APPEAL COURT, HIGH
COURT OF JUSTICIARY
|
Lord Johnston
Lord Carloway
Lord Macphail
|
[2006]
HCJAC 67
Appeal
No: XJ1183/06
OPINION OF THE COURT
delivered by LORD JOHNSTON
in
NOTE OF APPEAL AGAINST
CONVICTION
by
STATED CASE
in the cause
ROSS ANGUS
Appellant;
against
PROCURATOR FISCAL, Airdrie
Respondent:
_______
|
Act: Shead; Drummond Miller, Edinburgh
Alt: Prentice; Crown Agent
26 July 2007
[1] The appellant
was convicted after summary trial before the sheriff at Airdrie of a
contravention of the Road Traffic Act 1988, section 2 as amended. He was fined £400 and disqualified from
holding or obtaining a driving licence for one year, with a further instruction
to sit a test. No appeal is taken
against sentence.
[2] The sheriff
found the following facts admitted or proved:
Mr. Shead, appearing for the appellant, challenged the
substance of the conviction but he had a number of preliminary, and what could
be described reasonably as technical points of a preliminary nature.
[3] In the first
place he pointed to the nature of the charge which averred only in support of
the statutory provision that the appellant had failed to obey a red signal at
the pedestrian crossing there and collided with the victim using that
crossing. He pointed out that there were
no averments of excessive speed or any other aspect of bad driving, which he
submitted called into question much of the evidence that based the sheriff's
finding in fact.
[4] Under reference
to Petrovich 1990 S.C.C.R. 1 and Jordan v Allan 1987 S.C.C.R. 202 he submitted that the stated case was in
any event defective because there were not definitive and determinative reasons
given by the sheriff for her conclusions.
In this respect he pointed to the determinative part of the sheriff's
Note:
"I disagree with Mr. Morrison. I had to look at the evidence from the point
of view of a bystander at the scene at the time watching what was proved to
have happened. Would I have considered
that the standard of driving fell far below the standard required of a
competent and careful driver? I had no
hesitation in answering that question in the affirmative. The Appellant knew the road well and used it
regularly. He knew the pedestrian
crossing was there and had an unobstructed view of the crossing from the mini
roundabout. He checked the green light
and then took his attention away from that for a period of at least 5
seconds. he failed to observe the light
changing from red to green. He failed to
sop at the red light and struck the little girl on the crossing. This is much more serious than a mere want of
due care and attention. There was in my
view a high degree of negligence on the part of the Appellant and the risk that
ought to have been obvious to any careful and competent driver was not noticed
by the Appellant by reason of his gross inattention. I fail to see how Mr. Morrison's analogy of
excessive speeding impacts on that decision.
If a driver drives at excessive speeds there is a chance he will get
away with it unless caught in a speed trap or whatever. That does not make the driving involved less
dangerous just because the driver does not get caught. The Appellant was caught because his
dangerous driving caused an accident which was thankfully less serious than it
was."
[5] Against that
background Mr. Shead went on to argue that upon the merits of the matter the
sheriff had not properly determined the issues raised by this court in Aitken v Lees 1993 S.C.C.R. 845 and in particular the passage of Lord
Justice General Hope at page 848 where, paraphrasing, he numerated the two
aspects of the test which must both be satisfied to establish conviction under
section 2(a).
[6] Mr. Shead
submitted that the sheriff had failed to address her mind properly to both
aspects of the test and, in any event, had reached conclusions which only
supported an element of carelessness and did not go to the extent of
establishing dangerous driving within the meaning of the provision as
interpreted by Aitken. In the final analysis he submitted the
evidence did not justify a conviction for dangerous driving. All that was averred and he submitted
relevantly proved against the background of the terms of the charge was that
the appellant drove cross the pedestrian crossing against a red light and
struck the child.
[7] Mr. Shead
also faintly submitted that the sheriff had not properly considered the
appellant's evidence in order to reach the conclusions on the whole case as
instructed in Petrovich but with that
proposition we cannot agree, particularly having regard, for example, to
finding in fact 12 which only could have come from the appellant himself in his
evidence.
[8] The advocate
depute in reply confined himself simply to addressing the findings in fact as a
whole which he said more than supported the notion of dangerous driving as
epitomised by the section and the two tests which he submitted the sheriff had
applied and made findings in fact in that respect (finding 21).
[9] With regard
to the preliminary points made by Mr. Shead we note the terms of the averments,
or lack of them, in the charge, but it is important to recognise that no
objection was taken at the trial to the evidence which was led beyond those
basic averments with regard to speed, direction of travel, other vehicles in
the vicinity of the crossing and the like, which comprised much of the findings
in fact. In our opinion, whatever may
have been the technical effect of the charge which might have led either to a
plea to the relevancy or to certain objections being taken to evidence being
led at the trial the fact that neither of these steps was taken meant that the
evidence was properly before the sheriff and she was entitled, indeed bound, to
consider it all. The stated case,
accordingly, is in no way defective for that reason, nor is it so in relation
to lack of reasoning. We consider that,
taken as a whole, it is perfectly clear the sheriff gives detailed and rational
reasons for her conclusions.
[10] Turning to the
merits of the matter, we consider that, taken as a whole, across the board, the
findings are more than sufficient to meet the test laid down in Aitken.
The substance of the matter upon the findings made by the sheriff is
that the appellant drove across the pedestrian crossing against the red light
without concentrating upon that but rather on the traffic lights further
ahead. The presence of vehicles already
stopped at the crossing and, much more importantly, the fact that he struck the
child on the crossing are all material to this consideration. While, of course, it has frequently been said
that the consequences of dangerous driving in the terms of injury and the like
have to be ignored in the assessment of the driving, the striking of the child
bears directly upon the nature of the driving as being part of the commission
of the crime. It reflects an element of
danger in the driving. In addition, while
the speed that was found by the sheriff to apply at the time was not outwith
the limit it can still be categorised as excessive by reason of the fact that
the child was struck.
[11] It has to be
borne in mind that the question for us is not whether we would have convicted
the appellant of dangerous driving but rather whether the sheriff was, in the
circumstances, and upon the facts found by her, entitled to do so. We have no hesitation in answering that
question in the affirmative.
[12] That is
sufficient for the disposal of this appeal but we should record that argument
was addressed as to whether or not it was open to this court, if satisfied that
the section 2 conviction could not stand, could nevertheless substitute a
verdict of careless driving under section 3 which was neither averred in the
alternative nor sought in the lower court by the procurator fiscal. In this respect reference was made to Buchanan v Harrison 1989 S.C.C.R. 398; Sneddon & Another v H.M. Advocate 2005 SCCR 367 and Anderson v Griffiths 2005 S.C.C.R. 41.
[13] On the face of
it Buchanan supra would seem to be
strong authority that unless the alternative verdict is sought in the court
below, it cannot be substituted by this court.
But that case must be looked at in the context of both Sneddon and Anderson, particularly the latter which would seem to suggest that
it is not necessary if the Crown is seeking an alternative verdict before this
court that it should also have done so in the court below, always assuming that
the alternative was not averred, in which case the issue does not arise.
[14] We do not have
to decide this point but we would express the view that, particularly in the
context of convictions relating to quality of driving, it would not be
necessary for a successful application by this court of an alternative verdict
that the latter should have been sought in the court below. If we had been required to do so we would
have therefore adopted the line taken in Anderson. Given that a verdict
of careless driving was obviously open on the evidence there would be no
problem as regards a substitution in that respect.
[15] However, for
the reasons we have given we shall answer questions 2 and 3 in the affirmative.
