APPEAL COURT, HIGH COURT OF JUSTICIARY
C.G.B. Nicholson, C.B.E., Q.C.
Appeal No: XJ789/03
OPINION OF THE COURT
delivered by LADY PATON
LESLEY ANNE SCOTT
PROCURATOR FISCAL, Selkirk
Appellant: Shead; Burnett Christie
Respondent: C. H. S. MacNeill, A.D.; Crown Agent
23 September 2005
Background to the appeal On 16 December 2002, the appellant was convicted after trial of a contravention of section 5(1)(a) of the Road Traffic Act 1988. The sheriff rejected the appellant's evidence that she had consumed only two glasses of wine before driving, but a considerable quantity of wine after driving. He also rejected her evidence that she had told the police officers who arrived at her home that she had been drinking after ceasing driving.  The appellant appealed by Stated Case. It was contended on her behalf that, on the evidence, the sheriff was not entitled to convict. It was argued that (i) the only expert evidence relating to the appellant's blood-alcohol level was a report dated 29 November 2002 by Professor Mason, an expert instructed by the defence, which was supportive of the appellant's evidence; (ii) significant discrepancies in the police officers' evidence raised questions about the timing of events; and (iii) the evidence of the appellant's husband, although believed, was inexplicably dismissed as unsupportive of the appellant's case.  The sheriff found the following facts admitted or proved:
"1) The Appellant, who lives at 86 Earlston Road, Stow, has suffered from
a condition known as ME for about five or six years. From time to time she is prescribed medication for said condition. As a result of her condition and the medication which she takes, the Appellant was aware that alcohol was likely to have an increased effect upon her. The Appellant was prescribed a high dose of Cipramil, the type of medication often prescribed for her condition.
2) The Appellant's house is situated near the top of the hill coming out of
Stow on the Earlston Road. The Earlston Road is a narrow road. Normally there are vehicles parked on each side in a staggered way, which is necessary to enable vehicles to progress. Where a vehicle is parked, it is not possible for two moving vehicles to pass each other.
3) On 2nd November 2001, the Appellant at about 4.00pm drove her red
Metro motor car from her house down the Earlston Road into the village of Stow to purchase a bottle of wine. She stopped in the village and purchased a bottle of white wine. She drove back towards her house by proceeding onto the A7 and then turning left and then left again into Hay Park Loan which in turn leads on to the Earlston Road.
4) At about 4.15pm when the Appellant reached the Earlston Road
junction with Hay Park Loan she failed to comply with the 'Give Way' markings at the junction and pulled out very close to a motor car being driven down Earlston Road by Mr Nicholson, a retired police officer. Mr Nicholson required to brake severely to avoid a collision. The Appellant's car completed the turn to its right from the side road and stopped momentarily beside Mr Nicholson's car. Mr Nicholson formed the view that the driver of the car thought the near collision was Mr Nicholson's fault. The car behind Mr Nicholson had also had to stop suddenly. Mr Nicholson got out to speak to the driver of that car. The Appellant, whose car had pulled out in front of Mr Nicholson, then drove up the hill and was seen to drive erratically, including mounting the kerb of the right hand side as it went on up the road.
5) Mr Nicholson formed the view that the driver of the car was under the
influence of alcohol and proceeded down into the village and telephoned the police from a call box. He made this call at about 4.15pm.
6) As a result of the information supplied by Mr Nicholson the police
(Constable Welsh and Constable Hazle) traced the car to the Appellant's address and arrived close to her house at about 1640 hours. They saw the car in question parked in Earlston Road. The bonnet was still warm, indicating it had been driven recently.
7) At about 1645 hours the two police officers, having obtained
confirmation that the Appellant was the driver of the car, required her to take a breath test which she did, the breath test proving positive. Thereafter the Appellant was told she was under arrest and was taken to Galashiels Police Station where the drink driving procedure was completed at 1805 hours. The lower reading was 107 micrograms of alcohol in 100 millilitres of breath.
8) When the police arrived at the Appellant's house and she answered the
door, they formed the view that she was clearly substantially under the influence of alcohol and was drunk.
9) After the Appellant had provided a positive breath test she was asked
when she had last had any alcohol to drink. She said that she had had two glasses of white wine at lunch time. She made no mention of having drunk any alcohol since lunch time and, in particular, made no mention of having drunk any alcohol during the period between her return to her house at about 4.15pm and the arrival of the police at about 4.45pm.
