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[8] Mr. Jackson also criticised the trial judge's remark in his report: "I also bore in mind that it was perfectly possible, and seemed to me to be more likely than not, that the jury had not heard the offending word". Mr. Jackson submitted that it was not open to the trial judge to depart from the premise which he stated at the time namely: "I must proceed on the basis that members of the jury may have heard that word ("again")". The Advocate depute agreed that it had to be assumed that members of the jury may have done so.
[13] However, the evidence that the accused had admitted to having committed a previous murder was a formidable matter. The fact that it came out at an early stage of the evidence does not appear to us to point towards the lessening of the effect of that disclosure. The jury might well attach particular significance to the first evidence which they had heard as to admissions made by the appellant.
[14] Normally it would be of critical importance that it was a matter for the discretion of the trial judge whether he considered that the prejudice was such that the diet should be deserted. However, in the present case it appears that his reasoning was influenced by using an example which was not well chosen, and from which the Advocate depute has disassociated himself. Furthermore, having regard to the terms of his report, we are not satisfied that the trial judge has adopted a consistent line to the audibility of the evidence in question.
[17] The trial judge sustained the objection, as it seemed to him that, if the witness were to answer the question, it would not be competent for the defence to lead evidence to contradict his answer. Whether other individuals had been involved in drug dealing at other addresses was a collateral issue. It followed that the question was objectionable and that the witness should not be required to answer it. The fact that the witness had indicated reluctance to answer the question unless compelled to do so could be a matter of comment by the defence.
[20] It was common ground that the two charges of which the appellant was found guilty stood or fell together. We will accordingly allow the appeal and quash the appellant's conviction in respect of both of the charges.
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