Paedophile parent loses appeal against sexual offences conviction

The appellant claimed that the trial judge erred in refusing a request by the jury to view a number of the images during their deliberations, but the Appeal Court of the High Court of Justiciary rejected the argument that he had suffered a “miscarriage of justice”.

‘Pedoparents 2’

The Lord Justice General, Lord Carloway (pictured), sitting with Lord Menzies and Lord Turnbull, heard that the appellant HDJS was given an extended sentence of 10 years after being convicted following a trial at the High Court in Glasgow in May 2017 on charges of, between September 2013 and October 2015 at an address in Renfrew, in New Zealand and elsewhere, taking and distributing indecent photographs of children, contrary to sections 52(1)(a) and (b) of the Civic Government (Scotland) Act 1982.

He was also convicted of sexually assaulting his daughter, causing her to expose herself and pose provocatively, and engaging in sexual activity in her presence, contrary to sections 21, 22 and 23 of the Sexual Offences (Scotland) Act 2009.

The court was told that the investigation of the appellant started in September 2015, when the New Zealand police discovered that indecent images of children, including naked photographs of a young child later discovered to be the appellant’s daughter, had been posted on a chat group called “pedoparents 2” on a social networking site, which were traced to the appellant’s Dropbox.

In November 2015 during a search of the appellant’s flat in Renfrew – where he lived with his partner JLM and their two children, namely the five-year-old complainer and her younger brother, and JLM’s late father AM, who lived in the flat for about 18 months before his death in August 2015 – a mobile phone was found, which contained images of the complainer in sexually explicit poses and being sexually assaulted by an adult male, similar to those in the Dropbox.

Judge’s charge and jury’s request

In their speeches to the jury neither the Crown nor the defence sought to persuade the jurors that they could themselves derive any benefit from comparing any of the images, many of which had been displayed in court during the trial, with each other, and the judge gave the jury directions specific to their consideration of the images.

But in the course of their deliberations the jury returned to court to ask if they could see four of the images again.

However, both the Crown and the defence submitted that it would not be appropriate for the jury to be given the photographs for the purposes of their deliberations, as they had been given appropriate directions that they were “judges, not witnesses” who needed to consider the evidence of what was contained in the images.

The concern of the Crown was that the jury might seek to undertake a comparison between the images of the appellant, AM and the indecent images, which had not been undertaken by any of the witnesses, while the defence was also concerned that the comparison of the images which the jury had requested had not been explored in evidence and they might embark upon such an exercise.

The trial judge concluded that it was not appropriate for the jury to have the images, as AM had not been incriminated and there was no view in the three indecent images that would allow a comparison to be made between, which in any event had not been explored in evidence.

The judge was also concerned that the jury were only requesting four out of approximately 50 images which had been shown during the trial and the jurors had already seen the images on a number of occasions.

She directed the jury again 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.

‘Trial judge erred’

However, on appeal it was submitted that the trial judge had erred in refusing the request by the jury, as the images were “real evidence” which the jury could have used to establish the identity of the perpetrator, irrespective of any concurring or conflicting testimony.

Following Gubinas v HM Advocate 2017 SCCR 463, it was argued that the jury had been “entitled to form their own view” of whether the images showed the appellant or someone else, including AM.

It was also submitted that the trial judge had erred in directing the jury that they were judges and not witnesses and that they had to form a judgment about what the witnesses had told them, rather than form conclusions from the images themselves. The directions “excluded the jury’s own assessment” of what the images showed.

Refusing the appeal, the judges observed that whether a jury should be given productions for consideration during their deliberations was a matter for the discretion of the trial judge and that an appeal against a decision to which both parties have agreed would only succeed in a “quite exceptional case”.

No miscarriage of justice

Delivering the opinion of the court, the Lord Justice General said: “In the absence of an obvious feature, this was a situation in which the jury would be bound to proceed on the basis of their view of the oral testimony, no doubt using any assistance from the images, rather than on their own empirical studies. Since there was no incrimination of AM, which was relevant to the central issue of the identification of the appellant from viewing the images themselves, the trial judge was entitled to direct the jury in the manner which she did.

“The witnesses had testified to seeing the complainer, the appellant, his clothes and his flat in the images, and to hearing his voice and the complainer’s reference to her ‘dad’. The judge correctly directed the jury that they had to assess that testimony, but that they did not have to accept it.”

Lord Carloway added: “Even if the court had considered that a misdirection had occurred, in light of the weight of this testimony, which was entirely uncontradicted, it would have been impossible to hold that any miscarriage of justice had occurred.”