McAvoy (Thomas) v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 24 October 1990 |
| Docket Number | No. 5. |
| Date | 24 October 1990 |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Wylie, Murray.
Procedure—Solemn procedure—Trial—Witness—Taking of oath by witness—Witness unable to repeat words of oath and no attempt made by trial judge to ascertain that witness understood difference between telling the truth and telling lies—Witness slightly handicapped—Witness raising his right hand when asked to take oath and answering each phrase thereof with word "yes"—Said answer being given to that part of oath which stated "to tell the truth, the whole truth and nothing but the truth"—Each phrase of oath put to witness several times and eliciting same response—Whether witness truly sworn—Evidence—Admissibility—Whether witness's evidence competent—Act of Adjournal (Consolidation) 1988 (S.I. 1988 No. 110), r. 70 (1) and Sched. 1, form 33, Pt. 3.1
The appellants went to trial in the High Court of Justiciary on charges of assault and robbery. One of the witnesses for the Crown was described as being slightly handicapped and when the time came for the oath to be administered to him by the trial judge it was found that the witness was unable to repeat the words of the oath and no attempt was made by the judge to ascertain that the witness understood the difference between telling the truth and telling lies. When asked to take the oath, however, the witness raised his right hand and when asked to repeat the oath after the judge in the normal manner his answer to each phrase, which was put to him several times, was "yes". That answer was given to that part of the oath which stated "to tell the truth, the whole truth and nothing but the truth". No objection was taken at the time to the competency of the witness quawitness and the trial judge formed the view that the witness understood that he was required to tell the truth and was able to understand the questions and answer them in short phrases and that the nature and extent of his incapacity were not such as to exclude his evidence.
On being convicted the appellants appealed to the High Court of Justiciary and argued that the witness had not been properly sworn so that his evidence was to be excluded from the case. The appellants also argued that as opposed to the witness replying "yes" to the various phrases of the oath he had instead replied "God" after the word "God" in the oath and "truth" at the end of the oath. The Crown argued that even if those contentions of the appellants were correct the witness's evidence had been competently elicited.
Held (1) that, although the requirements in respect of the procedure for administering the oath were as set out in r. 70 of the Act of Adjournal (Consolidation) 1988 and the form of oath for the witnesses was as set out in Pt. 3 of form 33 of Sched. 1 to the Act of Adjournal, nonetheless those provisions were directive and not mandatory and in the present case the required formalities had been sufficiently observed so that the witness had been properly sworn; and (2) that the trial judge had been entitled to regard the witness as a competent witness and there was no need for him to make any enquiry into the witness's mental state; and appeal refused.
Opinion that, in any event, where the defence wished to object to the competency of a witness they ought to take objection to that witness at the time when he was called so that in the present case, no objection having been taken on that ground, there was no need for the trial judge to have instituted any enquiry into the question of whether the witness could understand an oath and could distinguish between what was true and what was false.
Procedure—Solemn procedure—Trial—Previous convictions—Disclosure of previous convictions—Police officer being asked if he requested information from "the known associates" of the accused—Whether disclosure of previous convictions made—Whether trial judge ought to have warned jury to disregard that question—Discretion of judge—Whether miscarriage of justice—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 160 (1).1
Section 160 (1) of the Criminal Procedure (Scotland) Act 1975 enacts that previous convictions against an accused shall not be laid before a jury, nor shall reference be made thereto in the presence of a jury before the verdict is returned.
The appellants were charged with assault and robbery and during their trial the advocate-depute asked a police witness whether in the course of his inquiry he requested information of known associates of one of the appellants. In charging the jury the trial judge did not direct the jury to put that question out of their minds and attach no significance to it. On being convicted the appellants appealed to the High Court of Justiciary and contended that the question posed by the advocate-depute constituted an infringement of the prohibition contained in sec. 160 (1) of the 1975 Act and that, in any event, the trial judge ought to have given such a direction.
Held (1) that a question in the terms put did not constitute the making of a reference to previous convictions of the appellant in question for the police might have had information that he was in association with other people but that did not necessarily mean that he himself had previous convictions; (2) that, although the question was undoubtedly an unfortunate and ill-advised question which should never have been put to the witness as it was ambiguous and, on one view, might have suggested some past involvement on the part of the appellant in question with the criminal authorities, it was a matter for the trial judge to determine in his discretion whether he ought to say anything to the jury about it or not; and (3) that, in the circumstances of the present case, it could not be said that the trial judge's decision not to refer to the matter was an exercise of discretion which no reasonable judge could have taken; and appeal refused.
