Gallacher v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 08 December 1950 |
| Date | 08 December 1950 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Lord Jamieson. Lord Patrick. Lord Guthrie.
Review—Appeal against conviction on indictment—Power of High Court to hear additional evidence—Conditions on which new evidence admissible—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), secs. 6 (b) and 16.
In a trial for murder the principal question for the jury was whether the accused had been identified as forming part of a group of six or seven men who had been kicking the deceased in the middle of a large and disorderly crowd. Two police constables and one other witness identified the accused as having been arrested in the act of kicking. The accused, however, gave evidence that, when he was arrested, he had been some ten yards distant from the deceased and had been throwing stones at a vehicle. Some corroboration for this statement could be found in the evidence of two other witnesses. In an appeal, he asked the Court, under sec. 6 (b) of the Criminal Appeal (Scotland) Act, 1926, to hear the evidence of three additional persons, stating that their evidence had not been known to him at the time of the trial and that it would have corroborated the account of his arrest which he had given.
The Court refused the application on the ground that, assuming that an adequate explanation had been given for the evidence not having been tendered at the trial, an essential prerequisite of a successful application, they were not reasonably satisfied that, if the evidence proposed had been led at the trial, the jury's verdict would have been different and that the verdict returned in its absence amounted to a miscarriage of justice.
Observed that the same principles did not necessarily fall to be applied in a remit by the Secretary of State under sec. 16 of the Act.
Robert Gallacher, John M'Guire, Robert M'Kenna and Edward M'Guire were charged on an indictment at the instance of His Majesty's Advocate which set forth, inter alia, "that on 9th September 1950, in Hamilton Palace Recreation Ground, Edinburgh Road, Hamilton, at the site then occupied by Bertram Mills Circus, 1 Dorset Square, London, … (3) you, Robert Gallacher, John M'Guire, Robert M'Kenna and Edward M'Guire did, while acting along with … other men to the prosecutor unknown, assault John Edwin Newall, 6 Cadzow Street, Hamilton, and did kick him repeatedly on the head and body, whereby he was so severely injured that he died on 14th September 1950 in Killearn Hospital, Stirlingshire, and you did murder him."
The trial took place in the High Court of Justiciary, Glasgow, before Lord Keith and a jury, on 31st October and 1st, 2nd and 3rd November 1950. On 3rd November 1950 the jury convicted Robert Gallacher, Robert M'Kenna and Edward M'Guire of murder, and they were sentenced to death.
All three convicted men applied for leave to appeal against their conviction under the Criminal Appeal (Scotland) Act,1926. This report is concerned only with an application by the appellant Gallacher that new evidence should be heard by the Court under section 6 (b) of the Act.1
The application for new evidence was in the following terms:—"That it has come to the knowledge of the applicant that:—(a) James King, aged 13, residing at 24 Church Street, Hamilton; and (b) Joseph Tierney, aged 12, residing at 26 Church Street, Hamilton; and (c) Bernard Bonner, aged 23, residing at 10 Dechmont Street, Hamilton, who would have been competent and compellable witnesses at his trial but were then unknown to him and, consequently, not called on his behalf, are in possession of new evidence, material and relevant to his exculpation, namely, that the applicant was not, at the time of his apprehension, assaulting the now deceased John Edwin Newall as deponed to by Crown witnesses, but throwing stones at a material distance from the scene of the assault; that such evidence of the said James King and Joseph Tierney, if allowed to be received, would be in essential corroboration of the evidence given by the applicant himself at his trial; that, accordingly, such witnesses should be ordered to attend and be examined before the Court, or examined in terms of the Criminal Appeal (Scotland) Act, 1926, and relative Act of Adjournal and their depositions, so taken, allowed as evidence before the Court, in order to ascertain whether the verdict of the jury was pronounced in the absence of matter, material and relevant, to lead to a contrary result."
The following statement of the circumstances in which the application was made is taken from the opinion of the Court:—"We need not go at any length into the events leading up to the tragedy. The Bertram Mills Circus had been in Hamilton for a week and had concluded its last performance on Saturday evening, 9th September, about 8.15p.m.. The circus had been accommodated on part of what is known as the Palace grounds, situated only some two minutes' walk from the Old Cross, Hamilton. When the last performance was finished the large circus tent was at once taken down. This attracted a large crowd, partly of those who had attended the performance and stayed on, and partly of those who had come specially to see the operation. Among the latter was the deceased man, Newall. So far as appears, Newall was one of a well disposed, interested crowd of spectators. There was, however, another crowd at the circus ground that evening who were out for trouble. This crowd
numbered some thirty or forty or perhaps more and had some ill-will against the circus people, the origin of which was not ascertained at the trial. The trouble seems to have started shortly after 10p.m. Sporadic individual fights broke out between individuals. Mr Mills, when he saw what was happening, called on his men to gather together into the former ring of the circus and to drop whatever implements they had in their hands which they had been using for dismantling. The police were also summoned. At this point, the ill-disposed portion of the crowd, who no doubt had collected some supporters from the rest, began to retreat to the gates. The retreating ill-disposed portion of the crowd began to stone the circus vans and other vehicles which were standing about preparatory to departure. The assault on Newall, so far as the evidence goes, was an isolated incident, the precise origin of which is left in obscurity. There is, however, ample evidence that Newall was attacked, knocked down and surrounded by a group of some six or seven men who were observed kicking him when he was on the ground.
"[After considering grounds of appeal with which this report is not concerned, and expressing the view that none had been made out, the opinion...
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