Dodds v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 18 November 1987 |
| Neutral Citation | 1987 SCCR 678 |
| Date | 18 November 1987 |
| Docket Number | No. 5. |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Wylie, Clyde.
Evidence—Incrimination—Accused acquitted of theft charges incriminated by co-accused in respect of them by special defence—Accused cross-examined on that incrimination while giving evidence in exculpation of another charge—Whether accused asked questions tending to show that he had committed offences other than that with which he was then charged—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 141 (1).1
The appellant went to trial along with a co-accused on an indictment containing charges of theft. The appellant alone was also charged with a statutory offence. On a submission of no case to answer the appellant was acquitted of the theft charges but the trial proceeded against him on the statutory offence and against the co-accused on two of the theft charges. Prior to the trial a special defence incriminating the appellant had been lodged by the co-accused, whose defence proceeded on that basis. Before the jury the appellant elected to give evidence in exculpation of the statutory offence and was cross-examined by counsel for the co-accused in line with the special defence of incrimination. The jury found the appellant guilty of the statutory offence and he appealed, on the ground that the sheriff erred in allowing him to be asked questions which tended to show that he had committed offences other than that with which he was then charged.
Held that having regard to what had already transpired in the trial, the cross-examination could not have tended to reveal or disclose something that the jury did not know already, and accordingly would not have breached sec. 141 (1) (f) of the 1975 Act; and appealrefused.
Jones v. D.P.PELR. [1962] A.C. 635 followed.
George David Dodds and Mrs Flora Boyd or Bannon were charged on an indictment in the sheriffdom of Tayside Central and Fife at the instance of the Rt. Hon. the Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, on three charges (1 to 3) of theft. Dodds was also charged on an additional charge of theft (charge 4) together with a charge (5) of a breach of sec. 57 (1) of the Civic Government (Scotland) Act 1982. The cause came to trial before the sheriff (G. L. Cox) and a jury between 16th and 19th February 1987. Banon lodged a special defence under sec. 82 (1) (a) of the Criminal Procedure (Scotland) Act 1975
incriminating Dodds on the theft charges. At the close of the Crown case, however, Dodds was acquitted on the theft charges on a defence submission that there was no case to answer. His co-accused was acquitted on one of the theft charges on a similar defence submission and the trial proceeded against her on the remaining two theft charges. Dodds gave evidence on his own behalf and was cross-examined on behalf of Bannon in support of her notice of incrimination but not as regards his general character. On 19th February 1987 Dodds was convicted of the statutory charge and appealed by way of note of appeal to the High Court of Justiciary.In his charge to the jury, the sheriff stated, inter alia,that:—"Ladies and gentlemen, at this stage I am going to address you separately with regard to each accused. I am going to start now with George David Dodds or George Dodds depending on what his proper name is. Now ladies and gentlemen, he is now concerned, we are now concerned only in relation to George Dodds with charge 5 and although certain evidence has been given in relation to actings by him in relation to charges 1 to 4, in so far as you are considering the case against him you put out of your minds altogether everything that has been said and pressed upon you with regard to his involvement in charges 1 to 4. Whether that evidence came from Crown witnesses or came from defence witnesses or came through the speeches of counsel for Bannon or anyone else, you put them out of your mind altogether when dealing with your deliberation on charge 5 against Mr Dodds. Quite different considerations will apply when you come to consider the case of Mrs Bannon. As far as Dodds is concerned on charge 5 you put on your blinkers and you look at the evidence relating to that charge and that charge only. You don't form a view of Dodds based upon what you have heard in relation to charges 1 to 4, because for reasons of insufficiency of evidence at the end of the Crown case he has been acquitted of these charges.…Now ladies and gentlemen, I have as I said I would, deliberately talked about the male person whom Mrs Bannon was with and I have presented Mrs Bannon's evidence upon the basis that you believe what she has said. An attack has been made, an attack has been made upon Mr Dodds' credibility by counsel for Mrs Bannon and of course you are entitled, when you are considering Mr Dodds' evidence given in relation to charges 1 to 4 when cross-examined by counsel for Mrs Bannon, you are quite entitled to say, in relation to the matter with which Mrs Bannon is concerned, we don't believe that man, we don't believe him, we rather believe Mrs Bannon's version. Even accepting Mrs Bannon's version, ladies and gentlemen, there is sufficient evidence to convict her at least of the theft in charge 1 and of the drugging and theft in charge 3, if you accept all the evidence which is against her, but I remind you that if her evidence in your view, as masters of the facts, is believed by you and if you think that that exculpates her completely then you acquit her. If you think it so much as raises a reasonable doubt in your mind about her guilt again you must acquit her."
The ground of appeal was in the following terms:—"The sheriff erred in allowing the pannel to be asked questions which tended to show that he had committed offences other than that with which he was then charged."
The cause came before the High Court of Justiciary, comprising the Lord Justice-Clerk (Ross), Lord Wylie and Lord Clyde for a hearing thereon on 30th October 1987.
At advising on 18th November 1987;—
LORD JUSTICE-CLERK (Ross).—The appellant is George David Dodds who went to trial along with a co-accused on an indictment containing a number of serious charges of theft from elderly persons to whom he was alleged to have administered soporific drugs. The appellant faced four charges of theft and his co-accused was charged along with him in respect of three of these charges. In addition the appellant alone was charged with a contravention of sec. 57 (1) of the...
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