Scottish High Court of Justiciary Decisons

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URL: http://www.bailii.org/scot/cases/ScotHC/2017/HCJAC_58.html
Cite as: [2017] HCJAC 58, [2017] ScotHC HCJAC_58, 2017 SCL 892, 2017 GWD 26-432, 2017 SLT 1034

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APPEAL COURT, HIGH COURT OF JUSTICIARY

Lord Justice General

Lord Justice Clerk

Lord Menzies

Lord Brodie

Lord Turnbull

OPINION OF THE COURT

[2017] HCJAC 58

HCA/2016/426/XC

delivered by LORD CARLOWAY, the LORD JUSTICE GENERAL

NOTE OF APPEAL AGAINST CONVICTION

ANTHONY GANNON

Appellant

against

HER MAJESTY’S ADVOCATE

Respondent

Appellant: Graham, Hay; Faculty Appeals Service (for Westcourts Litigation, Greenock)

Respondent: W McVicar (sol adv) AD; the Crown Agent

8 August 2017

[1] This Opinion requires to be read in conjunction with Gubinas v HM Advocate

[2017] HCJAC 59, which was heard at the same time. The case raised a similar point relative to

directions upon the interpretation of CCTV or other video images.

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[2] On 25 July 2016, at the sheriff court in Paisley, the appellant was convicted of two

charges. The first was that he assaulted an employee of Farmfoods, Port Glasgow on

30 March 2016, with intent to rob. The second was of having a knife with him at the time;

contrary to section 49(1) of the Criminal Law (Consolidation) (Scotland) Act 1995. He was

sentenced to 4 years on the first charge, and 2 years concurrent on the second, backdated to

31 March 2016.

[3] The evidence came first from MG, the assistant manager at Farmfoods. He had seen

the appellant in the shop on some 5 or 6 previous occasions. On the relevant date, he had

been looking towards the till area when he saw the appellant, whom he identified in court,

with a scarf over his face standing close to the till. He went into the toilet and the alarm bell

went off. He went on to the shop floor where the manager, SC, told him that someone had

pulled a knife on him. SC pointed towards the door. MG saw the appellant running out of

the door. On 6 April, MG identified the appellant at a VIPER parade. He was shown CCTV

images of the events. He recognised the appellant as shown in the images, although the

appellant’s name had only been given to him later by others.

[4] SC gave evidence that he had been at the till, when a man approached and shouted

“open the f...ing till”. He showed him a knife. SC pressed the alarm bell and told the

assailant that he was phoning the police. The assailant had a scarf around his mouth.

Nevertheless, SC knew him and he was able to identify him in court. He had seen him in

the shop around 10 times previously. He had pointed him out to MG as he was leaving the

store. He had identified him to the police later that day from an emulator board containing

some 12 images. This witness was also shown the CCTV images. On 6 April he too had

identified the appellant at a VIPER parade.

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[5] PC MR spoke to arriving at Farmfoods and being given the name of the appellant.

The appellant lived less than half a mile away. The police went to his home. A knife was

recovered from the kitchen area, sitting on a draining board at the sink. The officer was not

able to identify the appellant from the CCTV images. He was able to do so from the clothing

of the person shown and that recovered at the appellant’s house, together with the

appellant’s direction of travel. The knife had the same kind of blue coloured handle as

shown in the images. PC SM gave evidence about attending at the appellant’s flat after the

incident and recovering the knife.

[6] In his charge to the jury, the sheriff referred to the CCTV images. He described them

as part of the evidence in the case. He continued:

“The thing to remember is this: you’re here as judges not witnesses. You form a

judgement about what the disc shows just as you form a judgement about the eye-

witnesses’ descriptions of what happened in Farmfoods.

Just because you’ve seen a record of the events made on disc ... doesn’t mean

that you become a witness to these events yourselves. You have to stand apart from

these events and form your own conclusions about the disc, the CCTV evidence

we’ve seen played on disc.

Witnesses have told you about the disc showing what it shows concerning

the commission of the crime. You have to decide if the witnesses’ interpretation of

what the disc shows is correct. You have to decide what the CCTV shows and if it

supports proof of the crime charged. You can take account of what it has been said it

shows but you are not bound by the views you have heard. So at the end of the day

you judge the CCTV evidence just as you judge all the other witnesses you heard in

this case”.

[7] After the jury had retired, they returned to ask whether they could see the CCTV

images of the assailant “showing the knife in close up”. The sheriff, having consulted

parties, told the jury that there was no closer image than the size of that shown to them

previously. The jury wanted to see, in particular, “the blue bit”; presumably the knife. The

video was then played and stopped at an appropriate point. The jury were permitted to

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leave the jury box and to approach the screen for the purposes of obtaining a closer view.

They then retired again before returning a unanimous guilty verdict.

[8] The ground of appeal was that the sheriff had erred in not giving the jury an

additional direction about how to treat the video images. He had failed to direct them that

the evidential weight to be attached to them could only be to support or undermine the

testimony of the witnesses and not as “stand alone evidence”. In submissions, however,

there was no criticism of the sheriff’s directions as a generality. Rather, the complaint came

to be that he ought to have re-directed the jury, following upon their question, to ensure that

their purpose was only one of testing the account given “by the footage, and not to attempt

to reconcile themselves as to what is demonstrated”. The actions of the jury suggested that

they had adopted an investigatory role, despite having been told not to do this.

[9] The Crown’s Case and Argument had been that the jury had to be guided by

evidence from witnesses (Steele, Donnelly). Identification of the appellant, by reference to the

video images, had not been a live issue in this case. The jury were properly allowed to make

up their own minds about what the video images showed. The images had been played

again in the presence of the appellant and under control of the court. There was no objection

to this. No additional directions were sought or required.

[10] The court is satisfied that there was no need for the sheriff to repeat what he had

already said to the jury about the video images. The jury did not ask for further directions.

All they wanted to do was to review a particular part of the video recording. They were

permitted to do that without objection. In any event, for the reasons in Gubinas v HM

Advocate (supra), the court is satisfied that there was no material misdirection.

[11] The appeal is accordingly refused.