Appellant:  A Edwards AD;  Crown Agent

Respondent:  I Paterson, Sol Adv;  Scullion Criminal Law, Hamilton

11 June 2014

[1]        The respondent faced a charge of stealing a sum of money from a kitchen drawer in a family home in East Kilbride on 26 June 2013.  Having heard evidence the sheriff sustained a submission of “no case to answer”.  The Crown appealed. 

[2]        In the stated case the sheriff narrates the evidence, and poses four questions:

1.   On the basis of the evidence, was there corroboration of money being within the drawer in the kitchen of the family home in East Kilbride which could have been stolen? 

2.   Was it necessary for there to be two direct sources of evidence to prove that money was in the drawer which could have been stolen? 

3.   Was there evidence available to me from two sources that the accused had removed sums of money from that drawer? 

4.   Was I entitled to uphold the submission of no case to answer?

[3]        The respondent is a carer.  On 26 June 2013 she attended the family home in East Kilbride along with another carer, I McG.  The reason for their visit was to assist Mrs X who suffers from multiple sclerosis. 

[4]        The evidence led against the respondent comprised two witnesses, Mr X and I McG, and a joint minute.  We summarise that evidence (as noted in the stated case) as follows.

[5]        Mr X gave evidence that he had noticed money disappearing from the kitchen drawer which contained mobile phone‑chargers, sunglasses, other items, and money.  He placed a spy pen on a microwave opposite the drawer.  In the presence of his daughter, he counted and placed money in the drawer.  He and his daughter left the house at 10.25 am.  The carers arrived at about 10.30 am, and left after about one and a half hours.  Mr X returned at 11.55 am and, on checking the drawer found that £60 was missing.  Video footage from the spy pen showed the respondent opening the drawer in question, removing items on two separate occasions and placing something in her pocket. 

[6]        I McG was shown the video footage.  She confirmed that the kitchen was the kitchen of Mr and Mrs X, and that the person appearing on the video was the respondent.  She also indicated that the respondent had no reason to go into that particular drawer, as cutlery was kept in a drawer on the opposite side. 

[7]        The joint minute agreed that the video recording from the spy pen was a true and accurate recording of the digital footage captured on 26 June 2013 at the family home in East Kilbride. 

[8]        In our opinion, Mr X’s evidence that there was money in the drawer, and that some of that money was missing on his return at 11.55 am, required to be corroborated.  Corroboration might have taken the form of supporting evidence from his daughter.  But no such corroborative evidence was lead.  On that basis alone, particularly bearing in mind the authorities - McDonald v Heron 1966 SLT 61 and Stewart v Hamilton 1996 SCCR 494 - there was no corroboration of an essential fact in the circumstances of this case. 

[9]        The advocate depute sought to persuade us that it was open to the sheriff, when considering the “no case to answer” submission, to form his own view about what he had seen when he watched the video, and what conclusions he could draw from that.  We note that no such submission was made to the sheriff by the Crown during the case.  Also the Crown did not seek to make any adjustment to that effect to the stated case (which would have enabled the sheriff to comment on the issue).  Accordingly, we are not prepared to entertain that Crown submission. 

[10]      In our view, question 2 in the stated case is unfortunately phrased.  It suggests that it is necessary to have two “direct” sources of evidence, whereas it is not always necessary to have two “direct” sources of evidence to the commission of a crime.  For that reason, we shall not answer the sheriff’s second question.  But in relation to the remaining questions, we answer these as follows: (1) no, (3) no, and (4) yes.  As a result we refuse the Crown appeal.