In the Scottish Courts

Published date01 July 1951
DOI10.1177/002201835101500305
Date01 July 1951
Subject MatterArticle
In the Scottish Courts
NEW
EVIDENCE ON APPEAL
Gallacher
others v.
H.M.
Advocate
(1951
S.L.T.
158)
ROBERT Gallacher
and
three others, having been con-
victed on indictment of murder, appealed in
terms
of
the
Criminal Appeal (Scotland) Act, 1926. Gallacher
also applied for leave
to
lead new evidence which
had
come
to light since
the
trial.
The
part
of
the
indictment, on
which
the
appellants
had
been convicted, charging murder
was in
the
following
terms-
''You
did
. . . . while acting
along
with
other men to
the
prosecutor unknowti., 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,
and
you did murder
him".
In
support
of his application, Gallacher averred
that
he was now in a
position to lead evidence
not
available to
him
at
the
trial,
showing
that
at
the
time when
the
kicking of Newall was
taking place he was some distance away throwing stones.
Gallacher's application to lead this evidence was refused
and
the
appeals dismissed.
At
the
hearing of
the
appeal, counsel for Gallacher
stated
that
new evidence which he sought to lead was in
essential corroboration of Gallacher's evidence
at
the
trial.
He went on to argue (1)
that
it was expedient in
the
interests
of justice
that
this evidence should be led
and
(2)
that,
had
it
been available
at
the
trial,
the
jury
might well have come
to a different conclusion, so far as Gallacher was concerned.
He
founded on
the
three Scottish cases (Slater (1928
J.e.
94);
Lowson (1943
].e.
141);
and
Lennie (1946
J.e.
79))
in which
the
leading of fresh evidence on appeal
had
been
allowed
and
referred to
the
corresponding English author-
ities. Against this, Crown Counsel submitted
that
the
court's right to allow fresh evidence was circumscribed
by
279
280
THE
JOURNAL OF CRIMINAL LAW
section 2 of
the
Act of 1926 and
that
the
court must
not
re-try
the
case.
The unanimous judgment of
the
court, dismissing
the
appeals
and
refusing
the
motion to be allowed to lead
additional evidence, was delivered
by
the
Lord Justice-
Clerk who narrated in some detail
the
circumstances of
the
disturbance, occurring in Hamilton on
the
occasion of
the
visit of Bertram Mills Circus, from which
the
charge of
murder emerged. He explained
that
Newall
had
been one
of a "well-disposed, interested crowd of spectators"who
had
gathered to see
the
dismantling of
the
tent
at
the
close of
the
final performance;
that
there was present another
crowd, numbering
thirty
or forty, who
had
some ill-will
against
the
circus people
and
were
"out
for
trouble";
that
sporadic individual fights broke
out;
that
the
Police were
summoned
and
the
ill-disposed portion of
the
crowd began
to
retreat
to
the
gates;
that
they
began to stone
the
circus
vans
and
other vehicles;
that
the
origin of
the
attack
on
Newall was "left in obscurity"
but
that
there was ample
evidence
that
Newall was knocked down
and
surrounded
by
agroup of six or seven men who were kicking him when
he was on
the
ground. His Lordship continued
"The
Crown case against Gallacher depends on his identification
as one of a group observed surrounding and kicking Newall.
Three witnesses purport
to
do so. . . . The essence of
the
Crown case against Gallacher is
that
he was caught in
the
act. Gallacher in his own evidence says
that
at
the
time
when he was arrested he was throwing stones,
that
it
was
only after he was arrested
that
the
Police took him over
to
where
the
deceased was lying,
that
this was some
ten
yards
away from
the
spot of his arrest
and
that
until he was
brought
by
the
Police to where the deceased was lying he
had
never seen
the
deceased
that
night
....
It
is in
that
state
of
the
evidence
that
we are asked to allow
the
evidence
of three other witnesses to be heard. The terms of
the
application
run
that
the
appellant was not
at
the
time of
his apprehension assaulting
the
deceased
but
throwing
stones
at
amaterial distance from
the
scene of
the
assault
and
that
such evidence would be an essential corroboration
of the evidence of
the
appellant
at
the
trial.
.
..
