Sheriff Appeal Court goes against findings of first instance judge on evidence of Crown witnesses to allow appeal against conviction

A man who was given a community payback order after being found guilty of a statutory breach of the peace by striking the windscreen of a car with a metal bar has won an appeal against his conviction.

The Sheriff Appeal Court quashed the conviction after ruling that the case was one in which the court could go behind the sheriff’s assessment of credibility and reliability of the Crown witnesses.

Sheriff Principal Craig Scott QC, sitting with Sheriff Principal Marysia Lewis and Sheriff Nigel Morrison QC, heard that the appellant Malcolm Aien was on in September 2015 and later sentenced by the sheriff at Livingston for an offence under section 38(1) of the Criminal Justice and Licencing (Scotland) Act 2010 and an offence of having an offensive weapon, namely, a metal bar.

The first charge included allegations of shouting, swearing, uttering threats of violence and repeatedly striking the windscreen of the motor car with the metal bar, but it did not libel damage to the vehicle.

The undisputed facts were that, on 20 December 2013, the complainer, Mr Nicol, went to collect his daughter for contact from the child’s mother, Miss Aien, at her house, but there was a disagreement about when contact was to start and the complainer then waited in his car with his partner, Miss Harkins.

There was a telephone call between Miss Aien’s house and the appellant, Miss Aien’s brother, at his work, following the appellant drove in his van to his sister’s house.

There were disputes in the evidence as to who telephoned whom and whether it was about the birthday of Miss Aien’s son or about Mr Nicol being at the house, and as to what the appellant did, whether he had a metal bar and what he did with it if he had.

But the sheriff found that Miss Aien telephoned the appellant and that after he arrived at his sister’s house, he shouted, swore and uttered threats of violence towards Mr Nicol, went to his van, returned to Mr Nicol’s car carrying a metal pole and repeatedly struck Mr Nicol’s car with the metal pole, although there was made no finding of fact that there was any damage to the vehicle.

The appellant was sentenced to a community payback order with a supervision requirement and a requirement to perform 150 hours of unpaid work in respect of the two charges and was ordered to pay compensation of £1,000 to the complainer in respect of charge 1.

However, he appealed against his conviction and sentence on the ground that the sheriff erred in ignoring the lack of damage to Mr Nicol’s car and, accordingly, “no reasonable sheriff properly directed could have returned a verdict of guilty”.

Counsel for the appellant argued that, given that there was no evidence of damage, the sheriff could not have found Crown witnesses Mr Nicol and Miss Harkins “credible and reliable witnesses” in relation to the charges and therefore could not have believed their evidence.

It was also submitted that the sheriff could not have found Miss Harkins to be an “independent witness” as she was Mr Nicol’s partner at the time of the incident and married him before the trial.

Further, it was argued that the sheriff was wrong to find support for the Crown case in a statement of the appellant’s mother, admitted under section 259 of the Criminal Procedure (Scotland) Act 1995, which in fact contradicted the Crown evidence of the appellant having a metal bar.

Mindful of the reluctance of an appellate court to go behind the findings of a judge at first instance on credibility and reliability, counsel referred the court to three cases to support the proposition that, exceptionally, the court might do so, including Cartner v Farrell, 2013 JC 251, in which Lord Bonomy emphasised the need for the judge at first instance to give an account of the material events of the trial, of the evidence led and the court’s reasoning for making the findings and decisions challenged though every last word of evidence need not be noted.

Allowing the appeal, the appeal sheriffs observed that the sheriff had not set out the relevant evidence of each witness, or explained “why a witness’s evidence was consistent or not consistent with other evidence or why the appellant was not credible”.

Delivering the opinion of the court, Sheriff Principal Scott said: “We consider that the sheriff was wrong to approach the issue of damage to Mr Nicol’s car from the point of view of whether the evidence was that there was no damage rather than considering whether there was evidence of damage.

“We have come to the conclusion that this is a case in which we can look behind the sheriff’s assessment of the evidence of the Crown witnesses. Having regard to the absence of evidence of damage, and the section 259 statement of the appellant’s mother, there is not an adequate explanation given by the sheriff for accepting the evidence of Mr Nicol and Miss Harkins.

“Accordingly, we answer the first question for the opinion of the court – was the sheriff entitled to convict the appellant – in the negative. In the light of that decision, and having quashed the conviction, it is not necessary for us to consider the other two questions, whether the sentence was excessive or the compensation order competent.”

He added: “It remains for us to reiterate the importance of judges at first instance giving a full account, though not every word, of the evidence led, making discrete findings in fact to cover the relevant evidence on which the decision was based, and the reasons for making the findings in fact.”

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