Paterson v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 15 January 2008 |
| Neutral Citation | [2008] HCJAC 2 |
| Date | 15 January 2008 |
| Docket Number | No 21 |
| Court | High Court of Justiciary |
Appeal Court, High Court of Justiciary
Lord Macfadyen, Lord Johnston, Lord Wheatley
Procedure - Solemn procedure - Desertion simpliciter or pro loco et tempore - Desertion due to Crown failure to disclose unredacted statement of material witness to defence - Whether unfair trial inevitable
On 11 July 2007 the complainer went on trial at the High Court of Justiciary in Glasgow on various charges being a charge of murder by shooting, assault by presenting a firearm and related charges under the Firearms Act 1968. A further charge relative to perverting the course of justice was deleted following a ruling on admissibility of identification evidence. On 2 July 2007, a trial had been commenced and then deserted pro loco et tempore due to jury difficulties.
The matter thereafter proceeded to trial but was deserted by the trial judge pro loco et tempore due to evidence of a witness which had been redacted from that witness' police statement provided to the defence. The evidence related to an alleged conversation on a mobile telephone between the witness and the appellant. The witness alleged that an argument took place between the appellant and the deceased in his home before the two left, that there followed the sound of two gunshots and he found the deceased lying nearby. The appellant was alleged to have telephoned him and said, "Is he dead yet? If not, tell him I'm going to put another one in him." The passage referring to the alleged admission had been redacted out of the statement originally provided to the defence. Upon the witness giving the evidence in court, counsel for the appellant sought an adjournment during which he checked the handwritten statement lodged in court for the alleged admission. Thereafter, he moved the trial judge to desert simpliciter. The trial judge deserted the diet pro loco et tempore and a defence bill of advocation and petition to the nobile officium on the same grounds were presented to the High Court of Justiciary against the trial judge's refusal to desert simpliciter.
Counsel for the appellant argued, on the basis of HM Advocate v Fleming, that a retrial would inevitably be unfair and the trial should therefore have been deserted simpliciter. Numerous important Crown witnesses had been subjected to cross-examination and certain identification procedures followed had been identified as unfair. The desertion had been the fault of the Crown.
Held that: (1) neither the fact that certain witnesses had given evidence and been subjected to cross-examination nor deficiencies in an identification parade procedure either taken individually or together yielded the conclusion that a retrial would inevitably be unfair (para 16); (2) the correct procedure for review of the manner of a desertion of trial being by bill of advocation, the petition to the nobile officium was incompetent (para 17); and bill of advocation and petition to the nobile officium refused.
Robert William Wilson Meechan Paterson was charged on indictment at the instance of the Right Honourable Elish F Angiolini QC, Her Majesty's Advocate, on charges of murder, assault and related offences. An initial trial was deserted pro loco et tempore and a second trial initiated in the course of the same sitting of the High Court was deserted by the trial judge pro loco et tempore.
The accused appealed by bill of advocation and a petition to the nobile officium to the High Court of Justiciary against the desertion.
Cases referred to:
Advocate (HM) v FlemingUNK [2005] HCJAC 27; 2005 1 JC 291; 2005 SCCR 324
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