In the Scottish Courts
| Published date | 01 April 1968 |
| Date | 01 April 1968 |
| DOI | http://doi.org/10.1177/002201836803200216 |
| Subject Matter | Article |
In
the
Scottish
Courts
CROSS-EXAMINATION OF
ACCUSED-RECALL
OF
ACCUSIID
Le, lI. H.M.
A.dll.
THE accused in Le, e. H.M.
A.dv.
(1968 S.L.T. 155) was charged
with murder along with a man called MacFarlane. MacFarlane
initially lodged a special defence of impeachment in which he
blamed Lee for the murder,
but
he withdrew this before the trial.
This withdrawal was made on the view that a special defence
impeaching a person who was already accused was inept and
unnecessary. Lee's name appeared first on the indictment, for alpha-
betical or other fortuitous reasons, and therefore he gave evidence
before MacFarlane at the trial. Lee said nothing in his evidence
which in any way incriminated MacFarlane but the trial judge
offered MacFarlane's counsel an opportunity of cross-examining
him. This opportunity was declined. When it was MacFarlane's
tum
to go into the witness-box he gave evidence incriminating Lee.
Since Lee's case was necessarily closed by this time his counsel could
not recall him. He asked the court, however, to recall him and give
him an opportunity to deal with MacFarlane's allegations. This
course was agreed to by all concerned, and Lee was examined by the
judge, after which counsel indicated that he did not wish to question
him further.
Lee appealed against his conviction on two grounds:
(I)
that
MacFarlane
had
blamed him for the murder without prior warning,
and without giving him an opportunity to answer the allegations
"by
his counsel"; and (2) that the "rescue operation" whereby
he was recalled was null and void, andso could not cure the situation
on which the first ground of appeal was based.
The criminal appeal court had little difficulty in rejecting the
second ground, which was unsupported by authority and which in
any event related to a situation in which counsel had concurred.
A trial judge has a common law right to recall witnesses, and the
course taken was described by Lord Justice General Clyde as
"not
only fair to Lee, but • • • the only available method of avoiding
unfairness to him".
189
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