Lord Justice General
Appeal No: C534/98
HIGH COURT OF JUSTICIARY
OPINION OF THE COURT
delivered by THE LORD JUSTICE GENERAL
APPEAL AGAINST CONVICTION and SENTENCE
JAMES THOMASON DIAMOND
HER MAJESTY'S ADVOCATE
Act: Muir; Purdie & Co., Edinburgh
Alt: Doherty, Q.C., A.D.; Crown Agent
1 April 1999
The appellant is James Thomason Diamond who was charged with three offences under the Misuse of Drugs Act 1971, a charge of simple possession of Ecstasy, one of possession with intent to supply the same drug and a third charge of simple possession of amphetamine. At a sitting at the Sheriff Court at Kirkcaldy, he was convicted of all three charges and sentenced to four months imprisonment. He has appealed against conviction.
At the hearing before this court Mr. Muir, who appeared for the appellant, concentrated on his first ground of appeal to the effect that the Sheriff had erred in repelling an objection to the leading of certain evidence. To understand the point, it is necessary to bear in mind that the appellant had stood trial for these offences on a previous occasion and had been convicted, but this court allowed his appeal against conviction and gave the Crown authority under Section 118(1)(c) of the Criminal Procedure (Scotland) Act 1995 to bring a new prosecution. The trial with which we are concerned was the result. The charges in both trials arose out of a search by police officers of the premises where the appellant was living at the relevant time. There was evidence that, when the police called at the house with a search warrant, the appellant tore it up. At the original trial the indictment contained a charge, Charge 10, based on that evidence:
"on 12 May 1997 at the house occupied by you at 47 New Road, Kennoway you JAMES THOMASON DIAMOND did intentionally obstruct Stuart Morris and David Wright both police constables, in the exercise of their powers under Section 23 of the aftermentioned Act and did seize a search warrant and attempt to destroy same; CONTRARY to the Misuse of Drugs Act 1971, Section 23(4)(a)."
The jury at the first trial acquitted the appellant of that charge and it is common ground that he had thus tholed his assize and could not be charged with that offence again. There was accordingly no equivalent charge on the indictment for the retrial.
Subsections (6) and (7) of Section 119 of the 1995 Act, which deals with fresh prosecutions, provide:
"(6) In proceedings in a new prosecution under this section it shall, subject to subsection (7) below, be competent for either party to lead any evidence which it was competent for him to lead in the earlier proceedings.
(7) The indictment in a new prosecution under this section shall identify any matters as respects which the prosecutor intends to lead evidence by virtue of subsection (6) above which would not have been competent but for that subsection."
When the Crown came to draw the indictment for the second trial, they did not make any reference to the appellant tearing up the search warrant. Given the nature of the statutory charges, it would have been inappropriate to identify this matter by inserting averments in any of the charges, but the Crown could, for instance, have included a clause, separate from the charges, to the effect that the Crown would show that on the same date at the same locus the appellant tore up the search warrant. See, for example, the clause in the indictment in H.M. Advocate v. Joseph 1929 J.C. 55 averring conduct in Belgium which could not constitute the subject-matter of a charge but about which the Crown wished to lead evidence.
At the second trial, despite the absence of any specific notice, the procurator fiscal none the less sought to lead the evidence that, when the police called at the house, the appellant tore up the warrant. Apparently she wanted the evidence simply to show the manner of his behaviour at the time. When she sought to lead it, the appellant's agent objected, apparently on the grounds, first, that the Crown were not entitled to lead evidence relating to a charge of which the appellant had been acquitted and, in any event, that they could not lead evidence about a charge which they were not entitled to put on the indictment.
It is plain that the formulation of the objection was not particularly happy. Section 118(6) is designed precisely to allow the Crown to lead all the necessary evidence at any retrial, even though the accused may have been acquitted of charges relating to certain aspects of that evidence at an earlier trial. That subsection and subsection (7) derive largely from Section 46(1) of the Criminal Justice (Scotland) Act 1995. Section 46(1) was enacted to deal with the problems which had surfaced in the proceedings in the Boyle case, reported as Boyle v. H.M. Advocate 1992 S.C.C.R. 824; H.M. Advocate v. Boyle 1992 S.C.C.R. 939 and Boyle Petitioner 1992 S.C.C.R. 949. As those proceedings show, under the pre-existing law there could be a situation where the Crown would be hampered in deploying evidence fully at a retrial because the accused had been acquitted of some charge on the indictment at the original trial. The court in Boyle draw attention to Morrison v. H.M. Advocate 1990 J.C. 299, where the Crown conceded, in the particular circumstances, that an acquittal of a charge of attempted rape, which in effect formed part of the same incident as a charge of rape, made it impossible for there to be a retrial on the rape charge. Section 119(6) was designed to alleviate these difficulties.
Section 119(6) is, however, subject to subsection (7) which says that the indictment for the fresh prosecution "shall identify any matters" about which the Crown intend to lead evidence by virtue of subsection (6) which would not have been competent but for that subsection. The true question accordingly is whether the evidence of the appellant tearing up the warrant was evidence which it was competent for the Crown to lead only by virtue of subsection (6). The answer depends on whether, in the absence of subsection (6), it would have been competent for the Crown to lead evidence of the tearing up of the warrant when that evidence had previously been led in support of Charge 10 on the original indictment and the appellant had been acquitted of that charge.
Under reference to Nelson v. H.M. Advocate 1994 J.C. 94, the Advocate Depute argued that, even though there had in fact been a charge of obstruction on the original indictment, the evidence of the tearing up of the warrant was related to the charges on the current indictment. The appellant and his advisers had accordingly been given fair notice and it was competent for the Crown to lead the evidence. We are satisfied that, if there had been no charge of obstruction on the original indictment, the decision in Nelson does indeed show that it would have been competent for the Crown to lead the evidence that the appellant tore up the warrant. We are equally satisfied that, in that situation, it would have been competent to lead the evidence at any retrial without specifically identifying it on the indictment. On behalf of the appellant Mr. Muir submitted that the acquittal on the charge of obstruction meant that, but for Section 119(6), it would not have been competent to lead evidence tending to show that the appellant had torn up the warrant; subsection (7) therefore made it incompetent to lead the evidence. Unfortunately we were referred to no authority on this point. H.M. Advocate v. Cairns 1967 J.C. 37 shows, however, that, even though an accused may have been acquitted of a charge based on certain evidence, that does not prevent the Crown leading that evidence in support of a different charge. See also H.M. Advocate v. Fairweather (1836) 1 Swinton 354. In the present case the Crown wished to lead the evidence not in support of the same charge of obstruction of which the appellant had been acquitted, but in support of the drugs charges. On the authority of Cairns it would have been competent for them to do so. We refer also to the opinion of the Lord Justice General (Hope) in Boyle Petitioner 1992 S.C.C.R. at p. 957 B - C. There was therefore nothing in the terms of Section 119(7) to prevent the Crown leading the evidence without identifying the matter in the indictment.
For these reasons we are satisfied that it was competent for the Crown to lead the evidence in question and that the Sheriff correctly repelled the objection. We reject the first ground of appeal. In addressing the court, Mr. Muir advanced his second ground of appeal only as part of his argument that, if the Sheriff had been wrong to repel the objection, this had led to a miscarriage of justice. In the circumstances we do not need to address that matter. Mr. Muir did not advance the third ground of appeal. We shall accordingly refuse the appeal.