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Scottish High Court of Justiciary Decisons |
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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> Riddell v. Procurator Fiscal [2003] ScotHC 53 (30 October 2003) URL: http://www.bailii.org/scot/cases/ScotHC/2003/53.html Cite as: [2003] ScotHC 53 |
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Lord Marnoch Lord Carloway Temp. Judge G. Nicolson, Q.C.
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XJ258/02
OPINION OF THE COURT delivered by THE RIGHT HONOURABLE LORD MARNOCH in STATED CASE by MICHAEL ALEXANDER RIDDELL Appellant against PROCURATOR FISCAL, PERTH Respondent _____________ |
30 October 2003
[1] The appellant was convicted of a charge that on 2 February 2001 at 2 Cornton Place, Crieff he did, without reasonable excuse, wilfully or recklessly destroy or damage the property belonging to another and did break four windows of the house by kicking same, all in contravention of Section 52(1) and (3) of the Criminal Law (Consolidation) (Scotland) Act 1995.[2] The findings in fact tell us that the complainer was in bed at her home at 2 Cornton Place, Crieff at 23.15 on the evening in question. She heard a car stop outside her house and then a male voice shouting. The male ran into the common close at 2 Cornton Place where he continued shouting. At the same time the complainer heard her bedroom window being smashed, her house being, we are told, to the right hand side of the common close on the ground floor. The police were summoned and found that two windows had been smashed in the kitchen and bedroom respectively. In each case there were broken pieces of glass having on them blood identified as being that of the appellant. No defence evidence was led.
[3] Mr Shead, for the appellant, pointed out that there was no evidence in the case that four windows had been broken, as opposed to just two, and, further, that there was no evidence as to how even the two windows had been broken. In particular, there was no evidence that these windows had been kicked. Mr Shead went on to submit that the manner in which the windows were broken was an essential part of the charge. In any event no inference could be drawn that the windows had been broken either wilfully or recklessly.
[4] The Advocate Depute, on the other hand, submitted that the circumstances, first, that a man was present in the close shouting at about the time the windows were broken and, second, that two separate windows were broken provided sufficient evidence to justify the inference that in the present case the breaking of the windows had been a deliberate act. In that situation a perfectly relevant charge would remain even without the reference to kicking.
[5] It is true that in the Note annexed to the findings in fact the Justice states that she was entitled to infer that the breaking of windows in two separate rooms amounted to a "deliberate, or at the very least reckless, act rather than accidental". However, we are satisfied that the Advocate Depute was well founded in submitting that in this particular case the only reasonable inference which could be drawn was that the breaking of the windows was indeed deliberate. In that situation we further agree with the Advocate Depute that it was unnecessary to prove the exact manner in which they came to be broken. That said, the conviction cannot properly remain in its present terms. Accordingly, what we will do is to allow the appeal to the extent of quashing that conviction and substituting therefor a conviction in the same terms but under deletion of the word "four" and of the words "by kicking same". In these circumstances we find it unnecessary to answer the questions posed in the case apart from No.1 which we will answer in the affirmative to the effect that the Justice was entitled to repel the defence submission of "No case to answer".
cga
