Edinburgh restaurant thief loses appeal against conviction in Sheriff Appeal Court

About this case:

• Citation:
  [2022] SAC (Crim) 1
• Judgment:
  External link
• Court:
  Sheriff Appeal Court
• Judge:
  Sheriff Principal Turnbull

It was argued by the appellant, Przemyslaw Gal, that the summary sheriff did not have sufficient evidence to convict him of the crime of theft. The evidence led by the Crown consisted of testimony from the restaurant’s general manager along with CCTV footage.

The appeal was heard by Sheriffs Principal Craig Turnbull and Aisha Anwar along with Appeal Sheriff Robert Fife. McCluskey, advocate, appeared for the appellant and Prentice QC for the Crown.

Looking for something

During the summary trial diet, the Crown led evidence from a general manager at the restaurant, LAM, that on the date of the theft she had noticed that a sum of money between £200 and £220 had gone missing from her purse after the end of her shift. She testified that her purse had been kept in a locked office on the first floor of the premises, the door to which was located on the way to the restaurant’s toilets.

The CCTV footage showed the appellant entering the gents’ toilet and leaving after a few moments. He was seen entering a storeroom, which had been locked with a keypad, and then appearing to use a key to quickly open the door to the staff office, where he remained for approximately 40 seconds before leaving again.

It was submitted for the appellant that the Crown evidence did not show that he had the stolen money in his possession at any time de recenti, and thus proof of theft had not been completed. Reference was made to the case of McDonald v Herron (1966), in which the High Court quashed a theft conviction where the accused had been convicted based on two witnesses placing him in the area behaving in a suspicious manner but there was no evidence that the stolen property was found in his possession.

The advocate depute submitted that the most obvious conclusion to be drawn from the CCTV was that the appellant, who had no legitimate purpose for being in the office, was looking for something to steal. It was not necessary for proof of theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance, and there was clear and unchallenged evidence from LAM that something had been taken.

Highly suspicious 

Delivering the opinion of the court, Sheriff Principal Turnbull cited with approval the dictum of Lord Justice General Rodger in Fox v HM Advocate (1998), who said: “The starting point is the direct evidence. So long as the circumstantial evidence is independent and confirms or supports the direct evidence on the crucial facts, it provides corroboration and the requirements of legal proof are met.” 

Evaluating the available evidence in this case, Sheriff Principal Turnbull said: “The starting point in the present case is the evidence of LAM. It was clear and unequivocal. The sheriff found her to be a wholly credible and reliable witness. The CCTV footage is independent of the evidence of LAM. The footage is real evidence which constitutes sufficient proof of what it shows happening.” 

He continued: “The sheriff was satisfied, from the footage, that the appellant’s actions were suspicious. The appellant might, if he was a customer of the restaurant, have had a right to use the gents’ toilet, but he had no right to enter either of the locked rooms. His demeanour and his behaviour were highly suspicious. That carried with it a clear inference of dishonest intent.” 

Sheriff Principal Turnbull concluded: “The sheriff gave detailed, cogent reasons for reaching the conclusion he did on the footage. As set out in Reid v HM Advocate (2017), it is not necessary for proof of theft that there be evidence from two separate sources, each describing the precise nature of the missing item and its disappearance. In the present case, the sheriff was entitled to reach the decision he did.” 

The appeal was therefore refused.