10) Neither police officer recalled seeing a half empty glass of wine in the
Appellant's living room. One police officer thought there might have been an empty wine bottle close to the fire.
11) After the completion of the drink driving procedure, when the
Appellant was cautioned and charged, she replied that she had ME and was on medication which interacts with alcohol and repeated that she had only had two glasses of white wine at lunch time. She made no mention of having consumed substantial quantities of wine in the half hour between her return to her house and the arrival of the police.
12) When the Appellant's husband, Mr George Rawlings, returned to the
house between 6.00pm and 6.15pm on the day in question he saw a bottle with a funnel in the neck with no more than one glass of white wine inside it and what appeared to be white wine spilt on the worktop on which the bottle was standing. He also saw a half empty wine glass in the living room on the table.
13) There was no evidence that any other persons had entered the house at
86 Earlston Road between the departure of the Appellant with the police officers and the arrival of her husband, George Rawlings. George Rawlings confirmed that the bottle in which a funnel was placed was a bottle that he knew was present in the house before his departure from work that day and that the bottle had contained more liquid than appeared to be present when he saw it with the funnel in it.
14) The distance from the village of Stow to Galashiels is approximately 8
miles and in making the journey from the Appellant's house at Earlston Road, Stow, to Galashiels Police Station, the officers may have travelled at an approximate average speed of 50mph. The officers arrived at Galashiels Police Station shortly before commencing the drink driving procedure at 1754 hours. Galashiels Police Station is located on the Stow side of the town of Galashiels.
15) Defence production no. 1 was a report prepared by Professor J K
Mason of the University of Edinburgh, confirming the correlation between the appellant's stated consumption of alcohol and her stated times of consumption against the Intoximeter reading. Professor Mason stated the correlation is a 'remarkably good correlation' and the calculation of Professor Mason in arriving at the correlation is based not only on the amount of alcohol the Appellant states she consumed, but the times she states that that alcohol was consumed.
16) The neither the Appellant or Mr George Rawlings has any previous
"It is clear that shortly before 6.00pm the intoximeter measured the level of alcohol in the Appellant's breath at approximately three times the statutory maximum. It is admitted that the Appellant was driving her motor vehicle at 4.15pm in Earlston Road, Stow. There is, therefore, a presumption that the level of alcohol found by the intoximeter is the level of alcohol the Appellant had when driving. (Section 15(2) Road Traffic Offenders Act, 1988) That presumption can be rebutted by evidence which establishes on the balance of probability that that was not the case. (Section 15(3) Road Traffic Offenders Act, 1988) In this case the Appellant sought to persuade me that the level of alcohol found by the intoximeter was, to a very large extent due to the amount of wine she had drunk between the time she returned home at 4.15pm and the time the police arrived at 4.45pm. The only direct evidence relating to the amount of alcohol consumed by the Appellant during this half hour period is her own. She claimed in evidence that having drunk two fairly large glasses of wine at lunch time totalling approximately 30cl she decided about 4.00pm, some 21/2 hours after she had drunk the two glasses at lunch time, to go down to the local shop to buy a bottle of white wine. She claimed that she intended to replace in the bottle she had emptied at lunch time the amount that she had drunk at lunch time so that her husband would not know that she had been drinking wine. She said that he would disapprove because she ought not to drink wine, particularly on an empty stomach, because of her ME condition and associated medication. The Appellant claimed that having bought her bottle of wine she returned home and poured approximately two glasses into the bottle she had emptied at lunch time using a funnel. She then wondered what to do with the approximate 3/5 of a bottle of wine remaining in the new bottle, so she drank it. She thought it was probably before then that she had also drunk the remains of a bottle of red wine amounting to one glass. Her evidence was somewhat confused as to how much, if any, she drank from the bottle into which she had poured two glasses through a funnel. All of this, the Appellant would have me believe, took place within a period of not more than half an hour, during which time she also lit the fire in her house.
I was wholly unconvinced by the way the Appellant gave her evidence and became even more unconvinced when her evidence is compared to that of the other witnesses in the case."
