Henderson v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 29 April 1970 |
| Date | 29 April 1970 |
| Docket Number | No. 7. |
| Court | High Court of Justiciary |
JC
L. J.-C. Grant, Lords Wheatley, Walker.
Review—Appeal against conviction on indictment—Power of Court to hear additional evidence—Special defence of incrimination—Party incriminated denying guilt at trial—Alleged confession by him after trial—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 6 (b).
The Criminal Appeal (Scotland) Act, 1926, enacts by sec. 6:—"For the purposes of this Act the Court may…(b)…order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the Court…"
A youth charged with attempted murder lodged a special defence that the crime had been committed by his brother. At the trial the brother was called as a witness for the defence, but denied the charge, and the youth was convicted on ample evidence. In an application for leave to appeal he averred that his brother had since the trial confessed to the crime, and moved for an order on the brother and persons alleged to have heard the confession to attend and be examined before the Court.
The Court refused the motion; quoad the brother, on the ground that, followingThompson v. H.M. Advocate, 1968 J. C. 61, it was impossible to say that, if he had admitted his guilt at the trial, the jury would probably have acquitted the appellant; and quoad the persons alleged to have heard the confession, on the ground that, as their evidence related to an alleged event since the trial and so could not have been placed before the jury, the Court had no power under sec. 6 (b) to allow it.
Observed that the appellant's proper course was to petition the Secretary of State under sec. 16 of the 1926 Act.
William Brodie Henderson was charged on an indictment at the instance of Her Majesty's Advocate with, inter alia, attempted murder. He pled not guilty and lodged a special defence that the crimes had been committed by his brother, Henry Henderson. After a trial before Lord Leechman and a jury at Glasgow on 4th and 5th February 1970 he was convicted and sentenced.
He presented an application for leave to appeal in the following terms:—"At his trial the appellant lodged a special defence of incrimination alleging that the said offences were in fact committed by his brother Henry Henderson. The said Henry Henderson was cited,inter alios, as a defence witness. Both in examination-in-chief and in cross-examination he admitted to being at or about the locus at the time the said crimes were...
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McLay v HM Advocate
...the kind described in sec. 228(2). In this connection he referred to Thompson v. H.M. AdvocateSC 1968 J.C. 61;Henderson v. H.M. AdvocateSC 1970 J.C. 52; Renton and Brown's Criminal Procedure (5th edn.), para. 11–41; andR. v. ThomasWLR [1959] 1 W.L.R. 1086". Senior counsel submitted that the......
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Marshall v MacDougall
...proceeding in this way would be competent, and, if so, whether it would be desirable. He drew attention to Henderson v. H.M. AdvocateSC 1970 J.C. 52, and Lindie v. H.M. AdvocateSC 1974 J.C. 1. These were both cases where motions were made under sec. 6 of the Criminal Appeal (Scotland) Act 1......