[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback]
	Scottish High Court of Justiciary Decisons
You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> DARREN BRIAN CARSON v. THE PROCURATOR FISCAL, KILMARNOCK [2000] ScotHC 45 (7th April, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/45.html Cite as: [2000] ScotHC 45

[New search] [Help]

DARREN BRIAN CARSON v. THE PROCURATOR FISCAL, KILMARNOCK [2000] ScotHC 45 (7th April, 2000)

The appellant is Darren Brian Carson who stood trial in the Sheriff Court at Kilmarnock on a summary complaint charging him with theft, videlicet that he stole "a purse containing £140" from a nursing home. Although the minute records that he was found guilty "as libelled", in fact the Sheriff convicted him of stealing a purse "containing at least £125". The appellant has appealed against his conviction, but the scope of his appeal is limited to the finding that the purse contained "at least £125".

In advancing the appeal Mr. Doohan accepted that there had been sufficient evidence on which the Sheriff had been entitled to find that the appellant had stolen the purse. His contention was, however, that the only evidence that the purse contained £125 came from the complainer who gave evidence at his trial and that, since the theft of the sum of money was a crucial fact requiring proof by corroborated evidence, the evidence led by the Crown was insufficient to entitle the court to convict the appellant of stealing a purse containing that sum.

The evidence on this matter can be shortly stated. The complainer said that the purse contained notes amounting to not less than £120 in the wallet compartment, while another compartment contained a large quantity of change which she assessed as at least £5. She had withdrawn the money from the bank shortly before in order to pay certain accounts. She described the purse as having a number of compartments. The police interviewed the appellant under caution on the day after the theft. None of the stolen property was in his possession. In the course of the interview the appellant admitted taking the purse but said that it was now in the river. He said that he had taken "Fifteen £1 coins and fifty pence pieces" from the purse. When asked where the money was in the purse, he said "I just opened the zipped bit. There was also two £1 notes in it, tae. I didn't see any more money. There was some credit cards in the bit with a flap." He said that he had bought cigarettes and sweets with the money.

In Scots law the Crown must prove crucial or essential facts, the facta probanda, by corroborated evidence. See, for example, Smith v. Lees 1997 J.C. 73 at p. 79. As we have explained, Mr. Doohan contended that in this complaint the sum of money was one of the crucial facts and that therefore the Sheriff had not been entitled to convict the appellant of stealing any particular sum of money in the absence of corroborated evidence that that sum had indeed been stolen. The Advocate Depute did not dispute that proposition, but argued that in the circumstances of the case the evidence of the appellant's admission confirmed or supported the evidence of the complainer by showing or tending to show that what she said had happened had indeed happened. Such evidence amounted to corroboration (Smith v. Lees 1997 J. C. at p. 90 B - C per the Lord Justice General). In our view, however, while the evidence of the admission of the appellant did indeed confirm or support the evidence of the complainer by showing that, as she said, her purse with a sum of money in it had been stolen, it did not go further and support or confirm her evidence that the sum stolen from her purse was at least £125. That being so, there was no corroboration of her evidence that that particular sum of money was stolen.

In similar cases it is common for the prosecutor to amend the complaint or indictment in the light of the evidence at the trial, either to specify a particular lesser sum or simply to refer to "a sum of money". In this case the procurator fiscal depute did not seek leave to amend the complaint in the court below, nor did the Advocate Depute make such a motion in this court. On the other hand, both Mr. Doohan and the Advocate Depute accepted that it was competent for the Sheriff to convict the appellant of stealing a purse containing a sum of money less than that specified in the complaint since this would in effect be to convict the appellant of part of the charge. Similarly, they accepted that it would be open to this court to quash the Sheriff's verdict and to substitute a verdict specifying a lesser sum of money. Although the evidence of the appellant's statement about the amount of money in the purse is a little unclear, he appears to have said that it contained at least £17.50. We shall accordingly allow the appeal, quash the verdict and find the appellant guilty of stealing a purse containing at least £17.50. The Sheriff made a compensation order for £125, a sum which was clearly linked to the sum which he had convicted the appellant of stealing. Therefore, having allowed the appeal in respect of the sum stolen, we shall quash the compensation order and order the appellant to pay £17.50 as compensation, payable at £5 per week.