Justinas Gubinas and Nerijus Radavicius v. Her Majesty’s Advocate [2017] HCJAC 59

Notes of appeal against conviction:- On 29 April 2016, at Aberdeen High Court, the appellants were convicted after trial of a contravention of sections 1 and 3 of the Sexual Offences (Scotland) Act 2009, namely, the rape and sexual assault of RD whilst she was intoxicated and incapable of giving or withholding consent. The circumstances included some of the relevant events being recorded on mobile phone. The court previously refused the appeal in relation to there being an insufficiency of evidence or alleged misdirections by the trial judge in relation to mixed statements, however, the court remitted the appeal to a bench of 5 judges in relation to the ground of appeal concerning alleged misdirections by the trial judge in relation to how the jury should approach the images recorded on the mobile phones. Here the court considered the extent to which a fact finder, including jury or sheriff, can decide for themselves what the images depict and, as such, the nature of directions to be given to a jury. The circumstances were that 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. She said “appearances can be deceptive”. The mobile images were shown to a police officer, namely DC Ritchie, during the trial and when he was asked to express a view on whether they were consistent with consensual sex taking place to which he agreed. 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. The trial judge directed the jury that the footage was to be used by them to assist in determining whether the witnesses’ interpretation of what happened was correct and “...in general you could form your own view about what the video evidence depicts...”. After the jury retired to commence their deliberations they requested a further viewing of the footage, in particular, a part of the footage which allegedly showed a gesture. This was allowed in the courtroom, in the presence of the judge, the clerk and the video operator. On behalf of the first appellant it was submitted that whilst there is some confusion in relation to the applicable law certain principles are clear. For example, fact finders are not entitled to make identifications of accused persons by viewing video images. In addition, whilst fact finders could form a view of what the images showed they could not translate that view into evidence as they were not witnesses. It was necessary for real evidence to be spoken to. It was submitted that the trial judge misdirected the jury in relation to the video evidence, in particular, that they could form their own views about what the video showed unfettered by what the complainer or other witnesses said about it. It was submitted the trial judge’s directions were confusing and a jury could not be asked to consider a labeled production without a witness’s testimony to accompany it. It was not open for the jury’s views of footage to substitute that of the witnesses who spoke to it and where the jury’s view differed from a witness’s testimony their view had to be set aside. On behalf of the second appellant it was submitted that the law was correctly set out in Steele v HMA 1992 JC 1 and it was not open for a jury to speculate in the absence of witness testimony. In relation to the present case where the interpretation of the footage was disputed the trial judge’s directions were wrong in that the jury had been told that they could form their own views on what the images demonstrated. It was submitted that a direction like that could not be given where:- (1) identification was an issue; (2) there was a need for expertise to understand what was shown; or (3) there was dispute in the testimony about what was shown. On behalf of the Crown it was submitted that generally a jury was free to assess the content of footage, however, a jury was not entitled to make a comparison between footage and an accused in court but rather had to be guided by the testimony of witnesses who were familiar with the accused. Here the court fully considered the extent to which the fact finder could examine for themselves video footage/images. The court considered the development of the law not only in Scotland but throughout other jurisdictions within the Commonwealth. On an examination of the other jurisdictions, the court did not find a material difference between Scotland and these other countries in the approach to real evidence. In relation to video footage to be used as proof of fact in a criminal trial, it is necessary to show that the footage is a recording of the relevant event and for its provenance to be spoken to. The court stated that the fact finder can make such inferences from footage as would be open to any judge or jury hearing oral evidence describing the same events and that does not convert the fact finder into a witness. The court observed that sheriffs or juries are frequently shown items, like weapons, to enable them to understand what appears from looking at them. The court stated that the important factor is once the provenance of the object is proved, that becomes real evidence which the sheriff or jury can use to establish fact, regardless of whether there is any conflicting testimony. The court referred to an example where “...all the witnesses say that the deceased was stabbed in the conservatory, if CCTV images show that he was shot in the library, then so be it.” Thereafter, the court considered that there is no logical reason for any distinction between proof of events and proof of identity of persons so the fact finder (including the jury) will be entitled to form their own view on whether or not an image is that of an accused. It follows that the fact finder may also hold that it shows a person resembling the accused providing corroboration of a single eye witness identification. It would be necessary for the fact finder to compare the footage of the accused with a photograph taken of the accused around the time of the incident and/or with the accused’s appearance in court. The court stated that if the image is sufficiently clear, the jury can compare it with the accused in court. In certain situations where there is no witness to provide a commentary on the footage the court considered that it might be helpful for an investigating police officer to provide a commentary on what is shown in the recording albeit the commentary should be kept to a minimum. In the present case the court considered that the police officer being asked questions about whether what was shown in the images was consistent with consensual sexual activity was illegitimate and ought not to have been allowed, albeit, in the particular circumstances of the case, it favoured the appellants. In the present case the court considered that the trial judge’s directions were generally correct albeit the parts in which reference was made to jurors being judges and not witnesses were not helpful and the parts relating to the need for a witness to testify to identity was incorrect albeit inconsequential in light of the fact that identification was not an issue in the present case. The directions in relation to the jury forming a judgment about what the images showed, just as they would form a judgment about eye witness descriptions of what happened was correct as was the part where the jury were told they could draw their own conclusions about what the images depicted. In addition, the aspects of the charge allowing the jury to assess the testimony of the witnesses but not being bound by it were also correct. As an addendum the court observed that in relation to the issue of corroboration there is no difficulty arising if the only evidence of identification is derived from a comparison of footage with a photograph of the accused, as it will be corroborated if the provenance of the footage and the photograph are each proved by two witnesses much in the same way that proof of a fingerprint/DNA of an accused is established albeit in relation to fingerprint/DNA the comparison is conducted by an expert. The court observed that where the footage was of extremely poor quality a submission in terms of section 97 of the 1995 Act could be made at the close of the Crown case that the evidence was of such poor quality as to be insufficient in law for the case to proceed. The court went on to state that the jury manual requires to be revised in relation to cases involving video footage evidence and provides further updated guidance on how to charge a jury where there is both eye witness testimony of the events and clear footage:- “Witnesses have testified about what they say is happening in the video images and who is shown in them. You have to consider which, if any, of the witnesses is credible and reliable. You may find the testimony of a witness helpful in interpreting what is shown in the images. You are not bound by what each witness says. You can take into account, in determining the facts, what and who you consider to be shown in the images. You can have regard to the images when deciding who did what.”