Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Coulsfield Lord Osborne Lord Weir	Appeal No: C563/01 OPINION OF THE COURT delivered by LORD COULSFIELD in APPEAL AGAINST CONVICTION by LEE ANDREW SINCLAIR BROWN Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

 

Appellant: A. Brown; Balfour & Manson

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

25 October 2002

1. The appellant was convicted on 31 May 2001 of contraventions of section 103(1)(b) and of section 143(1) and (2) of the Road Traffic Act 1988. On 20 June 2001, he was sentenced to 10 months imprisonment. He appeals against conviction on the ground that there was no corroborated evidence that he drove a car on the date named in the charge, 14 July 2000.
2. The position in regard to evidence is summarised in the sheriff's report as follows. One police constable, P.C. Cowie, gave evidence that at 2.45 p.m. on 14 July 2000 he was alone and in plain clothes and driving an unmarked police car. He saw the appellant driving in the opposite direction towards him and identified the appellant as the driver as the vehicles passed. He also recognised the front seat passenger beside the appellant as a girl, Suzanne Waugh. He did not see anyone in the rear of the car. P.C. Cowie recognised the appellant as a disqualified driver, and was able to turn and pursue the appellant, without losing sight of his car, for five or six minutes. He also summoned assistance by radio. After the five or six minutes, the appellant's car halted in a farm entrance. P.C. Cowie drove past it and, in his rear view mirror, saw the appellant leave the driver's seat and walk towards the rear of the car. The constable stopped, reversed and returned to the position where the other car was parked. At that time the girl passenger was still in the front passenger seat and the appellant was standing at the rear of the car in the company of two other police constables who had arrived on the scene. The surrounding area was open agricultural land and P.C. Cowie did not see anyone else in the vicinity. The two constables who had arrived in response to the radio message also gave evidence that when they arrived on the scene they saw the appellant standing at the rear of the car, the girl in the front passenger seat, P.C. Cowie returning to the parked car and no one else in the vicinity, which was open countryside. These two constables arrived on the scene seconds only after the car had stopped.
3. At this point we would observe that, in our view, the evidence so far narrated was amply sufficient to entitle the jury to infer that the appellant had driven the car. There was clear evidence from the first police constable to that effect. The evidence of the other two police constables as to the circumstances which they found on their arrival was, in our view, evidence which could, without more, have been taken as sufficient, if accepted, to prove the charge.
4. After the police had arrived, the appellant was cautioned and asked who was driving the car. He first replied "I'm no telling you" and then "There was a boy driving it". When asked to identify the person, he replied "I cannae tell you". He further said that he, the appellant, had been asleep in the back seat of the car and that the driver had run away after stopping the car. He also repeated that he could not tell the identity of the driver. He later again denied that he was the driver. Subsequently, documentation was produced to demonstrate that the appellant had bought the car on 6 July 2000 and was the owner on the date in question.
5. A submission was made at the conclusion of the Crown case that there was insufficient evidence to convict. In the course of discussion of that submission reference was made to Winter v. Haywood 1995 S.C.C.R. 276. In that case, a person charged with driving while disqualified was identified as the driver on the material occasion by one witness. The appellant was the registered keeper of the car and was required to give information as to the identity of the driver at the time of the accident. He said that he had been in his house at the time and that the car was driven by a William Winter. He also told the police that his daughter sometimes drove the car. William Winter gave evidence that he had never driven the car and there was also evidence to contradict the assertion that the appellant's daughter had driven the car. There was other evidence that the car, at the material time, had been driven by a man. In giving the opinion of the court, the Lord Justice General said:

"In our opinion the reply which the appellant gave to the police officer in this case was not simply a false denial, as it was in Fisher v. Guild 1991 S.C.C.R. 308, in which the denial on its own was said to be worthless. He gave false information to the police when he was required to identify the driver. From this it may be inferred that he was deliberately seeking to avoid detection of the fact that he was the driver of the car at the time of the accident. Of course he was not to be taken, when he gave this false information, as having said anything which could be construed as an admission. Nor is this to be taken as a case of corroboration by contradiction, or by false denial as it was put by the sheriff. But in our opinion the giving of information by the appellant to the effect that someone else, whom he named, was driving the car at the time which was shown to be false by other evidence, was sufficient, when taken with the fact that he was the registered keeper of it, to corroborate the clear identification of him by the driver of the other vehicle. There is also the coincidence, as a further adminicle of evidence, that the person whom she identified as the driver, who was not previously known to her, turned out to be the registered keeper of the car when he was traced by the police. The corroboration comes from the combination of these facts and circumstances and the inference which can properly be drawn from them."

6. In the discussion before the sheriff, an attempt was made to distinguish between the circumstances of the present case and those of Winter. The sheriff rejected that. He proceeded to direct the jury, in due course, as to the necessity for corroboration and in the course of his charge directed the jury, firstly, that they must accept the eye-witness identification of the first constable and secondly that they must have another piece of corroborated evidence. What he then said was:

"The second piece of corroborated evidence only comes if you are satisfied beyond reasonable doubt that (a) the accused was telling lies when he says he was not the driver, and (b) you can infer from that beyond reasonable doubt that the accused lied to avoid being detected as the driver. If you have any reasonable doubt about either of those two legs, then you have no corroboration and if there is no corroboration you cannot convict. It is as simple as that, at least I trust it is as simple as that."

7. The only submission that was advanced in the appeal was that, as had been argued before the sheriff, there was a distinction between Winter and the present case and that the corroboration which, according to the decision of the court, was available in Winter was not available in this case. The grounds on which it was suggested that there was a distinction were, firstly, that the appellant had not actually identified a particular person as the driver of the car in his statement to the police but had only said "There was a boy": and, secondly, that in this case defence evidence had been led that the appellant was not the driver. We do not see that either of these points can be regarded as a sufficient ground for a distinction. The fact that the appellant did not give a name to the person whom he alleged to have been the driver does not seem to us to be material. His statement that "There was a boy" seems to us to be equally capable of being regarded as a deliberate attempt to avoid detection. The fact that defence evidence was led is irrelevant to the question whether the Crown evidence was sufficient. Accordingly, standing the authority of Winter, we do not think that the sheriff's direction to the jury that they could rely upon the circumstances to which he referred, if they were duly satisfied of them, can be regarded as a misdirection.
8. It has to be said, however, that none of the members of this court are happy about the use made in Winter of the false statements made by an accused as leading in some way to corroboration of evidence led by the Crown. The general rule undoubtedly is that false evidence should be discarded by a jury and that the Crown need to prove the case by acceptable evidence. If, therefore, we had been asked to refer the case of Winter for reconsideration, we would have required to think very seriously about that proposal. We were not, however, asked to make such a reference. We do not know all the reasons for that stance, but as we understand the position, the appellant's sentence has been served and, it may be, other matters have supervened. Of course the fact of a conviction is an important fact for the appellant but in the actual circumstances we do not think it right to consider whether we should, ex proprio motu, refer the decision in Winter for further consideration. That is reinforced by the fact that, as we have indicated, in our view there was ample corroborative evidence available without reliance on Winter at all. It may also be added that the decision in Winter was referred to without disapproval in another decision Sweeney v. Procurator Fiscal, Glasgow (unreported 6 July 1999). In all the circumstances, therefore, we shall simply refuse this appeal.