Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY

[2016] HCJAC 20

HCA/2015/3426/XJ

Lord Justice General

Lord Brodie

Lord Drummond Young

OPINION OF THE COURT

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

in

SUMMARY STATED CASE AGAINST CONVICTION

by

ANDREW McCRAW

Appellant;

against

PROCURATOR FISCAL, ABERDEEN

Respondent:

Appellant: MC Mackenzie; Faculty Services Limited (for George Mathers & Co, Aberdeen)

Respondent:  Prentice QC (sol adv) AD; the Crown Agent

12 February 2016

Introduction
[1]        On 16 June 2015, at the Sheriff Court in Aberdeen, the appellant was convicted on a summary complaint libelling a charge that:

“between 15 December 2012 and 31 May 2013 ... at Swire Oilfield Services ... Aberdeen you ... did while employed as a sales executive ... embezzle money to the value of £8,334.80.”

Sentence was deferred to allow the appellant time to make restitution.  The case is due to call again on 8 March 2016. 

[2]        The evidence for the Crown came from two employees of Swire Oilfield Services.  The first was Tracey Garden, who was the Human Resources Manager.  She said that the appellant had been employed as a Key Account Manager.  His role had been to maintain and build relationships with existing customers.  He was to meet them monthly to seek new orders and to track the company’s performance.  Most of the customers were in Aberdeen, although one was in Holland and another in Heysham.  The appellant was provided with a credit card for expenses in connection with his employment.  If the card was used without prior approval, the appellant would require to submit appropriate vouchers in due course.

[3]        In the Spring 2013, Miss Garden attended a meeting at which the appellant was given a period of time in which to explain certain unauthorised expenditure.  Miss Garden spoke to a spreadsheet, which contained expenditure including: a London hotel bill for £451.80, being a reservation for two people; a cash withdrawal of £100 on the following day; a further cash withdrawal on 4 February of £1,000; further sums of money withdrawn on the same day in Aberdeen; another London hotel bill; three withdrawals of £300 on 8 February and one for £392.04 on the following day; £2,900 withdrawn in cash on 5 March and, between then and 7 March, withdrawals of a further £2,989.  There was also a booking of 9 rooms at Jury’s Hotel in Newcastle made for 27 December, which involved £963.90 being charged to the company, although that booking was subsequently cancelled and the money refunded.  On 2 May 2013 the appellant’s employment with the company was terminated. 

[4]        The appellant informed Miss Garden that he had had trouble with his brother-in-law and needed some £10,000 to pay him what was essentially blackmail.  He stated that he was using company money to do this. 

[5]        The second witness was Sarah Davie, the Commercial Director.  She described the appellant as an Account Manager, whose role was to develop relationships with existing and potential customers.  It was his function to go to the customers or to invite them to attend the company’s premises.  The furthest he went was Holland, although he had gone once to London perhaps for an exhibition.  Miss Davie spoke to the appellant being given a credit card.  She was the person from whom authority ought to have been obtained for expenditure of an unusual nature.  Accommodation bookings were not normal.  There was a £50 limit in relation to gifts, and £250 as an aggregate maximum in any one year.  Miss Davie became very concerned about the appellant’s performance and the amount of time he was spending out of the office.  Once the matter of his performance was investigated, other things cropped up about his expenditure.  The appellant had told her of a family problem involving his sister’s ex-partner blackmailing him.  Miss Davie had been concerned that the appellant had problems, such as gambling, since there were no receipts available for the money which had been withdrawn.  She spoke to the same withdrawals as Miss Garden. 

[6]        In due course the appellant gave evidence, but his explanations were disbelieved by the sheriff.  It is not contended that that decision on credibility was one which was not open to him. 

[7]        At the conclusion of the Crown case a motion was made that there was no case to answer.  Under reference to Moore v HM Advocate 2010 SCCR 451 and the City of Glasgow Bank case (1879) 4 Cooper 161, the sheriff was reminded that the Crown had to establish a number of factors, notably that the appellant had appropriated monies for his own purposes and that he had done so dishonestly.  The sheriff repelled that submission.  He went on to make certain findings in fact, having convicted the appellant in terms of the libel.  These facts included that the appellant was reckless in the use of the company credit card and that he had said that he had been under financial pressure relative to the demands of his brother-in-law.  It was not clear what the sheriff made of what the appellant had said about being blackmailed.  He made no finding that the cash withdrawals were to pay the blackmailer.

[8]        What the sheriff did not do was make a specific finding in fact in relation to the dishonest appropriation of the funds.  However, in his Note to the Stated Case, he reported that:

“In my view, in the absence of any bona fide explanation which is acceptable to the court, it is quite open in a case of this kind for a dishonest intent to be inferred from the actings of the accused person.  I was unable to accept that the reason for the large withdrawals in cash, in particular, via the use of the credit card facility could be unexplained (sic) by reason of the appellant’s bad book-keeping and failure to keep records.  Taken together the fact that he had withdrawn fairly large sums of money in cash and that he had failed to attract any new business whatsoever to the company, in my view, justified the inference being drawn that he had appropriated the monies which he had withdrawn to his own purposes and that he had done so dishonestly.”

[9]        It appears that, in the original draft stated case, the sheriff had posed no questions at all.  The appellant’s application had been aimed purely at sufficiency.  However, at the adjustment stage, the appellant sought to introduce two questions; the first on whether the sheriff had been correct in repelling the no case to answer submission; and the second on whether the sheriff had been entitled, on the findings in fact, to find the charge proved.  This latter question has caused a difficulty because of the absence of a finding encapsulating what was clearly the inference, drawn by the sheriff, of dishonesty. 

[10]      The submission was, first, that the evidence was insufficient to prove that the appellant had appropriated the monies for his own use and had done so dishonestly.  Being a hopeless and chaotic record keeper was something which he had admitted in his police interview, but that did not elevate his actings into the criminal sphere. 

[11]      Under reference to Scott v Dunn 2013 SCCR 382 and B v Murphy 2015 SCCR 175, it was said that the court was not entitled to go beyond the findings in fact and that this was fatal to the conviction, given the absence of a specific finding of dishonesty.  On being asked to comment upon Walton v Crowe 1993 SCCR 885, it was submitted that it was distinguishable on its facts. 

[12]      There was sufficient evidence before the sheriff to demonstrate that the appellant had the use of a company credit card for legitimate business expenditure.  There was evidence of charges to and withdrawals from the credit card account which went beyond the scope of the appellant’s employment.  In particular, there were unusual charges for overnight accommodation and for significant amounts of cash.  The appellant had been asked to provide an explanation and vouchers for this expenditure, but he had failed to do so.  There were sufficient facts and circumstances to allow an inference of dishonest appropriation to be made.  The relevant intent required for embezzlement does include dishonest intention to appropriate the money without consent, but intention may be inferred from acts which are either deliberate or reckless (Allenby v HM Advocate 1938 JC 55, Lord Wark at 59).  There was evidence of appropriation by the appellant of relatively significant sums and an inability or refusal by him to account for them.  There was evidence of reckless use by the appellant of the company credit card.  In these circumstances, this was sufficient to infer the necessary intent.  That is what the sheriff says he did. 

[13]      It is certainly true that there ought to have been a finding in fact specifically dealing with dishonest intention.  It is regrettable that that was not made.  However, as in Walton v Crowe 1993 SCCR 885, where it is clear from a sheriff’s note that he has made an inference of fact, in this case one of dishonest appropriation, the court can take into account the content of that note in supplying the deficiency which is patent on reading his findings in fact.  In these circumstances the questions will be answered in the affirmative and the appeal will be refused.