Gubinas v HM Advocate
| Jurisdiction | Scotland |
| Judge | Lord Justice-General (Carloway),Lord Justice-Clerk (Dorrian),Lord Menzies,Lord Brodie,Lord Turnbull |
| Judgment Date | 08 August 2017 |
| Neutral Citation | [2017] HCJAC 59 |
| Date | 08 August 2017 |
| Court | High Court of Justiciary |
| Docket Number | No 5 |
Lord Justice-General (Carloway), Lord Justice-Clerk (Dorrian), Lord Menzies, Lord Brodie and Lord Turnbull
Advocate (HM) v Ronald (No 2) [2007] HCJ 12; 2007 SCCR 466; 2008 SCL 176
Attorney-General's Reference (No 2 of 2002) [2002] EWCA Crim 2373; [2003] 1 Cr App R 21; [2003] Crim LR 192
Bowie v Tudhope 1986 SCCR 205
Donnelly v HM Advocate 2000 SCCR 861
Gray v HM Advocate 1999 SLT 528; 1999 SCCR 24
Henry v HM Advocate [2012] HCJAC 128; 2012 SCCR 768; 2012 GWD 35–710
Hogg v Clark 1959 JC 7; 1959 SLT 109
Hopes and Lavery v HM Advocate 1960 JC 104; 1960 SLT 264; [1960] Crim LR 566
Hunt v Aitken [2008] HCJAC 57; 2008 SCCR 919; 2009 SCL 25; 2008 GWD 33–495
Irvine v Donnelly [2012] HCJAC 62; 2012 SCCR 486; 2012 GWD 19–383
Langan v HM Advocate 1989 JC 132; 1989 SCCR 379
McAvoy v HM Advocate 1991 JC 16; 1992 SLT 46; 1991 SCCR 123
Matara v R [2015] NZCA 261
Patterson v Howdle 1999 JC 56; 1999 SCCR 41; 1999 GWD 3–117
People (DPP) v Allen [2003] 4 IR 295
People (DPP) v Maguire [1995] 2 IR 286
R v Benson 2015 ONCA 827
R v Clare; R v Peach[1995] 2 Cr App R 333; 159 JP 412; [1995] Crim LR 947; 159 JPN 424; 92 (17) LSG 47; 139 SJLB 117
R v Delorme 2017 SKCA 3
R v Dodson [1984] 1 WLR 971; 79 Cr App R 220; [1984] Crim LR 489; 81 LSG 1677; 128 SJ 364
R v Downey [1995] 1 Cr App R 547; [1995] Crim LR 414
R v Fowden; R v White[1982] Crim LR 588
R v Howe [1982] 1 NZLR 618
R v Nikolovski [1996] 3 SCR 1197
R v Shanmugarajah [2015] EWCA Crim 783; [2015] 2 Cr App R 14
R v Turnbull [1977] QB 224; [1976] 3 WLR 445; [1976] 3 All ER 549; 63 Cr App R 132; [1976] Crim LR 565; 120 SJ 486
R v Turpin 2011 ONCA 193
R v West [2005] EWCA Crim 3034
Ralston v HM Advocate 1987 SCCR 467
Reid v HM Advocate [2016] HCJAC 41; 2017 JC 37; 2016 SLT 797; 2016 SCCR 233; 2016 SCL 448
Robertson v Advocate (HM) [2007] HCJAC 12; 2007 SLT 459; 2007 SCCR 129
Robertson v Docherty 2011 SCCR 123
S v M 2002 (2) SACR 411
S v Mdlongwa 2010 (2) SACR 419
S v Mpumlo 1986 (3) SA 485
S v Ramgobin 1986 (4) SA 117
Singh v HM Advocate [2013] HCJAC 69; 2013 SCCR 337
Smith v R [2001] HCA 50; (2001) 206 CLR 650
Steele v HM Advocate 1992 JC 1; 1992 SLT 847; 1992 SCCR 30
Bryant, AW, Lederman, SN, and Fuerst, MK, The Law of Evidence in Canada (3rd ed, LexisNexis, Toronto, 2009), paras 2.13 et seq
Home Office, Police and Criminal Evidence Act 1984 Code D — Code of Practice for the Identification of Persons by Police Officers (Home Office, London, March 2011) (Online: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/253831/pace-code-d-2011.pdf (31 January 2018))
Cross, ARN, and Tapper, C, Evidence (11th ed, Oxford University Press, Oxford, 2007), p 60
Davidson, FP, Evidence (W Green, Edinburgh, 2007), para 5.01
Dickson, WG, A Treatise on the Law of Evidence in Scotland (3rd Grierson ed, T & T Clark, Edinburgh, 1887), vol II, para 1815
Hoffman, LH, The South African Law of Evidence (2nd ed, Butterworths, Durban, 1970), pp 285, 286
Judicial Institute, Jury Manual (Judicial Institute for Scotland, Edinburgh, June 2017), pp 35.2/123–35.3/123 (Online: http://www.scotland-judiciary.org.uk/Upload/Documents/JuryManualJune2017.pdf (19 October 2017))
May, R, Criminal Evidence (6th Powles and Waine ed, Sweet and Maxwell, London, 2015), para 2.33
Walker, AG, and Walker, NML, The Law of Evidence in Scotland (3rd Ross and Chalmers ed, Tottel, Haywards Heath, 2009), para 18.1
Wigmore, JH, Evidence in Trials at Common Law (Chadbourn rev, Little, Brown & Co, Boston, 1970), vol 3, para 790
