Criminal Trial

Her Majesty’s Advocate v. Lee Donald Stewart and Colin Stewart [2010] HCJAC 25

Wed, 03 Mar 2010 20:56:24 GMT

Criminal Appeal under section 74 of the Criminal (Procedure) Scotland Act 1995:- The respondents have been indicted to Aberdeen Sheriff Court on a number of charges including inter alia:- "On 30 May 2008 at 28 Newton Road, 96 Cummings Park Circle, and elsewhere in Aberdeen you COLIN STEWART and LEE DONALD STEWART did abduct John Wright McPherson Leaper ... and detain him against his will and assault said [John Leaper] and repeatedly strike him on the head and body with a baseball bat and a metal pole, repeatedly cut him on the head with the lid of a can or similar instrument, repeatedly kick and punch him on the head and body, repeatedly threaten to kill him and repeatedly strike on the body with a knife, all to his severe injury and permanent disfigurement.” Here the Crown appealed against the sheriff's decision at a first diet dismissing the above charge on the indictment as irrelevant. Here it was submitted on behalf of the appellant that the Crown had set out sufficient factual averments, together with a date and three loci, to make the charge relevant. It was further submitted that relevancy was properly tested by asking whether the averments were sufficient in law to entitle the Crown to ask the accused to plead guilty or not guilty and a charge was only irrelevant if the facts averred were not capable of constituting a crime. It was submitted on behalf of both respondents that the sheriff had been correct in his approach and abduction and assault were two distinct crimes, and ought to have been charged separately. Here the court considered whether a number of crimes contained in one charge necessarily rendered that charge irrelevant and in relation to the present case whether the fact that the two distinct crimes of assault and abduction, albeit allegedly perpetrated on the victim contemporaneously, should have been libelled separately.

R v Monaghan (Rudie Aaron) CA (Crim Div): 21 December 2009

Wed, 24 Feb 2010 22:07:59 GMT

Under the Criminal Justice Act 2003 s.240A, where an offender had spent time on bail subject to a curfew of nine hours or more in any given day coupled with an electronic monitoring condition, he was generally entitled to an order to the effect that half the number of days spent on bail subject to those conditions should count as time served by the prisoner as part of his sentence. However, in passing sentence a trial judge should take no account of an electronically monitored curfew that fell short of those qualifying conditions.

Attorney General's Reference (Nos.60, 62 and 63 of 2009)

Wed, 24 Feb 2010 22:06:45 GMT

References allowed: When sentencing for manslaughter following a violent attack on a defenceless victim in the street, specific attention should be paid to the consequences of the crime. Crimes which resulted in death should be treated more seriously.

H.M. ADVOCATE v G and Others

Wed, 20 Jan 2010 17:45:05 GMT

Preliminary hearing; This case involved an indictment of three accused on charges including serious sexual abuse and rape of two complainers. The two complainers were, at the time of this hearing, around 12 and 13 years of age. At the preliminary hearing, the accused made representations about the reliability of the complainers' evidence and sought to have it held inadmissable. The accused presented a Devolution Minute and a Minute of Notice. The Devolution notice stated that interviews of the complainers, taken by police officers, gave the complainers opportunites to compare stories and were taken with potential interviewer bias. It was proposed by the accused that evidence should be heard from psychologists who would offer their opinions as to the reliability of the complainers' evidence. The Crown served Child witness notices in terms of section 271A(a) of the Criminal Procedure (Scotland) Act 1995 requesting that the complainers' evidence be taken on commission.