Slater v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 July 1928 |
| Docket Number | No. 19. |
| Date | 20 July 1928 |
| Court | High Court of Justiciary |
Lord Justice-General, Lord Justice-Clerk, Lord Sands, Lord Blackburn, Lord Fleming.
Evidence in criminal cases—Presumption of innocence—Relevancy of panel's immoral character—Effect of bad character on strength of the presumption.
In a trial for murder the vital question was one of identity, which presented an unusually difficult and narrow issue to the jury. In the course of the evidence it was incidentally established that the prisoner had been living upon the earnings of a prostitute. The prosecutor founded upon this fact in his address to the jury as showing that the prisoner was capable of committing the murder. The judge directed the jury that the facts proved with reference to the prisoner's character were relevant for their consideration, and that the presumption of innocence applied with less effect to the prisoner than to a man of proved good character. The jury found the prisoner guilty by a narrow majority.
Held, on appeal, that the judge had misdirected the jury in law, in respect that the immoral character of the panel was irrelevant, and that the presumption of innocence applied equally in all cases, and could only be displaced by evidence relevant to prove the crime charged; and further, that, looking to the difficulty of the issue and to the possibility that the jury were influenced against the prisoner by taking his bad character into account, a substantial miscarriage of justice had occurred; and conviction quashed.
Procedure—Preparation for trial—Panel's right to be informed of results of preliminary Crown investigations.
An accused person has no right to demand that all the results—material or immaterial—of investigations made by the Crown Office in preparation for his trial should be communicated to him.
Review—Appeal—Additional evidence—Position of additional evidence in relation to appeal—Criminal Appeal (Scotland) Act, 1926 (16 and 17 Geo. V. cap. 15), sec. 6 (b).
The purpose of the Court in allowing an appellant to lead additional evidence under section 6 (b) of the Criminal Appeal (Scotland) Act, 1926, is to give him an opportunity of showing that the verdict was pronounced in the absence of matter material and relevant to lead to a contrary result.
Oscar Slater, sometime residing at 69 St George's Road, Glasgow, was tried in the High Court of Justiciary at Edinburgh before Lord Guthrie and a jury, on 3rd, 4th, 5th, and 6th May 1909, upon an indictment which set forth that he did, on 21st December 1908, in Marion Gilchrist's house, at No. 15 Queen's Terrace, West Princes Street, Glasgow, assault the said Marion Gilchrist, and did beat her with a hammer or other blunt instrument, and fracture her skull, and did murder her.
Miss Gilchrist, a lady of 83, lived with one servant in a house opening off a common stair. The house below was occupied by a Mr Adams. She had in her possession a large quantity of jewellery valued at more than £1000, and this fact had become known in the neighbourhood. The household routine was very regular, and her servant was in the habit of going out each evening about 7 p.m. to
buy newspapers. On the night of 21st December 1908 the servant went out as usual, and on returning about ten minutes later was met at the door by Mr Adams, who told her that something was wrong. She opened the door, and Mr Adams had just stepped inside, when a man walked deliberately out of the bedroom, passed them, and went down stairs. He collided with a girl in the street just outside, and was seen rushing into a subway station in the neighbourhood soon after. Miss Gilchrist was found battered to death upon her dining-room floor. The furniture was undisturbed, and no weapon was found. A box was broken open, and a valuable brooch was missing.
The vital issue at the trial was the question of identity, and the prisoner was identified as the man who came out of the house with varying degrees of assurance by the servant, by Mr Adams, by the girl with whom he collided in the street, and by an official at the subway station. He was also identified by neighbours as a man who had systematically watched the house for some time before the murder. A considerable part of the evidence was concerned with what the Lord Advocate (Ure) described in his speech as the ‘flight from justice,’ and it was proved that the prisoner, after various preparations, left Glasgow within a few days of the murder, and sailed from Liverpool for America under a false name.