"In the application for a stated case stress is laid upon the unchallenged evidence of the Appellant's husband, Mr Rawlings. In my view that does not assist the Appellant in any way. All that Mr Rawlings said was that when he got home at about 6.00pm - 6.15pm he saw a half glass of wine on the table; the fire was burning brightly; in the kitchen was a bottle with a funnel in the neck which contained not more than a glass of wine; some wine had been spilt on the top. It appeared to be white wine that had been spilt. In my view that evidence did nothing to assist the Appellant establish that she had drunk substantial quantities of wine after she returned home. Indeed the fact that some wine had been spilt, apparently when trying to put some into the bottle with a funnel in its neck, suggests that when she was doing that she was under the influence of alcohol."
" I have been asked by Messrs Burnett Christie of Edinburgh to prepare a report on Ms Scott's alcoholic intake as related to a vehicular incident. In making my calculations, I have relied in large measure on the Tables supplied by the British Medical Association in 1960. These Tables, admittedly, refer to a theoretical situation but they are as good as any available and they have been widely used in and accepted by the Court. Moreover, they have judicial approval (R v. Somers  3 All ER 808). There are, however, some things which we cannot know in a biological situation. In particular, we do not know how the accused absorbs alcohol, nor do we know how she metabolises it (breaks it down in the body); for that latter purpose I have used the generally accepted most likely value of 6.5 ug alcohol/100 ml breath/hour.
My calculations and conclusions follow the methodology I have published previously (see now Wheatley's Road Traffic Law in Scotland (3rd ed., 2000) Appendix E).
The circumstances as I am instructed were that, starting at 1330 on 2nd November 2001, Ms Scott drank 300 ml (10.6 fl oz) white wine which, in the absence of positive information, I have assumed to have been 11.5% alcohol v/v. She was involved in a road traffic incident at 1615. She began to drink almost immediately and, between then and about 1715 when the police arrived, drank a 150 ml (5.3 fl oz) glass of red wine (assumed to be 12% alcohol v/v) and 3/4 bottle of wine (562 ml = 19.8 fl oz, assumed 11.5% alcohol v/v). A definitive breathanalysis taken at 1800 gave a reading of 107 ug alcohol/100 ml.
Ms Scott's weight is given as 123 lbs. A correction factor of 1.25 has, therefore, been used when reading the tables."
After a section containing his calculations, the professor continued:
Assuming the facts to have been as stated, the calculations indicate that, had Ms Scott not drunk after the incident, her breath alcohol level would not have exceeded the prescribed limit. The conditions of Road Traffic Offenders Act 1988, s.15(3)(b) are, therefore, satisfied.
Following the ingestion of the post-incident drink, the pre-incident would have been metabolised for 1.25 hours at a differential rate of 6.5 x 19/107 = a further 1 ug giving a net contribution to the Intoximeter result of 18 ug.
It will then be seen that the observed result differs from the calculated result by 107 - (18 + 81) = 8 ug. Taking all things into consideration, this is a remarkably good correlation and could be taken as supporting evidence that we are in the right area."
We have assumed that the first question was intended to refer to section 15(3) of the Road Traffic Offenders Act 1988.
Relevant legislation Section 5 of the Road Traffic Act 1988 provides:
"5.-(1) If a person -
(a) drives or attempts to drive a motor vehicle on a road or other
public place ...
after consuming so much alcohol that the proportion of it in his breath, blood or urine exceeds the prescribed limit he is guilty of an offence."
Section 15 of the Road Traffic Offenders Act 1988 provides, inter alia:
" (2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by the accused shall, in all cases, be taken into account and, subject to subsection (3) below, it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen.
