how the prints had come to be placed there. Thus, in the case of the cheque dated 3 October 1997 in favour of Safeway the officers could say that it bore the prints of the left fore and middle fingers of the appellant, which had come to be on the cheque while she was writing, and the right ring finger which had come to be on the cheque while tearing it out. In the remaining three cheques which were included in charge 6, the prints had been, according to the evidence, placed on the cheque while writing. The same was true of one of the two cheques in charge 2, while in the case of the other the officers could say that the print was placed while tearing out. The question, therefore, is whether this evidence provided a basis on which it would be open to the jury to infer that the appellant was the person who had uttered the cheques. We might observe that a question arose, in the course of the discussion, as to whether there had been any evidence of the practice followed in supermarkets in receiving payments by cheque but it was not possible to be clear what evidence, if any, there was on this point. This is an example of a point about which the sheriff might helpfully have given us some information.
4. In the argument for the appellant, two main submissions were made. Firstly, it was submitted that the evidence of the police officers had been given upon certain assumptions which had not been established by evidence. These were, that the person who had placed the fingerprints on the cheque was right handed: and that the cheque book was a normal cheque book. This submission was not advanced with any great enthusiasm and, in our opinion, is unfounded. It is, in our opinion, clear that the jury would have been entitled to take it from the evidence that the cheques had been handled in a way characteristic of a right handed person and in the absence of any other evidence to assume that that was indeed the case.
5. The principal submission was that in the absence of any direct eye-witness identification of the appellant as having uttered any of the cheques there was no sufficient evidence to entitle the jury to convict. This submission was supported by reference to Burke v. MacPhail 1984 S.C.C.R. 388. That was a case in which the appellant had been convicted of forging signatures on a number of payment slips, taken from a book of slips which had been reset by her, and also of uttering the slips by presenting them for payment. There was direct evidence that in one instance the appellant was the person who had presented the slip for payment and the conviction for uttering was upheld in regard to that one slip. In regard to the other slips, the court took the view that it could not be inferred from the fact, established by other evidence, that the appellant had forged the signature on the slips that she was actually the person who had presented them and the conviction for uttering was therefore quashed in regard to those slips. It was submitted that the position in the present case was the same as that in Burke and that even if it could be accepted that there was evidence that the appellant had, in some cases, written the writing on the cheque, in other cases torn the cheque from the cheque book and in one case both written and torn the cheque, it could not be inferred that she had presented it and therefore uttered it.
6. In our opinion, this submission is not well-founded. The Crown was entitled to ask the jury to approach the case as one of a course of conduct on the part of the accused which involved writing and tearing out cheques from the cheque books. Looking to the nature of the transactions, as indicated by the premises at which the cheques were uttered, the amounts involved and the evidence as to signing and tearing out the cheques, the simple and obvious inference is that the appellant had written, torn out and presented the cheques in question. It is by no means easy to think of any alternative course of action which could have led to the finding of the fingerprints in the manner which the officers describe. Even if there is some alternative scenario, it would in our view have to be one which could only be regarded as a remote possibility and one which it would be open to the jury to disregard. In Burke supra, the court presumably took the view that there was an alternative scenario which was not remote, perhaps that the appellant might have forged the payment slips and given them to someone else to pass. In the present case, it seems to us that any such alternative was too remote to be relevant.
7. In the whole circumstances, in our view, the sheriff was right to reject the submission of no case to answer and the appeal fails.