Zeffert, DT, The South African Law of Evidence (2nd ed, LexisNexis, Durban, 2009), p 849
Justiciary — Evidence — Video evidence — Whether jury entitled to examine content of video evidence — Whether jury entitled to determine identity of person shown in a video recording
Justiciary — Procedure — Trial — Charge to jury — Video evidence — Trial judge directing jury to form own view of what video evidence depicted — Whether misdirection — Whether miscarriage of justice
Justinas Gubinas and Nerijus Radavicius were indicted at the instance of the Right Honourable Francis Mulholland QC, Her Majesty's Advocate, on a charge of rape and sexual assault. On 29 April 2016, at the High Court of Justiciary in Aberdeen, the appellants were convicted and were both subsequently sentenced to a period of four years and six months' imprisonment. The appellants appealed against conviction to their Lordships in the High Court of Justiciary.
On 9 May 2017, the court (Lord Justice-Clerk (Dorrian), Lord Brodie, Lord Malcolm) refused certain grounds of appeal, and remitted the remaining ground to a bench of five judges ([2017] HCJAC 25).
The appellants were charged with rape and sexual assault. Video recordings from the appellants' mobile phones showed sexual activity taking place with the complainer while she was in a state of intoxication. A police officer was asked for his view on whether the video content was consistent with consensual sexual activity taking place. The trial judge directed the jury that they should form their own conclusions as to what was depicted. The appellants were convicted and appealed to the High Court of Justiciary, inter alia, on the basis of a misdirection regarding the video evidence.
The appellant submitted that a jury was not entitled to make an identification of accused persons simply by viewing video images. The jury required testimony from witnesses. In so far as the trial judge's directions permitted the jury to decide for themselves what was depicted in the video, they had been wrong in law.
The Crown submitted that a jury was entitled to determine for themselves what was depicted in video footage, including the identification of persons shown.
Held that: (1) once the provenance of the recording was established it was equivalent to a witness speaking to events seen or heard, the fact-finder was free to make such inferences from the recording as would be open to them having heard oral testimony descriptive of the same events (paras 53–56); (2) it would often be advantageous for witnesses who were present and saw what happened to comment on what the images depicted, particularly where a witness testified to something not obviously apparent from the images (para 59); (3) a fact-finder was entitled to form their own view on whether an image was of or resembled the accused, if the image was sufficiently clear the fact-finder would be entitled to compare it with a photograph of the accused taken at or about the time of the incident or with his appearance in court, and while a witness could be asked to identify the accused from the image and could give comparison evidence that did not bar the fact-finder forming their own view (paras 62–64); (4) where no witness had been present at the scene of the recording it could be helpful for a witness (such as an investigating police officer) to provide a commentary on what was shown but this should be kept to a reasonable minimum, the witness's impression or interpretation of what the images showed should not be sought, accordingly it was illegitimate to seek the police officer's view as to whether the mobile phone recording was consistent with consensual sexual activity (paras 65, 66); (5) there had been no misdirection leading to a miscarriage of justice (para 67); and appeals refused.