(3) If the proceedings are for an offence under section 5 of [the Road Traffic Act 1988] ... that assumption shall not be made if the accused proves-
(a) that he consumed alcohol after he had ceased to drive, attempt
to drive or be in charge of a motor vehicle on a road or other public place and before he provided the specimen, and
(b) that had he not done so the proportion of alcohol in his breath,
blood or urine would not have exceeded the prescribed
limit ... "
Submissions for the appellant
 Counsel for the appellant accepted that the onus of establishing the statutory defence in terms of section 15(3) lay upon the appellant. Professor Mason had been instructed on the appellant's behalf to provide a report about blood-alcohol level against the background of her description of events. The professor had not given evidence in court. His report had been agreed by a Joint Minute, which provided inter alia that "...said report is true and accurate in terms of its calculations and conclusions [and] that the report is based on facts and information provided to Professor Mason by the [appellant]". Counsel submitted that the sheriff had failed properly to analyse that expert evidence, or to indicate what significance he attached to it. Reference was made to finding-in-fact 15. It was accepted that the report proceeded upon the assumption that the appellant's evidence was correct. But the expert's conclusion was highly significant. It could not be assumed that the calculations based on the appellant's evidence (involving two glasses of wine before driving, a considerable quantity of wine after driving, the appellant's weight and sex, and the passage of a certain period of time) would necessarily result in a blood-alcohol level equivalent to that displayed on the intoximeter. The fact that the calculations based on the pursuer's version of events bore such a close correlation to the actual blood-alcohol level recorded on the intoximeter added an extra dimension to the case. The probative value of the report went beyond the assumption that everything which the appellant said was true.  Counsel accepted that the sheriff had disbelieved the appellant's evidence that she had told the police officers about consuming a large quantity of wine after driving, preferring the evidence of the officers (to the effect that she had made no mention of drinking wine after driving). However the crucial question was: how could the appellant have known to give a version of events which, on the professor's calculations, resulted in a blood-alcohol level very close to the intoximeter reading. It was notoriously difficult to guess at an explanation of events which matched an intoximeter reading.  Counsel then pointed out that there were curious features about the timing of events. The intoximeter test began at 17.54 p.m., said to be shortly after the police arrived at the station. But the police officers seemed to differ in their evidence about the length of time it took to drive the appellant from her home to the police station. That was not an incidental discrepancy, but went to the heart of the defence, for the appellant's position was that she had been in her house drinking wine for a considerable time before the police arrived at some time between 5 p.m. and 5.30 p.m.. The sheriff had disbelieved her without resolving the discrepancy in evidence between the officers. The sheriff had by implication accepted one officer as credible, and not the other, without giving any explanation.
Supplementary report from the sheriff
 At that stage in the appeal hearing, the court requested a supplementary report from the sheriff. It was agreed that questions would be formulated by defence counsel in consultation with the Advocate Depute and the clerk of court. Those questions were as follows:
I did not reject the expert evidence of Professor Mason. Parties had entered into a joint minute stating, amongst other things, that Professor Mason's report 'is true and accurate in terms of its calculations and conclusions' and that the report is based on facts and information provided to Professor Mason by the Appellant. In his report Professor Mason makes it clear that he proceeds upon the assumption that the facts stated to him which are set out in his report are correct. ... [After giving further details relating to the content of the professor's report, the sheriff continued:] Professor Mason makes it clear that he has to make assumptions, for example, about the rate of absorption and other matters of that kind as set out in his report and concludes that 'taking all things into consideration, this is a remarkably good correlation and could be taken as supporting evidence that we are in the right area'.
If the Appellant had established on the balance of probabilities that she had drunk after the incident at 1615 hours approximately the amounts of alcohol she claimed to have drunk then clearly Professor Mason's report would establish that drinking that amount of alcohol after the incident was consistent with the intoximeter reading obtained about 6.00pm. What Professor Mason does not do, however, is to say that drinking the better part in total of a bottle of wine in the period immediately after 1615 hours is the only way in which the unchallenged intoximeter reading of 107 could be obtained. It is clear from what Professor Mason says in the body of his report and also from common experience that a particular result of an intoximeter test could be accounted for in a number of ways. It can be accounted for by drinking some hours before the intoximeter test. Indeed it is not uncommon for people to have substantial readings 12 hours or so after they stop drinking. It is clear from Professor Mason's report that after the alcohol has been absorbed into the system, it is gradually reduced but the rate of reduction is relatively slow. Professor Mason was not asked to express a view as to whether the accepted intoximeter reading of 107 could have been the result of a substantial quantity of alcohol being consumed before 1615 hours. It seems plain to me, both from the terms of Professor Mason's report and from the other matters to which I have referred, that the reading of 107 is quite consistent with a substantial quantity of alcohol having been taken before 1615 hours when the incident to which Mr Nicholson speaks occurred. ...
The two police officers who went to the house were Constable Welsh, who was the reporting officer, and Constable Hazle. Both officers spoke to receiving a call at, they thought, about 4.00pm, to go to the Appellant's house and investigate an alleged drunk driving incident. Constable Welsh said that at the time they were on uniform patrol. He was not asked and did not say whereabouts they were. Constable Hazle said that he didn't remember where they were when they got the call. Constable Welsh said they arrived outside the Appellant's house about 1640 hours, Constable Hazle thought they arrived about 1630 hours. ... I saw no reason to doubt the evidence given by the two police officers regarding the time they arrived outside the house (1440 [sic] hours), the time they entered the house (about 1445 [sic] hours) or what happened in the house.
