Tudhope v Stewart
| Jurisdiction | Scotland |
| Judgment Date | 19 March 1986 |
| Neutral Citation | 1986 SCCR 384 |
| Date | 19 March 1986 |
| Docket Number | No. 18. |
| Court | High Court of Justiciary |
JC
L.J.-C. Ross, Lords Robertson, Dunpark.
Evidence—Real evidence—Best evidence rule—Trial—Productions—Whether allegedly stolen goods should have been produced at trial.
Procedure—Summary procedure—Evidence—Objections not timeously stated—Absence of productions at trial—Whether failure timeously to object to evidence in connexion therewith fatal.
Certain youths were charged with having stolen certain items of clothing from a shop. At the subsequent trial, it was given in evidence by police officers that they had heard the sound of something being smashed and shortly thereafter saw four youths running away from the locus,each carrying a large bundle of clothing. They were apprehended carrying these items of clothing, which items were subsequently identified by the manager of the shop. The clothing was photographed and returned to the shop. In the ensuing trial, the defence appeared to be that the youths had not been carrying the clothing. The photographs were produced, but not the items concerned. No objection was taken to the evidence of the photographs or the oral evidence of inter alios, the manager in his identification of the items at the time of their recovery and their subsequent return to the shop. At the close of the Crown case, however, the sheriff upheld a no case to answer submission, based on the best evidence rule, that the items of clothing ought to have been produced. The respondents were, accordingly, acquitted. The Crown thereafter appealed by way of stated case to the High Court of Justiciary.
Held, (1) that, where, as here, the accused were seen running away from premises which had been broken into, carrying articles of clothing of a type similar to the articles stocked by the shop, the inference that the articles came from the shop arose clearly from the circumstances; (2) (applying dictum of Lord Justice-General Normand in Maciver v. MackenzieSC1942 J.C. 51 at p. 54) that, the test of whether articles required to be produced was whether the real evidence was essential for proving the case against the accused, and not for the purpose of testing the credibility of the Crown witnesses (which was the purpose here); and, accordingly, (3) that, production of the items of clothing was not necessary; and appealallowed and cause remitted to the sheriff to proceed as accords.
Opinion, (referring toSkeen v. Murphy 1978 S.L.T. (Notes) 2) that, in any event, the failure timeously to object to the evidence elicited from the Crown witnesses and the photographs was fatal to the argument on non-production of the items of clothing.
John Stewart and others were charged on a summary complaint in the sheriffdom of Glasgow and Strathkelvin at Glasgow at the instance of James Mackenzie Tudhope, procurator-fiscal there, the libel of which set forth that:—"[Y]ou did, on 29th July 1985, break into the shop premises at 57/63 Argyle Street, Glasgow, occupied by Olympus Sports and there steal twenty-eight jackets, seventeen T-shirts and nine tracksuits." The cause came to trial before the sheriff (A. C. Henry) on 3rd and 12th September 1985. On 12th September 1985, at the close of the Crown case, the defence moved that there was no case to answer in terms of sec. 345A of the Criminal Procedure (Scotland) Act 1975. The sheriff upheld that submission and acquitted the accused. The procurator-fiscal thereafter requested of the sheriff that he state a case for the opinion of the High Court of Justiciary.
The stated case set forth the following narrative of evidence led by the Crown, inter alia:—"P.C. Brian Hendry deponed that … [i]n the early hours of 29th July 1985 he had been on duty in uniform on mobile patrol in a marked police vehicle with P.C. Meehan. At about 3.50 a.m. they were stationary at traffic lights facing south in Glassford Street at the junction with Argyle Street. He heard the sound of something being smashed in Argyle Street to the west. He turned into Argyle Street and drove westwards. After some sixty to seventy yards he saw four youths running across Argyle Street pedestrian precinct. All four youths carried clothing. They ran from south to north. At that point in the precinct Dunlop Street leads south and Miller Street leads north from Argyle Street. They ran north in Miller Street. They ran in a bunch. They each carried a large bundle of clothing. The street lighting in Argyle Street was good and there was lighting also from the shops. He chased the youths northwards in Miller Street. One youth lagged behind. P.C. Meehan and the witness apprehended him. He was still in possession of clothing, eleven sports jackets. The witness identified John Mills, the second respondent, as the youth concerned. The eleven jackets still had labels, coat hangers and security tags on them. The other three youths continued to run northwards in Miller Street. As the witness entered Miller Street he was overtaken by another police vehicle. It halted further up Miller Street, some thirty yards south of Ingram Street. Other police officers alighted from that vehicle and apprehended the other three youths. It was the same three that he had observed earlier. No one else was about in Miller Street at that time in the morning. The witness identified John Stewart and Desmond Docherty, the first and third respondents respectively, as two of the three youths apprehended. The jackets taken from John Mills were placed in the front of the witness's vehicle. Clothing taken from Desmond Docherty was placed in the back of the vehicle. The witness then returned with the vehicle and P.C. Meehan to the premises of Olympus Sports shop at 57/63 Argyle Street, which is near to the junction with Dunlop Street. The youths had been about five yards from the shop when first seen. On returning there the witness saw that the glass front door of the shop had been smashed. The whole door had shattered and disappeared. Two large cobblestones were seen lying inside the entrance. The witness had noticed glass lying in the doorway when the vehicle had passed the first time in pursuit of the youths. About one minute had passed between his hearing the sound of breaking glass and his seeing the youths running. He and P.C. Meehan searched the premises. He noticed a large space in racks of clothing on the first floor. He had taken possession of the two large cobblestones which he identified as attached to label 1 and label 2. At Stewart Street Police Office all four of the youths were cautioned and charged as libelled. None made any reply. Each of the officers concerned then took the clothing recovered upstairs in the police office and labels were written and attached. The clothing was returned to the shop after it had been photographed. He had understood that the shop required the clothing for sale purposes. He had been present when the clothing was photographed at the police office on 2nd August. He was referred to pro. 1 for the Crown, a book of photographs. He identified photograph B as showing the clothing that he had recovered from John Mills. He said that photographs A, C and D showed the clothing recovered by his colleagues from the other three youths. He identified an unattached label, label 8, as the label made out by him in the police office and formerly attached to the clothing shown in photograph B. He identified a white denim jacket, label 4...
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Paul Stevenson+scott Rankine+william Stevenson
...reference was made before us. In Maciver v Mackenzie 1942 JC 51 Lord Justice General Normand, in a passage applied in Tudhope v Stewart 1986 JC 88, said at page 54 that the test of whether articles required to be produced was whether the real evidence was essential for proving the case agai......
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