The motive for the crime suggested by the prosecution was theft of the jewels, and in this connexion evidence was led to establish that the prisoner, who had set up under an assumed name as a dentist, was in fact a person who made money by gambling and dealing in jewels. In the course of cross-examination of witnesses for the defence on this matter it was incidentally proved that the prisoner was living upon the earnings of a prostitute who was a member of his household. The Lord Advocate commented on this matter at the beginning of his speech to the jury in the following passage:—‘Gentlemen of the Jury, on the evening of the 21st December last, a lady, upwards of 83 years of age, who had, so far as we know, not a single enemy in the world, was found murdered in her own dining-room, under circumstances of such savage ferocity as to beggar all description. There are no rival or conflicting theories in this case as to the way in which this aged and defenceless lady met her tragic end. She was literally battered to death by her assailant, who knelt on the body of his victim whilst he was inflicting a rain of fatal blows. I say, gentlemen, that the hand which dealt these blows was the hand of the prisoner, and I hope to be able to satisfy you that he, and he alone, was the perpetrator of an act of savagery which happily finds few, if any, parallels in the annals of crime. Up to yesterday afternoon I should have thought that there was one serious difficulty which confronted you; the difficulty of conceiving that there was in existence a human being capable of doing such a dastardly deed. Gentlemen, that difficulty, I think, was removed yesterday afternoon when we heard from the lips of one who seemingly knew the prisoner better than anyone else, who had known him longer, and known him better than any witness examined, that he had followed a life which descends to the very lowest depths of human degradation, for, by the universal judgment of mankind, the man who lives upon the proceeds of prostitution has sunk to the lowest depths, and all moral sense in him has been destroyed and has ceased to exist.
That difficulty removed, I say without hesitation that the man in the dock is capable of having committed this dastardly outrage, and the question for you to consider is whether or not the evidence has brought it home to him.’
In the course of his charge to the jury Lord Guthrie said:—‘You have heard a good deal about another class of evidence, the evidence first of character, and the evidence second of financial circumstances. I think you will agree that that evidence is very double-edged. The prisoner may found upon it as being in his favour, and the Crown has founded on it as being against him. About his character, proved, as Mr M'Clure* said, by his own witnesses, by Cameron, his companion and friend, and by Schmalz, his servant, there is no doubt at all. He has maintained himself by the ruin of men and on the ruin of women, and he has lived in a way that many blackguards would scorn to live. That is not entirely against him in this case, because, being a man of that kind, taking a wrong name, telling a lie about his destination, going by different names, is just what you would expect from a man of that kind, murder or no murder. If you or I had told false stories about where we were going, if we were to travel under an assumed name, then there would be a strong inference that we had been doing something of a serious kind that we wanted to-conceal. In the case of a man like Oscar Slater that inference does not at all necessarily arise. I use the name ' Oscar Slater.' We do not know who that man is. His name is not Slater. His fellow countryman admitted that there was no such German name. He is a mystery. We do not know where he was born, where he was-brought up, what he was brought up to, whether he was trained to anything. The man remains a mystery as much as he was when this trial began. That is the kind of man, and you will see at once that his character is double-edged. The Lord Advocate takes it in his own favour, and he may quite fairly do so because, in the first place, a man of that kind has not the presumption of innocence in his favour which is not only a form in the case of every man but is a reality in the case of the ordinary man. Not only is every man presumed to be innocent, but the ordinary man has a strong presumption in his favour. Such a man may be capable of having committed this offence, and that man also may be capable from his previous character of exhibiting a callous behaviour after the offence. That was founded upon by Mr M'Clure. A man of such a character does not exhibit the symptoms that a respectable man who has been goaded into some serious crime of violence does after the crime is over, and so you will consider that matter from both points of view, telling in favour of the prisoner and telling against him. [After dealing with the pursuer's financial circumstances his Lordship continued]—Gentlemen, all these circumstances are relevant to the case, but I think if you make up your minds to convict the prisoner you will be wise to be in this...
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