Gamekeeper found guilty of killing wild bird loses appeal against conviction

By a majority of two-to-one, the Criminal Appeal Court refused the appeal after ruling that the sheriff provided “adequate reasons” for accepting evidence of identification from two eye-witnesses to the crime and rejecting testimony in support of the alibi.

The Lord Justice General, Lord Carloway, sitting with Lord Menzies and Lord Bracadale, heard that the appellant William Dick was fined £2,000 after being convicted at Dumfries Sheriff Court in September 2015 of killing the wild bird by repeatedly throwing stones at it and stamping on it before wrapping it in a dark coloured coat and removing it from the location.

The sheriff found in fact that, at between 4.40 and 5.00pm on 4 April 2014, a couple who lived in a cottage which was part of the Newlands Estate in Dumfries – whose occupiers breed pheasants for sporting purposes – had been walking their dogs near the locus when they heard a gunshot.

In the field nearby they noticed that a large pick-up truck, of the type used by workers on the estate, and as they approached it the couple saw the appellant standing outside it and a large bird of prey hopping about on the ground next to the vehicle, unable to fly away.

The appellant then picked up some stones and threw them at the bird and stamp on it a number of times until it stopped moving, before he placed it in the back of the vehicle and drove away, waving to the couple as he did so.

A week later the couple were taken by police to the estate with a view to identifying the culprit and after a couple of hours of searching they noticed a pick-up truck with a single occupant – the appellant – who both identified as the man whom they had seen attacking the bird.

On being detained, the appellant was interviewed in relation to the matter but made no comment.

A few days later the head gamekeeper, GL, was asked by the police about the incident, but made no mention of a training course which, sometime later, it was said that he and the appellant had attended on the day of the incident.

The course on wild game meat hygiene, organised by the British Association for Shooting and Conservation, had been scheduled from 10am until 2pm near Dunkeld.

The appellant lodged a special defence of alibi, and testified that he was at the course in Dunkeld until “approximately 3pm”, but it was only a year later when officers were investigating this that GL told them that both he and the appellant had been at the course until 3pm and that they had not returned to the estate until 5.40pm.

Three people who had attended the course also gave evidence, but none of these witnesses was asked whether they had seen the appellant on the course after 2pm and none him.

Ultimately, the sheriff accepted the evidence of the couple in their identification of the appellant as credible and reliable and rejected the testimony of the appellant and GL.

However, it was submitted that the sheriff had erred in a number of ways in rejecting the alibi, but the Lord Justice General – with whom Lord Bracadale agreed – refused the appeal.

In a written opinion, Lord Carloway said: “Although it is true that, as a matter of onus and standard of proof, the sheriff would have to have been satisfied beyond reasonable doubt that the appellant had not been at the course in Dunkeld at, say, 3 o’clock, it is important to bear in mind that the rejection of the alibi is not based solely upon an analysis of the evidence given in its support.

“It is based upon an overall assessment of all the evidence in the case, including, crucially, that of identification by the couple set against the background circumstances.

“The reliability of the couple’s identification was accepted by the sheriff partly because of the manner in which the husband and wife each gave their evidence but partly also because of certain other features in the case, including the wave and presence of the truck.

“These circumstances included the location of the crime on a shooting estate upon which the appellant worked as a gamekeeper.”

In relation to the evidence in support of the alibi, the Lord Justice General also held that the sheriff’s rejection should not to be seen in isolation from the evidence of identification itself, and that he had “adequately explained” why he rejected the alibi evidence.

Dissenting, Lord Menzies accepted that the rejection of the alibi was not based solely upon an analysis of the evidence given in its support, but rather upon an “overall assessment” of all the evidence, including the identification by the couple.

However, he concluded that the reasons given by the sheriff for rejecting the alibi evidence were “inadequate and insufficient” to support his conclusion.