A former salmon farm manager who disputed an allegation that he had gesticulated at a former work colleague walked free from Lerwick Sheriff Court today after the case was not proven.
Graham McNally, 52, of Fogralea, Lerwick, was charged with behaving in a threatening and abusive manner likely to cause a reasonable person fear and alarm in Commercial Street on 4th October.
The court heard that McNally had been walking down the street into town with another former work colleague when he saw the complainer and his wife leaving a parking place under Fort Charlotte.
At a separate hearing two weeks ago McNally admitted setting nets to trap seals at Hoganess salmon farm in 2011 and was fined £800. The complainer in today’s case had been a witness in that prosecution, and the court was told there was no “love lost” between the two.
McNally was said to have sworn at the couple and stuck his middle finger at them as they drove off. The complainer’s wife said this was intimidating “in the circumstances”, due to the impending trial, and, according to the complainer, she would not now come into town unless he was with her.
The allegation could not be corroborated, as McNally could have been speaking to his companion, the court was told.
Defence solicitor Tommy Allan questioned whether the gesture could have caused fear and alarm, especially as the car was driving away, but procurator fiscal Duncan MacKenzie said the case could not be separated from its context.
Normally such a gesture would not be called intimidation, but: “The prevailing circumstances elevated this behaviour.”
McNally insisted he could not recall the incident, and said he thought that the complainer and his wife were lying and “other people”, which he implied were the SSPCA, were conspiring against him.
Mr MacKenzie said he was “amazed” by this “bizarre” belief, and found McNally’s lack of memory “incredible”.
After a lengthy trial Sheriff Philip Mann said he accepted the gesture had been made and accepted that in the circumstances it had caused fear and alarm. But the critical element was whether McNally had intended it to do so. The sheriff said that McNally had been venting frustration, or anger, and as the gesture had been made towards a departing vehicle it was possible he had not intended the complainer to see it.
The sheriff said he was not satisfied “beyond reasonable doubt” of the intention to cause distress and the case was not proven.