Tutorial 1 questions; McDonald v HM Advocate PDF

Preview

Summary

McDonald v HM Advocate
Broadley v HM Advocate 2005 SCCR 620 ...

Description

Questions Tutor; [email protected] Room 520 01413302934 You should consider the following questions, prepare written answers in advance of the tutorial and be prepared to discuss the case and answer questions during the tutorial. 1. What type of case is McDonald v HM Advocate (his name being first suggests an appeal) (i.e. is it a report of a trial or of an appeal)?  Appeal against conviction (3 judges) 2. What is the difference between a trial and an appeal?  A trial is where the case is most often being heard for the first time, whereas an appeal is asking for review from a higher court on the conviction or punishment. 3. What issue was the court asked to decide?  Was there enough evidence for the jury to establish a link of causation. Basically was there enough evidence in the first place for the jury to even decided on this case.  Any time you see ‘result crime’ think causation. 4. Which court heard the case?  High court of justiciary 5. Who were the personnel involved in the case? Please identify their names, positions and who, if anyone, they represented.  The appellant; Mr McDonald. Represented by Murray QC, Nicolson, instructed by Balfour & Manson SSC for Martin Johnston & Socha, Solicitors, Kirkcaldy.  The respondent; The crown. Represented by Murphy QC (queen’s council), AD (advocate deputy). 6. Which crime was discussed?  The crime being discussed is the death of Johnston. It is not in dispute that McDonald is guilty of assault of Mr Johnston, but the crime in question is whether this assault led to the death of Mr Johnston, as he fell from a window, making Mr McDonald liable for culpable homicide. 7. What were the legal points which the court was asked to consider?  Sufficiency of evidence  Material misdirection 8. What is the test for causation applied by the court?  The ‘but for test’. Had Mr Johnston not been assaulted would he have tried to climb out the window and die?  Foreseeability test; proximity test. Does this read like a continuous sequence of events? Has to be wholly unreasonable and un foreseeable behaviour.  Has to be a new intervening act to break the link of causation 9. Identify the different types of evidence that were relevant in this case.

There are 3 different types of evidence; real evidence (cctv, photos etc), documentary evidence and oral evidence.  Neighbours hearing a scream and a loud thud, and CCTV footage of Brown in a shopping centre 150 yards from the flat, show he left the flat between 5-30 minutes before Johnston’s fall. Oral evidence  Evidence of alcohol consumption and drug use by Johnston  Evidence for the view that Mr Johnston was trying to make a careful escape via the kitchen.  The abrasions to the left side of Mr Johnstone’s chest and his left forearm which the pathologists descried as being consistent with his losing of grip on the window frame. 10. Did this court hear evidence from witnesses? If not, why not?  They did not hear directly from the witnesses since it was an appeal, but used the witness statements from the original trial. 11. Which document provided the judges with information about evidence previously heard?  The report from the original trial judge 12. What did the court decide and why?  It has not been demonstrated to the court that a miscarriage of justice has occurred, and the appeal is accordingly refused. 13. How did the court use the case Broadley v HM Advocate 2005 SCCR 620 when reaching its decision?  The crown used it for distinguishment, whereas appellant used it for reliance.  In this case the appeal court found the evidence used to convict was insufficient to hold the appellant responsible for the death of the alleged victim.  However, the facts of this case were materially different. Was a very significant time gap between the act alleged to have been committed by the accused in that case, and the deceased’s action in climbing out of the window. (24hrs). 14. What were the implications of the court’s decision for Felix Charles McDonald?  He will not be allowed to make another appeal, unless new evidence arises. ...