Docherty v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 19 June 1987 |
| Docket Number | No. 19. |
| Date | 19 June 1987 |
| Court | High Court of Justiciary |
JC
FULL BENCH. L.J.-G Emslie, L.J.-C. Ross, Lords Robertson, Brand, McDonald, Wylie, Davidson, Morison and Sutherland.
Evidence — Witness — Socii criminis — Crown witnesses socii criminis — Trial judge failing to direct the jury that they should scrutinise these witnesses' testimony with special care — Whether misdirection — Whether there was a rule of law that required the trial judge to give cum nota warning to jury — Whether miscarriage of justice.
Procedure — Solemn procedure — Trial — Judge's charge — Socii criminis — Circumstances in which no cum nota warning required.
The appellant appeared for trial in the High Court of Justiciary on an indictment charging him with robbery whilst acting along with certain named individuals. These individuals had earlier pled guilty to that crime on separate indictments and had been duly sentenced. They were called as witnesses on behalf of the Crown at the appellant's trial. There was independent evidence which inculpated the appellant in the commission of the crime. In these circumstances, the trial judge failed to give the jury a cum nota warning in respect of the evidence of the socii criminis. On being convicted, the appellant appealed to the High Court of Justiciary by way of note of appeal.
Held (disapproving dicta in Dow v. McKnightSC1949 J.C. 38, per Lord Jamieson at pp. 53 and 55, and per Lord Justice-General Cooper at p. 57) (1) that it was not the case that all socii criminis were admittedcum nota; (2) that the evidence of socii criminis was not always suspect and did not always require very narrow scrutiny; and, accordingly, (3) that the trial judge had been correct not to give acum nota warning in this case; and appeal refused.
Dunstance v. H.M. Advocate 13th July 1951 (Unreported); Wallace v. H.M. AdvocateSC1952 J.C. 78;Murdoch v. H.M. Advocate 1955 S.L.T. (Notes) 57; andMcKenzie v. H.M. Advocate 26th June 1958 (unreported),disapproved.
Observed that: "[T]rial judges need only give to juries in all cases, whether or not any socii criminis has been adduced as a witness for the Crown, the familiar directions designed to assist them in dealing with the credibility of witnesses and any additional assistance which the circumstances of any particular case may require. If, for example, the credibility of any Crown witness, including a socii criminis, is in any particular case attacked by the defence on the ground of alleged interest to load and convict the...
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