Thomson v HM Advocate
| Jurisdiction | Scotland |
| Judgment Date | 17 June 1988 |
| Date | 17 June 1988 |
| Docket Number | No. 22. |
| Court | High Court of Justiciary |
JC
L. J.-C. Ross, Lords Dunpark, McDonald.
Procedure—Solemn procedure—Recall of witnesses—Witness claiming to be unable to identify appellant detained for prevarication but recalled before close of prosecution case—Whether recall competent—Criminal Procedure (Scotland) Act 1975 (cap. 21), sec. 148A.1
The appellant went to trial on indictment for assault. In the course of the trial a witness called by the Crown failed to identify the appellant as having taken part in the assault and denied that she had identified him in a statement to a police officer. The sheriff formed the view that the witness was prevaricating and ordered that she be detained until the conclusion of the trial. On the second day of the trial the sheriff granted a motion for recall of the witness by the
procurator fiscal depute and the witness subsequently identified the appellant. The appellant was convicted and appealed to the High Court on the ground that recall under sec. 148A was only competent to correct omissions or clarify ambiguities.Held (1) that it was plain that there was no justification for reading qualifications and restrictions into sec. 148A and the whole matter of recalling witnesses was within the discretion of the presiding judge; and (2) that in the circumstances of the present case, where the sheriff was under the impression that the witness had been prevaricating and she subsequently intimated a willingness to give further evidence, the sheriff was entitled to exercise his discretion so as to permit the witness to be recalled; and appeal refused.
Observed that the growing practice whereby a witness who was detained for prevaricating was allowed to purge his contempt, by returning to the witness box to give the evidence he had earlier failed to give, was a sound practice.
Daniel Hoggan Thomson was charged on an indictment in the sheriffdom of Lothian and Borders at Linlithgow, at the instance of the Rt. Hon. the Lord Cameron of Lochbroom, Q.C., Her Majesty's Advocate, the libel of which set forth that:—"[Y]ou did, on 10th January 1987, in the house at 15 Katherine Street, Craigshill, Livingston, West Lothian, assault Gary John Grant, then residing there and now at 68 Durward Rise, Dedridge, Livingston, West Lothian, and did stab him on the arm and cut him on the face, hand and body with a knife, to his severe injury." The cause came to trial before the sheriff (Macphail) and a jury on 7th, 8th and 9th September 1987. On 9th September 1987 the appellant was convicted. He thereafter appealed by note of appeal to the High Court.
In his report the sheriff stated inter alia as follows:—"(3) It was not disputed at the trial that the complainer had been assaulted in the manner libelled. The live issue which the jury had to consider was whether they were satisfied beyond reasonable doubt that it was the appellant who had been the assailant. The evidence implicating the appellant as the assailant came from only two witnesses: the complainer, Grant, who gave direct evidence, and a young woman named Karen Docherty who, after being recalled, gave evidence of facts and circumstances which pointed to the guilt of the appellant. (4) Grant's evidence was to the following effect. He went to bed in the flat at 15 Katherine Street, leaving the main door unlocked so that a friend named Rodney Graham could come in later. Grant was awakened by the appellant who entered his bedroom and knelt astride him as he was lying on his back in bed with his left arm over his abdomen. The appellant asked, “Where's Rod? Where's Rod? and stabbed Grant on the left arm with a sharp instrument.... The appellant left the room and a man named Michael Preston entered and told Grant to stay where he was. Both intruders then left. As far as the evidence disclosed, there was no motive whatever for the assault. Grant clearly and unequivocally identified the appellant as his assailant. (5) Karen Docherty was 20 years of age and was the girlfriend of the man named Rodney Graham. On the afternoon of the first day of the trial, 7th September 1987, her examination in chief by the procurator fiscal depute took the following course. She deponed that on the night of 9th–10th January 1987 she had gone to the flat of another young woman, named Tracy Baxter. That flat was on the floor below the flat occupied by Grant. During the evening she heard the door banging at the front of the close and, thinking that Graham had arrived, she went upstairs. By this stage of her evidence it seemed clear to me that Karen Docherty was a reluctant and evasive witness, and I warned her as to the nature and consequences of prevarication. (6) She went on to say that she saw two men on the upstairs landing outside the house occupied by Grant. She said that she did not know them and would not know them again if she saw them. Asked to look round the courtroom to see if either of them was present, she said that she did not see either of them. She asked the two men why they were waiting and they said something to the effect that there was going to be trouble with Graham. She left the building to go and look for Graham, failed to find him and returned to Tracy Baxter's flat. Once she was back in that flat, she heard movement from upstairs, as if there were people walking about and carrying on. She went up to Grant's flat. The door was closed; then two men came out. She was able to say that one of them was one of the two men whom she had seen earlier...
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Gall v HM Advocate
...likely to be disruptive to the fair and orderly progress of the trial, and it being sound practice, following Thomson v. H.M. AdvocateSC1988 J.C. 105, to allow the witness the opportunity to purge his contempt; and (2) that a trial judge would be justified in directing a jury to disregard t......