Russell v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 05 December 1945 |
| Docket Number | No. 7. |
| Date | 05 December 1945 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-Clerk. Lord Mackay. Ld. Stevenson.
Procedure—Plea in bar of trial—Hysterical amnesia—Charge of fraud and embezzlement—Loss of memory relating to period libelled.
A woman, charged with a series of frauds extending over a period of years, pleaded in bar of trial that she was suffering from hysterical amnesia and was on that account unable to plead to the libel or to give instructions for her defence. Her contention was that, while she was at the date of the trial otherwise mentally normal, she had no recollection of events which had occurred during a period of seven years covering the dates at which the frauds were alleged to have been committed; and that accordingly she should be discharged.
Held that the fact that she suffered from this amnesia, even if established by sufficient evidence, afforded no ground for her plea in bar.
Observed that no such plea in bar, if sustained, could result in the panel's unconditional discharge.
Observed further that loss of memory may be an important element in establishing that a panel is insane within the meaning of the Lunacy (Scotland) Act, 1857. But, if it falls short of that, loss of memory in a person who is otherwise normal and sane can have no further effect than to increase the onus of proof lying on the Crown, and to raise doubts to which it may be the duty of a jury to give effect by acquitting the accused after an investigation of the whole case.
Dictum of Lord Justice-General Dunedin in H. M. Advocate v. Brown, 1907 S. C. (J.) 67, at p. 77, 5 Adam, 312, at p. 344, commented on.
Mrs Isabella Howie or Russell was charged in the High Court of Justiciary at Glasgow upon an indictment at the instance of His Majesty's Advocate which set forth, inter alia, "that you did (1) on various occasions between 1st January 1940 and 30th April 1943, in the house occupied by you at 83 Holmlea Road, Glasgow, and in the house occupied by John Jackson at 17 Ruel Street, Glasgow, pretend to Margaret Muldoon or Jackson, … that you were employed in the Glasgow Stock Exchange in association with [a named] member of said Stock Exchange and partner of [a named firm of stockbrokers] Glasgow; that you were in a favourable position to invest money; that you had had profitable transactions on the Stock Exchange and that, if said Margaret Muldoon or Jackson delivered money to you, you would invest the same in a profitable venture on the Stock Exchange and would account to her for the same with relative interest or dividends; and further you, having thus induced said Margaret Muldoon or Jackson to deliver to you on 30th April 1941 …£50 of money, did about a month later pretend to her that you had invested said sum as aforesaid and that the said sum had earned £40 of interest, and you did deliver to said Margaret Muldoon or Jackson £90 of money in repayment of said alleged investment, and did thus by all the pretences above libelled induce her to deliver to you between 1st June 1941 and 30th April 1943 … further sums of money amounting in cumulo to £610 for investment as aforesaid, which sums you did not invest and did not intend to invest on her behalf, but which you forthwith appropriated to your own use and did defraud her thereof." There then followed eighteen charges of a similar nature. The charges in the indictment covered the period from January 1940 to August 1943.
At the first diet she stated the following plea in bar of trial:—"That the panel is suffering from hysterical amnesia and is on that account unable to plead to the libel or to give instructions for her defence."
A few days before the day fixed for her trial the panel was admitted to the Eastern District Hospital, having developed acute mental symptoms. Having afterwards been discharged she came up for her postponed trial at a sitting of the High Court of Justiciary in Glasgow on 2nd July 1945.
The presiding Judge (Lord Sorn), before proceeding with the case on the merits, held a preliminary inquiry into the facts upon which she based her plea in bar of trial. These facts and the contentions of the panel and of the Crown are given in the opinion of Lord Sorn. Briefly stated, only two witnesses were adduced on behalf of the panel, viz., two doctors who had examined her on behalf of the Crown; and their evidence was that, in their opinion, the panel suffered from hysterical amnesia, and that, while she was mentally normal at the date of the trial, she had no recollection of events which had happened between 1937 and 1944. No evidence was led by the Crown.
Upon this evidence counsel for the panel contended that a plea in bar of trial had been established, and that the panel must be discharged. The Advocate-Depute agreed that amnesia had been proved, and left it to the Court to decide whether it constituted a bar to trial. In the event of bar being sustained, he contended that the panel should be detained during His Majesty's pleasure under section 87 of the Lunacy (Scotland) Act, 1857.
His Lordship repelled the plea.
LORD JUSTICE-CLERK (Cooper).—The appellant was charged on indictment under 19 counts with a series of alleged frauds extending over the years 1940 to 1943, and involving upwards of £4000. She
was convicted under 16 of these charges and was sentenced to two years' imprisonment.The single reason presented in support of this appeal against conviction is that the Judge misdirected himself in refusing to sustain a plea in bar of trial lodged on behalf of the appellant. That plea was that the appellant was "suffering from hysterical amnesia" and was on that account unable to plead or to give instructions for her defence. The contention presented to the trial Judge and before us was...
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