Real Evidence

Question 1

Hamilton v HM Advocate 1934 JC 1 (fingerprints)

Answer 1

• This was a case where a shop was broken into, a number of goods were stolen along with some money.
• There was a parcel that had been wrapped in paper and after the break in it was found with the wrapper removed and with fingerprints found on the bottle that was previously wrapped up.
• The accused had his fingerprints taken and the trial evidence was given by two fingerprint experts.
• These experts said the prints on the bottle compared to the prints the accused had given were identical on 16 characteristics and there had never been a case where two people had the same set of prints.
• The only other evidence against the accused was that he lived in the neighbourhood.
• He was convicted and appealed, saying that it was unfair to convict him on such little evidence.
• The court had to consider what weight should be afforded to fingerpints.
• Court said that if finger print eveidence is believed by the judge or jury then it constitutes real eveidence and is as strong as an item of clothing of the accused being found at the scene of the crime.
• The value that should be attributed to the fingerprints depends on the reliability of the experts and the confidence the Jury has in them.
• In this case the Jury had clearly found the evidence credible and reliable so the conviction was upheld.
• Fingerprints shown to have very compelling force.

Question 2

Patterson v Nixon 1960 JC 42 (behaviour of tracker dogs)

Real Evidence - Tracker dogs

Answer 2

• There was a housebreaking, tracker dog was taken to the locus to get a scent.
• The dog was then taken to the tenement where the suspect was, without hesitation the dog went to the door of where the suspect lived.
• Some tests were made to ascertain the dogs sniffing abilities and the man was charged.
• Importantly the suspect admitted to being in the locus and having been dressed to commit housebreaking but that he did not actually do it.
• Only evidence was this quasi admittance of him being there and this tracker dog.
• He was convicted, he appealed.
• On appeal his argument was that this type of evidence was really new and the accuracy was unknown, so should not have been admitted.
• There was a worry that it was something that should not have been admitted to the court, and conceding that it was admissible, argued it was not reliable.
• The argument for the prosecution was that the decision whether fingerprints were reliable was left to the jury, and that should be the same position with tracker dogs.
• Appeal failed.

Question 3

*Maciver v Mackenzie 1942 JC 51

Answer 3

• Man had been convicted of taking possession of a shipwreck.
• He did not bring the shipwreck to the person specified by law, instead he kept it for himself.
• During the trial the wreck itself was not produced but evidence to its condition was led by the prosecution.
• He was convicted.
• He appealed on the grounds that the shipwreck should have been produced at court as the prosecution was bound to do so, also argued that the prosecutor could not lead evidence of condition of wreck without bringing the wreck itself which was the best evidence.
• Appeal refused.
• Court says there was no such rule that the prosecutor was obliged to bring the evidence to the courtroom. Sometimes it is too impractical to bring evidence to court.

Question 4

*McGowan v Belling & Co Ltd 1983 SLT 77

Answer 4

In this case a number of people were injured in a house fire and the injured people raised action against manufacturer of the electric heater.

• The injured people also brought an action against the electricity company about the fact that the cable and the plug was overheating.
• The problem here was that the electric heater was not brought to the court.
• court said if the court was not brought to the court then how could they determine whether it was the cause of the fire.
• The pursuers led expert evidence to show that because of the heater’s design it was likely that the wires overheated, BUT they are looking at the design of the heater’s in general rather than the specific heater.
• The objections were that the inferences made were questionable, the defendants didn’t have a chance to examine the heater.
• ***important point here is that if the crown wants to rely on any production or any real evidence they must bring it to the court and lodge it as a production EXCEPT where it would not be damaging to the accused not to do so.
• **another reason they may not need to bring it into court if it is impractical to do so.

Question 5

Hopes & Lavery v HM Advocate 1960 JC 104

Answer 5

• Evidence obtained by a person wearing a wire.
• The relevant charge was of extorting money through the use of threats.
• Person wore a wire and transmitted the conversation he has with one of the accused to the police, but the words were not entirely clear.
• The conversation was written down in shorthand by someone.
• One of the transcripts were brought in.
• Also on the point that the person who transcribed the conversation did not have any qualifications to entitle her to transcribe the conversation.
• The court held that her evidence was of doubtful competency but in the circumstances had been properly admitted.