Wightman and Another v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 25 February 1959 |
| Date | 25 February 1959 |
| Docket Number | No. 11. |
| Court | High Court of Justiciary |
HIGH COURT.
Lord Justice-General. Lord Russell. Lord Mackintosh.
Evidence—Theft—Possession of goods recently stolen—Criminative circumstances—Presumption of guilt—Misdirection—Whether failure by accused to explain possession of stolen goods in reply to caution and charge a criminative circumstance—Whether failure by accused to give evidence a criminative circumstance.
At the trial of two panels for theft the Crown relied on the doctrine of recent possession. In his charge to the jury the Sheriff-substitute directed them that the panels' failure to explain their dealings with the stolen property in reply to a caution and charge, and their failure to give evidence, constituted criminative circumstances which would entitle the jury to apply the doctrine of recent possession.
Held that neither the failure of an accused person to make any reply when cautioned and charged, nor his failure to give evidence on his own behalf, could constitute a criminative circumstance for the purpose of applying the doctrine of recent possession, and convictionsquashed.
Robertson v. Maxwell, 1951 J. C. 11, applied.
Cryans v. Nixon, 1955 J. C. 1, distinguished.
George Wightman and Patrick Collins were charged in the Sheriff Court at Airdrie on an indictment at the instance of Her Majesty's Advocate which set forth that "on 18th July 1958, at the premises at Rochsolloch Road, Burgh of Airdrie, Lanarkshire, occupied by the Grit Company of Scotland Limited, you did steal motor lorry, registered number GVD 695, and 10 tons of scrap metal."
The panels pleaded not guilty and were tried before the Sheriff-substitute (Young) and a jury at Airdrie on 18th December 1958.
There was no evidence directly connecting the panels with the theft of the stolen property and the Crown relied on the doctrine of recent possession. In the course of his charge to the jury, the Sheriff-substitute said, "Now when goods which are stolen are found very shortly afterwards in the possession or constructive possession of people who should not have them it requires very little to get incriminating evidence, and here I direct you in law that there is incriminating evidence in respect that when both these accused were cautioned and charged one of them, Collins, made no reply and Wightman said, “I am saying nothing, not one iota.” There was no word of explanation from them as to what they were doing with these goods or with that lorry. And, secondly...
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Note Of Appeal Against Conviction And Sentence By Lieuwe Hoekstra And Jan Van Rijs And Ronny Van Rijs And Hendrik Van Rijs V. Her Majesty's Advocate
...application of the doctrine of recent possession. The same was said by Lord Justice General Clyde in Wightman and Another v. H.M. Advocate 1959 J.C. 44 at p. 46. These dicta are referred to below.). The only point here under consideration arising out of the present Grounds of Appeal is whet......