Carberry v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 13 February 1975 |
| Docket Number | No. 8. |
| Date | 13 February 1975 |
| Court | High Court of Justiciary |
JC
L.J.-G. Emslie, Lords Cameron, Johnston.
Evidence—Competency—Previous convictions—Implied reference to previous convictions prior to verdict—Purpose to rebut defence evidence of a possibly innocent explanation of the possession of a stolen vehicle—Whether admissible—Criminal Procedure (Scotland) Act 1887 (50 & 51 Vict, cap. 35) sec. 67 as amended by the Criminal Justice (Scotland) Act 1963 (cap. 39) sec. 52.
By section 67 of the Criminal Procedure (Scotland) Act 1887, as amended, it is enacted inter alia: "Previous convictions against a person accused shall not be laid before the jury, nor shall reference be made thereto in presence of the jury before the verdict is returned; but nothing herein contained shall prevent the public prosecutor from laying before the jury evidence of such previous convictions where, by the existing law, it is competent to lead evidence of such previous convictions as evidence in causa in support of the substantive charge …"
Three accused persons were charged on indictment with conspiracy to commit the crimes of assault and robbery at a bank. The indictment set forth inter alia that they did frequent and loiter in the area of the bank and did observe the movements of customers and staff, and that they had stolen a motor car, by hiring it under a false name. At their trial the Crown led evidence that one of the accused, at the time of his arrest, had volunteered a statement that he had got the car the night before from a man whom he had met a year earlier "when they had both been in Barlinnie." The jury by a majority found all three accused guilty. Subsequently, as applicants for leave to appeal against their convictions, the three argued, first of all, that the trial judge had misdirected the jury by "in effect" directing them that an agreement merely to investigate the possibility of committing the crimes charged, would suffice for a verdict of guilty—an argument, however, which was rejected upon a consideration of the wording of the charge. But further, the applicants argued that the Crown had deliberately elicited incompetent evidence, being that of the statement made by one of their number before referred to, and had commented thereon to the jury, contrary to section 67 of the Criminal Procedure (Scotland) Act 1887.
Held that there had been no breach of said section 67, in respect that, although the reference to "Barlinnie" was equivalent to a reference to a previous conviction, the statement in its entirety was, in the special circumstances of the case, both competent and relevant evidence in support of the substantive charge of conspiracy; and applications refused.
H.M. Advocate v. Joseph 1929 J.C. 55 commented on andapproved.
John Carberry, John Best Brown and Richard Bell Brysonwere charged in an indictment at the instance of Her Majesty's Advocate which set forth that between "1st April and 24th July 1974, both dates inclusive, in Duke Street, Thomson Street and Hillfoot Street, Glasgow, and elsewhere in Scotland while acting along with another person to the Prosecutor unknown, conspire with each other to commit the crimes of assault and robbery at the premises occupied by the Bank of Scotland at 457 Duke Street, Glasgow, and in pursuance of said conspiracy you did (a) having on 2nd July 1974 at the premises occupied by Croall Car Rentals Limited, at 255 Glasgow Road, Paisley, obtained the hire of motor car registered number BWS 549L for a period of two days on the pretence that the hirer was Andrew Crawford Cook, 368 Kings Park Avenue, Glasgow, appropriate said motor car to your own use, affix to it a false registration mark, and did steal said motor car, (b) keep in said motor car 3 pairs of gloves, a pullover, three caps, and three nylon masks, and (c) frequent and loiter in the area of said premises occupied by the Bank of Scotland, observe the interior of said premises and the movements of customers and staff using said premises and all this you did with intent to commit said crimes of assault and robbery." The accused who pled not guilty were tried in the High Court at Glasgow before Lord Justice-Clerk Wheatley and a jury. All three accused were convicted by a majority verdict on 8th November 1974. They were each sentenced to five years imprisonment.
In the course of the trial the Advocate-Depute deliberately elicited evidence from police witnesses that the accused Brown had made a statement just before his arrest to the effect that he had got the car and the licence from a man "Cook" the night before, and that he had met "Cook" a year earlier "when they had both been in Barlinnie." In fact as appeared from further evidence led at the trial, the man "Cook," whose name was on the said licence, had died in 1973, and had never been "in Barlinnie."
All three accused applied for leave to appeal against conviction on the grounds inter alios (1) that the presiding judge erred in directing the jury anent conspiring in respect that he in effect directed them that an agreement to investigate the possibility of committing the crime charged would constitute a crime; (2) that the Advocate-depute deliberately elicited evidence to the effect that the applicant John Best Brown had been the previous year in Barlinnie Prison, and commented upon this evidence in his speech to the jury, contrary to sec. 67 of the Criminal Procedure (Scotland) Act, 1887.
The case was heard before the High Court of Justiciary on 24th January 1975.
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Wiping the Slate Clean: Reforming Scots Law's Approach to Evidence of the Accused's Bad Character
...prosecution tookreasonable care in framing its questions: Andrew vHM Advocate 2000 SLT 402; Kerr vJessop 1991JC 1; Carberry vHM Advocate 1975 JC 40; Kepple vHM Advocate 1936 JC 76.9 1995 Act, ss 101(2), 166B.10 Mitchell vDean 1979 JC 62. See, further, Report, para 7.11. Previous convictions......