A.S.G. v. Her Majesty’s Advocate [2019] HCJAC 91

Description

Appeal under section 62 of the Criminal Procedure (Scotland) Act 1995:- The appellant was indicted to the High Court in relation to three charges including a charge of causing death by dangerous driving contrary to section 1 of the Road Traffic Act 1988 by driving without corrective eyewear when his vision was below the standard required for driving. The Preliminary Hearing of 4 July 2018 was discharged as were three further Preliminary Hearings. On 22 February 2019 a plea in bar of trial was intimated on the ground that the appellant suffered from vascular dementia and was unfit for trial. Following the consideration of various medical reports the court, having regard to the criteria set out in section 53F of the Criminal Procedure (Scotland) Act 1995, concluded in terms of section 54(1) of the 1995 Act that the appellant was unfit to stand trial in that he suffered from vascular dementia and fixed an examination of facts in terms of section 55 of the 1995 Act. The examination of facts was conducted in July 2019 when various facts had been agreed, including identification of the appellant as the driver of the motor vehicle at the relevant time. On 26 July 2019 the judge found that he was satisfied beyond reasonable doubt that the appellant had committed the dangerous driving charge and that, on the balance of probabilities, there were no grounds for acquitting him. The Crown had previously indicated that he was no longer seeking a determination in respect of the other two charges on the indictment. The diet was adjourned for the preparation of psychiatric reports. The appellant appealed against the finding of the judge in terms of section 62 of the 1995 Act. The basis of the appeal was that the evidence led was insufficient to allow the judge to make the inferences necessary for a conviction of causing death by dangerous driving by the appellant. At the examination of facts at the conclusion of the evidence defence counsel made submissions in terms of section 97A of the Criminal Procedure (Scotland) Act 1995. Counsel submitted that there was no evidence to support the averment in the charge in relation to corrective eyewear. The submission was repelled by the judge. It was submitted here on behalf of the appellant that there was insufficient evidence to allow the inference that the appellant was not wearing his glasses at the time of the collision. It was submitted that without proof of such a failure the driving could 'only' amount to careless driving constituting an offence under section 2B of the 1988 Act. On behalf of the Crown it was submitted that the issue of whether the appellant was wearing his glasses at the time of the collision was not the end of the matter and there were other features in the manner of the driving which, taken together, amounted to the driving being dangerous. In any event it was submitted that there was ample evidence to allow the inference to be drawn that the appellant was not wearing his glasses at the relevant time. Here the court considered the nature of such appeals under section 62 of the 1995 Act and observed that such appeals have no restrictions, for example, being limited to certain grounds. The court made a comparison with the exercise the Inner House carries out when reviewing a decision by a Lord Ordinary. As such the court here considered whether the judge at first instance was correct to draw the inference he did in holding that the appellant was not wearing corrective eyewear at the relevant time. The court examined the evidence summarised by the judge to determine whether he was entitled to infer that the appellant was not wearing necessary corrective eyewear at the relevant time including that the appellant was found not to be wearing glasses shortly after the accident, that no glasses were found in a place where he might be expected to have placed them and that he told the police that he did not see the deceased. The court considered that to not wear corrective eyewear when driving is to drive in a way that falls far below what would expected of a competent and careful driver and would be obvious to a competent and careful driver and as such the court concluded on the primary facts determined by the judge that the appellant did the act which constituted the offence of causing death by dangerous driving. The court went on to state that even if it had not been able to infer from the primary facts that the appellant had not been wearing his glasses at the relevant time the court would still have concluded that the appellant did an act which constituted the offence of causing death by dangerous driving on the basis that the charge was not dependent on that fact being established, in light of the other circumstances present which were sufficient to lead to the conclusion that the driver was driving dangerously.