Neither police officer was asked the time that they left the house with the Appellant after arresting her. They were not asked how long the journey in fact took to Galashiels Police Office. Constable Welsh estimated the distance at about five miles, whereas Constable Hazle thought it was seven to eight miles. There was no evidence about the time of arrival at Galashiels Police Office. There was evidence to the effect that the 'booking in' procedure took about 20 minutes. There was also evidence from Constable Welsh that he had forgotten his code for getting access to enable him to operate the intoximeter machine and there was some delay while he got a new code number for that purpose. It is clear from the agreed production 1 for the Crown that the start time of the actual procedure was 1754 hours.
There were a number of discrepancies between the evidence of the two principal police witnesses, Constables Welsh and Hazle. ... [The sheriff then listed nine discrepancies. For present purposes, the most relevant were the following:]
1) Constable Welsh thought they arrived outside the Appellant's house at 1640 hours, Constable Hazle put it at 'about 1630 hours'. ...
4) Constable Welsh thought that they were inside the Appellant's house for about 20 minutes altogether. Constable Hazle thought it took about five minutes after the breath test had been completed before leaving the house, but he went on to say that he got the impression the Appellant was trying to delay leaving. She appeared to be worried about the fire, which was burning. ...
6) As already noted, Constable Welsh thought it was about five miles from Stow to Galashiels, whereas Constable Hazle thought it was between seven and eight miles. ...
9) Constable Hazle said the road to Galashiels was busy. Constable Welsh did not give any evidence on this point.
In all other respects the evidence of the two officers was fully compatible one with another. At the time of the trial I did not take the view that such differences as there were in their accounts of what happened were significant. From the way they gave their evidence I saw no reason not to accept it."
Continued submissions for the appellant
 At a continued appeal hearing, counsel for the appellant submitted that the supplementary report did not address the issue of the professor's evidence. The expert's evidence amounted to more than the standard expert evidence in this area (namely, that the reading would have been at a certain level if the appellant's version of events were to be accepted). The professor's evidence - that there was a good correlation between the calculation based on the appellant's version of events and the actual intoximeter reading - stood independently of the appellant's evidence. Against that background, the sheriff's approach could not withstand scrutiny. The sheriff stated that he did not reject the professor's report: if that were the case, the decision should be in the appellant's favour. At page 3 of his supplementary report, the sheriff noted that the professor did not "say that drinking the better part in total of a bottle of wine in the period immediately after 16.15 hours is the only way [italics added] in which the unchallenged intoximeter reading of 107 could be obtained". But the professor's evidence had been agreed by Joint Minute, and was unchallenged. Accordingly the sheriff's approach inverted matters, and was unsupportable.  Furthermore, the sheriff's analysis of the evidence of Mr. Rawlings (the appellant's husband) was unsatisfactory. Reference was made to finding-in-fact 12 and page 10 of the Stated Case. Mr. Rawlings' evidence supported the appellant. Insufficient reasons were given by the sheriff for finding no support for the appellant's case in Mr. Rawlings' evidence.  In relation to the timing of events, and the discrepancies in the police evidence, the sheriff's view was that those discrepancies were insignificant. However counsel submitted that the discrepancies were significant.  The appellant's position could be summarised as follows:
Submissions for the Crown
 The Advocate Depute invited the court to refuse the appeal. There was adequate evidence providing a foundation for the sheriff's decision. The sheriff was obliged in terms of section 15(2) of the Road Traffic Offenders Act 1988 to assume that the blood-alcohol level found on testing was the level at the time the appellant was driving, unless there was evidence, on a balance of probabilities, to the contrary. What had weighed with the sheriff was, first, the appellant's failure to tell the police officers that she had consumed a considerable amount of alcohol after stopping driving; and secondly, the manner of the appellant's driving (described at pages 8 and 9 of the Stated Case). The sheriff had rejected the appellant's evidence, and he was entitled to do so. Professor Mason had not said that the appellant's version of events was the only explanation for a blood-alcohol reading of the level in question. He noted that there was a "remarkable correlation" between the pursuer's version of events and the test reading - but he did not exclude other explanations. The appeal should be refused.
