Williamson v H. M. Advocate
| Jurisdiction | Scotland |
| Judgment Date | 20 June 1978 |
| Date | 20 June 1978 |
| Docket Number | No. 6.,No. 4. |
| Court | High Court of Justiciary |
JC
L.J.-C. Wheatley, Lord Kissen, Robertson.
Evidence—Competency—Confidentiality—Special defence of self-defence lodged by accused and subsequently withdrawn—Whether evidence of discussions between the accused and his then solicitor in respect of this special defence incorrectly allowed—Whether accused in this situation in a similar position to that of an accused whose plea of guilty has not been accepted by the prosecutor.
The appellant was convicted of an assault on a man Hart. He lodged a special defence of self-defence at the pleading diet. Thereafter he changed his solicitors and instructed his new solicitors to withdraw the special defence. This was done at the trial diet before the jury were empanelled. During the trial the Crown led evidence which was sufficient to establish that the appellant had committed the offence. The line taken in cross-examination of the Crown witnesses was that the appellant was not the person who committed the attack on Hart. The appellant gave evidence to this effect, saying that he had not been present when the attack of Hart took place. In the course of cross-examination he was asked, without objection, whether he had ever considered a defence of self-defence. He replied that at one time he had. The next question was: "Why did you consider a defence of self-defence?" At that point objection was taken to the line of cross-examination on the basis that what might or might not have taken place between an accused person and his then professional adviser was not a matter to explore in evidence. The trial Judge held that the question as framed was competent. Thereafter the appellant explained that he went to his then solicitor and told him his side of the story (which was that he was not present when the assault took place). He then went on to say that he asked his solicitor what avenues were open to him and the solicitor mentioned self-defence and impeachment. The solicitor then said that he would put in self-defence, but the appellant told him that he was not keen on that. The solicitor, however, did lodge this special defence, but the appellant later told him to withdraw it as he was not happy with it, since he had nothing to hide as he had not committed the assault. Following his conviction, he appealed on the ground that the trial Judge had incorrectly allowed a line of evidence in relation to discussions between himself and his then solicitor regarding the special defence which had been subsequently withdrawn.
Held (1) that no question of confidentiality arose in the circumstances. Had the appellant's then solicitor been asked in evidence what information or explanations had been given to him by the appellant different considerations would have arisen. In this case the credibility of the appellant was in issue. He had properly been asked whether he had ever considered a defence of self-defence which was a line of defence wholly inconsistent with his assertion that he was not present when Hart was attacked. He had admitted that he had. In that situation the question put to him, namely why had he considered such a defence, was a perfectly proper one. And the explanation which he gave in answer to this question did not raise any question of confidentiality but rather sought to exonerate him from any inference that consideration of self-defence was in any way inconsistent with his assertion that he was not present when the attack took place. (2) That the position of the appellant could not be equiparated with that of an accused whose plea of guilty had not been accepted by the prosecutor and who was accordingly entirely free to give evidence contrary to his plea of guilty; and appeal refused.
Dictum of Lord Justice-Clerk Aitchison in Strathern v. SloanSC1937 J.C. 76, 80 considered.
Leslie Williamson, the appellant, was convicted of a charge in an indictment which libelled an assault to the severe injury and permanent disfigurement of a man Joseph Hart and was sentenced to imprisonment for five years. Thereafter he tabled a number of grounds of appeal, only one of which was in the event insisted upon. This was in the following terms: "The Judge incorrectly allowed a line of evidence in relation to discussions between the accused and his previous solicitor in respect of a special defence of self-defence which was no longer insisted on prior to the commencement of the trial." The relevant circumstances are fully set forth in the opinion of the Court.
The appeal was heard on 16th February 1978. It was continued to 25th May 1978 in order that the notes of evidence might be obtained. The arguments in support of the appeal are summarised in the opinion of the Court.
At advising on 30th May 1978, the opinion of the Court was delivered by the Lord Justice-Clerk.
LORD JUSTICE-CLERK (Wheatley).—The appellant was convicted of a charge in an indictment which libelled an assault to the severe injury and permanent disfigurement of a man Joseph Hart and was sentenced to imprisonment for five years.
He tabled a number of grounds of appeal but only one was insisted upon. This was in the following terms: "The Judge incorrectly allowed a line of evidence in relation to discussions between the accused and his previous solicitor in respect of a special defence of self-defence which...
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Gall v HM Advocate
...in this case that would have justified the trial judge in taking such an extreme step; and appeal refused. Williamson v. H.M. AdvocateSC 1979 J.C. 36 applied. Hutchison v. H.M. AdvocateUNK 1984 S.L.T. 233distinguished. Thomson v. H.M. AdvocateSC 1988 J.C. 105 followed. Daniel Campbell Gall ......
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