Niven v Hart
| Jurisdiction | Scotland |
| Judgment Date | 19 July 1898 |
| Docket Number | No. 26. |
| Date | 19 July 1898 |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Adam, Lord Kinnear.
Procedure—Right of accused to see notes used by a witness.—
In the course of a trial on a summary complaint one of the witnesses for the prosecution referred to certain notes for the purpose of refreshing his memory. The accused asked to be allowed to see these notes. Permission was refused by the Judge. The accused having been convicted, held, in a suspension, that the conviction fell to be quashed in respect of the refusal of the Judge to allow the accused to see the notes.
Complaint—Discrepancy between complaint and service copy.—
The service copy of a summary complaint bore that the accused ‘did assault’ A B, ‘and did strike him.’ The principal complaint bore that the accused ‘did assault’ A B ‘and did kick him.’ The accused having been convicted, held, in a suspension, that this discrepancy was not such as to entitle the complainer to have the conviction suspended.
Procedure—Communications between Sheriff and Procurator-Fiscal.—
In a trial before a Sheriff, on a summary complaint, the procurator-fiscal, having doubts as to the sanity of the accused, had a doctor in attendance. After the trial, and before judgment, the Sheriff had a conference with the doctor and the procurator-fiscal in his private room. The accused having been convicted, in a suspension, held that these proceedings were, in the circumstances, legitimate.
On 31st March 1898, Robert Nrven, 28 Keir Street, Pollockshields, Glasgow, was charged in the Sheriff Court at Glasgow, on a summary complaint, at the instance of James Neil Hart, procurator-fiscal, setting forth that the accused ‘did, on 25th March 1898, in the University grounds, Gilmorehill, Glasgow, assault (1) George Gilpet Ramsay, Professor of Humanity, residing at No. 6 The University, and did strike him with a stick or whip, and (2) Samuel Campling, University Lodge, Dumbarton Road, Glasgow, and did kick him.’
The accused pleaded not guilty, but after evidence had been led, was convicted by the Sheriff-substitute (Boyd) and sentenced to be imprisoned for seven days.
He brought a suspension.
I. The first ground of suspension was that the service copy of the complaint was disconform to the principal complaint, in respect that the last four words in the service copy were ‘and did strike him,’ instead of ‘and did kick him.’ The principal complaint was read over by the clerk to the accused before he pleaded not guilty. No objection was then taken by the accused on the ground that the principal complaint was disconform to the service copy.
II. It is unnecessary here to explain the second ground of suspension.
III. The complainer further averred:—‘6. The said Sheriff-substitute admitted evidence which was incompetent, and excluded competent evidence. He allowed Professor Ramsay, when under examination as a witness for the fiscal, to read from a paper which he held in his hand, and refused to allow the complainer to see the said paper. This paper purported to contain a record of previous occasions on which the complainer had met and threatened Professor Ramsay, and Professor Ramsay was examined in detail regarding these by the fiscal.’
The respondent answered:—‘6. Denied, and explained that Professor Ramsay referred to a paper for the dates of his meetings with the complainer.’
IV. The complainer also averred:—‘7. When incompetent evidence was being given by the witness, William Crowther, and the complainer was endeavouring to shew that that evidence was hearsay of the other witness Campling, the Sheriff stopped his cross-examination. This is what occurred. “Cross-examined by the complainer.—How did you know that he (Campling) was uninjured; had you examined him before? (No answer.) By the Sheriff.—Is that what you understood from the last witness, Campling, that he had been injured by a kick? (A.) The only thing that Mr Campling told me was that he had had a kick. (Q.) But that no one had kicked him on that spot before? (A.) No. By the complainer.—How did you come to know that he was uninjured before? The Sheriff.—The next question. You have got your answer.” The complainer utterly denied that he had ever kicked the witness Campling, and although apparently Campling had been injured on the leg, it was important to ascertain when and where this injury was received, and whether the injury might not have been accidental.’
The respondent answered:—‘7. Denied that the witness Crowther's evidence was incompetent; and explained that in the judgment of the Sheriff-substitute further cross-examination was unnecessary.’
V. The complainer also averred:—‘8. Professor Ramsay was represented at the trial by his law-agent. While the complainer was addressing the Court the agent wrote on a slip of paper and handed the paper to the Sheriff, who read it, and thereafter put a question to the complainer. The complainer has no knowledge what said slip of paper contained. It was most irregular of the Sheriff-substitute to receive and read any private communication from any person relating to the complainer, and pending his trial, without affording the complainer an opportunity of answering it.’‘12. After the complainer had addressed the Court, and before pronouncing judgment, the Sheriff-substitute retired to his private room in company with the respondent and had a private consultation regarding the case. Said proceeding was most irregular, and was calculated to prevent justice. Any statement which the respondent thought fit to make regarding the case ought to have been made in open Court.’
The respondent answered:—‘8. Admitted that Professor Ramsay was accompanied by a law-agent,...
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