Criminal Appeal Court clarifies role of jury in assessing video evidence in refusing rapists’ appeals

A five-judge bench in the Appeal Court of the High Court of Justiciary ruled that the judge’s statement that the jury form a judgment about what the images showed could draw their own conclusions about what the images depicted was “correct”, but called for the Jury Manual to be revised to make the position clearer.

The court, chaired by the Lord Justice General Lord Carloway, heard that the appellants Justinas Gubinas and Nerijus Radavicius were convicted at the High Court at Aberdeen in April 2016 of sexually assaulting and repeatedly raping RD on 1 November 2014 at a farmhouse in Fraserburgh, contrary to sections 1 and 3 of the Sexual Offences (Scotland) Act 2009: “whilst acting together, whilst she was intoxicated and incapable of giving or withholding consent”. Part of the libel was that the appellants had recorded the event on mobile phones.

In May the court rejected grounds of appeal based upon insufficiency of evidence and misdirections on mixed statements, but remitted the appeal to a bench of five judges on a ground which maintained that the trial judge had misdirected the jury on how to approach the video images taken on the mobiles.

Video evidence

The complainer’s evidence was that she was forced and coerced into having sex with the second appellant and then the first appellant.

It was accepted by the complainer that the mobile images might appear to show consensual sexual activity, but she said “appearances can be deceptive”.

The images showed her in a state of intoxication; such that she was deprived of her ability to consent, and at one point in the audio recording she was heard saying “no”.

During the trial the mobile images were also shown to a police officer, namely DC WR, who was asked to express a view on whether they were consistent with consensual sex taking place.

In his police interview the first appellant admitted having oral and vaginal sex with the complainer and videoing her having sex with the second appellant.

He insisted that all sexual activity had been consensual and that it had been instigated by the complainer, who had made a “beckoning gesture” to him.

The first appellant did not testify but according to his counsel this gesture could be seen in the recording taken by the second appellant, who also did not testify but denied rape in his police interview.

Judge’s directions

Having reminded the jury of the conflicting stances taken by the Crown and the appellants on what the mobile recordings had shown, the trial judge directed them as follows: “You are here as judges … and not as witnesses so you form a judgement about what the footage shows, just as you would form a judgement about eye witnesses’ descriptions of what has happened otherwise. … just because you have seen a record of the events made on the phone at the time or through the CCTV cameras, you do not somehow become witnesses to these events yourselves. You stand back from what is depicted on the screen so far as this video evidence and CCTV footage is concerned, and you form your own conclusions about what it depicts.”

After the jury had been secluded, they requested and were allowed a further viewing of that part of the video which allegedly showed a gesture, before returning the verdict.

On appeal it was argued on behalf of the first appellant that the trial judge’s directions had been “confusing” and, in so far as they permitted the jury to decide for themselves what was shown, “wrong in law”.

A jury could not be invited to consider a production or a label without relative testimony and although they could use what they made of the images in assessing that testimony, their views could not be substituted for those of the witnesses.

It was submitted that where the jury’s view differed from the testimony, that view required to be set aside, as it could not be used to prove fact.

The second appellant contended that the trial judge’s directions were “conflicting, contradictory and, in part, erroneous”, in that the jury had been told that they could form their own views on what the images demonstrated.

Such a direction should not be given where: identification was an issue; there was a need for expertise to understand what was shown; or there was a substantial dispute in the testimony about what was shown.

Conflicting authority

Refusing the appeal, the judges noted that two conflicting lines of authority had developed in Scotland and that the trial judge’s directions, derived in part from the Jury Manual, appeared to illustrate two contradictory approaches; the first being that the jury can “form own conclusions about the video evidence”; and the second being that they can only use the video in gauging the acceptability of oral testimony, at least where the video is not clear.

However, having reviewed the relevant Scottish cases and considered foreign jurisprudence on the issue, the appeal judges adopted the approach set out in the obiter dictum in Steele v HM Advocate 1992 JC 1 about the freedom of fact finders, including a jury, to make up their own minds about what video images reveal.

Delivering the opinion of the court, the Lord Justice General said: “It follows that, in an appropriate case, a fact finder, including jury or sheriff, will be entitled to form their own view on whether or not an image is that of an accused. They may also hold that it shows a person resembling the accused, so as to provide corroboration of a single eye witness identification and in a circumstantial case. In carrying out this task they would be entitled to compare the image with a photograph of the accused taken at or about the time of the incident and/or with his appearance in court.”

In seeking to resolve the conflicting authority in Scotland, the court paid particular attention to the sound reasoning of Cory J in the Canadian Supreme Court case of R v Nikolovski 3 SCR 1197, in which a video recording was regarded as real evidence and the court could decide what it showed.

Lord Carloway continued: “This represents an enlightened and sensible approach to video or audio recordings. This court adopts that reasoning in so far as quoted above. In particular, ‘so long as the videotape is of good quality and gives a clear picture of events and the perpetrator, it may provide the best evidence of the identity of the perpetrator’. It may assist in the assessment of testimony. It may supplement testimony concerning identity, but it may also supersede it.”

The court concluded: “In this case, the trial judge’s directions were generally correct in their material aspects. Those parts, derived from the Jury Manual, in which reference was made to jurors being judges and not witnesses were not helpful. It is not easy to understand what this distinction means. The passage concerning the need for a witness to testify to identity was wrong, but was not significant in this case in which identity was not an issue. The direction to the jury to form a judgment about what the images showed, just as if they would form a judgment about eye witness descriptions of what happened, was correct.

“The statement that the jury could draw their own conclusions about what the images depicted was also correct. The parts permitting the jury to assess the testimony of the witnesses, but not being bound by that testimony, were consistent with the views expressed in this Opinion. Having admitted the testimony of the police officer on whether the images showed consensual activity should have been excluded, the directions on this were not material and in any event favoured the appellants. It follows that there was no misdirection leading to a miscarriage of justice.”

However, the court added that the form of the direction to a jury in cases involving video evidence did require revisal in relation, in particular, to those parts which refer to juries being judges and not witnesses and to those other sections referring to the need for testimony in order to prove identification.

The opinion of the court in Gannon v Her Majesty’s Advocate HCJAC 58, which was heard at the same time and raised a similar point relative to directions upon the interpretation of CCTV or other video images, should be read in conjunction with Gubinas v HM Advocate HCJAC 59.