Preperation for, and the course of, A trial or Proof

Question 1

*Low v MacNeill 1981 SCCR 243

Precognition on Oath

Answer 1

 Court said that the oath procedure was only for exceptional cases.
 In this case the prosecution told the defence what they thought the witness would say.
 Held that the defence had an inkling of what the witness was going to say (as the prosecution told them) so the court would not order a precognition under oath.

Question 2

Brady v Lockhart 1985 SCCR 349

precognition on oath

Answer 2

 Held, where the only two witnesses to an alleged assault refused to give precognitions, that it was reasonable to cite them for precognition on oath.
 (Both the witnesses refused to be precognosed by the defence solicitors. In this situation the judge held that the witnesses should be taken to the sheriff and precognosed under oath.

Question 3

Anderson v Jas B Fraser & Co Ltd 1992 SLT 1129

Precognitions are generally not admissible as evidence

Answer 3

 A 27-year-old timber frame assembler hurt his back while moving a section of a timber house kit. A fellow employee, giving evidence at the proof, supported the pursuer’s views of events and claimed to have been an eyewitness. A solicitor who had precognosced the fellow employee gave (oral) evidence as to what the employee had said. This evidence was objected to as incompetent. The pursuer’s injury involved damage to his back which, four years after the accident, would probably recover fully in about a year with appropriate physiotherapy.
 Held, that what was said to a precognoser was competent evidence although what was recorded in a precognition was not.

Question 4

R v Kemble [1990] 1 WLR 1111).

Oath - religious views

Answer 4

 Main crown witness was a Muslim man
 Took the oath in court using the new testament version
 Accused was convicted and appealed, arguing that no account given by that witness should be taken into account as the oath he took was not religiously binding on him,
 HELD, as the witness had declared that the oath was legally binding on him then it was deemed to be binding on him by the court.

Question 5

Affleck v HM Advocate 2005 SCCR 503.

presence of witness in court

Answer 5

 The mother of the deceased was a witness of the crown who was going to provide formal identification evidence.
 Both parties agreed she did not need to give the evidence, so could be present at the trial.
 During the trial she spoke to the crown prosecutor and told him that she had a conversation with the accused sometime after the event.
 Also stated that she had told this fact to the police but they had failed to inform the prosecution of this.
 This meant that the prosecution wanted her to give evidence of this conversation.
 * Question was whether the presence of the woman in court was the result of culpable negligence.
 Crown held that her presence was not culpable negligence as the crown had no idea about said conversation as they were not informed.
 She could give evidence.

Question 6

Niven v Hart (1898) 25 R (J) 89

witness refreshing memory

Answer 6

 A crown witness referred to notes taken earlier for the purpose of refreshing his memory.
 The council for the accused asked if he could see the notes, the judge refused to allow that.
 The man was convicted, but was held on appeal that the trial judge had been wrong because the rule was when the witness uses notes to refresh memory the other side are allowed to see the notes in question.

Question 7

Hinshelwood v Auld 1926 JC 4

witness claiming he made notes but not referring to them whilst giving oral evidence

Answer 7

 Criminal case
 Evidence was given by police officers for th crown
 They said in their evidence that after the incident in question they had made notes for the purpose of passing to their superior officers.
 The notes were not used whilst giving evidence
 However council for the accused requested to see these notes.
 The court refused this on two grounds.
 1) the notes were probably privileged
 2) Since the notes were not referred to or used as a basis for the oral evidence then the other side had no right to see them.

Question 8

Young v Guild 1985 JC 23 (failure by prosecution);

Failure to Cross-Examine: Criminal cases

Answer 8

 A man was charged with assault
 The complainer and several other witnesses gave evidence for the crown.
 The defence brought in two witnesses that gave evidence suggesting that the accused had not been the attacker.
 The crown failed to cross-examine these defence witnesses.
 Nonetheless the accused was convicted
 On appeal the court said that the failure by the crown to cross-examine the defence witnesses did not mean that the crown accepted the evidence (it was up to the Sheriff/Jury to give weight to the evidence as they sought fit.

Question 9

Young v Guild 1985 JC 23 (failure by prosecution);

Questions by the judge

Answer 9

 Charge relating to sexual assault of a child.
 Evidence was given by the child herself.
 A second witness in examination by the crown gave no evidence that was directly incriminating.
 However the trial judge asked questions of this witness and during that process the witness made a directly incriminating answer.
 However the judge did not allow the witness to be further cross-examined.
 The accused was convicted.
 On appeal the court said that the judges own examination gave rise to something new so both the crown and the defence should have been allowed to ask further questions of the witness.

Question 10

*Holland v HM Advocate 2005 SC (PC) 3.

Cross-examination on character and credibility

Answer 10

 The defence wished to obtain information in relation to witnesses as to both previous convictions and to whether those witnesses had themselves outstanding criminal charges.
 It was refused by the court
 On appeal that refusal to disclose that information was a breach of Art. 6(1) of the ECHR.
 The position now is that the crown must disclose prior to a trial any information (including previous convictions of witnesses) which has a bearing and is relevant to the defence position at the forthcoming trial.

Question 11

Hutchison v HM Advocate 1984 SLT 233.

prevaricating witness

Answer 11

 Here two men were on trial and they each blamed two other men.
 These two other men gave evidence for the crown.
 One of them prevaricated.
 At the end of his evidence the judge ordered that he should be detained and was taken into custody by the police in the presence of the jury.
 The other man also prevaricated and again at the end of his evidence he was ordered to be detained by the two police officers beside the witness box whom he struggled with violently in the presence of the jury.
 Held that what had happened to the two witnesses, in ordering their immediate detention in court had been likely to cause prejudice.