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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 >> JOHN CARSWELL v. THE PROCURATOR FISCAL, DUMFRIES [2000] ScotHC 61 (16th May, 2000) URL: http://www.bailii.org/scot/cases/ScotHC/2000/61.html Cite as: [2000] ScotHC 61 |
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APPEAL COURT, HIGH COURT OF JUSTICIARY
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Lord Justice General Lord Reed Lord Weir
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No: 1695/99 OPINION OF THE COURT delivered by THE HONOURABLE LORD REED in STATED CASE by JOHN CARSWELL Appellant; against THE PROCURATOR FISCAL, Dumfries Respondent; _______ |
Appellant: Muir; Russell & Aitken
Respondent: Doherty, Q.C., A.D.; Crown Agent
6 April 2000
[1] The appellant is John Carswell, who stood trial in the District Court of Dumfries and Galloway at Dumfries on 10 June 1999 on a summary complaint charging him with an offence in the following terms:
"On 11 October 1998 at Airds Drive, Dumfries, you John Carswell being in charge of a creature, namely an Alsatian dog, did suffer or permit it to cause danger or injury to or to give reasonable cause for alarm or annoyance to Jacqueline Anne Todd who was in a public place in respect that you did fail to keep the said dog under proper control and did allow said dog to run towards said Jacqueline Anne Todd in such a manner so as to place her in a state of fear and alarm; contrary to the Civil Government (Scotland) Act 1982, Section 49(1)."
[2] After trial, the appellant was convicted and fined £200. The present appeal is brought against both conviction and sentence.
[3] In support of the appeal against conviction, Mr Muir, who appeared on behalf of the appellant, submitted that there was no corroborated evidence that the appellant was in charge of the dog in question at the time of the offence. The Advocate Depute however informed us that the Crown had relied upon section 255 of the Criminal Procedure (Scotland) Act 1995. So far as applicable to summary proceedings, section 255 is in the following terms:
"Where an offence is alleged to be committed in any special capacity, as by the holder of a licence, master of a vessel, occupier of a house, or the like, the fact that the accused possesses the qualification necessary to the commission of the offence shall, unless challenged -
.....
(b) in summary proceedings, by preliminary objection before his plea is recorded,
be held as admitted."
Mr Muir did not dispute the applicability of section 255. In the present case, the appellant did not take any preliminary objection to challenge the fact that he was in charge of an Alsatian dog at the time and place in question. That fact accordingly did not require to be established by corroborated evidence. As the Advocate Depute explained, and Mr Muir accepted, the issue between the parties at the trial was whether the Alsatian dog involved in the circumstances giving rise to the charge was the same dog as one which the appellant looked after. The evidence was accordingly directed primarily towards the issue of the identification of the dog in question.
[4] Mr Muir's submissions also touched on the question whether there was sufficient evidence to entitle the justices to find that the appellant had failed to keep the dog under proper control at the time in question. The relevant evidence is narrated by the justices in the stated case. The complainer spoke to standing on the pavement outside her house at about 5.00 p.m. on the day in question. She had her baby in her arms and her two daughters, aged 3 and 6, beside her. The dog bounded towards them over a distance of approximately 300 yards. The dog stopped, urinated in the garden and went away. No one appeared to be with the dog. She had previously seen the dog wandering around the street where she lived. The complainer's husband gave a similar account of the incident, and said that he had previously seen the dog four or five times on its own. The appellant did not put forward any innocent explanation of the dog's being loose, his position being that his dog had been elsewhere at the time in question. In the circumstances, we consider that the justices were entitled to find that there had been a failure to keep the dog under proper control. We shall accordingly answer the first two questions in the stated case in the affirmative.
[5] In relation to sentence, Mr Muir submitted that the fine of £200 was excessive in the circumstances, particularly having regard to the appellant's means. He was in receipt of incapacity benefit of £40 per week. The fine was payable at the rate of £5 per fortnight.
[6] The justices explain in the stated case that they accepted that the incident had been frightening and distressing for the complainer and her family, and in particular for the children. They had the power to order the destruction of the dog, but had considered that a substantial fine was more appropriate. We do not consider that the fine can be considered to be excessive. We shall accordingly answer the third question in the stated case in the negative, and refuse the appeal.
