Sandlan v Advocate (HM)
| Jurisdiction | Scotland |
| Judgment Date | 23 February 1983 |
| Date | 23 February 1983 |
| Docket Number | No. 6. |
| Court | High Court of Justiciary |
JC
Lords Hunter, Dunpark, Ross.
Solemn procedure—Trial—Evidence undermining defence of accused elicited by cross-examination on behalf of co-accused—Whether accused had right of further cross-examination.
Evidence—Evidence by accused undermining defence of co-accused—Observations on whether such evidence was "evidence against" co-accused rendering admissible questions tending to show accused had committed other offences—Criminal Procedure (Scotland) Act 1975 (cap. 21) sec. 141(f)1.
Evidence—Evidence in replication by prosecutor—Right to lead evidence to contradict "evidence led by the defence"—Observations on whether evidence elicited in cross-examination of accused was "led by the defence"—Criminal Procedure (Scotland) Act 1975 (cap. 21) sec. 149A (1)2.
The appellant and a co-accused were charged on the same indictment with theft. The appellant was also charged with wasting the time of the police and with attempting to defraud an insurance company. The Crown case was that the appellant's report of a robbery at premises of a company of which he was a director had been false. The appellant's defence was that the robbery had actually occurred. The line of defence of the co-accused supported the Crown case that the robbery had been fabricated. In accordance with practice counsel for the appellant cross-examined the Crown witnesses before counsel for the co-accused, who was second-named on the indictment. During cross-examination of such witnesses on behalf of the co-accused fresh material was elicited which was adverse to the appellant. Counsel for the appellant sought leave further to cross-examine an early witness for the Crown on such new material. He also intimated that he would seek the same right in relation to other Crown witnesses. The trial judge gave a general ruling refusing further cross-examination of Crown witnesses. Counsel for the appellant declined an offer that specific questions could be put by the Court. The judge later made certain specific exceptions to his general ruling.
In the course of the trial the appellant stated in evidence in chief that
a statement by the co-accused to the police was untrue. The trial judge then allowed counsel for the co-accused to cross-examine the appellant concerning alleged dishonest appropriation of stock of the company on the basis that the appellant had given evidence which undermined the defence of the co-accused and had thus "given evidence against" the co-accused in terms of sec. 141 (f) (iii) of the Criminal Procedure (Scotland) Act 1975. The appellant also gave evidence in cross-examination by the co-accused and for the Crown of a visit to a shop. The Crown was given leave under sec. 149A of the said Act to lead evidence in replication.
The appellant was convicted. He appealed inter alia on the grounds that he had been prejudiced by the refusal of further cross-examination and that the trial judge had allowed inadmissible evidence to be admitted, having misconstrued secs. 141 (f)(iii) and 149A of the said Act. He contended that he had not "given evidence against" the co-accused for the purposes of sec. 141 (f) (iii) and that evidence elicited in cross-examination was not "led by the defence" within the meaning of sec. 149A (1) (a).
Held that as a result of the refusal to allow further cross-examination evidence favourable to the appellant might have been excluded and evidence adverse to him had not been subjected to cross-examination and there had thus been a serious miscarriage of justice; appeal allowed on this ground and conviction quashed.
Observed that difficulties arising where further cross-examination was allowed could be controlled by careful supervision by the Court to ensure that it did not stray beyond the purpose for which it had been allowed; in an extreme case the judge could alter the order in which a particular witness was cross-examined.
Observations by Lords Hunter and Dunpark (diss. Lord Ross) on the question whether evidence which undermines the defence of a co-accused is "evidence against" that co-accused within the meaning of sec. 141 (f) (iii) of the Act of 1975.
Dicta of Lord Donovan in Murdoch v. TaylorELR[1965] A.C. 574 at page 592 considered and doubted;Burton v. H. M. Advocate 1979 S.L.T. (Notes) 59doubted.
Observations on the phrase "evidence led by the defence" in sec. 149A (1) (a) of the Act of 1975;doubted whether the contention that it did not include evidence elicited in cross-examination was correct.