Evidence—Sufficiency—Identification of accused by photographs—Witnesses being shown photographs of accused at same time—One witness slightly handicapped—Whether that witness had been influenced by other in identification of accused from photographs—Whether question of whether witness had been influenced by other witness one that ought properly to be left to jury to determine.
The appellants were tried on indictment in the High Court for assault and robbery in a jeweller's shop. In the course of the trial it became clear that the Crown case against the appellants depended on their identification by two employees of the shop, W. and S., S. being described as being "slightly handicapped". Both witnesses had identified the accused at an identification parade and before doing so they had been shown, in each other's presence, a selection of photographs. S. identified one of the appellants after W. had done so. In these circumstances it was suggested that S. had been influenced by W.'s identification. In his charge to the jury the trial judge directed them that it was for them to decide if S. had been so influenced and that if they had thought he
had simply followed W.'s identification his evidence was not reliable and should be discounted. On being convicted the appellants appealed to the High Court of Justiciary by way of note of appeal and arguedinter alia that there had been a failure on the part of the police to follow the standard procedure when showing photographs of suspects so that the identification evidence in the case had been insufficient for conviction.Held that the trial judge had dealt adequately with the issue of the identification of the photographs; and appeal dismissed.
Thomas McAvoy and John Francis Duffin Jackson were charged on an indictment at the instance of the Rt. Hon. The Lord Fraser of Carmyllie, Q.C., Her Majesty's Advocate, the libel of which set forth that:—"You did while acting along with others on 23rd October 1989 at the premises at 116a Manse Road, Newmains, known as “Goldcraft”, assault Lorraine Watters and William Sinton, both care of Wishaw Police Office, both employees there, and did seize hold of them, strike said Lorraine Watters on the head and body with your hand, present a knife at said Lorraine Watters and William Sinton, strike said William Sinton on the head with said knife to his injury, struggle with him, hold said knife at his throat, force said Lorraine Watters and William Sinton, strike said William Sinton on the head with said knife to his injury, struggle with him, hold said knife at his throat, force said Lorraine Watters and William Sinton on to a couch there, cover their heads with a curtain, threaten to kill them, further seize hold of said Lorraine Watters, place your hand over her face, force a sock into her mouth, force her to go to a safe in said premises, punch her on the body, demand that she open said safe, threaten to kill her, seize hold of her face, force her to open said safe, force her and said William Sinton to go into a toilet there, remove pieces of jewellery from cabinets there, break a glass panel in a cabinet there and pull said cabinet from the wall and did rob said Lorraine Watters and William Sinton of a quantity of jewellery and precious metals, a box containing £70 of money or thereby, a box containing pieces of jewellery...
To continue reading
Request your trial
-
William Beck V. Her Majesty's Advocate
...to give them proper directions on identification evidence. Under reference to the Practice Note of 18 February 1997; McAvoy v HM Advocate 1991 JC 16 (LJC (Ross) at 26); and Beaton v HM Advocate 2004 SCCR 467, Lord Kirkwood at paras [26] to [29], it was said that the trial judge had omitted ......
-
N.c. V. Her Majesty's Advocate
...of the potential unreliability of eye-witness evidence: Lord Justice-General's Practice Note of 18 February 1977, McAvoy v HM Advocate 1992 SLT 46 at 50 to 51. The risk of mistake is heightened when the witness is first asked to make an identification of the accused in circumstances which s......
-
Note Of Appeal Against Conviction By Justinas Gubinas And Nerijus Radavicius Against Her Majesty's Advocate
...v Docherty 2011 SCCR 123). [22] A warning in relation to the dangers of identification evidence was required (McAvoy v HM Advocate 1991 JC 16 at 26). Identification had not been a live issue in this case. The mobile images were shown as evidence of the crime. No expertise was required to un......
-
Richard Joseph Coubrough's Executrix V. Her Majesty's Advocate
...v HM Advocate 2004 SCCR 467, Lord Kirkwood, delivering the Opinion of the Court, at paras [24]- [27] and following McAvoy v HM Advocate 1991 JC 16, LJ-C (Ross), delivering the Opinion of the Court, at 26). Such directions were always required when identification was in issue. The Practice N......