McPhelim v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 13 January 1960 |
| Date | 13 January 1960 |
| Docket Number | No. 4. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Patrick. Lord Strachan.
Crime—Procedure—Trial—Judge's charge—Absence of explicit directions concerning onus of proof, concert, defence evidence and majority verdict—Application of proviso to Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V, cap. 15), sec. 2 (1).
An accused was charged with assault and robbery while acting along with other men. In his charge to the jury the presiding Judge did not give directions in terms that the onus of proof rested on the Crown, but directed the jury to consider whether they were satisfied beyond all reasonable doubt that it had been brought home to the accused that he was one of the group of men who were operating at the locuswith a view to assault and robbery.
The Judge did not tell the jury that they must be satisfied that the accused was acting in concert with the other men, nor did he direct the jury as to how they should approach the defence evidence. The Judge directed the jury as to the three verdicts open to them, but did not inform them that their verdict could be by a majority.
Held that, in the circumstances of the case, the charge was not insufficient.
Observations on charging juries, approving the practice of informing a jury that eight of their number must be for a verdict of guilty before they may convict.
John M'Phelim was charged on an indictment at the instance of Her Majesty's Advocate which set forth that "while acting along with Richard Cameron, prisoner in the prison of Barlinnie, Glasgow, and with two other men to the prosecutor unknown, you did, on 9th October 1959, in a common close at 249 Nicholson Street, Glasgow, (1) assault Mohammed Ramzan, 249 Nicholson Street aforesaid, and did strike him with a bottle or other similar instrument, knock him to the ground, kick him, strike him with your fists, and rob him of a suitcase containing 10 ties, 4 bangles, a skirt, 2 shirts, a pair of trunks, 8 cardigans, 4 blouses, a pullover, 24 handkerchiefs, a pair of braces, and 9 pairs of stockings; and (2) assault Mohammed Rashid, 249 Nicholson Street aforesaid, and did strike him with a bottle or other similar instrument, knock him to the ground, strike him with your fists, and rob him of £6 of money."
The accused was tried before Lord Carmont and a jury at Glasgow on 15th December 1959. The evidence led at the trial is summarised in the opinion of the Lord Justice-Clerk. The presiding Judge charged the jury in the following terms:—"Ladies and gentlemen of the jury, you have heard the whole evidence in this case and you have heard two excellent speeches, one from the Crown putting the case for the prosecution and the other a speech from Mr Clyde in defence of his client. As it seems to me, it largely turns upon your acceptance of the evidence that you have heard. It is almost exclusively a question of fact, and facts are for you. If you have any doubt as to what facts to accept, you will apply your mind to the credibility of the witnesses that told you so-and-so as facts and it is for you to weigh up yourself what trust to give to the various witnesses that you heard telling their stories in the box. Credibility is also entirely a matter for you.
"Well now, let me just quite briefly run over the case as it seems to me to lie before you. There is no doubt, I take it, that you are satisfied that these two Pakistanis were assaulted in the way they told you in the box by someone in a close in Nicholson Street on the night they spoke to. There is no doubt that one man, Cameron, went into the box and took the blame for the assault and is at present in prison expiating the offence, but it is for you to say whether you would be...
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William Beck V. Her Majesty's Advocate
...made clear that eight was the majority required for a guilty verdict. No miscarriage of justice could have occurred (McPhelim v HM Advocate 1960 JC 17; Affleck v HM Advocate 1987 SCCR 150, LJG (Emslie) at 151). [39] It is not known whether the precognition of Mr L had been in the possession......
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George Brodie V. Her Majesty's Advocate
...that it is unlikely that the court would nowadays take the approach to misdirection that it took half a century ago (cf McPhelim v HM Adv 1960 JC 17). In my view, this flexibility of approach is one of the strengths of our system. The McInnes test, created in the narrower context of devolut......
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Appeal Following Upon A Reference From The Scottish Criminal Cases Review Commission
...whole in the context of the evidence, speeches and issues at trial (Muir v HM Advocate 1933 JC 46, Lord Sands at 49; McPhelim v HM Advocate 1960 JC 17, LJC (Thompson) at 21; approved in Johnston v HM Advocate 1998 SLT 788, LJG (Rodger) at 792). In judging the fairness of a trial, it was nec......
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Appeal Against Conviction And Sentence By Alain Climent Against Her Majesty's Advocate
...of justice. The judge’s charge required to be read as a whole (Gemmell v HM Advocate 1980 JC 16 at 21 and McPhelim v HM Advocate 1960 JC 17 at 21-22). The jury were presumed to follow the appropriate directions (MacIntosh v HM Advocate 1997 SLT 130). Decision [13] It was not disputed that e......