McCOURTNEY v H. M. ADVOCATE
| Jurisdiction | Scotland |
| Judgment Date | 12 July 1977 |
| Date | 12 July 1977 |
| Docket Number | No. 11. |
| Court | High Court of Justiciary |
JC
L. J.-G. Emslie, Lords Cameron, Avonside.
Evidence—Witnesses—Panel as witness—Liability to cross-examination by counsel for co-accused as to previous convictions—Whether panel had given evidence against co-accused—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 141 (f) (ii), (iii).
The Criminal Procedure (Scotland) Act 1975 sec. 141 (f) enacts:—"(f) the accused who gives evidence on his own behalf in pursuance of this section shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed, or been convicted of, or been charged with, any offence other than that with which he is then charged, or is of bad character, unless—… (ii) the accused or his counsel or solicitor has asked questions of the witnesses for the prosecution with a view to establish the accused's good character, or the accused has given evidence of 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 of the witnesses for the prosecution; or (iii) the accused has given evidence against any other person charged with the same offence."
The appellant was tried on indictment along with four others. He was convicted of "being concerned in the unlawful production" of a controlled drug, namely amphetamine sulphate, contrary to the Misuse of Drugs Act 1971 sec. 4 (2) (b) and sentenced to eight years' imprisonment. He applied for leave to appeal against conviction. At the trial, a co-accused, Robertson, gave evidence on his own behalf and at a later stage the appellant gave evidence. In the course of cross-examination by counsel for Robertson, the appellant was asked a number of questions intended to elicit, and which did elicit, that he had a number of previous convictions for dishonesty. The trial Judge, after debate, allowed the questions since he took the view that the appellant had given evidence against his co-accused Robertson within the meaning of sec. 141 (f) (iii) of the Criminal Procedure (Scotland) Act 1975.
Held (1) that once an accused has given evidence against a co-accused there is no discretion in the trial Judge to refuse to the co-accused the right to cross-examine him as to his criminal record; (2) that in the context of the evidence as a whole the appellant's evidence materially supported the Crown case and undermined the defence of Robertson, and that the trial Judge had made the correct decision; and conviction upheld.
Murdoch v. TaylorELR [1965] A.C. 574 referred to.
Joseph Patrick M'Courtney was charged on indictment inter alia that:—(1) you Paul Ernest Johnson, Brian David Robertson, John Watkins, Jeremy Salmon and Joseph Patrick M'Courtney, did between 12th January 1976 and 11th April 1976 both dates inclusive produce a controlled drug namely amphetamine sulphate in the workshop and in the house occupied by you Joseph Patrick M'Courtney at 11 and 13 Stewart Street, Milngavie, and in the house occupied by you Brian David Robertson at 73 Cruachan Road, Bearsden: Contrary to the Misuse of Drugs Act 1971 Section 4 (2) (a); or alternatively you Paul Ernest Johnson, Brian David Robertson, John Watkins, Jeremy Salmon and Joseph Patrick M'Courtney were between 12th January 1976 and 11th April 1976 both dates inclusive concerned in the unlawful production of a controlled drug, namely amphetamine sulphate, by another or others, namely, one or more of you Paul Ernest Johnson, Brian David Robertson, John Watkins, Jeremy Salmon and Joseph Patrick M'Courtney in the workshop and in the house occupied by you Joseph Patrick M'Courtney at 11 and 13 Stewart Street, Milngavie, and in the house occupied by you Brian David Robertson at 73 Cruachan Road, Bearsden; Contrary to the Misuse of Drugs Act 1971 Section 4 (2) (b); (2) you Brian David Robertson, John Watkins, Jeremy Salmon and Joseph Patrick M'Courtney, did on 11th April 1976 in said houses at 13 Stewart Street, Milngavie, and 73 Cruachan Road, Bearsden, unlawfully have in your possession, with intent to supply to others, a controlled drug, namely 1105 grammes of amphetamine sulphate: Contrary to the Misuse of Drugs Act 1971 Section 5 (3).
The appellant was found guilty of the alternative charge 1 and of charge 2 and concurrent sentences of eight years' imprisonment were imposed on him. He presented an application for leave to appeal against conviction. On 16th March 1977 the High Court of Justiciary granted leave to appeal and ordered the notes of evidence to be extended. The appeal was...
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