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Lawyer set to make legal history        27/10/11

A Stornoway solicitor is thought to make modern legal history if he acts as both the defence counsel and a crucial witness in the same criminal court case.

Angus Macdonald is defending islander Allan Mackenzie, 44, who is accused of two sexual assaults by touching a teenage girl over her clothing at Stornoway Sheriff Court.

Yesterday,Mr Macdonald made legal arguments to sheriff David Sutherland to permit him to give evidence in his own case.

He plans to take the stand in support of his client after Jane Macdonald, an essential witness in the ongoing trial, died before she could be called.

He argues a precedent was set by an 142-year-old High Court legal judgement which allows him to tell the trial of what he recalls Ms Macdonald said to him in a statement or in his notes before the 32-year-old died suddenly last month.

He stressed: “It would be totally inequitable not to allow evidence as to what this witness said given she was present at the time of the alleged incident.

“It would be an injustice not to hear what she potentially would have said in court.”

Mr Macdonald emphasised Lord Macmillan’s reasoning from the HMA versus Ward case of 1869 words to ensure “the great end of every criminal trial is the ascertainment of the truth.”

Repeating the judge’s words he said refusal to allow him to recall Jane Macdonald’s statement would “shut out the light and contrary to the aim” of truth and justice.

Procurator fiscal David Teale opposed Mr Macdonald’s motion saying the 19th century judgment covered a different context to the present day, was over-ruled by modern practices, and that parliament had not included such a provision when updating the law on giving evidence.

All sides conceded that, if Mr Macdonald would be allowed to give evidence, then he would be exposed to full cross examination by the fiscal while “client confidentially flies out the window.”

Neither would he be allowed to refer to written notes of his conversation with Ms Macdonald but rely only on memory.

Sheriff David Sutherland deferred his ruling on the matter to next month.

The trial previously heard the alleged incidents took place at a drinking session involving a group of teenagers at Allan Mackenzie‘s home in Stornoway on Sunday 24th October last year.