Note Of Appeal Against Conviction By Justinas Gubinas And Nerijus Radavicius Against Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Turnbull,Lord Brodie,Lord Menzies,Lord Justice Clerk,Lord Justice General |
| Neutral Citation | [2017] HCJAC 59 |
| Court | High Court of Justiciary |
| Date | 08 August 2017 |
| Docket Number | HCA/2016/290/XC and HCA/2016/286/XC |
| Published date | 08 August 2017 |
APPEAL COURT, HIGH COURT OF JUSTICIARY
[2017] HCJAC 59
HCA/2016/290/XC and HCA/2016/286/XC
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Brodie
Lord Turnbull
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL
in
NOTES OF APPEAL AGAINST CONVICTION
by
JUSTINAS GUBINAS and NERIJUS RADAVICIUS
Appellants
against
HER MAJESTY’S ADVOCATE
Respondent
Appellant (Gubinas): McConnachie QC, Findlater; Gray & Gray, Pete rhead
Appellant (Radavicius): Duguid QC, Hughes; Faculty Services Ltd (for Ada m & Flowerdew,
Peterhead)
Respondent: W McVicar (sol adv) AD; the Crown Agent
8 August 2017
Introduction
[1] On 29 April 2016, at the High Court at Aberdeen, the appellants were convicted of
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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.
[2] On 9 May 2017, the court, having rejected grounds of appeal based upon
insufficiency of evidence and misdirections on mixed statements (2017 SLT 663), 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 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.
Evidence
[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 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 forced to drink
more alcohol. She would have been manifestly drunk.
[4] The complainer described herself as overwhelmed. She was forced and coerced into
having oral and vaginal sex with the second appellant and then the first appellant. These
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events were in part shown in images taken by the appellants’ mobile phones. It was
accepted by the complainer that the mobile images might appear to show consensual sexual
activity. However, 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. At one point in the
audio recording she could be heard saying “no”.
[5] The complainer spoke about bruising to the back of her neck, lower back and
buttocks. She had vaginal injuries, although these were, according to the medical evidence,
“not necessarily” consistent with rape. There was evidence of distress on her return home.
She had been sobbing uncontrollably.
[6] The mobile images were shown to a police officer, namely DC WR, during the trial.
WR was asked to express a view on whether they were consistent with consensual sex
taking place (see 2017 SLT 663 para [5]; and trial judge’s charge (infra)).
[7] In his interview by the police, the first appellant admitted having oral and vaginal
sexual intercourse with the complainer and videoing her having sex with the second
appellant. All sexual activity had been consensual. It had been instigated by the
complainer. She had made a beckoning gesture to him. The first appellant did not testify.
However, according to his counsel, this gesture could be seen in the recording taken by the
second appellant. The second appellant did not testify. In his interview, he denied rape.
Directions
[8] 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:
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