Scott (A. T.) v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 22 February 1946 |
| Date | 22 February 1946 |
| Docket Number | No. 14. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Ld. Moncrieff. Lord Carmont.
Crime—Subornation of perjury—Attempt to pervert course of justice by inducing to give false evidence—Distinction between false evidence and other false statements—Misdirection—Judge's charge—Inadequate presentation of defence.
Evidence—Witnesses—Panel as witness—Panel not giving evidence on his own behalf—Right of Judge to comment—Repeated comment—Criminal Evidence Act, 1898 (61 and 62 Vict. cap. 36), sec. 1.
The Criminal Evidence Act, 1898, by sec. 1, makes it competent for an accused to give evidence for the defence if he so desires, and prohibits comment by the prosecution in the event of his failing to do so.
A motor car driver, who had been involved in a collision, was, charged with attempting to pervert the course of justice by attempting to induce two women to give false evidence on his behalf in any criminal proceedings which might be brought against him arising out of the collision, viz., evidence to the effect that he had been in their house at the time of the collision. At his trial the only evidence led in support of the charge was the evidence of the two women. They testified that he had paid a long visit to their house on the night of the accident and had endeavoured to persuade them to say that he had been there at the time of the accident. But they were vague and inconsistent in regard to whether the false story was to be given as evidence or to be told to his lawyer or to the police. One of them was uncertain whether he had any serious purpose in approaching them. The accused himself did not give evidence.
The presiding Judge directed the jury that they must distinguish between inducing to give false evidence and inducing to make other false statements, but the tenor of his charge was to represent the evidence as being conclusive against the accused if the jury believed it. On several occasions he erroneously referred to the evidence of the two women as having been corroborated by their father, and he repeatedly commented on the failure of the accused to give evidence.
Held in an appeal against conviction that, although there had been no misdirection in law, the accused's defence had not been presented fairly to the jury, in respect that the indictment as framed required proof of attempt to obtain false evidence as distinct from other false statements, whereas the Judge's charge, instead of drawing attention to the varying statements of each of the two witnesses, had represented that both witnesses supported the indictment and moreover had been corroborated by a third, and in respect also that comment on the accused's failure to give evidence, and more especially repeated comment, was unjustifiable as the accused had no occasion to give evidence when he was disputing merely the effect of the Crown evidence and not its veracity; and conviction quashed.
Opinion per Lord Moncrieff, that the decision in Brown v. Macpherson, 1918 J. C. 3, in so far as it affirmed the competency of comment by the Judge on an accused's failure to give evidence, should receive further consideration.
Alexander Thomson Scott and Others were charged under an indictment at the instance of His Majesty's Advocate which set forth in the third place that Scott, having on 20th June 1945 been, involved in a collision while driving a motor car, "did on various occasions between 20th June and 17th July 1945, both dates inclusive, in the house occupied by John Jamieson Dougall at 281 Borron Street, Glasgow, in your said house at 93 North Hanover Street, Glasgow, and elsewhere in Glasgow, attempt to induce Mary Gardiner Dougall and Alexandra Dougall or Noble, both residing at 281 Borron Street aforesaid, to give evidence on your behalf in any proceedings following on any criminal charge which might be brought against you arising out of said collision to the effect that at the time of said collision you were in their company in said house at 281 Borron Street aforesaid, which evidence you knew to be false, and this you did with intent to pervert the course of justice and you did thus attempt to pervert the course of justice." He was charged in the fourth place with attempting on 6th July to murder Mary Dougall, and under the fifth head of the indictment he and the other accused were charged with attempting on 17th July to murder Mrs Noble.
The trial of the third, fourth and fifth charges took place in the High Court at Glasgow before Lord Mackay and a jury on 5th, 6th and 7th September 1945, and Scott was found guilty of the third charge and not guilty of the charges of attempted murder. The other accused were also found not guilty of attempted murder.
The evidence led in support of the third charge, which is referred to more fully in the opinion of Lord Carmont, consisted solely of the evidence of Mary Dougall and Mrs Noble. They gave evidence that Scott had paid a long visit to 281 Borron Street on the night of the accident and had endeavoured to persuade them to say that he had been there at the time of the accident. But they were vague and inconsistent in regard to whether the false story was to be given as evidence or told to his lawyer or to the police. One of them was uncertain whether Scott had any serious purpose in approaching them. Scott did not give evidence in his own defence.
In a note of application for leave to appeal against his...
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