England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		2 July 2012

1. LORD JUSTICE MOSES: This is an appeal against conviction which raises the issue as to the use of equipment in a jury room to examine DVDs when that equipment had not been used previously in court.
2. The appellant appeals against conviction for an offence of sexual assault and an offence of rape alleged to have been committed against two different women in relation to the appellant's work as a taxi driver. The convictions were at Sheffield Crown Court on 18th November 2011.
3. The appellant worked as a late night taxi driver. Both the complainants were female students at Hallam Sheffield University. The first count concerned a complainant, RA, who had left the Paris Club in Sheffield on 22nd March 2011 at about 3.15 am. She obtained the services of a cab and the taxi driver was this appellant. When they reached her destination, the driver gave the amount of the fare but said that if she allowed him to give her a kiss she would not have to pay. She thought it was a joke and put the fare through the plastic partition, but he kissed her hand. She attempted to escape but the driver got out, got hold of her, put his arms around her and grabbed her in that way as she tried to get away. He then grabbed her left breast saying, "Come on, come on." He then took hold of her bottom. The appellant was traced but the police did not pursue it at that stage.
4. However, not long after, on 1st April 2011, another complainant was, so the prosecution said, the victim of a far more serious sexual attack. She too had been out drinking. She was a student. She said she was in a car park when the appellant pulled up in a taxi asking if she needed a lift. She said that she had not any money because she had lost her bag, but the driver agreed to take her home and she said she would get some money from her friend. She did not recognise the route they were taking and the driver then pulled into a car park, got out of the taxi and opened the back door. He was exposing himself and, so she complained, put both hands on the back of her head, pushed her head down and forced her to place his penis in her mouth. It happened over a very short time. She managed to get away, but in order to identify him she grabbed hold of his ID badge. She then ran into a Spar shop screaming "help me". A student who was in the shop saw that she had the taxi driver's identification badge and the taxi driver pursued her, trying to get hold of it. That was also witnessed by another witness who observed that the shop owner handed back the ID badge to this appellant. The appellant was subsequently arrested and denied the offence.
5. There were two pieces of evidence which did not depend upon the evidence of either the complainants or the witnesses or the defendant who himself gave evidence denying that he was responsible. The first was CCTV evidence showing images of the cab in the car park in Sheffield. That evidence is of particular relevance in this appeal. The other piece of evidence was DNA evidence which after the appellant was arrested was found on his underwear and showed not only traces in the amylase of his partner, but DNA from this complainant or to be more accurate showing that the chance was one in 7,400 that it had been someone else other than the complainant in count 2. The appellant sought to explain that by saying that she must have put his identity badge in or near her mouth and that when he snatched it back it got on her hands and subsequently on to his underwear.
6. The issue in the appeal does not require any further elaboration of the evidence. Naturally the prosecution were anxious that the jury should see the CCTV. They contended that it showed from behind movements of the ankles of this appellant consistent with the occasion when he orally raped her. The defence said nobody could see anything of the sort.
7. The DVDs were played a number of times during the course of the evidence on, as we understand it, both the large screens in court and also on a smaller computer which had been obtained from the Crown Prosecution Service.
8. The judge summarised that part of the evidence by saying:

"[The appellant] denied that he was rocking on his heels in that clip that you can see in the car park. The prosecution said there is evidence of that. The defendant says no there is not."

After the jury retired, it emerged that the machine on which they were to look at the DVD within the privacy of their own retiring room could not fast forward and a different machine was sent to them - what was described as a new or different machine.

9. The jury came back asking for another DVD showing inside the shop saying in a note this:

"Can we have the DVD showing inside the Spar as the other has proved much more enlightening now that we can see it clearer."

10. In argument in this appeal, Mr Simpson contends that there was a material irregularity in allowing the jury to see evidence after the jury had retired which was not evidence in the case during the conduct of the case. There is ample authority for the proposition that in most cases, although not inevitably, it is quite wrong for evidence to be adduced after the evidence has been called, for example see R v Imran and Hussain [1997] Crim.L.R 754.
11. The first question, however, is whether there was anything new before the jury after the new machine had been given to them. Mr Simpson contends that the note from the jury reveals that it was fresh evidence in the use of the comparative term "clearer" in the note to which we have already referred. We do not agree. The note is equally consistent with the view of the jury that the machine they were now looking at the DVDs on was better and clearer at showing the images on the CCTV than the machine which would not fast forward. There is no warrant for inferring from what they said that what they were seeing was clearer than that which they had seen in court in evidence. If that is right, then that is the end of the ground of appeal. There is no difference.
12. But the next possibly more significant question is, if Mr Simpson is right, whether there was any irregularity in furnishing to the jury a machine that allowed of a clearer image than that which had been seen in court. Mr Simpson says it was a material irregularity relying on, for example, R v Devichand [1991] Crim.L.R 446. In that case an exhibit of paint tins was given to the jury in the jury room where they observed that there was on the tins labels which gave the lie to the account the defendant had given at trial. Those labels had never been noticed before, had not been the subject of any evidence nor of any discussion. In those circumstances this court allowed the appeal because the evidence was inconsistent with the defendant's evidence and had not been the subject of any debate or discussion at the appropriate moment during the course of the evidence.
13. This case in our judgment is wholly different. The evidence which was before the jury during the course of the prosecution and for that matter the defence case, was the CCTV as transposed to the DVD. Nothing new, nothing different was given to the jury in the jury room. It is now common, provided that the jury are warned not to manipulate the film, for jurors to be allowed to look at film within the privacy of their own jury room - see for example R v Haque [2005] EWCA Crim. 2327 and R v Douglas Edwards [2006] EWCA Crim. 1944.
14. The latter case is of significance in the instant appeal because it shows that provided images are properly before the jury by way of exhibit, the fact that some of them have not previously been debated or discussed does not mean to say that the jury is looking at new evidence when they examine them more fully within the privacy of their own retiring room (see paragraph 19). What happened in this case was that the machine that was furnished to them allowed them to have a greater opportunity to examine with greater clarity that which was already in evidence. Even if we were to assume, which we do not, that this showed a clearer image than had been seen before, that would be of no consequence since the CCTV was evidence properly adduced during the course of the time that the evidence was taken. The reality is no different from those cases where a jury was properly allowed to take, as they used to, magnifying glasses into the jury room to examine images on photographs.
15. In those circumstances, there is in our view nothing improper or unfair or irregular in what happened during the course of this case. The verdicts were not unsafe and we dismiss this appeal.
16. There is now before us a renewed application for permission to appeal against sentence. The sentence that is appealed against was one of nine months' imprisonment consecutive for the sexual assault which we have already described. It is said that if you look at the guidelines you can see that what is recommended is a community order for contact between part of an offender's body other than the genitalia with part of the victim's body other than the genitalia and in this case it is not suggested that the genitalia were touched, although there was an allegation in relation to her breast and her bottom.
17. However, although there are said to be none of the aggravating factors identified in the table, this clearly was a very serious offence. One has only to refer again to the time of night, the middle hours of the early morning, and thus the vulnerability of the young student who was assaulted in this way. Even more serious was the position held by this appellant. Taxi drivers are in a peculiarly responsible position so far as the care of their passengers. When that care is abused, as it so seriously was in this case, then the custody threshold in our view is exceeded. It is particularly important not only for the protection of the victims, but also for other taxi drivers that courts take a very serious view of this sort of offence.
18. In those circumstances, we think the single judge was entirely right to refuse permission. So do we.
19. We should say that the 110 days of qualifying conditions of bail will be deducted from the total sentence but subject to any revision should it prove that those days are not accurately recorded.