The first
question
the
court is bound to ask of
any
appellant who
tenders fresh evidence is why it was not tendered
at
the-
IN
THE
SCOTTlSH COURTS 281
trial. Wedo
not
propose
to
canvass
the
issue of what might
or might not be
an
adequate explanation. No general rule
can possibly be laid down
and
the
explanation in
any
particular case must be viewed not in
the
light of
any
techriicality or rule of practice or procedure
but
solely in
the
light of
the
dominating consideration
that
we may
order new evidence if we
think
it
necessary or expedient in
the
interests of justice."
Having examined
the
nature of
the
court's jurisdiction
as a Court of Appeal, which was derived entirely from
statute,
and
the
terms of section 6 of
the
Act of 1926 (which
permits
the
Court
to
allow additional evidence), Lord
Thomson observed
that
the
power entrusted to
the
court
was
"of
ahighly discretionary character.
It
is permissive
in form . . . . No specific directions are given
to
the
court as
to
its
duty
once new evidence is received. The reception of
new evidence is "for
the
purposes of this Act".
It
seems
to
us
that
the
evidence must be considered in relation
to
section 2
and
our functions under
that
section.
In
other
words,
it
would be purposeless for
the
court to allow
additional evidence unless ab ante a case was made out
by
the
appellant
that
the
additional evidence might lead
the
court
to
quash
the
conviction upon one of
the
grounds
enumerated in section 2. Accordingly,
it
is necessary to
have regard to
the
end or purpose which
the
new evidence
is designed to achieve . . . . We cannot order are-trial
by
another jury.
Further,
it
has been said
by
the
Courts of
Appeal,
both
in England and in Scotland,
that
we must not.
re-try
the
case ourselves.
That
is to say, we must not
consider afresh
the
whole case on
the
basis of
the
printed
word
and
the
new evidence.
That
would be substituting
ourselves for a
jury
with none of
the
advantages of seeing
and
hearing
the
great bulk of
the
evidence which
the
jury
possessed, substituting our assessment of
the
credibility of
the
witnesses whom
the
jury
saw and heard for
the
assess-
ment
made
by
a
jury.
.
..
Let
us assume
that
in
the
present case
the
three new witnesses
had
appeared
at
the
trial
and
said all
they
are now expected to say..
It
is
almost impossible on
the
facts of
the
present case to affirm
with
any
confidence
that
if
the
evidence
had
been before
the
jury
they
would have come to a different result . . . .
We
cannot
ten
what
sort of impression
the
new
witnesses
282
THE
JOURNAL OF CRIMINAL LAW
might
have
made.
They
might have been impressive
enough to raise a reasonable
doubt
but
they
might
have
been
cast
aside
....
Where, as here,
the
most
that
can
possibly be said is
that
had
the
new evidence been before
the
jury
the
issue might have been rendered doubtful,
its
admission might lead to a miscarriage of justice
by
allowing
to
go free men whom a
jury
had
convicted
and
whom even
in
the
light of
the
new evidence
they
might well
have
still
convicted.',
INTIMIDATION
OF
WITNESSES
Manson v. u.u. Advocate (1951
S.L.T.
181)
William Manson,
the
unsuccessful appellant in this
case, was charged on indictment with assault
by
razor-
slashing
and
convicted.
In
course of
the
trial, awoman
witness for
the
Crown whose evidence was
"hesitant,
con-
fused
and
apparently
reluctant"
was asked
by
the
Advocate
Depute whether anyone
had
spoken to her
about
giving
evidence in
the
case-other
than
the
Police. To this
the
witness replied
that
on a
date
some two or
three
weeks
previously a
lady
had
stopped her
and
asked
her
whether
she
had
got her husband in jail
and
had
added:
"If
I
thought
it was you, I would slash your face right
now;
but
I will find
out".
In
charging
the
jury,
the
trial judge
(Lord Strachan) referred to
the
witness's evidence in
the
following
terms:
"You
have
the
witness Bridie Ferry.
She told her story, you have seen her in
the
witness-box,
you
have
seen her demeanour
and
the
first question you
must
ask with regard to her evidence is whether it is reliable,
whether it was
true
evidence or whether
it
was not
true
evidence or whether
it
was otherwise unreliable. She
made a
statement
to
the
effect
that
she
had
been intimi-
dated
or threatened in relation to this case.
