Gall v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 March 1992 |
| Docket Number | No. 20. |
| Date | 05 March 1992 |
| Court | High Court of Justiciary |
JC
L. J.-G. Hope, Lords Allanbridge, Weir.
Procedure—Solemn procedure—Trial—Judge's charge to jury—Prevaricating Crown witness, having been detained overnight and charged with perjury on advocate-depute's instructions, being recalled to give evidence and revealing detention and charge in cross-examination—Whether trial judge should have directed jury to disregard witness's evidence.
Procedure—Trial—Witness—Prevaricating Crown witness having been detained overnight and charged with perjury on advocate-depute's instructions—Crown subsequently recalling witness—Whether trial judge erred by allowing witness to be recalled—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 148A.1
Section 148A of the Criminal Procedure (Scotland) Act 1975, as inserted by sec. 73 (1) of the Criminal Justice Act 1982, enacts that:—"In any trial, on the motion of either party, the presiding judge may permit a witness who has been examined to be recalled."
The accused was charged, along with another person, on an indictment which libelled inter alia supply of a class A drug, contrary to sec. 4 (3) (b) of the Misuse of Drugs Act 1971. A Crown witness gave evidence on the first day of the trial but prevaricated and was not cross-examined. He was the last witness to give evidence that day and, on the instructions of the advocate-depute, he was detained by the police, charged with perjury and held in custody overnight. The next morning, the advocate-depute sought to have the witness recalled under sec. 148A of the 1975 Act, which motion was opposed by the accused. The trial judge granted the motion and warned the witness, outwith the presence of the jury, that he was considering holding him in contempt of court. The witness subsequently gave evidence and was cross-examined by counsel for the accused, during which it emerged that the witness had been detained, charged, held in custody and warned by the judge. In charging the jury, the trial judge left the assessment of the witness's evidence to the jury, subject to general remarks concerning how they should approach the evidence of witnesses who were trying to say as little as possible and who had been put under pressure in order to get them to say anything. The accused was convicted and appealed to the High Court on the ground that the trial judge had erred in allowing the witness to be recalled, given what had happened after he had completed his evidence on the first day, and that he should have directed the jury totally to disregard the witness's evidence.
Held (1) that the decision to allow a witness to be recalled was a matter entirely within the discretion of the trial judge and that he had not erred in the exercise of his discretion, it being difficult to imagine a case where recall of a witness was less likely to be disruptive to the fair and orderly progress of the trial, and it being sound practice, following Thomson v. H.M. AdvocateSC1988 J.C. 105, to allow the witness the opportunity to purge his contempt; and (2) that a trial judge would be justified in directing a jury to disregard the whole of a witness's evidence only where no reasonable jury, properly directed, could assess that evidence impartially in fairness to the accused; that it was hard to conceive of circumstances where questions put by the defence could ever lead
to that result, and that nothing was said or done in this case that would have justified the trial judge in taking such an extreme step; and appeal refused.Williamson v. H.M. AdvocateSC 1979 J.C. 36 applied.
Hutchison v. H.M. AdvocateUNK 1984 S.L.T. 233distinguished.
Thomson v. H.M. AdvocateSC 1988 J.C. 105 followed.
Daniel Campbell Gall and Arthur Thomas Swankie were charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forthinter alia a charge of supplying to another a controlled drug in contravention of sec. 4 (3) (b) of the Misuse of Drugs Act 1971. At trial in the High Court at Dundee before Lord Coulsfield and a jury, Swankie pled guilty to part of that charge and Gall was convicted of that charge. Each pannel was sentenced to five years' imprisonment. The terms of Lord Coulsfield's charge to the jury and report to the High Court of Justiciary appear sufficiently from the opinion of the court.
Swankie appealed to the High Court of Justiciary by note of appeal against sentence; Gall appealed to the High Court by note of appeal against conviction and sentence.
The cause came before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Weir, for a hearing on 5th March 1992.
Eo die, at advising, the opinion of the Court was delivered by the Lord Justice-General (Hope).
Opinion Of The...
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