In the Scottish Courts
| Published date | 01 July 1976 |
| Date | 01 July 1976 |
| DOI | http://doi.org/10.1177/002201837604000307 |
| Subject Matter | Article |
In
the Scottish Courts
Comments
on
Cases
CROSS-EXAMINATION AS TO
CHARACTER
H.M.
Advocate
v. Grudins
All criminal lawyers
know
that
an accused
cannot
be cross-
examined
as to his
bad
character
unless, for example, he has
set
up
his
own
good
character
or
the
nature
or
conduct
of
the
defence
is
such as to involve
imputations
on
the
character
of
the
prosecutor
or
Crown witnesses. In O'Hara v. H.M.
Advocate
(1948 ]:C. 90) it was
held
that
even where
the
nature
or
conduct
of
the
defence
involved
imputations
on
character,
the
Court
still
had
a
discretion
to decide
whether
the
accused
could
be crossed on his
bad
character.
This
point
came
before
the
High
Court
in
Jedburgh
in
HM.
Advocate
v. Grudins (1976 S.L. T. (Notes) 10)
where
the
Crown
sought
to
cross-examine
the
accused
(who
was charged
with
murdering
her
husband)
as to
whether
she
had
been
faithful
to
her
husband
during
the
period
1966
to
1973
when
they
had
been
living
apart.
The
Court
sustained
the
defence
objection
to this
question,
holding
that
the
prejudice which
might
be
suffered
by
the
accused
would
be
out
of
all
proportion
to
the
relevancy
of
a
supposed
sexual infidelity in
1968
to
charge
of
murder
committed
in
1975.
This
was so even
although
the
question
why
the
accused's
husband
had
failed to
support
her
during
their
separation
had
been
raised in examination-in-chief.
But
that
could
hardly
be an
attack
on
the
character
of
a
Crown
witness,
the
husband
being
dead,
and
the
Court
refused to
hold
it as such.
THE DEFENCE OF AUTOMATISM
Farrell v. Stirling
Since
the
case of H.M.
Advocate
v. Cunningham (1963 ].C. 80)
it has
been
clear in
Scotland
that
any
mental
or pathological
condition
short
of
insanity
and
any
question
of
diminished
responsibility owing to
any
cause, which does
not
involve
insanity
is
relevant
only
in mitigation,
not
in
exculpation.
This is in
contrast
to
171
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