Scottish High Court of Justiciary Decisons

WILLIAM WOTHERSPOON v. HER MAJESTY'S ADVOCATE [1999] ScotHC 228 (5th October, 1999)

This is a continued appeal by William Wotherspoon who was convicted at Hamilton Sheriff Court of assault to severe injury. He appealed against conviction and his original ground of appeal was rejected by this Court on 22 July 1998. The Court, however, allowed him to lodge an additional ground of appeal which was eventually allowed to be received on 8 January 1999. In the additional ground the matter raised was the existence of what was said to be additional evidence in terms of Section 106(3) of the Criminal Procedure (Scotland) Act 1995. In support of the ground of appeal the appellant lodged an affidavit sworn by a Mark Mitchell. The affidavit was to the effect that Mitchell had been present at the locus at the time of the incident which had formed the subject of the charge against the appellant and in the affidavit he gave an account of the incident which supported, in broad terms, the defence position at the trial and was inconsistent with the Crown position. In advancing the argument on behalf of the appellant today Mr Duguid accepted, however, that the issues covered by the affidavit in relation to the incident had been canvassed in evidence at the trial.

In the affidavit Mitchell accounted for his presence at the locus by saying that he had withdrawn around £20 from a cash machine at a nearby bank. He also said that when the police came on the scene after the incident he had made off because of an outstanding warrant. He had then been away for a while and had not spoken to the appellant until about June 1998.

In deciding whether additional evidence should be heard, the Court has to take account of its significance. It is established by the case of Church v Her Majesty's Advocate 1996 S.C.C.R. 29 at p. 33 in the opinion of the Lord Justice General that the Court may reject evidence which, in its opinion, no reasonable jury would regard as credible or reliable. Applying that test, we are satisfied that the proposed evidence of Mitchell should be rejected because no reasonable jury would regard it as credible or reliable. In saying this we have regard to the terms of a further affidavit sworn by Mitchell yesterday. In it he admits that he did not in fact withdraw any money from the cash machine near the locus. He also admits that there was, at the relevant time, no warrant for his arrest, though he did have fines outstanding against him. Both of these matters demonstrate that Mitchell is neither credible nor reliable in what he has said about this matter. In addition, we note from the terms of the first affidavit that he has a criminal record which includes convictions for crimes of dishonesty.

In all the circumstances we are satisfied that there is no merit in the additional ground of appeal and we accordingly refuse the appeal.