Lindie v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 01 June 1973 |
| Docket Number | No. 1. |
| Date | 01 June 1973 |
| Court | High Court of Justiciary |
JC
Lord Justice-General, Lords Johnston, Stott.
Procedure—Trial—Motion to allow defence case to be reopened—Objection by Crown.
Held, in an appeal against conviction on indictment, that, after the case for the defence has been closed, the court has no power, in the face of objection by the Crown, to grant a motion to allow it to be reopened.
Interjection by Lord Young in H. M. Advocate v. Nicolson, (1887) 1 White, 307, at p. 313, consideredand, in so far as suggesting that the court has such a power,disapproved.
H. M. Advocate v. Donald, High Court of Justiciary, July 1934, unreported, considered.
Review—Appeal against conviction on indictment—Power of High Court to hear additional evidence—One accused found not guilty and discharged before end of trial—Whether competent for court to hear his evidence in appeal by co-accused—Whether competent for court to hear evidence of new witness speaking to events after trial—"At the trial"—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 6 (b).
Procedure—Trial—Fairness—Relevant considerations.
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Sec. 6 of the Criminal Appeal (Scotland) Act, 1926, enacts:— "For the purposes of this Act the court may, if they think it necessary or expedient in the interest of justice … (b)if they think fit, order any witnesses who would have been compellable witnesses at the trial to attend and be examined before the court …"
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At the trial in the High Court of V., L. and D. on a charge of murder by stabbing, the Advocate-depute intimated, after the cases for the defence had been closed, that he no longer sought the conviction of V. and D. The presiding judge thereupon directed the jury to return a verdict of not guilty in respect of V. and D., who were discharged from the dock. The Advocate-depute then addressed the jury on the case against L. At the close of this address counsel for L. moved the court to allow him to reopen his case in order to lead the evidence of D., who, it was alleged, had since leaving the dock confessed that he alone had struck the fatal blow. The motion was refused, and L. was subsequently found guilty and sentenced. In an appeal at his instance under the 1926 Act, in which he sought, inter alia, an order that D. and certain other persons should attend and be examined as witnesses for him, it was contended for the Crown that sec. 6 (b) was concerned only with persons who were compellable witnesses at any time when, during the trial, their evidence might competently have been adduced, and that D. did not come within this category, since he did not become compellable until the verdict in his favour had been returned, after the close of L.'s case.
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Held that the words "at the trial" must be given their ordinary meaning, and that, as L.'s trial did not end until he was sentenced, D. fell within the terms of sec. 6 (b).
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Opinions reserved as to whether under sec. 6 (b) the court could admit the evidence of a witness who would speak to events which took place after the trial.
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Observed that the question of fairness in a trial must be considered not only in relation to fairness to the accused but also with due regard for what is fair in the wider public interest.
Joseph Vickers, James Lindie and Patrick Duncan were charged on an indictment which set forth that "you did on 21st September 1972, in Charlotte Street, Glasgow, near Gallowgate, and in the premises known as the Clyde Vaults, Gallowgate aforesaid, assault John Ross M'Cusker … and did stab him on the body with a knife or similar instrument and kick him on the body, whereby he was so severely injured that he died on said date at the Royal Infirmary, Glasgow, and you did murder him." At their trial in the High Court at Glasgow Vickers and Duncan were found not guilty on the direction of the presiding judge (Lord Milligan). Lindie was found guilty by a majority and sentenced to imprisonment for life. He appealed to the High Court under the Criminal Appeal (Scotland) Act, 1926,1 and sought, inter alia,an order under section 6 (b) of the Act that Duncan and certain other persons should attend and be examined as witnesses for him. It was stated that the witnesses other than Duncan would speak to events subsequent to the trial.
The following narrative of the circumstances giving rise to the appeal is taken from the opinion of the court:—"At the close of the Crown case Vickers elected to lead no evidence. Lindie, the appellant, gave evidence on his own behalf and counsel for the appellant then closed his case. Duncan, like Vickers, elected to lead no evidence. The cases for the prosecution and for the defence all having been closed, the next stage in the proceedings was for the Advocate-depute to address the jury. Before he began his address, however, he intimated to the trial judge that he was no longer seeking the conviction of Vickers and Duncan. Thereupon the trial judge, although he could quite properly have waited to give the appropriate directions to the jury, in respect of Vickers and Duncan, in the course of his charge, directed the jury there and then to return a verdict of not guilty in the case of each of them. The formal verdicts having been returned on these directions, Duncan, before he left the dock, announced that he wished to say something and began to speak, but was at once interrupted. At this point Duncan withdrew with his solicitors and counsel, and the Advocate-depute proceeded to address the jury. Before this address was concluded, information was communicated to counsel for the appellant and to the trial judge that Duncan had informed his solicitors that he alone had committed the murder and that Lindie had had nothing to do with it. At the conclusion of the
speech for the Crown counsel for the appellant moved the court, outwith the presence of the jury, for leave to reopen the case for the appellant in order to lead the evidence of Duncan. The motion was opposed by the Crown, and after hearing argument, which admittedly did not include any full canvassing of authority, the trial judge refused to grant the motion. The jury were then brought back into court, counsel for the appellant addressed the jury upon the evidence, and the trial proceeded to its conclusion."The case was heard before the High Court of Justiciary (consisting of the Lord Justice-General, Lord Johnston and Lord Stott) on 28th February and 16th May 1973.
On 1st June 1973 the opinion of the court was delivered by the Lord Justice-General.
LORD JUSTICE-GENERAL (Emslie).—At the High Court in Glasgow on 5th December 1972 the appellant, James Lindie, was convicted of the murder by stabbing of one John Ross M'Cusker outside the Clyde Vaults, Gallow-gate, otherwise known as Breen's Bar.
In the indictment three men, namely Joseph Vickers, the appellant and Patrick Duncan, were charged with this murder, and the history of the trial which proceeded upon this indictment was briefly as follows.
[His Lordship gave the narrative quoted supra, and continued]—
In this appeal it is not suggested that the verdict of the jury can be criticised upon the evidence upon which it proceeded. M'Cusker was undoubtedly stabbed outside the Clyde Vaults and died as a result. There were at least two stab wounds, one of which was serious and fatal. Against the appellant the evidence which was material...
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