Witness: Competence, compellability and other specialities

Question 1

Shevlin v HM Advocate 2002 SLT 739

(The accused - comments from co-accused

Answer 1

 Co-accused against each other
 Lawyer of one of the co-accused stated to the court that the other accused (co-accused) was not giving evidence and such conduct was basically an admittance of guilt.
 On appeal, held that the co-accused council could attack the other accused for not taking the stand.

Question 2

HM Advocate v Ferrie 1983 SCCR 1

the co-accused - where person CEASES to be a co-accused.

Answer 2

 Number of people where charged, all appeared as co-accused.
 During the trial one of the co-accused pleaded guilty to some of the charges. (the other charges put against him that he did not plead guilty to were dropped)
 The prosecution wanted to use the accused who pleaded guilty against the rest of the co-accused.
 He was no longer accused of anything (he was guilty of the charges he pleaded to).
 Held, he was no longer accused so was both competent and compellable against the remaining co-accused.

Question 3

Dow v MacKnight 1949 JC 38

The Accomplice - socius criminis

Answer 3

 Held that where a socius criminis gives evidence against his accomplice there is no need for corroboration.

Question 4

Macmillan v Murray 1920 JC 13

The Accomplice

Answer 4

 A person adduced by a public prosecutor as a witness in a criminal trial cannot refuse to give evidence on the ground that his evidence may implicate him as a socius criminis , the law being that the fact of his having been adduced as a witness by the prosecutor ipso facto discharges him from all liability to prosecution.
 Since accomplice acquired immunity he was compellable against trial of other accused.

Question 5

O’Neill v Wilson 1983 JC 42.

The Accomplice

Answer 5

 Held by a Full Bench, refusing the appeal, that the immunity of a witness from prosecution applies only to a socius criminis , and covers only the libel in support of which he was called to give evidence.

Question 6

*Todd v HM Advocate 1984 JC 13.

Witness for the co-accused.

Answer 6

 Three accused were charged on indictment with assault and robbery and maintained separate defences. The co-habitee of one of the accused, who had been on the list of witnesses for the prosecutor but was not called by him, gave evidence on behalf of her co-habitee. Her evidence-in-chief incriminated one of the co-accused and she was cross-examined on behalf of that co-accused. The witness was then cross-examined by the prosecutor who elicited further evidence incriminating the co-accused following an unsuccessful objection on behalf of the latter to the admissibility of such evidence. Counsel for the co-accused was however permitted further to cross-examine the witness.

The evidence by that witness which had been adduced on behalf of one accused could be evidence against his co-accused.

Question 7

Sinclair v Sinclair 1986 SLT (Sh Ct) 54

Privilege against self-incrimination

Answer 7

 In an undefended action of divorce based on the defender’s alleged adultery, the pursuer tendered affidavits sworn by the defender and the alleged paramour wherein each admitted adultery. She moved for decree of divorce on the basis of that evidence. Her motion was refused by the sheriff on the ground that the affidavits did not disclose that the defender and the alleged paramour were aware that they were under no obligation to admit adultery. The sheriff also doubted whether the evidence was sufficient in law. The pursuer appealed to the sheriff principal.

 Held (reversing the sheriff), (1) that a prospective witness voluntarily deponing such evidence by way of affidavit did not require to be warned that he or she was under no compulsion so to do; and since there was no evident reason to suppose that the affidavit evidence of the defender and the alleged paramour was other than voluntary, their evidence was admissible; and (2) that their evidence was sufficient in law; and appeal allowed; and decree of divorce granted.