Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2015] HCJAC 33

HCA/2014-004995-XJ

Lord Brodie

Lord Bracadale

Lady Cosgrove

OPINION OF THE COURT

delivered by LORD BRODIE

in

STATED CASE AGAINST CONVICTION

by

LUKE PAUL GRAY

Appellant;

against

PROCURATOR FISCAL, AIRDRIE

Respondent:

Appellant:  F McIntosh; John Pryde & Co (for O’Curry Criminal Defence, Airdrie)

Respondent:  A Edwards AD; Crown Agent

10 March 2015

[1]        The appellant , Luke Paul Gray was convicted after trial before the sheriff at Airdrie on 24 November 2014 of a charge in the following terms:

“On 12 October 2013 on a road or other public place namely Monklands District General Hospital, Monks Court Avenue, Airdrie you Luke Paul Gray did drive a motor vehicle namely motor Vauxhall Astra registered number SJ07 JWK after consuming so much alcohol that the proportion of it in your breath was 62mgs of alcohol in 100mls of breath which exceeded the prescribed limit namely 35mgs of alcohol in 100mls of breath;  Contrary to the Road Traffic Act 1988, section 5(1)(a).”

[2]        At trial the Crown led the evidence of a nurse at the hospital and two police officers.  At the close of the Crown case the defence solicitor made a submission of no case to answer in terms of section 160 of the Criminal Procedure (Scotland) Act 1995.  The sheriff repelled that submission.  The appellant thereafter did not lead any evidence.

[3]        The sheriff made the findings in fact which are set out at pages 11 and 12 of the stated case and having made these findings in fact, she convicted the appellant.  The findings in fact are as follows:

“1.       At about 7.05am on 12 October 2013 Staff Nurse G called the police to Monklands District General Hospital, Monkscourt Avenue, Airdrie in relation to the Appellant.  Staff Nurse G suspected the Appellant of driving to the hospital whilst under the influence of alcohol or drugs.

2.         Staff Nurse G first saw the Appellant at Accident and Emergency reception in the early hours of that morning.  The appellant had attended the hospital with a girl.  She was in a wheel chair.  Staff Nurse G went through the admission process.  The girl appeared to be under the influence of drugs.  She was incapable of looking after herself.

3.         The Appellant told Staff Nurse G that he had been taking drugs and drinking.  The Appellant admitted to Staff Nurse G that he had driven to the hospital.

4.         Staff Nurse G saw that the Appellant had car keys in his hand.

5.         The police arrived at the hospital at about 7.10am that morning.  Staff Nurse G pointed out the Appellant to them, and told them of her suspicions.

6.         The Appellant was standing at the entrance to the Accident and Emergency Unit.  The police approached him.  He was asked a question to which he made a reply.

7.         As soon as he had replied the Appellant was cautioned at common law.  He said repeatedly ‘I know.  I shouldn’t have”.

8.         There was a smell of alcohol from the Appellant.  He was anxious, agitated and slurred his words.

9.         The police asked the Appellant where his car was.  The Appellant indicated a Silver Vauxhall Astra.  It was on the road, parked very close to the entrance to the Accident and Emergency Unit.  The Appellant produced the car keys for the car from his pocket.

10        The Appellant was required in terms of section 712 of the Road Traffic Act 1988 to provide the name of the driver of the car.  He replied ‘I was driving the car’.  The roadside breath test was administered, which the Appellant failed.  He was arrested.  He was taken to Coatbridge Police Office.  He complied with the intoximeter procedure.  At about 7.59 that morning he was found to have 62 microgrammes of alcohol per 100 millilitres of breath in his body.  He was cautioned and charged with a contravention of section 5(1)(a) of the said Act,.  He made no reply.

11.       On 12 October 2013 the Appellant was driving on Monkscourt Avenue, Airdrie outside Monklands District General Hospital whilst over the prescribed drink driving limit contrary to section 5(1)(a) of the Road Traffic Act 1988.  The proportion of alcohol in his body was at least 62 microgrammes of alcohol in 100 millilitres of breath.”

