Anthony Gannon v. Her Majesty’s Advocate [2017] HCJAC 58

Note of appeal against conviction:- On 25 July 2016, at Paisley Sheriff Court, the appellant was convicted after trial on indictment of two charges:- (1) a charge of assault with intent to rob; and (2) a contravention of section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995, namely, having a knife with him at the time of the commission of charge 1. He was subsequently sentenced to 4 years on charge 1 and 2 years on charge 2 to run concurrently backdated to 31 March 2016. The appellant appealed against his conviction in relation to the trial sheriff’s directions in relation to the interpretation of CCTV evidence. At the trial evidence was led from MG and SC. MG spoke to the appellant with a scarf over his face standing close to the till in Farmfoods. He went into the toilet and then returned to the shop floor where the manager SC advised him that someone had pulled a knife on him. SC pointed to the door and MG saw the appellant running out. MG subsequently identified the appellant at a VIPER parade and was also shown CCTV footage of the incident in which he recognised the appellant from the images. SC was able to identify the perpetrator and did so via emulator sheets and a VIPER parade. SC was also shown the footage in which he identified the appellant as being responsible for the assault with intent to rob. A police officer MR who attended shortly after the incident was provided with the name of the appellant by MG and the officer attended at the appellant’s home half a mile away. A knife with a blue handle was recovered from the kitchen which matched the description provided by the witnesses. The officer was also able to identify the appellant from his clothing having viewed the CCTV footage albeit he was unable to identify the appellant from the footage. The sheriff in his charge to the jury gave directions that notwithstanding them having viewed the footage they did not then become witnesses to the events and it was for them to decide whether the witnesses’ interpretation of what the footage showed was correct and that they judge the CCTV evidence just as they judge the other evidence in the case. After the jury had retired they asked whether they could see the footage at the point where there was what appeared to be a close up of the knife. The sheriff advised the jury that there was no closer image than the size of that shown to them previously, however, the jury wanted to see a particular part of the footage which showed a “blue bit” which appeared to be the handle of the knife. The footage was played and paused at the requested point and the jury left the jury box and approached the screen to get a close-up view of the item. Upon completion of this, the jury recommenced their deliberations and returned with a unanimous guilty verdict in relation to the two charges. Here it was submitted on behalf of the appellant that the sheriff ought to have given an additional direction in relation to how to treat the video images, in particular, that the evidential weight to be attached to the footage could only be to support or undermine the testimony of the witnesses and was not to be treated as “stand alone evidence”. There were further general criticisms of the sheriff’s directions to the jury in that it ought to have been made clear to them that their purpose in assessing the CCTV evidence was not for them to adopt an investigatory role but rather to be limited to the purpose of testing the accounts given by the witnesses. On behalf of the Crown it was submitted that identification in the case was not an issue and it was appropriate for the jury to make up their own minds about what the video images showed. In addition, there had been no objection to the playing of the footage and it had been played in the presence of the appellant under the control of the court. Here the court refused the appeal. The court stated that there was no need for any additional directions in relation to the footage and the jury were permitted to review the particular part of the footage which they requested to see again. The court referred to the case of Gubinas v HMA [2017] HCJAC 59 (which was heard along with the present case before a bench of 5 judges) and stated that there had been no material misdirection.