Dempsey v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 10 March 1995 |
| Neutral Citation | 1995 SCCR 431 |
| Date | 10 March 1995 |
| Docket Number | No 15 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Sutherland, Cullen
Procedure—Solemn procedure—Judicial examination—Trial—Judge's charge—Pannel lodging special defence of self defence but leading no evidence in respect of it—Whether trial judge erred in directing jury that it was a matter for them whether they thought silence at judicial examination of any significance—Criminal Procedure (Scotland) Act 1975 (cap 21), sec 20A(5)1
Procedure—Solemn procedure—Trial—Conduct of prosecutor—Pannel lodging special defence of self defence but not leading evidence in respect of it—Crown stating to jury that the case cried out for an explanation from the pannel and that they would be entitled to draw adverse inferences from failure to provide any—Whether judge's directions in respect of Crown's comment sufficient—Whether miscarriage of justice Criminal Procedure (Scotland) Act 1975 (cap 21), sec 141 (1)
Section 141 (1) of the Criminal Procedure (Scotland) Act 1975 enacts,inter alia, that: “The accused shall be a competent witness for the defence at every stage of the case, whether the accused is on trial alone or along with a co-accused: provided that—… (b) the failure of the accused to give evidence shall not be commented upon by the prosecution.”
Section 20 A of the Act makes provision for the accused to be questioned at judicial examination before the sheriff by the prosecutor. Section 20 A (5) enacts that: “An accused may decline to answer [at judicial examination]; and, where he is subsequently tried on the charge … or on any other charge arising out of the circumstances which gave rise to the charge … his having so declined may be commented upon by the prosecutor, the judge presiding at the trial, or any co-accused, only where and in so far as the accused (or any witness called on his behalf) in evidence avers something which could have been stated appropriately in answer to that question.”
The pannel and another were charged on an indictment with, inter alia, assaulting the complainer to his in jury and thereafter assaulting him to his severe injury and danger of his life. The pannel's defence was that of self defence and he lodged a special defence in those terms in respect of the first charge. The pannel was brought before the sheriff and judicially examined and asked whether he wished to say that he was acting in self defence in relation to that charge. To that he replied, “Nothing further to say on the advice of my lawyer”. Witnesses gave statements to the police. At trial, many witnesses appeared shifty and reluctant to commit themselves to what they were supposed to have said to the police but it was not suggested at the end of the Crown case that there was insufficient evidence to convict the pannel even though the evidence was complex, consisting in a large part of the recollection of civilian witnesses who had taken drink, or drink and drugs, prior to the events. The events themselves were confusing to onlookers and participants and issues were raised about the credibility and reliability of their evidence, about the accuracy of the police statements, and about the credibility and reliability of those statements insofar as they were adopted by the witnesses. The pannel did not give or call any evidence. In his closing speech, the procurator fiscal stated that the case cried out for an explanation from the pannel and that they would be entitled to draw adverse inferences from his failure to provide any. The sheriff, in his charge, forcibly stressed to
the jury that there was never any onus on the pannel, especially in relation to a special defence to establish any part of the defence. However, the sheriff went on to contrast the position of the co-accused who had given evidence consistent with what he had said at judicial examination. On being convicted, the pannel appealed to the High Court.Held (1) that in view of the clear directions the sheriff gave to the jury, had there been no other facts to take into account, the prejudicial effect of the prosecutor's remarks had been removed by what the sheriff said and no miscarriage of justice had occurred; but (2) that, although it was open to the sheriff to comment on the failure of the pannel to give evidence, the corollary was that, as the pannel had not given evidence, it was not open to the sheriff to pass any comment on the failure of the pannel to indicate at judicial examination that he was acting in self defence, which was a breach of sec 20A(5), and the contrast which the sheriff drew between the pannel and his co-accused was clearly intended to suggest to the jury that they could be critical of the pannel on the ground that he had not been consistent in the line which was taken on his behalf, which was unfair; and appealallowed.
Walker v HM AdvocateSC 1985 JC 53 distinguished.
David Hector Dempsey and Allan Nelson were charged on an indictment at the instance of the Rt Hon the Lord Rodger of Earlsferry, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, that: “(3) On 19 or 20 February 1993 at 40 Shakespeare Street, Glasgow, you [both] did assault Paul Brown, c/o Maryhill Police Office, Glasgow, strike him repeatedly on the head and body with a baton and on the head with a bottle, whereby he fell to the ground, and repeatedly kick and punch him on the head and body and jump on his head, all to his injury; …
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(5) On 20 February 1993, at Glenfinnan Drive, Glasgow, you [both] did assault said Paul Brown and you Alan Nelson did punch him on the face, struggle with him and push him against a motor vehicle and you David Hector Dempsey did repeatedly stab him on the body with a knife, all to his severe injury and to the danger of his life.”
The pannel and his co-accused pled not guilty and the cause came to trial in the sheriffdom of Glasgow and Strathkelvin at Glasgow before the sheriff (Evans) and a jury between 7 and 17 October 1994. After trial, the pannel and his co-accused were convicted of charge (3) under deletion of the words “on the head with a bottle” and “and jump on his head” and of charge (5) as libelled.
The pannel thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction.
Cases referred to:
Clark v HM Advocate (1977) SCCR Supp 162
McHugh v HM AdvocateSC 1978 JC 12
Ross v Boyd (1903) 5 F(J) 64
Upton v HM AdvocateSC 1986 JC 65
Walker v HM AdvocateSC 1985 JC 53
In his report for their Lordships' consideration, the sheriff set forth...
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