Usai v Russell
| Jurisdiction | Scotland |
| Judgment Date | 08 October 1999 |
| Docket Number | No 23 |
| Date | 08 October 1999 |
| Court | High Court of Justiciary |
JC
Lord McCluskey, Lord Penrose and Lord Cowie
Crime—Shameless indecency—Mens rea—Pannel being seen by public as he stood naked at window inside his house—Pannel's impaired vision preventing his being able to see presence of public—Whether reckless indifference to presence of public sufficient mens rea
Procedure—Summary procedure—Verdict—Pannel charged with shameless indecency by exposing himself “at” named persons—Sheriff convicting pannel under deletion of “at” and substitution of “towards”—Whether competent
A pannel was charged on a summary complaint with three charges of shameless indecency by exposing himself at named persons. There was evidence from the named persons, whose evidence the sheriff accepted, that the pannel had stood naked at a window inside his house in full view of members of the public. The sheriff also accepted evidence that the pannel was not wearing contact lenses when the offences occurred and that he could therefore not have been aware of the presence of the public outside his house. The sheriff found the pannel guilty of the three charges after substituting the word “towards” for the word “at” in the charges. The pannel thereafter appealed to the High Court of Justiciary and argued that the sheriff was not entitled to return a verdict by altering the charges and that, standing the pannel's unawareness of the presence of the public, the Crown had not proved that the pannel had possessed the requisite mens reafor shameless indecency.
Held (1) that the sheriff was entitled to convict the pannel in the terms he did because the alteration to the libel did not change the character of the offence nor did it make the offence more serious (p 147F); (2) that proof of actual knowledge that some other person was in fact witnessing the indecent exposure was not an essential ingredient in shameless indecency (p 147G); (3) that the mens rea of shameless indecency could be inferred in circumstances where there was a likelihood that persons could observe the pannel's conduct and the pannel was recklessly indifferent as to whether or not he was observed (p 147H); and (4) that there was ample material to warrant the conclusion which the sheriff drew from the facts (p148B); and appeal refused.
Watt v AnnanSC 1978 JC 84 considered.
Enrico Usai was charged in the sheriffdom of Tayside, Central and Fife at Cupar at the instance of Edward Russell, procurator fiscal there, on a summary complaint the libel of which is sufficiently set forth in the opinion of the court.
The cause came to trial and the pannel was found guilty of the charges after amendment of the charges by the sheriff.
The pannel thereafter appealed to the High Court of Justiciary.
The cause called before the High Court of Justiciary, comprising Lord McCluskey, Lord Penrose and Lord Cowie for a hearing.
At advising, on 8 October 1999, the opinion of the court was delivered by Lord McCluskey.
Opinion of the Court—The appellant appeared for trial in the sheriff court at Cupar on a complaint containing three charges. The first charge was libelled in the alternative. The first branch of the alternative libelled a breach of the peace. The second, founding upon the same conduct, was a charge of shamelessly indecent conduct towards a named person. Charges 2 and 3 were...
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