Todd v MacDonald
| Jurisdiction | Scotland |
| Judgment Date | 01 June 1960 |
| Docket Number | No. 15. |
| Date | 01 June 1960 |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Carmont. Lord Sorn.
Evidence—Witness—Conduct of trial—Examination of witness—Accidental omission of evidence—Motion by party, before closing case, to recall witness in order to rectify omission—Whether competent—Evidence (Scotland) Act, 1852 (15 and 16 Vict. cap. 27), sec. iv.
The Evidence (Scotland) Act, 1852, enacts:—Sec. iv. "It shall be competent to the presiding Judge or other Person before whom any Trial or Proof shall proceed, on the Motion of either Party, to permit any Witness who shall have been examined in the course of such Trial or Proof to be recalled."
At the trial of an accused on a charge of attempting to force open a lockfast vehicle with intent to steal, the prosecutor accidentally omitted to secure from a witness identification of the accused. During his examination of the succeeding witness, the prosecutor, having become aware of the omission, asked leave of the Court to recall the preceding witness in order that the omission might be rectified. Leave having been granted, the witness was recalled and, in answer to a question by the prosecutor, duly identified the accused.
Held that the purposes for which a party might be permitted to recall a witness in terms of sec. iv were not limited to clearing up ambiguities in the evidence which he had already given, but that the party recalling him might competently put to the witness any point which had inadvertently been omitted in his original evidence; and, accordingly, that the recall of the witness had been properly allowed.
Observed that, where a witness had been recalled by virtue of sec. iv, it was for the party recalling, and not the presiding Judge, to put to him the further questions required.
William Todd was charged in the Sheriff Court at Glasgow on a complaint at the instance of Robert MacDonald, Procurator-fiscal, Glasgow, which set forth that "you did, on 12th February 1960, in Crown Street, Glasgow, at a part thereof near Cleland Street, apply bodily pressure to the door handles of lockfast motor car registered number XGD 449 and did thus attempt to force open said motor car and attempt to steal therefrom."
On 17th March 1960, after evidence had been led, the Sheriff-substitute (Dewar Gibb, Q.C.) found the accused guilty as libelled. At the request of the accused he stated a case for appeal to the High Court of Justiciary.
The stated case disclosed, inter alia, that two police officers...
To continue reading
Request your trial
-
Leadbetter v HM Advocate
...Shuttleton v Orr sub nom Shuttleton v Procurator Fiscal, Glasgow [2019] HCJAC 12; 2019 JC 98; 2019 SLT 719; 2019 SCCR 185 Todd v MacDonald 1960 JC 93; 1960 SLT (Notes) 53 Wade v HM Advocate [2014] HCJAC 88; 2014 SCL 680; 2014 GWD 25-481 Textbooks etc referred to: Bonomy (Lord), Improving Pr......
-
Thomson v HM Advocate
...that that statement refers to sec. 4 of the 1852 Act, although the Act is not mentioned in the brief report. In Todd v. MacDonaldSC 1960 J.C. 93, Lord Justice-General Clyde, considering arguments on the construction of sec. 4, said (at p. 95):—[I]t would not be possible for us to read into ......
-
Lindie v H. M. Advocate
...4 (1887) 1 White, 307. 5 50 and 51 Vict. cap. 35. 6 50 and 51 Vict. cap. 35. 7 1929 J.C. 50. 8 1942 J.C. 95. 9 15 and 16 Vict. cap. 27. 10 1960 J.C. 93. 11 15 and 16 Vict. cap. 12 50 and 51 Vict. cap. 35. 13 1943 J.C. 141. 14 1947 S.N. 36. 15 11 and 12 Geo. V, cap. 50. 16 16 and 17 Geo. V, ......