Jamieson v Hm Advocate (No 2)
| Jurisdiction | Scotland |
| Judgment Date | 06 July 1994 |
| Docket Number | No 37 |
| Date | 06 July 1994 |
| Court | High Court of Justiciary |
JC
LJ-G Hope, Lords Cowie, Wylie
Evidence—Admissibility—Witness—Hearsay—Previous statement—Witness being unable to recall what she said to police on same day as alleged incident—Witness remembering speaking to police and stating that what she said to them was the truth—Whether evidence of police officer who took statement admissible—Whether statement incorporated into testimony of witness—Whether hearsay—Whether miscarriage of justice
On the day of an alleged attempted murder, a witness gave evidence to the police about seeing the pannel attack the complainer. At the subsequent trial of the pannel, the witness originally denied seeing anything untoward but on being challenged with the police statement, stated that she could not remember what she said but whatever she did say was the truth. The police officer to whom she had given the statement thereafter gave evidence that she had told him that the pannel had been kicking the complainer. The trial judge (Lord Osborne) directed the jury that they could use the police officer's evidence of what the witness said as part of her evidence because, in effect, she had incorporated that material into her testimony by saying that whatever she said to the police was the truth. On being convicted, the pannel appealed to the High Court and argued that the police testimony was inadmissible hearsay.
Held (1) that the testimony of the policeman and that of the witness were both primary sources of evidence and, although the evidence of the witness did not go to the length of admitting details of what she had said, her admission that what she said to the police had been the truth resulted in that statement being incorporated into her testimony; (2) that, taken separately, neither the police evidence nor what the witness said in court implicated the pannel in the assault but, taken together, as elements in the whole structure of the evidence, they had that effect; and, accordingly, (3) that the evidence of the statement had been admissible; and appeal refused.
Muldoon v. HerronSC 1970 J.C. 30 applied.
Opinion that, in any event, the evidence of the witness was relatively unimportant in the context of the whole trial evidence and it was clear that the case against the pannel on the attempted murder charge had been a strong one so that no miscarriage of justice had occurred.
Brian Jamieson was charged on an indictment at the instance of the Rt. Hon. The Lord Rodger of Earlsferry, Q.C., Her Majesty's Advocate, the libel of which set forth, inter alia, that: "(5) [O]n 12th April 1992 at 3 School Brae, New Pitsligo, you Brian Jamieson and … did assault Cameron Guthrie Fraser, 17 Clinton Place, New Pitsligo, knock him to the ground, punch, kick and stamp repeatedly on his head and body and jump on his head, to his severe injury and to the danger of his life and did attempt to murder him and rob him of a wallet and a sum of money."
The pannel pled not guilty. The cause came to trial before Lord Osborne and a jury in the High Court of Justiciary at Stonehaven. After trial, the pannel was convicted. He thereafter appealed to the High Court of Justiciary by way of note of appeal against conviction.
In his charge to the jury, Lord Osborne stated, inter alia,that: "Now, another witness who was relied on in the Crown case was Marianne Robertson. Now, you
will recollect, ladies and gentlemen, that when she first came to be asked about what she had seen after Cameron Fraser had come for the third time to the house and something was happening, she said she hadn't seen anything and she arrived or came out of the house when it was all over. Thereafter, the advocate-depute asked her about the question of whether she had always said that and he began to ask her about a statement that she was said to have given to the police. Now, ladies and gentlemen, in any trial it is perfectly competent to ask a witness whether on some specified occasion he or she has made a statement pertinent to the issue at the trial different from the evidence given by him or her at such trial, and that is exactly what the advocate-depute did at the early stage of his examination of this witness. Now, in normal circumstances, such questioning about a prior statement is designed to show that on a previous occasion a witness said something different from his or her evidence at the trial and has, as its sole purpose, the object of discrediting the evidence given by the witness at the trial by showing a lack of consistency. Of course, what happened here was that in due course, as you may remember, Marianne Robertson said that she did not really remember what happened but she recognised that she had given a statement to the police and she said words to the effect that whatever she said to the police must be true and that was, of course, a reference to the interview which she had, about which we heard evidence from Detective Constable Gordon Farman on 12th April 1992. Now, ladies and gentlemen, you heard evidence from D.C. Farman as to what she did say on that occasion and I have to direct you that you can use that material and regard it as part of the evidence of Marianne Robertson in this case because, in effect, she incorporated that material into her evidence by saying that whatever she has told the police was true."
The grounds of appeal were in the following terms, inter alia:"In relation to charge (5) he failed to give adequate and proper directions to the jury in relation to the evidence of Marianne Heritage Robertson (Crown Witness No. 13) in that he directed them that they could accept the evidence of D.C. Gordon Summers Farman (Crown Witness No. 37), who spoke to the statement allegedly given to him by the said Marianne Heritage Robertson, who stated in evidence that she could not remember what she had said to the police in relation to the appellant's involvement in the alleged incident, but that what she had said to the police was the truth and if she had said it at the time it must be the truth, as part of the evidence of Marianne Heritage Robertson, then it was hearsay evidence and inadmissible. Such a misdirection may lead to the miscarriage of justice, given the finely balanced evidence of the appellant's involvement in the incident to which the charge refers."
The cause called before the High Court of Justiciary, comprising the Lord Justice-General (Hope), Lord Allanbridge and Lord Cowie, on 5th November 1993 and 6th January 1994. On 6th January 1994 their Lordships made avizandum.
At advising, on 19th January 1994, the opinion of the court was delivered by the Lord Justice-General (Hope).
Opinion of the Court—[After dealing with matters with which this report is not concerned, their Lordships continued:]
Charge (5) was, as we have said, one of attempted murder and robbery. It was alleged that the appellant and his...
To continue reading
Request your trial
-
A V. Her Majesty's Advocate
...29-600 Hughes (Sean Stephen) v HM AdvocateSC [2009] HCJAC 35; 2009 JC 201; 2009 SLT 325; 2009 SCL 504 Jamieson v HM Advocate (No 2)SCUNK 1994 JC 251; 1995 SLT 666; 1994 SCCR 610 Lyttle v HM AdvocateUNK 2004 SLT 925; 2003 SCCR 713 McClure v McLeodUNK 1987 SCCR 274 Muldoon v HerronSC 1970 JC ......
-
Inquiry Under The Fatal Accidents And Inquiries (scotland) Act 1976 Into The Death Of George Paul Rooney Riddell
...criminal trial with recourse being made to some of the features of the ratio of the decision in the case of Jamieson (No.2) v HM Advocate 1994 J.C. 251; 1995 S.L.T. 666; 1994 S.C.C.R. 610 and to the provisions of section 260 and section 263(4) of the Criminal Procedure (Scotland) Act 1995 (......
-
Gordon Beurskens Against Her Majesty's Advocate
...in the course of his evidence that he “adopts” the statement as his evidence (cf the common law position in Jamieson v HM Advocate 1994 JC 251). Statements “in a precognition”, other than those in a precognition on oath, are expressly excluded (s 262(1)(b)). However, perhaps failing to heed......
-
Shaban Ahmed V. Her Majesty's Advocate
...1995 where the admission of prior statements was subject to strict conditions (sections 259 and 260; cf. Jamieson v HM Advocate (No.2) 1994 J.C. 251). Section 263 permitted a prior inconsistent statement to be put to a witness, but only to undermine her credibility; no comparison could be d......