Diamond v HM Advocate (No.2)
| Jurisdiction | Scotland |
| Judgment Date | 01 April 1999 |
| Neutral Citation | 1999 SCCR 411 |
| Date | 01 April 1999 |
| Docket Number | No 37 |
| Court | High Court of Justiciary |
JC
LJ-G Rodger, Lord Sutherland and Lord Coulsfield
Evidence—Competency—Evidence at retrial of pannel tearing up warrant when shown it by police—Pannel acquitted of obstruction charge at original trial—Whether evidence competent where no charge of obstruction or reference to pannel's conduct in libel—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 119(6) and (7)1
Procedure—Solemn procedure—Retrial—Pannel acquitted at original trial of statutory obstruction by tearing up warrant—Crown leading evidence at retrial of pannel's conduct without specific reference in libel to conduct—Whether competent—Criminal Procedure (Scotland) Act 1995 (cap 46), sec 119 (6) and (7)1
Section 119(6) of the Criminal Procedure (Scotland) Act 1995 enacts that in a new prosecution it shall, subject to subsec (7), be competent for either party to lead any evidence which it was competent for him to lead in the earlier trial. Subsection (7) enacts that the indictment in a new prosecution shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsec (6) which would not have been competent but for that subsection.
The pannel was tried for various offences under the Misuse of Drugs Act 1971 including an offence of obstruction by tearing up a search warrant when it was shown to him by police officers, contrary to sec 23 of the Act of 1971. The pannel was acquitted of that chargebut convicted of other charges. After a successful appeal the pannel was retried, but the indictment made no [preference to the pannel's conduct in tearing up the warrant. At the retrial the Crown was allowed to lead evidence of the pannel's conduct. On being convicted, the pannel appealed to the High Court on the ground that the evidence had been improperly admitted.
Held (1) that the answer to the appeal depended on whether, in the absence of subsec (6), it would have been competent to lead evidence of the pannel's conduct when that evidence had been previously led at the original trial on a different charge of which the pannel had been acquitted; and (2) that, even though the pannel might have been acquitted of a charge based on certain evidence, that did not prevent the Crown from leading that evidence in a subsequent case in support of a different charge; and appeal refused.
Nelson v HM AdvocateSC 1994 JC 94 applied.
Observed that, in any event, as the Crown wished to lead the evidence not in support of the same charge of obstruction of which the pannel had been acquitted but in support of the drugs charges, such a course was competent.
HM Advocate v CairnsSC 1967 JC 37 followed.
James Thomason Diamond was charged along with a co-accused on an indictment at the instance of the Right Honourable the Lord Hardie, QC, Her Majesty's Advocate, the libel of which set forth, inter alia, that: “(1) On 12 May 1997 at the house occupied by you at 47 New Road, Kennoway, [they] did have in [their] possession a controlled drug, namely Methylenedioxymethylamphetamine a Class A drug specified in Part 1 of Schedule 2 to the Misuse of Drugs Act 1971 in contravention of sec 5(1) of said Act; contrary to the Misuse of Drugs Act 1971, sec 5(2). (2) On 12 May 1997 at the house occupied by you at 47 New Road, Kennoway, [they] did have in [their] possession a controlled drug, namely Methylenedioxymethylamphetamine a Class A drug specified in Part 1 of Schedule 2 to the...
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John Hemphill V. Her Majesty's Advocate
...what evidence might competently be led upon the basis of the principles set out in Nelson, as applied and clarified in Diamond v H.M.A. 1999 J.C. 244. But such issues did not arise at this stage: the Minute was concerned with the competency of charging in the new indictment offences which h......