Justinas Gubinas and Nerijus Radavicius v. Her Majesty’s Advocate [2017] HCJAC 25

Note of appeal against conviction:- The appellants, and two other co-accused, were tried on indictment at the high court in relation to the rape and sexual assault of RD. The appellants, along with one of their co-accused, were convicted of rape, including the anal rape of the complainer. The circumstances were that the RD had been in a nightclub with all 4 accused and had left the club in a car with the 4 accused believing that she was going to a party in Fraserburgh with them. Rather than going to a party the evidence was that she was taken to a farmhouse outside Fraserburgh where the various assaults took place. There was evidence that the sexual assaults were recorded on mobile phones. The complainer conceded in her evidence that some of the footage appeared to show consensual sexual activity, but it was her position that the footage in fact illustrated her state of intoxication which deprived her of the ability to consent. A number of grounds of appeal were argued. In relation to the first appellant:- (1) that the trial judge erred in repelling a submission of no case to answer, in that insufficient evidence had been led by the Crown to rebut the appellant’s special defence of consent; (2) that the trial judge misdirected the jury with regard to the video evidence, in particular, that he failed to direct the jury them that the video evidence should be considered through the testimony of witnesses rather than through their own eyes; and (3) there was no evidential basis to convict the appellant of the anal rape of the complainer and that the jury’s verdict in this regard was unreasonable. On behalf of the second appellant the first appellant’s second and third grounds were argued. In addition, the court allowed both appellants to argue a further ground of appeal that the trial judge had misdirected the jury on the use which could be made of statements made by the appellants to the police. In relation to the first appellant the issue of consent was critical. Evidence relating to the first appellant came in the form of:- (1) the complainer; (2) the appellant’s police interview; (3) the video footage from the mobile phone; and (4) DNA evidence of stains found on bedding. Only the DNA evidence was not relevant to the issue of consent. In relation to the complainer’s evidence she conceded that the video footage appeared to show consensual sexual activity with the appellant but she stated that “appearances can be deceptive”. The complainer also gave evidence that she had been given a lift home by the first appellant and his girlfriend later the same day. The first appellant admitted having sex with the complainer during his police interview and stated that he had filmed the complainer apparently having consensual sex with the second appellant at his request. The first appellant stated that the sex between himself and RD was at her invitation and consensual. The first appellant stated that he was not present during any further sexual interactions between RD and anyone else. The video footage showed the first appellant and RD engaging in various sexual acts apparently filmed by the second appellant and further sexual acts between RD and the second appellant apparently filmed by the first appellant. The footage appeared to show RD willingly engaging in consensual sexual activity with both appellants. It was submitted on behalf of the first appellant that the ‘no case to answer’ submission at the close of the Crown case ought to have been upheld in that there was insufficient evidence to corroborate the first appellant’s mens rea or to over come the special defence of consent. It was further submitted that the trial judge misdirected the jury in relation to the video evidence, in particular, that they form their own views about what the video showed unfettered by what the complainer or other witnesses said about it. It was submitted that the trial judge should have made clear to the jury that they jury either had to accept the footage showed consensual sexual activity or not. On behalf of he second appellant it was submitted that it was not open to the jury to form their own views as to what the video evidence showed as it was not open to them to interpret the footage. It was submitted on behalf of the second appellant that the law in relation to how juries should approach video evidence was contradictory and uncertain. In relation to the unreasonable verdict ground of appeal it was submitted on behalf of both appellants that the only evidence relating to anal penetration related to an accused who was acquitted and there was no evidential basis to convict either appellant of that aspect of the charge. In relation to the alleged misdirection in relation to statements made to the police it was submitted that the trial judge had failed to adequately direct the jury in relation to was said by both appellants, being mixed statements, the contents of which were available as evidence for or against them and the failure to so direct amounted to a material misdirection resulting in a miscarriage of justice. On behalf of the Crown it was submitted that the Crown case must be taken at its highest and in relation to circumstantial evidence the most favourable interpretation for the Crown should be adopted. It was submitted that there was the clear evidence of the complainer who stated that she did not consent and this was corroborated by de recenti distress exhibited to another witness shortly after the events in question. In addition, the complainer gave evidence that she was so heavily intoxicated as to be incapable of consenting and that position was supported by other evidence including CCTV of her leaving the nightclub and there had been reference to conversation amongst the accused that “she is so drunk she won’t remember anything”. It was submitted that consent means free agreement, which was absent on account of the complainer being incapable because of the effect of alcohol. In relation to the directions on the video footage it was submitted on behalf of the Crown that there was no merit in the criticisms of the judge’s charge. Whereas in Steele v HMA 1992 JC 1 where it was observed that evidence will almost always be required for video footage in the present case there was no particular expertise required to interpret what was shown and the jury were adequately directed to decide what it showed. It was conceded by the Crown that the averment in relation to anal rape should be deleted from the conviction. In relation to the alleged misdirections in relation to the appellants mixed statements it was submitted that the trial judge had correctly identified the statements as mixed and the directions were adequate on the point. Here the court refused the appeal in respect of the sufficiency of evidence ground of appeal. The court noted that the complainer’s position was that she did not consent. The court noted that free agreement is absent if a complainer is incapable due to the effects of alcohol. There was evidence to support the complainer’s position that she was so incapable, for example, from the video footage and the CCTV. In relation to the question of reasonable belief what was said by the first appellant at interview was important as was the absence by the first appellant to take any steps to ascertain whether there was any consent. The appeal was also refused in relation to the alleged misdirections in relation to the mixed statements. The court considered that looking at the charge as a whole any criticism of a particular aspect of the charge relating to mixed statements was rectified elsewhere in the charge, it being made clear to the jury the use to which mixed statements could be put. In relation to the ground of appeal relating to the alleged misdirections in relation to the video footage, the court considered that, in light of the significant increase in the use of video footage in trials and the most recent reported case being 17 years ago, it would be preferable for the issue to be considered by a larger court and the case was put out for a hearing before 5 judges.