If
she was
speaking
the
truth
on
that
matter, it discloses a
very
wicked
state
of affairs,
but
you
must
decide this case on
the
evidence which she has given before you".
Being convicted, Manson appealed, arguing inter alia
that
the
trial
judge
had
misdirected
the
jury
in
that
he
had
referred to alleged intimidation of
the
witness
Ferry
with-
out
directing
them
to disregard
it
as being uncorroborated
IN
THE
SCOTTISH COURTS
283
and, in
any
event, "immaterial;
and
that
the
statement
made
by
the
witness might well have prejudiced
the
jury
and
caused a serious miscarriage of justice. The appeal
was refused,
the
view of
the
High
Court judges being .(1)
that
the
evidence of intimidation of
the
witness
had
been
properly
adduced-not
as evidence against
the
accused
but
to
explain
the
demeanour of a hesitant
and
reluctant
witness; (2)
that
when such evidence was admitted, a
cautious direction
to
the
jury
by
the
trial judge was necess-
ary;
and
(3)
that
as, in
the
case under review, such a direc-
tion
had
been given,
the
panel
had
suffered no prejudice.
In
giving judgment,
the
Lord Justice-General (Lord
Cooper) remarked
that
it
was within judicial knowledge
that
witnesses in serious criminal trials were frequently
subjected
to
intimidation
and
threats, either
by
persons
known
to
them
or anonymously,
and
the
interests of justice
were not, in his judgment, impeded if
the
existence of such
facts was brought out.
EVIDENCE
OF
HANDWRITING
Davidson v.
H.M.
Advocate (1951
SL.T.
109)
William
James
Davidson, being convicted of
the
crime
of uttering as genuine apostal
draft
for £12 on which
the
payee's
signature ("A. Bradley") was forged, appealed on
the
ground
that
at
his trial evidence
had
been admitted
relative to his
handwriting-such
handwriting having been
obtained
by
the
Police while he was in custody
"without
his specific consent
and
without warning
that
such consent
could be withheld". At
the
hearing of
the
appeal,
it
was
maintained
by
appellant's counsel
that
the
evidence of
handwriting
had
been unfairly obtained. The appeal
failed.
The precise points involved
and
the
reasons for
the
court's decision appear sufficiently from
the
following
excerpt from
the
judgment delivered
by
the
Lord
Justice-
Clerk:
"The
question of whether samples of
the
appellant's
handwriting should be admitted in evidence arose in two
ways. When
the
appellant was
taken
to
the
police office,
his finger
prints
were taken, as is
the
usual practice. On
the
form
on,
which
the
finger
prints
are
taken
there
is a
284
THE
JOURNAL
OF
CRIMINAL LAW
space for signature
and
the
appellant was asked
to
sign as
a
matter
of identifying his finger prints
and
he did so.
This signature was used
at
the
trial as a sample of
the
appellant's handwriting.
It
was argued
that
this use of
the
signature was unfair to
the
appellant.
It
is quite
true
that
he was not told
that
he might refuse
to
sign
if
he did
not
want to sign,
but
at
that
stage nobody, so far as I can
see,
had
any
idea
that
his signature might be of
any
con-
sequence
at
all except for
the
purpose of identifying his
finger prints. No pressure was
put
on him to
sign;
it was
purely a
matter
of routine. Icannot see
that
there was
any
unfairness in
the
subsequent use of
that
signature as a
basis of comparison with certain other handwriting in
the
case.
"The
other objection arises in this way. A detective
constable who was engaged in
the
investigation invited
the
appellant to give some specimens in his own handwriting
of
the
name "A. Bradley", which was a signature which
was said in
the
indictment to have been forged. The
appellant did in point of fact accede to
the
request
and
gave
the
six specimen signatures "A. Bradley" which he
had
been asked to give.
It
appears
that
the
appellant (who
had
already been cautioned
and
charged in
the
ordinary
way), prior to being asked for these specimen signatures,
was again cautioned
and
that
the
detective constable
stressed when repeating
the
caution
that
these signatures
might be used as evidence. Further,
the
detective con-
stable was asked :
"Did
you on this occasion point
out
to
the
accused
that
your request was
not
obligatory on
him
as it might be in
the
case of finger
prints?"
