Appeal Against Conviction By Andrew Mcleish Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lady Paton,Lady Clark Of Calton,Lord Justice Clerk |
| Neutral Citation | [2016] HCJAC 74 |
| Year | 2016 |
| Date | 11 August 2016 |
| Published date | 29 August 2016 |
| Court | High Court of Justiciary |
| Docket Number | HCA/2015 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2016] HCJAC 74
HCA/2015/003530/XC
Lord Justice Clerk
Lady Paton
Lady Clark of Calton
OPINION OF THE COURT
delivered by LADY DORRIAN, the LORD JUSTICE CLERK
in
APPEAL AGAINST CONVICTION
by
ANDREW McLEISH
Appellant
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant: McCluskey, Adams Whyte, Livingston
Respondent: Niven-Smith, AD; Crown Agent
11 August 2016
[1] In this case the appellant, who was the neighbour of the complainer and his girlfriend, living in the flat directly opposite them, was charged inter alia with an assault on the complainer in the hallway between their respective properties. The appellant had lodged a special defence of self-defence. When giving evidence the appellant was asked whether the complainer’s girlfriend had originally lived at the address, to which he replied:
“Naw, they had a, a bit of a volatile relationship. She had been kicked out for stealing money from him and when we moved into the flat, all her stuff was kind of blocking all the, the exits ‘cause there was bags with her clothes and that kind of stuff.”
[2] Later in his evidence the appellant’s agent asked, regarding the complainer “Had you seen him in that kind of manner before, or was that the only time you saw that?” which elicited reply suggesting that the complainer had a certain quarrelsome nature, talked of fighting, and was a drunkard.
[3] The procurator fiscal depute made a motion in terms of section 266(4)(b) of the Criminal Procedure (Scotland) Act 1995, to be permitted to ask questions of the appellant tending to show that he had been convicted of offences other than that with which he was charged. The appellant had a number of convictions for violence, possession of weapons and dishonesty. In particular, he was convicted in 2004 of possession of a weapon, in 2005 of an offence of violence, and in 2004 and 2015 of offences of dishonesty.
[4] The application was opposed under reference to Leggate v HMA 1988 JC 127, on the basis that this was not a case where the nature or conduct of the defence was such as to involve imputations on the character of the complainer or witnesses, notwithstanding the remarks in question. The test was one of fairness and the risk of prejudice was too great.
[5] The sheriff granted the application. It is not entirely clear whether she did so on the basis of the effect of both sets of remarks, or only in relation to those relating to the complainer’s girlfriend. There are passages in her note which suggest that she relied on both, for example, paragraph 9, since she refers there to the remarks, including those regarding the complainer, as being deliberate and gratuitous, and paragraph 8 where she states that the remarks went further than appeared to be warranted by the questions. So far as the remarks concerning the complainer are concerned, we do not agree with that assessment, since those remarks arose in answer to the question noted above, which appears wholly to carry the risk of such an answer as eventuated.
[6] Nevertheless, the sheriff appears to have considered that, in the context of a defence of self-defence, the remarks in relation to the complainer himself were not such as to justify cross-examination of the appellant as to his record, saying:
“It...
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