Higgins v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 13 June 1956 |
| Date | 13 June 1956 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Russell.
Review—Appeal against conviction on indictment—Reference to Court by Secretary of State—Power of 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 (a).
Two men were convicted, after trial before a Sheriff and jury, on an indictment which charged them with theft by housebreaking. They did not appeal, but one of them presented petitions to the Secretary of State, who referred the whole case to the Court under sec. 16 (a) of the Criminal Appeal (Scotland) Act, 1926. Subsequently two police officers who had given evidence against them at the trial were charged with perjury in connexion with that evidence and were acquitted. In the reference under sec. 16 (a) the two appellants desired to lead the evidence of police witnesses who had given evidence for the Crown in the perjury trial.
Held that the test to be applied in considering whether to hear further evidence was the same in a case referred to the Court under sec. 16 (a) of the 1926 Act as in an ordinary appeal; that the proper test was whether the Court were reasonably satisfied that the additional evidence, if placed before the jury, would have produced a contrary result; and (diss. Lord Carmont) that, as the additional evidence sought to be led was not inconsistent with the evidence led at the trial on the strength of which the appellants had been convicted, the test had not in fact been satisfied; and the appealrefused.
Thomas Higgins and Alexander Imrie were charged in the Sheriff Court at Glasgow on an indictment at the instance of Her Majesty's Advocate, which set forth that, on 14th October 1955, they broke into premises occupied by Montague Burton Limited at 112 Sauchiehall Street, Glasgow, and stole certain articles.
The panels were tried before the Sheriff substitute (Dobie) and a jury on 22nd December 1955, when they were found guilty and sentenced to terms of imprisonment. No appeal was taken to the High Court of Justiciary, either against the convictions or against the sentences.
On 19th October 1955, as an untried prisoner, Alexander Imrie had presented a petition to the Secretary of State for Scotland, in which he craved further inquiry into the charge made against him. On 23rd December 1955 and 15th February 1956 he presented further petitions to the Secretary of State, and on 6th March 1956 the Secretary of State referred the cases of both men to the High Court of Justiciary under section 16 (a) of the Criminal Appeal (Scotland) Act, 1926.1
On 10th March 1956 the Court held the petitions as notes of appeal against the convictions and sentences of the appellants, and on 10th May 1956 the appellants were directed to lodge notes of supplementary reasons for appeal, in order that the grounds of appeal might be more precisely specified. Both appellants lodged notes accordingly.
The note lodged by the appellant James Higgins, as subsequently amended by a second note, set forth, inter alia:—"That it has come to the knowledge of the appellant that (1) William Gregory, police constable No. 155, (2) Moris Kean, police constable No. 112, both of the Traffic Department, City of Glasgow Police; [and seven other specified police officers] all attached to the Northern Division, City of Glasgow Police, who would have been competent and compellable witnesses at his trial, but were then unknown to him, and could not be identified by such enquiries as he was then able to make, are in possession of new evidence, material and relevant to his exculpation, namely: (a) Constables Gregory and Kean can testify that they picked up the appellant and the appellant Imrie at the door of the Empire Theatre, Sauchiehall Street, Glasgow, a short time after the said shopbreaking occurred; that Constable Kean searched said doorway for stolen property and found none; that the appellants
went with the said constables, willingly and on their invitation, into the police car M 22; that at that time neither of the said police constables saw any stolen property on or about either appellant; that the appellants were handed over by Constables Gregory and Kean to a group of about four or five constables at Boots in Sauchiehall Street, Glasgow, whom Constables Gregory and Kean are unable now to identify; that the said group of constables proceeded to question the appellants; and that Constables Gregory and Kean saw nothing to indicate that the appellants were resisting arrest by the said group of constables; and that, although they did not immediately leave the locus, Constables Gregory and Kean neither heard nor saw anything to indicate that the appellants had escaped from custody of said group of police officers. (b) Chief Inspector Neil Beaton can testify that as a result of exhaustive inquiry he can state that the police officers named in this note are the only police officers who were present at the locus at the material time who have not already given evidence at the appellants' trial. (c) The remaining police officers named in this note can testify that they were not among the group to whom the appellants were handed over by Police Constables Gregory and Kean, and that they did not see or hear anything to indicate that the appellants had at any time escaped from police officers."The appellant appeals against the said conviction for the following reasons:—(1) that the testimony of the said police officers, being the only police officers whose evidence has not been heard in connexion with said trial who were present at locus at the material time, should be received to ascertain what occurred between the appellant being put out of the police car and his final removal from Boots to the Northern Police Office in a police van; (2) that the evidence of the said police officers would constitute evidence material and relevant to lead to a contrary result to that reached by the jury at said trial, and would be essential corroboration of the evidence given by the appellant at his trial; and (3) that it constitutes evidence which should be received in the exceptional circumstances of this case; (4) that accordingly such witnesses should be ordered to attend to be examined before the Court; (5) the verdict at the trial was unreasonable and cannot be supported having regard to the evidence at the trial and the evidence of the said police officers."
The note lodged by the appellant Alexander Imrie was in substantially similar terms.
The case was heard before the High Court of Justiciary on 5th and 12th June 1956.
At advising on 13th June 1956,—
LORD JUSTICE-GENERAL (Clyde).—The appellants in this case were tried before a Sheriff and jury in Glasgow on an indictment charging them with breaking into Montague Burton Limited's shop in Sauchiehall Street in Glasgow and stealing certain articles there. After evidence had been led, the jury convicted them. No appeal was taken against this conviction, but petitions were presented by one of the present appellants to the Secretary of State, who referred the whole case to this Court under section 16 (a) of the Criminal Appeal (Scotland) Act, 1926.8 Under that subsection the Secretary of State "may refer the whole case to the Court and the case shall then be heard and determined by the Court as in the case of an appeal under this Act."
On 10th March this Court held these petitions as notes of appeal against the convictions and sentences of each of the two appellants, but, as the petitions did not disclose precisely what were the grounds in law upon which the appeals were being taken, the appellants were ordered each to lodge a supplementary note containing such further specification and particulars as they might desire to submit to this Court. These supplementary notes were lodged, and we heard the appellants' counsel upon them last week. In the course of the hearing it transpired that what was desired was an opportunity to lead further evidence. Before any such course can be permitted by this Court, it is essential that there should be a precise averment of what the new fact is which the appellant wishes to prove and what is the name and address of the witness whom it is desired to call to prove it. Without this information it is not possible for this Court to determine whether the circumstances require them to take the admittedly unusual course of allowing fresh evidence. The supplementary reasons for appeal in this case gave no such information, and indeed it transpired that the appellants had not even precognosced the witnesses whom they desired to call.
It appears that subsequently to the trial of the appellants and the reference by the Secretary of State, which I have mentioned, two of the witnesses at the trial of the appellants were charged with perjury in connexion with the evidence which they gave at this trial and were unanimously acquitted of that charge by a jury in the High Court in Glasgow. It transpired that the further evidence which the appellants wished to lead in this appeal arose out of the evidence led at this perjury trial. I should add that this additional evidence was known neither to the Crown nor to the accused at the time of the original
trial of the appellants and no criticism can be made of any failure then to produce it. In these circumstances, in order to give the appellants every chance to make good their request that we should hear additional evidence, we gave them a further opportunity to cure the absence of proper specification in their supplementary reasons for appeal. Second supplementary reasons have now been lodged by them both and the question we must now determine is whether or not we are to allow the additional evidence on the...To continue reading
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