Hamilton v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 15 November 1979 |
| Docket Number | No. 13. |
| Date | 15 November 1979 |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lords Kissen, Robertson.
Evidence—Competency—Best evidence—Accused's voluntary written statement not lodged as a production per incuriam—Parole evidence of two police officers who took statement.
James Hamilton, one of nine men charged with conspiracy, gave a voluntary statement to two police officers. They wrote out his statement and he signed it. Per incuriam the signed statement was not lodged as a production. At the trial the Crown led the evidence of the two police officers, who spoke to their recollection of what the applicant had said while making his voluntary statement. The applicant was convicted. He applied for leave to appeal against conviction, arguing that the signed statement itself, and not the parole evidence of the police officers, was the best evidence.
Held (1) that what the police officers heard the applicant say was primary, not secondary, evidence; and (2) that committing the applicant's statement to writing and having him sign it as accurate did not render incompetent the officers' possibly more vulnerable recollection of what was actually said.
Evidence—Undue admission of evidence—Accused's statement held to be inadmissible—Notebook containing accused's statement given to jury per incuriam—Whether fatal to conviction.
Procedure—Trial—Correct procedure where jury wish to examine productions—Discretion of trial Judge.
John Newlands, one of nine men charged with conspiracy, made a self-incriminating statement to the police. The statement was recorded in a policeman's notebook. At the trial, after submissions made outwith the presence of the jury, the statement was held to be inadmissible. The statement therefore did not form part of the evidence in the case. When the jury had retired, they asked to see certain productions. The police notebook containing the inadmissible statement was inadvertently handed in to the jury room. It was retrieved after about 25 minutes. It was not known whether the jury had read the statement. The applicant was convicted.
Held (1) that the jury had been provided with evidence which was not evidence given in the course of the trial in the presence of the applicant. This was fatal to the conviction; and applicant's convictionquashed.
(2) That it was always a matter for the discretion of the trial Judge whether a particular production should be made available to the jury. Any request by a jury for productions should be referred to...
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