HDJS v. Her Majesty’s Advocate [2018] HCJAC 14

Note of appeal against conviction:- On 10 May 2017, at Glasgow High Court, the appellant was convicted after trial of:- (a) taking indecent photographs of children, contrary to section 52(1)(a) of the Civic Government (Scotland) Act 1982 (charge 2); (b) distributing or showing indecent photographs of children, contrary to section 52(1)(b) of the 1982 Act (charge3); (c) repeated sexual assault of his daughter, contrary to section 20 of the Sexual Offences (Scotland) Act 2009 (charge 5); (d) causing his daughter to participate in a sexual activity, contrary to section 21 of the 2009 Act (charge 6); (e) engaging in sexual activity in the presence of his daughter, contrary to section 22 of the 2009 Act (charge 7). Following his conviction the appellant was sentenced to an extended sentence of 10 years comprising of a custodial element of 8 years imprisonment and an extension period of 2 years. One of the issues at the trial related to the identification of an individual depicted in some of the images. The trial judge gave the jury directions in relation to how the jury were to approach the evidence of the images. The directions reflected what had been said by the court in Gubinas v HMA 2017 SCCR 463 that the jury were entitled to form their own view of whether the images showed the appellant or someone else. During the course of their deliberations the jury requested that they be allowed to view some of the images (4 out of the 50 referred to in evidence). The images they requested were of the appellant following his arrest in 2015 which showed the appellant naked and three images taken from the mobile phone of the appellant. The images from the phone were of AM who was JLM’s father, JLM being the appellant’s partner. A further image requested by the jury was of an unidentified adult male with a naked penis, showing a pair of child’s pants on the ground nearby. A final image requested by the jury was of an image of an unidentified adult male, with his penis exposed and being held between the buttocks of a young child. Both the Crown and the defence were in agreement that the jury should not have sight of these images for the purpose of their deliberations. The Crown and the defence shared concerns that the jury would embark upon a comparison exercise and they had adequate directions from the jury to consider the evidence of the images without the need to see the requested images again. The trial judge agreed that the jury should not see the requested images. The trial judge directed the jury that they were judges and not witnesses and that they required to form their own conclusions about what was said in evidence about what the images showed. The appellant appealed against his conviction on the grounds that:- (1) the trial judge erred in refusing to permit the jury to see the requested images again; and (2) the trial judge had erred in directing the jury that they were judges and not witnesses and that they had to form a judgment based on what the witnesses said rather than form their own conclusions from the images. It was submitted on behalf of the appellant that, having regard to Gubinas, the jury had in effect been denied the opportunity to carry out an essential assessment of the images and they were in effect directed to exclude their own assessment of what the images showed. On behalf of the Crown it was submitted that a jury does not have an absolute right to have access to productions during the course of their deliberations and, in light of the Crown and the defence being in agreement at the trial in relation to the jury not seeing the requested images, the trial judge was right to withhold them. It was further submitted on behalf of the Crown that Gubinas ought to be distinguished as it related to whether a particular gesture could be seen in footage whereas in the present case the jury appeared to be pursuing their own investigations. Here the court refused the appeal. The court reiterated that the issue of whether a jury should be given access to productions for consideration during their deliberations is a matter for the discretion of the trial judge and, in the present case, having regard to the consent of parties having been given, the trial judge had properly exercised her discretion in refusing the jury’s request. The court stated that it would only be in exceptional circumstances that an appeal against a decision following upon both parties’ agreement would succeed. The court stated that, unlike Gubinas where the jury were permitted to re-view the content to see if a particular gesture could be seen, in the present case the jury would be embarking upon an exercise of comparison in circumstances where such comparison was not possible due to the content of the images and the importance of the oral testimony heard in relation to the images. The court considered that, even if there had been a misdirection, in light of the following overwhelming evidence no miscarriage of justice had occurred:- (1) the complainer, the appellant’s daughter, was seen in the images; (2) the locus was the appellant’s flat; (3) the appellant had sole care of the complainer for lengthy periods of time; (4) the Renfrew flat images were on the appellant’s mobile phone; (5) the New Zealand images were linked to the appellant’s email address; (6) the appellant’s clothing as recovered from the appellant’s flat were seen in the images; (7) the complainer referred to her “dad” in one of the videos; and (8) the appellant’s voice was identified in one of the videos.