He
answered :
"I
pointed
out
that
he was
not
required to do so unless he
wished".
It
would appear, therefore,
that
there was no
unfairness in
the
way in which
the
sample signatures were
obtained. No pressure was
put
on
the
appellant.
He
was
not threatened in
any
way;
he was warned of
the
possible
consequences. Counsel for
the
appellant did not
put
his
argument so high as to suggest
that
it was illegal
to
obtain
specimens of an accused's handwriting except
by
applic-
ation to his solicitor. His argument was
that
what
had
been done was
not
fair to
the
accused.
It
seems to me
that
there was no unfairness in
the
sense in which
that
term
is
used in this branch of
the
law. There was no oppression
IN
'rIIIt
SCOrt'tSH COUR'rS
285
or
threats
or pressure or trickery
and
there was a warning
to
the
accused
that
he need
not
supply these signatures
unless he wished.
"I
am supported in this view
by
the
authorities we
were referred
to-in
particular
by
what
was said
by
Lord
Justice-Clerk Scott Dickson in H.M. Advocate v. Walsh
(1922J.C. 82)
and
also
by
the
authority to which he referred,
Voisin (1918 1
K.B.
531).
It
is obvious, of course,
that
there is a marked difference between
the
subject-matter
of a
statement
made
by
an
accused person
and
the
actual
handwriting in which
the
statement was made. A cogent
reason for exercising caution in admitting astatement made
to
an
investigating officer is
that
the
terms of such a state-
ment
may
be affected
by
all kinds of considerations.
Various kinds of influence may operate unfairly to an
accused.
But
so far as actual handwriting is concerned
such considerations do not obtain. Handwriting is entirely
an
objective
matter
....
rather a
matter
of real evidence,
like something in
an
accused's pockets or
the
clothes he is
wearing, which
the
Police are entitled to seize
and
to use as
evidence without
any
objection or criticism.
In
my view,
the
question of whether handwriting is admissible, simply
for
the
purposes of comparison with other handwriting,
does not fall
to
be settled
by
the
same considerations as
would apply
to
the
admissibility of a possibly incriminating
statement. Once I have been satisfied
that
there was
nothing unfair in
the
way in which these specimen signa-
tures were obtained,
that
there was adequate warning
and
that
there was no pressure,
it
seems
to
me
that
it cannot
be said
that
the
evidence so obtained was not properly
admissible for
the
purpose of comparison with other
Aandwriting".
PERVERTING
THE
COURSE OF
JUSTICE
Dalton v. H.M. Advocate
(1951
S.L.T.
Notes 31)
The
part
of
the
indictment in this unusual case with
which
the
appeal was concerned
ran
as
follows-
"On
12th
May 1950, in
the
premises occupied
by
Fateh
Mohamed
at
. . . ., you did pretend to Theresa Sharkey or Sally
(address)
that
you were a friend of William Wilson
then
in
286
THE
JOURNAL
OP
CRIMINAL LAW
custody on a charge of
theft
from
the
said
Fateh
Mohamed
and
in connection with which charge she was
an
eye-
witness,
that
you desired her to help him
and
that
if she
would refrain from identifying
John
McGuiness,
then
wanted
by
the
police as also involved in said charge,
it
would help
the
said William Wilson . . . .
and
you did
thus
attempt
to
pervert
the
course of justice". At
the
trial,
it
was proved
that
four men came to Mohamed's premises
and
committed
an assault
and
robbery, Mohamed
and
Mrs. Sally being
present. One of
the
men, William Wilson, was appre-
hended
at
the
time. One of his three companions was
John
McGuiness.
The
accused, being convicted, appealed, arguing
that
the
conduct proved against him did not constitute acrime
according to
the
law of Scotland.
The
court rejected this
argument, holding
that
what
he
had
done "simply amounted
to
an
attempt
to eliminate evidence which might
tend
to
incriminate aperson in a future criminal charge"
and
that
such conduct was a crime,
and
aserious crime, in
the
law
of Scotland.

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