 With the exception of facts agreed upon by the Crown and the defence (which the sheriff was bound to accept), the sheriff was entitled to form views about the credibility and reliability of the witnesses whose evidence he heard, and to accept evidence or reject evidence. The sheriff found the appellant incredible and unreliable, for the reasons he gives. He was entitled to do so. Professor Mason's report did not in our opinion preclude the sheriff from forming such a view of the appellant. In that report the professor, relying upon the appellant's version of events, calculated a reading of 99, which he regarded as a "remarkably good correlation" with the actual reading of 107, and as such, a reading which "could be taken as supporting evidence that we are in the right area". But the report did not state that the only way in which a blood-alcohol level of 107 could be achieved was the sequence of events described by the appellant. Nor was such an issue explored with the professor in evidence, as his report had been agreed by Joint Minute and he did not give evidence. In these circumstances, the weight to be attached to the professor's report was very much a matter for the sheriff. Against that background, the sheriff cannot in our view be criticised for finding the complaining driver Mr. Nicholson, and the police officers, credible and reliable; giving considerable weight to Mr. Nicholson's evidence about the erratic way in which the appellant was seen to be driving; preferring the police officers' evidence that the appellant did not mention having consumed a considerable quantity of wine after returning home; and ultimately rejecting the appellant's version of events.  In relation to evidence about timings and the significance of that evidence in the context of the appellant's assertion that she was drinking at home for a considerable period, we are unable to accept defence counsel's submissions. It was not disputed (at either the trial or the appeal) that the appellant was driving her car at 4.15 p.m.: see the second sentence of the sheriff's note following upon finding-in-fact 16 in the Stated Case: "It is admitted that the appellant was driving her motor vehicle at 4.15 p.m. in Earlston Road, Stow". In relation to the subsequent time of arrival of police officers at her home, the sheriff was entitled to refuse to accept the appellant's contention that police officers arrived at some time between 5.00 p.m. and 5.30 p.m. (noted as about 5.15 p.m. in Professor Mason's report). The sheriff was entitled to prefer the evidence of the police officers. One police officer, P.C. Welsh, spoke of arriving outside the appellant's home at 16.40 p.m., while his colleague, P.C. Hazle, spoke of arriving there at "about 16.30 hours". Allowing five minutes for the process of entering the appellant's house, the sheriff concluded that the police officers were inside her house at 16.45 p.m. (per incuriam referred to in the sheriff's supplementary report as 14.45 hours). The discrepancy between the officers' evidence (arrival at 16.40 or "about 16.30") was not in our view significant, and the sheriff's conclusion, namely that the police officers were in the appellant's home at 16.45 p.m., was, on the evidence which he accepted, entirely justified.  In relation to the time of departure from the appellant's house, it appears from the sheriff's supplementary report that neither officer was asked about the time of departure, nor were they asked how long the journey to the police station took. There was no evidence about the time of arrival at the police station. There was however evidence that the "booking in" procedure took about twenty minutes, and that Constable Welsh had forgotten his code for obtaining access to operate the intoximeter machine, causing further delay in the commencement of the intoximeter test. In the result it cannot in our view be suggested that there were significant discrepancies or inexplicable lacunae in the police officers' evidence relating to departure times, journey times, or police station procedure times such that the officers' evidence became unacceptable, or that the appellant's evidence must be preferred.  In relation to the evidence of Mr. Rawlings, the sheriff was in our view entitled to find Mr. Rawlings credible and reliable, but to conclude that his evidence did not assist the appellant. The picture presented by Mr. Rawlings (namely seeing one wine bottle containing liquid at a level lower than he had previously noted; a funnel in the neck of the bottle; traces of what appeared to be white wine spilt on the work-top on which the bottle was standing; and a single half-empty wine glass in the living-room, all as set out in findings-in-fact 12 and 13) could be open to several interpretations, not necessarily supportive of the appellant's version of events.  In the result, the sheriff cannot in our view be criticised for concluding that the appellant failed to discharge the onus resting upon her in terms of section 5(2) of the Road Traffic Act 1988. His reasons are sufficiently set out in the Stated Case and the supplementary report: cf. Petrovich v. Jessop, 1990 S.C.C.R. 1. We accordingly answer both questions in the Stated Case in the affirmative, and refuse the appeal.