Brodie v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 20 January 1993 |
| Neutral Citation | 1993 SCCR 371 |
| Date | 20 January 1993 |
| Docket Number | No. 16 |
| Court | High Court of Justiciary |
JC
L.J.-G. Hope, Lords Cowie, Mayfield
Evidence—Appeal—Additional evidence—Admissibility—Witness giving evidence and thereafter being detained on perjury charge—Witness returning to witness box and purging contempt—Affidavit provided at appeal hearing that the evidence witness first gave was the truth—Whether witness able to revert to original testimony—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 228 (2)1
Evidence—Appeal—Additional evidence—Evidence available at trial—Evidence from witnesses that they gave false evidence at the trial because of police pressure—Whether evidence reasonably available at trial—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 228 (2)1
Section 228 (2) of the Criminal Procedure (Scotland) Act 1975 enacts that a person may appeal against conviction on the basis of the existence and significance of additional evidence which was not heard at the trial and which was not available and could not reasonably have been made available at the trial.
The appellant was tried and convicted of murder by stabbing. Witness McD. gave evidence that he did not see the appellant with a knife but agreed that he had given a statement to the police to that effect but only because the police had pressurised him into doing so. After his evidence the witness was detained for perjury. He then informed the police that he was prepared to tell the truth. He was recalled to the witness box and deponed that he had seen the appellant with a knife and saw him making a stabbing motion with it in his hand. Thereafter witness T. gave evidence that the appellant had stabbed the deceased and witness L. gave evidence that he had seen the appellant with a knife shortly before the incident. The appellant appealed to the High Court of Justiciary on the basis of affidavits sworn by these witnesses claiming the evidence they had given at the trial was untrue.
Witness McD. stated in his affidavit that the evidence he had originally given in the witness box was true but he only retracted this and gave further evidence because he was afraid of going to prison for perjury. In their affidavits T. and L. stated the evidence they had given at the trial was untrue, this being brought about by police pressure from the outset to give evidence implicating the appellant. While they intended to tell the truth when they came to give evidence they were threatened on the day by police officers that if they did not keep to their police statements they would "end up like McD.".
Held (1) that an appeal could not be allowed on the ground that a witness who had returned to the witness box to purge his contempt, by giving what he claimed then to be truthful evidence, gave evidence which was untrue and then wished to revert to the former version of his evidence; (2) that the appellant had
first to demonstrate that the additional evidence could not reasonably have been made available at the trial before that evidence could provide a basis for an appeal on the ground of fresh evidence; (3) that once that test had been satisfied, the test was whether the additional evidence was of such a kind and quality that it would be likely to have been found by a reasonable jury and on proper directions to be of material assistance to them in their consideration of a critical issue at the trial; and (4) that the evidence failed to pass the first test as (a) both T. and L. had been on the Crown list of witnesses and had both been available to be precognosced by the appellant's solicitors so that the evidence those witnesses now wished to give could reasonably have been made available to those solicitors, by appropriate questioning, at that time and (b) once McD. had returned to the witness box and changed his evidence, the whole issue as to why the witnesses were adhering to their police statements was out into the open and was available to the appellant's counsel for questioning; and appeal refused.Opinion that, in any event, T. and L. merely wished to change what they had said at the trial, not to add further evidence on a point which was new so that the second test was not met.
Opinion further that even if what T. and L. now wished to say could be described as additional evidence, it was not of such materiality that it would have been likely to have been of material assistance to the jury in arriving at their verdict given the other evidence in the case.
Mitchell v. H.M. AdvocateUNK 1989 S.C.C.R. 502applied.
George Steele Brodie was charged on indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C. the libel of which set forth inter alia that: "On 13th April 1991 [you did] … (2) in the West End Park, Bank Street, Coatbridge, conduct yourself in a disorderly manner, form part of a disorderly crowd and commit a breach of the peace; (3) place last above libelled, while acting along with other persons whose identities are to the prosecutor unknown, assault John Gray, c/o Buller Barracks, Munster, West Germany, punch and kick him repeatedly on the head and body and stab him repeatedly on the body with a knife or similar instrument, and you did murder him; (4) place last above libelled, while acting along with other persons whose identities are to the prosecutor unknown, assault Owen Gallacher, c/o Coatbridge Police Office, punch and kick him repeatedly on the head and body and stab him on the body with a knife or similar instrument to his severe injury and to the danger of his life, and you did attempt to murder him." The cause came to trial in the High Court of Justiciary at Airdrie before Lord Cullen and a jury between 29th July 1991 and 5th August 1991. On 5th August 1991 the pannel was convicted inter alia of murder on charge (3) and sentenced to life imprisonment. He appealed to the High Court of Justiciary by way of note of appeal against conviction.
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie for a hearing on 29th May 1992. Eo die their Lordships continued the cause to another date.
The cause thereafter called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Cowie and Lord Mayfield for a hearing on 7th January 1993. Eo die, their Lordships madeavizandum.
At advising, on 20th January 1993, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—The appellant was found guilty in the High Court at Airdrie of the murder of John Gray by stabbing him repeatedly on the head and body with a knife or similar instrument. He was said to have been acting along with others when he committed this assault, which included also punching and kicking the deceased repeatedly on the head and body.
The incident occurred in the course of one of a number of fights which had developed in a public park in Coatbridge in the early hours of the morning. The deceased, who was a sergeant in the Queen's Own Highlanders serving in Germany, had been at a party in Coatbridge to celebrate the forthcoming wedding of a member of his wife's family. Between about 2.30 and 2.45 a.m. members of the party, including the deceased, left a disco and shortly afterwards a fight developed between several members of this group. This fight attracted the attention of a number of other people who had no previous connection with the party. A number of young men, including the appellant, ran up the street and various fights then broke out at which a large number of people came to be present either as participants...
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