Austin Cooper Sandlan and a co-accused George King appeared in the High Court at Glasgow on an indictment which set forth that:—"(1) On 24th December 1980 from the premises occupied by Hamilton Laidlaw & Company (Jewellers) Limited at 84/92 Miller Street, Glasgow, while acting along with Francis Eddison Kimmett and Alexander Kimmett, both now prisoners in the prison of Barlinnie, Glasgow, you Austin Cooper Sandlan, the managing director of said company, and you George King did steal three cash sales record books, a sales sheet, £472 of money and a quantity of jewellery to the value of £203,023; (2) date above libelled at a lay-by at Cathkin Braes Road, at the Victoria Infirmary, and at Stewart Street Police Office and on 25th December 1980 at 84 Miller Street, all in Glasgow, you Austin Cooper Sandlan did falsely represent to Gordon M'Caskill, Edward M'Iver, Ross M'Lellan, Eric Pile, Donald Grant, Brian Laird and Robert Lauder, all officers of Strathclyde Police, that on said date you had been assaulted by two unknown persons who had presented a gun at you and forced you under duress and in apprehension of your safety and of the safety of your family to allow them entry to the premises occupied by Hamilton Laidlaw & Company (Jewellers) Limited at 84/92 Miller Street, aforesaid, and that said persons had assaulted you and repeatedly punched you on the head and had forced you to open two safes in said premises and had robbed you of a quantity of jewellery and thereafter had forced you to drive them to Cathkin Braes Road, aforesaid, where they had assaulted you and bound your hands and legs together, and you did cause said officers and other officers of Strathclyde Police maintained at the public expense for the public benefit to devote their time and service in the investigation of said representation made by you and which you knew to be false and you did deprive the public of the services of said police officers and did render the lieges liable to suspicion and to accusation of assault and robbery; and (3) having formed a fraudulent scheme to obtain money from Lloyd's of London, Insurance Underwriters, on 28th December 1980 you Austin Cooper Sandlan being managing director of and shareholder in Hamilton Laidlaw & Company (Jewellers) Limited and knowing that said company was insured through Stewart Wrightson (Scotland) Limited, Insurance Brokers, 48 St Vincent Street, Glasgow, with said Lloyd's of London in respect inter alia of theft and robbery did falsely represent to James Brown Campbell, an employee of Sidney Balcombe & Sons (Scotland) Limited, Public Loss Assessors, 27 Woodside Place, Glasgow, that on 24th December 1980 said Hamilton Laidlaw & Company (Jewellers) Limited had been robbed of a quantity of jewellery and you did instruct said Sidney Balcombe & Sons (Scotland) Limited to act on behalf of said Hamilton Laidlaw & Company (Jewellers) Limited as loss assessors and to intimate a claim to Lloyd's of London in respect of the loss of said jewellery and said Sidney Balcombe & Sons (Scotland) Limited acting on your behalf intimated a claim estimated at £197,414 to Tyler & Company, Insurance Loss Adjusters, Branning House, 100 Whitechapel Road, London, who were acting on behalf of said Lloyd's of London and you did thus attempt to defraud said Lloyd's of London of £197,414 of money."
At the trial counsel for the co-accused George King cross-examined the Crown witnesses after counsel for the accused Sandlan in accordance with the normal practice of following the order of the accused in the indictment. During such cross-examination evidence adverse to Sandlan was elicited. Counsel for Sandlan applied for leave further to cross-examine the witnesses concerned but such leave was refused by the trial judge in a general ruling, to which a number of specific exceptions were made. Counsel for Sandlan also objected to a number of questions put to Sandlan in cross-examination on behalf of the co-accused King, on the ground that such questions tended to show that Sandlan had committed offences other than those specified in the indictment. The trial judge allowed the questions on the ground that evidence given by Sandlan, to the effect that a statement by King was untrue, tended to undermine King's defence. The trial judge also allowed the Crown to lead evidence in replication of certain evidence elicited from Sandlan in cross-examination.
Sandlan was convicted of the charges against him. The charge against the co-accused King was found not proven. Sandlan appealed against his conviction on the following grounds inter alia:—"(2) The learned trial judge improperly allowed evidence to be admitted, over...
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