Andrew McCraw v. Procurator Fiscal, Aberdeen [2016] HCJAC 20

Appeal by stated case:- On 16 June 2015, at Aberdeen Sheriff Court, the appellant was convicted after trial on summary complaint of a charge of embezzlement of £8334.80. The circumstances of the offence were that appellant was provided with a credit card for expenses in connection with his employment which he used over a period of time and for which there were no receipts available for the money which had been withdrawn. At the conclusion of the Crown case a motion was made that there was no case to answer in that the Crown had failed to establish that the appellant had appropriated the money for his own purposes and that he had done so dishonestly. The sheriff repelled the submission. The appellant appealed following his conviction. It was submitted on his behalf that there was insufficient evidence to prove that the appellant had appropriated money for his own use and had done so dishonestly and that whilst he was not a good record keeper that did not amount to it being criminal. It was further submitted that the sheriff did not make a specific finding in fact in relation to the dishonest appropriation of the funds and the court was not entitled to go beyond those findings in fact and was fatal to the conviction. Here the court refused the appeal. The court considered that there were sufficient facts and circumstances to allow an inference of dishonest appropriation to be made, for example, there were numerous cash withdrawals from the credit card account outwith the scope of his employment and an absence of an explanation and vouching for that expenditure when he was asked to do so. The court considered that there was sufficient evidence to infer the necessary dishonest intent albeit the sheriff had not made a specific finding in fact to that effect which there ought to have been albeit such an omission was not fatal.