Wilson v Brown
| Jurisdiction | Scotland |
| Judgment Date | 28 March 1947 |
| Date | 28 March 1947 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Mackay. Ld. Jamieson. Ld. Stevenson.
Summary Procedure—Review—Record of proceedings in Sheriff Court—Discrepancy in name of accused in interlocutors—Apparent error in interlocutor convicting—Error not discovered until case had been stated—Ex facie indications that error clerical—Competency of entertaining question—Remit to Sheriff-substitute for correction if necessary—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), sec. 55.
The Summary Jurisdiction (Scotland) Act, 1908, sec. 55, enacts:—"It shall be competent to correct any error in the minutes of procedure or in the extract of any sentence or order at any time prior to execution thereon, and such correction shall be authenticated by the initials of the clerk of court."
After a case on appeal against a conviction in the Sheriff Court had been stated and signed by the Sheriff-substitute, it was discovered from the printed appendix that, while the accused was referred to by her Christian names and surname in the minute recording the imposition of a fine, the surname in two preceding minutes, one recording the accused's compearance and the other the accused's conviction, was a repetition of one of the Christian names. On the case coming before the High Court it was contended on behalf of the appellant that, as there was no record of any conviction against her, the proceedings were fundamentally void, and that the conviction should be quashed.
The Court, while stating that it was competent for it to deal with a fundamental nullity of procedure at any stage of the proceedings, in view of the fact that ex facie there had merely been a clerical error, remitted the case to the Sheriff-substitute in order that such correction, if any, as might be necessary might be made in the minutes.
Evidence—Sufficiency—Identification of accused—Statutory Offences—sale of Food and Drugs—Vicarious criminality—Hotel keeper charged with selling adulterated whisky by hand of servant—Accused present in Court—Prosecutor's failure to have her identified as hotel keeper by witnesses—Attempts to excuse failure—Summary Jurisdiction (Scotland) Act, 1908 (8 Edw. VII, cap. 65), secs. 19 (5), 28 and 33 (2).
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J. W. S. W. was charged on a summary complaint in the Sheriff Court which set forth that at the hotel where she carried on business as a hotel keeper she did by the hands of her servant sell to a sampling officer adulterated whisky. It was proved that the whisky was adulterated, and that it had been supplied by the barman in charge. The sampling officer stated that he knew the licence holder to be Mrs J. W. S. W. and his assistant stated that he knew the owner of the hotel to be Mrs W., and that he had seen the accused on the premises on the night of the sale. The accused was present in Court, but neither of the witnesses was asked to identify her as the licence holder or the hotel keeper. She was convicted.
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In an appeal at her instance on the ground that it had not been proved that she was the person who carried on the business, the prosecutor founded (1) upon sec. 19 (5) of the Summary Jurisdiction (Scotland) Act, which provides that, where an offence is alleged to be committed in any special capacity, as by the holder of a licence, the qualification, unless challenged before a plea is recorded, shall be held to be admitted, and (2) upon secs. 28 and 33 (2), which recognise that an accused may be convicted although not present in Court for identification. He also founded upon the fact that the sampling officer and his assistant had not been cross-examined.
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The Court quashed the conviction, holding that the accused should have been identified in Court by two witnesses as the person who carried on the business of hotel keeper. As regarded sec. 19 (5) of the Act of 1908, it was inapplicable, the accused not having been charged with committing the offence in any special capacity; as regarded secs. 28 and 33 (2), they also were inapplicable, the accused having been present in Court; as to cross-examination, its absence could not absolve the prosecutor from the duty of identifying the accused.
Jessie Wright Stevenson Wilson, Saracen's Head Hotel, 8–10 Eglinton Street, Beith, Ayrshire, was charged in the Sheriff Court of Ayrshire at Kilmarnock on a complaint at the instance of James Brown, Procurator-fiscal, Kilmarnock, which set forth that "on 2nd May 1946, at Saracen's Head Hotel…where you carry on business as a hotel keeper, you did by the hands of your servant, Bernard Doyle, barman" contravene section 2 of the Food and Drugs (Adulteration) Act, 1928, by selling adulterated whisky to a sampling officer.
On 7th October 1946, after a trial, the Sheriff-substitute (Duncan) convicted the accused and, at her request, stated a case for appeal to the High Court of Justiciary.
