McLeod v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 29 June 1939 |
| Docket Number | No. 10. |
| Date | 29 June 1939 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Ld. Fleming. Lord Carmont.
Evidence—Sufficiency—Corroboration—Questions by judge—Sole corroborative evidence answers of witness to questions by presiding judge—No subsequent opportunity for cross-examination—Whether conviction justified.
A panel was tried on indictment in the Sheriff Court on a charge of having on four occasions unlawfully and carnally known a girl aged 15, contrary to the Criminal Law Amendment Act, 1885, sec. 5 (1). Apart from the evidence of the girl, one witness only gave evidence against the panel which was material, and that evidence related to one only of the occasions charged. This witness, both in examination by the procurator-fiscal and in cross-examination, gave no evidence of a directly incriminating character, but in subsequent examination by the Sheriff she stated that she had seen an act of intercourse take place. There was no opportunity given for further cross-examination of the witness. The panel having been convicted,—
Held, in an appeal under the Criminal Appeal (Scotland) Act, 1926, that, in the circumstances, counsel for the panel should have been afforded an opportunity of further cross-examination of the witness, and that the conviction, without such an opportunity having been given, was contrary to justice, and conviction quashed.
Alexander M'Leod was charged in the Sheriff Court at Hawick on an indictment at the instance of His Majesty's Advocate with having had, on four occasions specified, unlawful carnal knowledge of a girl aged 15, contrary to the Criminal Law Amendment Act, 1885, section 5, subsection (1).
At the trial, which took place before the Sheriff (Hunter) and a jury, one witness only, other than the girl named in the charge, gave evidence of an incriminating character against the panel. This witness, a Mrs Cooper, spoke to only one of the four occasions libelled. The following summary of her evidence, in chief and in cross and in answer to questions by the Sheriff, is taken from the opinion of the Lord Justice-General:—"This witness, whose evidence was thus relied on by the Crown as the sole corroboration of the testimony of the girl, said, when under examination by the procurator-fiscal, that, on the occasion to which she spoke, she saw the appellant and the girl in the field together, and that the girl was lying on the ground and the appellant was standing beside her. Then the question is put, “Did you see anything...
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Notes Of Appeal Against Conviction And Sentence By (first) Paul Green, (second) Lee Noonan And (third) Robbie Darren Brown
...the judge may, and in some situations ought to, 23 intervene “as he may think necessary in the interests of justice” (McLeod v HM Advocate 1939 JC 68, Lord Carmont at 71). [52] The judge should not take over the role of examiner or cross-examiner. Nevertheless, provided that the judge does ......
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