William Neil Lauder v. Her Majesty’s Advocate [2016] HCJAC 30

Note of appeal against conviction:- On 1 May 2015, at Edinburgh Sheriff Court, the appellant was convicted after trial on indictment of the theft of £194,825 of goods from Aero Leather Clothing Limited with whom he worked. The appellant appealed against his conviction. It was the appellant’s position at trial that he had the express permission of Mr Calder, the majority shareholder, to remove the stock and that the Calders were aware that the appellant had an Ebay account and knew he was selling items which had formerly belonged to the company. Trial counsel in her speech to the jury invited the jury to consider whether the appellant had express or implied authority to take the items and sell them and if the jury considered that was the case then they ought to acquit him. Alternatively, it was submitted that even in the event that they did not consider him to have such authority but considered that he honestly and reasonably believed that he did have such authority then they should also acquit. The grounds of appeal were:- (1) that the sheriff failed to give adequate directions on the mens rea of theft; and (2) that the sheriff failed to direct the jury adequately that they should not speculate, particularly in light of some of the evidence of the main Crown witness, Mr Calder, during his evidence. It was submitted that the means rea element of the crime of theft was essential to its proof and that it was necessary for the jury to be satisfied that the appellant had a dishonest intention and that the sheriff should have made it clear, particularly in light of the appellant’s position, that not only did he not in fact have consent but he knew that he did not. In relation to the ground relating to the failure to direct the jury not to speculate it was submitted that he should have done so, particularly given the evidence of Mr Calder. During the course of Mr Calder’s evidence the sheriff repeatedly had to warn him when he made reference to evidence he said he knew to be in existence but was not available. It was submitted that whilst Mr Calder had stopped making such references it was still necessary for the sheriff to make specific directions to the jury about not speculating about what that other evidence might have been. On behalf of the Crown it was submitted that the defence position was that the appellant had the express permission of Mr Calder to remove the stock whilst Mr Calder expressly denied that and that was the central issue in the case. Here the court refused the appeal on both grounds. In relation to the criticism of the sheriff’s directions on the mens rea of theft the court observed that whilst, as an academic exercise, the sheriff’s definition of theft was incomplete, having regard to the particular circumstances of the case, the directions were tailored sufficiently. Whilst there was no specific direction that a person who takes the property of another believing they have the latter’s consent to do so is not guilty of theft it was the appellant’s position that he did have express permission and further directions were not therefore necessary. In relation to the second ground of appeal and the references by Mr Calder in his evidence to there being other incriminating evidence in existence, albeit unavailable at the trial, the court considered that how a trial judge deals with such issues is a matter for his discretion and sometimes reminding a jury specifically not to speculate could in certain circumstances encourage such speculation by drawing attention to the particular offending remarks. In the present case the sheriff decided to deal with the references at the time they were made and having done so it was not necessary to return to the issue during the charge. In any event the trial sheriff directed the jury only to base their verdict on the evidence they heard.