The stated case set forth that the following facts were admitted or proved:—"(1) On 2nd May 1946, about 7.40 p.m.,William Rankin, a sampling officer for the County of Ayr under the Food and Drugs (Adulteration) Act, 1928, accompanied by his assistant, Andrew Gordon, entered the public bar at the Saracen's Head Hotel, 8–10 Eglinton Street, Beith, Ayrshire. (2) The person then in charge of the said bar was a bar attendant named Bernard Doyle. (3) The said William Rankin asked for, and the said Bernard Doyle supplied him with, two half glasses of whisky. (4) On receiving the said two half glasses the said William Rankin then disclosed that he was acting in his capacity as a sampling officer as aforesaid, and he said that the whisky was required for purposes of analysis. He requested to be supplied with two further half glasses of whisky, and the said Bernard Doyle supplied the two additional half glasses as requested. (5) The said William Rankin paid the said Bernard Doyle 7s. in respect of the sale of the said four half glasses of whisky. (6) The said whisky was supplied out of a bottle of a proprietary brand of whisky, being marked with the name “John Begg.” The said bottle was standing on a gantry behind the bar or counter in the said premises and was available for sale to members of the public. (7) The said William Rankin then followed his usual procedure when sampling whisky. He poured the contents of the four glasses into a clean dry jug. He then transferred the whisky from the jug into three dry clean bottles in as nearly as he could equal amounts. (8) The said Bernard Doyle witnessed this tripartite division of the whisky and raised no objection thereto. (9) The said William Rankin then invited the said Bernard Doyle to choose one of the three bottles for retention by the licence holder at the said hotel. Bernard Doyle chose one of the bottles, the other two being retained by William Rankin." There followed a statement showing that upon analysis the whisky was found not to be genuine whisky, having been diluted by an admixture of water, and that the correctness of the analysis had not been challenged.
The stated case continued:—"I also found certain further facts to be proved identifying the appellant with the commission of the offence charged, but, as that identification is the matter at issue in this case, I deal separately with them.
"At the trial evidence on behalf of the respondent was given by the sampling officer, the said William Rankin, and his assistant, the said Andrew Gordon. At the conclusion of their evidence, and on the case for the respondent being closed, counsel for the appellant intimated that he did not propose to call evidence and he submitted that the respondent's case had not been proved in respect (1) that the appellant had not been proved to be the licence holder at the premises in question; and (2) that it had not been proved that Bernard Doyle was the servant of the appellant.
"On the first point evidence was given by the said William Rankin that he knew the licence holder to be Mrs Jessie Wright Stevenson Wilson. Evidence was also given by Andrew Gordon that he knew the owner of the hotel to be Mrs Wilson. These witnesses were not cross-examined on that part of their evidence. Evidence, which was also not cross-examined on, was further given by Andrew Gordon that he had seen the appellant on the premises on the night in question. There was no further evidence directly identifying the appellant as licence holder of the said premises, although it was stated by the Procurator-fiscal that the witness Rankin had pointed towards the appellant, who was seated in the dock, when he said that he knew the licence holder to be Mrs Jessie Wright Stevenson Wilson. I did not myself observe this gesture, but a suggestion by me that the witness should be recalled to make such an identification was resisted by the appellant's counsel, and, in the circumstances, I did not recall the witness. Counsel for the appellant referred me to the case of Bruce v. H. M. AdvocateSC,1936 J. C. 93, in support of his proposition that it had not been established by the evidence of two witnesses that the appellant was the licence holder of the said hotel. I was of opinion that on the evidence to which I have referred I was entitled to find it proved that the licence holder at the said hotel was a Mrs Wilson and that that Mrs Wilson was the appellant. Further, no preliminary objection had been taken by the appellant that she did not possess the qualification necessary to the commission of the offence, and, in terms of section 19 (5) of the Summary Jurisdiction (Scotland) Act, 1908, the fact that the appellant possessed the qualification necessary for its Commission, i.e., that she was the licence holder of the said hotel, was, in my view, admitted.
"On the second point above referred to, there was not direct evidence to the effect that the said Bernard Doyle was the servant of the appellant, although both the prosecution witnesses testified that he was the barman in charge, and this evidence again was not cross-examined on. I thought I...
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