Observed that the form of direction to be given to a jury in cases involving video evidence required to be revised to reflect that, in determining the facts, the jury would be entitled to take into account who and what they considered to be shown in the images (paras 71, 72).
Steele v HM Advocate 1992 JC 1 approved, Gray v HM Advocate1999 SLT 528 and Donnelly v HM Advocate2000 SCCR 861disapproved and R v Howe[1982] 1 NZLR 618, R v Nikolovski[1996] 3 SCR 1197 and Attorney-General's Reference (No 2 of 2002)[2003] 1 Cr App R 21followed.
The appeal called before the High Court of Justiciary, comprising the Lord Justice-General (Carloway), the Lord Justice-Clerk (Dorrian), Lord Menzies, Lord Brodie and Lord Turnbull, for a hearing on 30 June 2017.
At advising, on 8 August 2017, the opinion of the Court was delivered by the Lord Justice-General (Carloway)—
Opinion of the Court—
[1] On 29 April 2016, at the High Court at Aberdeen, the appellants were convicted of sexually assaulting and repeatedly raping RD on 1 November 2014, at a farmhouse near Fraserburgh, contrary to secs 1 and 3 of the Sexual Offences (Scotland) Act 2009 (asp 9) ‘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.
[2] On 9 May 2017, the court, having rejected grounds of appeal based upon insufficiency of evidence and misdirections on mixed statements ([2017] HCJAC 25), remitted the appeal to a bench of five judges on a ground which maintained that the trial judge had misdirected the jury on the manner in which they could approach the video images taken on the mobiles. The appeal therefore raises the issue of the extent to which a fact-finder, including a jury or sheriff, can decide for themselves what the images depict. This in turn requires consideration of the form which directions to a jury should take. These are matters of general importance in terms of both evidence and procedure.
[3] The complainer had been in the same nightclub as the appellants. According to her testimony, she had left in a car with the second appellant, thinking that he was taking her to a party in Fraserburgh. She was already heavily intoxicated, as could be seen from closed circuit television (‘CCTV’) images taken of the nightclub car park. Two other men got into the car. The complainer was driven to a farmhouse, where both appellants were living. This was in a remote location, from which she would have been unable to walk home. She was...
To continue reading
Request your trial
-
Appeal Against Conviction Following Upon A Reference From The Scottish Criminal Cases Review Commission By The Representative Of Hte Late Abdelbaset Ali Mohamed Al Megrahi Against Her Majesty's Advocate
...[2019] HCJAC 78). They indicated that the co-accused had obtained Air Malta luggage tags for Mr Megrahi. Following Gubinas v HM Advocate 2018 JC 45, it may have been possible for the trial court to look at the photofit which Mr Gauci had produced and to draw its own conclusions on its value......
-
Leadbetter v HM Advocate
...HM Advocate 1952 JC 28; 1952 SLT 188 Griffiths v Hart [2005] HCJAC 51; 2005 1 JC 313; 2005 SLT 495; 2005 SCCR 392 Gubinas v HM Advocate [2017] HCJAC 59; 2018 JC 45; 2017 SLT 1017; 2017 SCCR 463; 2017 SCL 828 Hainey v HM Advocate [2013] HCJAC 47; 2014 JC 33; 2013 SLT 525; 2013 SCCR 309; 2013......
-
Crown Appeal By Stated Case For Procurator Fiscal, Paisley Against David Mclean
...a section 283 certificate was the only means of establishing the provenance of the CCTV footage, when it was not: Gubinas v HM Advocate 2018 JC 45, paras [53] and [54]. She had thought that the defence had not seen a statement of Mr Delaney, when they had. The section 283 certificate, a cop......
-
Note Of Appeal Against Conviction By Paul Stuart Smith Against Her Majesty's Advocate
...it was open to the jury to listen to the audio and come to their own conclusions about wh at had been said (Gubinas v HM Advocate 2018 JC 45 at paras [53]-[56]; Shuttleton v Orr 2019 JC 98 at para [13]). The recording was the “best” evidence. [14] The definition of provocation was that an a......