Beattie v Hm Advocate
| Jurisdiction | Scotland |
| Judgment Date | 02 December 1994 |
| Date | 02 December 1994 |
| Docket Number | No 8 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Allanbridge, Sutherland
Procedure—Solemn procedure—Appeal—Evidence—Additional evidence—Possibility of more precise blood grouping tests not known to defence at trial—Evidence at trial from less precise blood grouping test used to corroborate pannel's statements to police—Other tests re erred to in letter from forensic scientist to police not made available to defence and not produced by Crown at trial—Whether letter fresh evidence which would have altered jury's verdict or would have had a material part to play in their decision—Whether miscarriage of justice—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 2521
Evidence—Sufficiency—Corroboration—Confession of pannel—Special knowledge—Whether statement self-corroborating confession—Pannel possessing tissue stained
1 The Criminal Procedure (Scotland) Act 1975 enacts, inter alia, that: “263—(1) Nothing in this Part of this Act shall affect the prerogative of mercy, but the Secretary of State on the consideration of any conviction of a person or the sentence (other than sentence of death) passed on a person who has been convicted, may, if he thinks fit, at any time, and whether or not an appeal against such conviction or sentence has previously been heard and determined by the High Court, refer the whole case to the High Court and the case shall be heard and determined, subject to any directions the High Court may make, as if it were an appeal under this Part of this Act.”
2 The Criminal Procedure (Scotland) Act 1975, prior to amendment by the Criminal Justice (Scotland) Act 1980, provided, inter alia:“252—For the purposes of this Part of this Act the High Court may, if they think it necessary or expedient in the interest of justice—(a) order the production of any document, or other thing connected with the proceedings, the production of which appears to them necessary for the determination of the case; (b) if they think fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the High Court, whether they were or were not called at the trial, or order the examination of any such witnesses to be conducted in manner provided by section 253(1) of this Act before any judge of the High Court or other person appointed by the High Court for the purpose, and allow the admission of any depositions so taken as evidence before the High Court; (c) if they think fit, receive the evidence, if tendered, of any witness (including the appellant) who is a competent but not compellable witness, and, if the appellant makes an application for the purpose, of the husband or wife of the appellant, in cases where the evidence of the husband or wife could not have been given at the trial except on such an application; (d) where any question arising on the appeal involves prolonged examination of documents or accounts, or any scientific or local investigation, which cannot in the opinion of the High Court conveniently be conducted before the court, order the reference of the question in manner provided by section 253 (2) of this Act for inquiry and report to a special commissioner appointed by the court, and act upon the report of any such commissioner so far as they think fit to adopt it; (e) appoint any person with special expert knowledge to act as assessor to the High Court in any case where it appears to the court that such special knowledge is required for the proper determination of the case; and exercise in relation to the proceedings under this Part of this Act any other powers vested in the High Court, and issue any warrants necessary for enforcing the orders or sentences of the High Court: Provided that in no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.”
with blood five days after murder—Blood not pannel's blood group but deceased's blood group—Whether evidence of tissues corroborated pannel's statements in absence of innocent explanation for presence of them in his possession
Procedure—Solemn procedure—Appeal—Secretary of State's referral of case to appeal court—Whether appeal court restricted to sole ground of referral—Whether appeal court entitled to examine other rounds in note of appeal—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 263(1)2
Section 263(1) of the Criminal Procedure (Scotland) Act 1975 enacts,inter alia, that the Secretary of State, on consideration of any conviction, may, if he thinks fit, at any time, and whether or not an appeal against conviction has been previously heard and determined by the High Court, “refer the whole case to the High Court”.
In October 1973 the pannel was found guilty of murder. The crime relied upon statements made by him in which he admitted being present at thelocus at the time of the murder but claimed only to have been a spectator. In those statements, the pannel gave detailed information as to the circumstances of the attack and where certain of the deceased's belongings had been left. The Crown also relied upon the fact that the pannel was found in possession, five days after the murder, of two paper tissues which were stained with blood. An analysis of the blood, by use of two systems, found that the blood could not have been the pannel's but could have been the deceased's. The making and accuracy of the statements by the pannel were not challenged at the trial and the pannel did not give evidence. In July 1973, however, a forensic scientist had written a letter which was in the Crown's possession referring to the possibility of another blood analysis system which would, had it been successful, have been more precise than the two analyses carried out and could have excluded the pannel by establishing that the blood on the two paper tissues was his blood. The letter was not revealed to the pannel's legal representatives and was not founded upon by the Crown. An appeal on the ground that there was insufficient evidence to justify conviction was refused by the appeal court in December 1973. In 1993, the Secretary of State referred the pannel's case to the appeal court under sec 263(1) on the basis of the non-production of the letter. The pannel also lodged grounds of appeal in which he contended, inter alia, that (a) the non-production of the letter resulted in a miscarriage of justice; (b) the decision of the appeal court in 1973 was incorrect; and (c) there was insufficient evidence to convict.
Held (1) that a reference under sec 263(1) was of “the whole case” to the appeal court and the court was not restricted by the ground upon which the Secretary of State decided to order the review and could hear and determine any alleged miscarriage of justice as if it were an appeal under the Act so long as it had been referred to in the grounds of appeal, but the court could not, at its own hand, conduct an inquiry into the proceedings; (2) that corroboration of the accused's statement that he was at the locus at or about the time of the crime required some other independent evidence to show that what he said about this was not merely an invention on his part, which evidence was provided by other witnesses in the case; (3) that the only reasonable inferences from the accused's detailed knowledge were either that he was a spectator throughout the incident or that he was the murderer and there was therefore sufficient evidence that he had the opportunity to commit the crime, so the question was whether the evidence from which the inference could be drawn that he did commit it was corroborated; (4) that there was sufficient evidence to justify the inference that the accused had had the tissues with him at or about the time of the incident and, as no competing account was offered for the presence of them in his possession, it was open to the jury to find that the bloodstains on the tissues at that time were those of the deceased, which was sufficient to corroborate the inference of guilt which the jury were entitled to draw from the other evidence, having rejected the accused's explanation, that he was merely a spectator; and (5) that the evidence of the Mood grouping on the system described in the letter could not on its own have had a material part to play in the jury's determination of the question whether the bloodstains on the tissues could have come from the deceased as there was no evidence as to what the result of the testing on that system would have been and it was doubtful whether acceptable results could have been produced; and appeal refused.
Observed (1) that the court was confined by the statutory provisions regarding appeals and could only take cognisance of the appellant's grounds of appeal and not allegations made elsewhere; and (2) that it was important, in the public interest, that the issue as to whether a miscarriage of justice existed should be determined by the court, not the press.
George Beattie was charged on an indictment at the instance of the Rt Hon Norman Russell Wylie, QC, Her Majesty's Advocate, the libel of which set forth that: “You did on 6 July 1973 on ground between Unitas Crescent and Carluke railway station, known as the Colonel's Glen, Carluke, Lanarkshire, assault Margaret McLaughlin, 30 Glenburn Terrace, Carluke, and did struggle with her, strike her repeatedly on the body with a knife or similar instrument, rob her of a ring, a bracelet and £15 or thereby of money and you did murder her.” The pannel pled not guilty and proceeded to trial in the High Court of Justiciary at Glasgow before Lord Fraser and a jury. After trial, on 4 October 1973, the pannel was found guilty under deletion of the words “rob her of a ring, a bracelet and £15 or thereby of money”.
The appellant thereafter applied to the High Court of Justiciary for leave to appeal against conviction.
In his charge to the jury, Lord Fraser set forth, inter alia:“Now, this is a very unusual case in my experience and I think it...
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