MacLeod v Williamson
| Jurisdiction | Scotland |
| Judgment Date | 09 October 1992 |
| Docket Number | No. 5 |
| Date | 09 October 1992 |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Sutherland, Wylie
Procedure—Summary procedure—Trial—Desertion—Whether sheriff entitled to desert trial simpliciter after deciding in the course of it that he could not continue to hear the case—Whether diet ought to have been discharged and fresh diet fixed before another sheriff—Natural justice—Sheriff overhearing part of conversation between witness and prosecutor about witness's evidence—Whether sheriff ought to have continued to hear the case
The respondent came to trial on a summary complaint on charges of assault and being in possession of an offensive weapon. During the luncheon adjournment the sheriff overheard one of the police witnesses stating to the complainer's depute that his evidence concerned only "recovering of the machete in his possession". The sheriff, on reconvening the trial sought submissions on whether he should continue to hear the case. After hearing the submissions the sheriff stated that he felt unable to cast completely from his mind what he had overheard and ex proprio motu deserted the dietsimpliciter. The complainer thereafter appealed to the High Court of Justiciary by way of bill of advocation.
Held (1) that although the sheriff might well have concluded that the trial should be allowed to proceed with him disregarding what he had overheard he was not entitled to decide that the trial could not proceed; (2) that the sheriff had not been entitled to desert the dietsimpliciter; and (3) that the proper course the sheriff ought to have followed was to discharge the diet of trial and fix a fresh diet to proceed before another sheriff; and bill passed.
Platt v. LockhartSC 1988 J.C. 148 applied.
Iain Angus McLeod, procurator fiscal, Perth presented a bill of advocation to the High Court of Justiciary in which James Williamson was called as respondent. The bill set forth, inter alia that: "(1) The respondent was charged at the instance of the complainer on a summary complaint … libelling a charge of assault and a charge of contravening the Prevention of Crime Act 1953, sec. 1 (1). (2) The trial of the respondent proceeded on 22nd June 1992 and evidence was adduced by the complainer from three witnesses that the respondent had struck the alleged victim of the assault with a machete or similar instrument. (3) At 1 p.m. the trial was adjourned until 2 p.m., and after other parties in the trial and members of the public had left the court building the complainer's depute met police witnesses in the trial of the respondent outside the courtroom to discuss whether any of the said witnesses might be excused attendance that afternoon. In the course of the said discussion the sheriff happened to walk past the complainer's depute and the witness. (4) When the case against the respondent called again at 2 p.m. the sheriff intimated that during the adjournment he had overheard one of the police witnesses state to the complainer's depute that his evidence concerned only “recovering the machete in his possession”. The sheriff expressed the view that this might have an effect on his ability to hear further evidence in the case. The sheriff invited the respondent's solicitor to consider whether she should submit that his hearing of the remark by the police witness would have a prejudicial effect upon the respondent and the respondent's solicitor made a submission to that effect. (5) The sheriff then invited the complainer's depute to address him. The complainer's depute stated that the sheriff had overheard the witness incorrectly and invited the sheriff to put out of his mind what he considered he had overheard and to proceed with the trial of the respondent. (6) The sheriff thereafter stated that he felt unable to cast completely from his mind what he had overheard, and following further submissions by the complainer's depute and the respondent's solicitor the sheriffex proprio motu deserted the diet simpliciter. (7) The decision of the sheriff to desert the diet simpliciter was unjust, erroneous and contrary to law. The sheriff had a duty in discharging his judicial function to put from his mind any extraneous considerations, to proceed with the trial of the respondent and to reach a verdict based solely on the evidence heard by him in court.Esto the sheriff was correct not to proceed further with the trial of the respondent, it was his duty to discharge the diet of trial and to fix a fresh diet of trial to proceed before another sheriff."
The pleas-in-law for the complainer were in the following terms: "(1) The decision of the sheriff not to proceed further with the trial of the respondent and to desert the diet simpliciterbeing unjust, erroneous and...
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