[4]        The appellant now appeals his conviction by way of stated case.  No appeal is taken against sentence.  There are four questions stated by the sheriff for the opinion of the court:  (1) on the evidence led for Crown, was I entitled to make findings in fact 7 to 10 inclusive;  (2) on the evidence led for the Crown, was I entitled to repel the submission of no case to answer in respect of the charge;  (3) on the facts stated, was I entitled to make finding in fact 11;  (4) on the facts stated, was I entitled to convict the appellant?

[5]        Mr McIntosh appeared for the appellant.  As had been foreshadowed in his opinion lodged with an application to the second sift, the issue in the appeal was whether the evidence led by the Crown was sufficient to corroborate an essential part of its probandum, that is that the appellant had been driving on Monks Court Avenue, Airdrie outside Monklands Hospital on the date in question.  In opening the appeal before us, Mr McIntosh explained that while he took no issue with findings in fact 7 and 8 or 10, he did take issue with finding in fact 9 to the extent of the words “for the car” where they appear in the final sentence of that finding in fact.  It was Mr McIntosh’s submission that question one and the other three questions should be answered in the negative.

[6]        Mr McIntosh recognised that given the appellant’s answer to a question put to him in terms of section 172(2)(b) of the Road Traffic Act 1988 as recorded in finding in fact 10, the court might wonder where was the miscarriage of justice in the appellant being convicted in the terms that he was.  Mr McIntosh nevertheless stressed that the rule that essential facts require to be corroborated remained an important aspect of Scots law and he drew our attention to what was said by Lord Hope on that matter in Stott v Brown 2001 SCCR 62.  Notwithstanding an answer such as is recorded in finding in fact 10, it remained necessary for the Crown to corroborate the fact that the appellant had been driving a motor vehicle in the identified public place.  It was Mr McIntosh’s submission that there was no independent corroboration of the essential fact of driving.  All the relevant evidence had come from the appellant.  In the circumstances he should therefore have been acquitted.

[7]        In reply the advocate depute invited the court to refuse the appeal by answering all the questions in the affirmative.  The appellant had made an admission as to having been driving the car.  He had pointed out a vehicle which he said was his car.  In these circumstances very little was required by way of corroboration and the advocate depute drew our attention to the case of Elphinstone v Richardson 2012 SCCR 418 as an indication of that.  The appellant had been seen to have car keys by both the police officers and the nurse.  He had brought a seriously intoxicated woman to hospital.  The car that he had pointed out was parked in a position which was consistent with him having driven that woman to the hospital.

[8]        Having considered the submission on the one hand by Mr McIntosh and on the other by the advocate depute, we have come to the conclusion that while the evidence corroborating the appellant’s admission may not have been very substantial, it was sufficient to allow a conviction in the terms of the charge.  As the advocate depute had submitted, given the terms of the admission made by the appellant in response to the section 172 request, little more was required to establish his guilt.  What there was, in our view, fell within two categories.  The first category comprises the circumstances which related to the vehicle, that is the silver Vauxhall Astra pointed out by the appellant.  The appellant was seen to have car keys in his possession, firstly by the nurse who encountered him in the Accident and Emergency Department and secondly, by the police officers to whom he produced the keys when he pointed out what, according to the appellant was his car.  We accept that the information that the car was the car that he had driven, came from the appellant but there was a car near the entrance and the appellant produced keys which he said were the keys to that car.

[9]        The second category of evidence comprises the facts associated with the woman with whom the appellant was seen to be by the nurse in the Accident and Emergency Department.  The woman was clearly in an incapable condition.  She was described by the nurse as “not in a good state, she was hanging off the edge of the chair”.  It may be inferred that the woman would have been unable either to drive herself or to walk to the hospital.  The appellant had apparently placed her in the wheelchair.  The car, as we have already indicated, was parked close to the entrance to the Accident and Emergency Department.  That is consistent with the appellant having brought a woman who was unable to make her own way without assistance to the Accident and Emergency Department.

[10]      We therefore see this case as capable of being distinguished from the case Douglas v Pirrie 1975 JC 61 to which Mr McIntosh drew our attention.  The court will answer the four questions appended to the stated case in the affirmative.  The appeal is  accordingly refused.

Aud