Deighan v MacLeod
| Jurisdiction | Scotland |
| Judgment Date | 14 January 1959 |
| Docket Number | No. 7. |
| Date | 14 January 1959 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Patrick. Lord Mackintosh.
Crime—Summary Procedure—Previous convictions—Implied reference by witness to previous convictions of accused—Reference not elicited by question of prosecutor or judge—Summary Jurisdiction (Scotland) Act, 1954 (2 and 3 Eliz. II, cap. 48), sec. 31 (1) (b).
The Summary Jurisdiction (Scotland) Act, 1954, enacts:—Sec. 31. (1) (b) Where the accused in a summary prosecution has been previously convicted of any offence forming an aggravation of any offence libelled in the complaint … the previous conviction shall not be laid before the judge until he is satisfied that the charge is proved."
Two accused were tried under the Summary Jurisdiction (Scotland) Act, 1954, on two charges of theft. A police constable, who was giving evidence for the prosecution, stated in the course of his examination-in-chief that he recognised two of the three men he had seen near the locus as known thieves, and it was clear to the Sheriff-substitute that the police constable was thereby referring to the two accused. The police constable's statement was not however made in answer to a question designed to elicit such information.
Held that where a witness ultroneously included in his answer to a properly framed and competent question something pointing to the accused's having been previously convicted, there was no contravention of the Act.
Opinions reserved on the position where a malicious or irrelevant answer was given to a proper question.
Observations on the need for prosecutors to take care in framing questions.
Kepple v. H. M. Advocate, 1936 J. C. 76applied.
Patrick James Deighan was charged along with another in the Sheriff Court at Edinburgh on a complaint which set forth that he did "(1) On 9th August 1958 while acting along with another man unknown to the complainer, in Princes Street, Edinburgh, from the person of Thomas Smith, joiner, 74 Slateford Road, Edinburgh, steal a diary and a trade union card, and (2) time and place above libelled, while acting along with another man unknown to the complainer, from the person of Robert Campbell Mosley, coppersmith, County Court, Albion Place, Leeds, steal a wallet, driving licence and personal papers."
On 24th October 1958 the appellant's co-accused pleaded guilty, and after evidence had been led in respect of the appellant he was found guilty by the Sheriff-substitute (K. W. B. Middleton). At the request of the appellant he stated a case for appeal to the High Court of Justiciary.
The case set forth that the following facts were admitted or proved:—"(1) About 11 P.M. on 9th August 1958, Robert Mosley, who was on a visit to Edinburgh, was on the north side of Princes Street with a friend, Ian Campbell, when three men, including the appellant and the co-accused, approached them. The three men addressed some jocular remarks to Mosley and Campbell and at the same time jostled them. Mosley was suspicious of the men and when they went away he discovered that a...
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...unreported case of Wallace v. H.M. Advocate, 14th February 1957, which was referred to by the Lord Justice-Clerk in Deighan v. M'LeodSC 1959 J.C. 25 at p. 29. However, in other respects Wallace was a stronger case for the Crown than the present case, and in any event I doubt whether referen......
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