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You are here: BAILII >> Databases >> Scottish High Court of Justiciary Decisons >> GUBINAS & Anor v HER MAJESTY'S ADVOCATE, NOTE OF APPEAL AGAINST CONVICTION BY [2017] ScotHC HCJAC_59 (08 August 2017))
URL: http://www.bailii.org/scot/cases/ScotHC/2017/HCJAC_59.html
Cite as: 2017 SLT 1017, 2017 GWD 26-431, [2017] ScotHC HCJAC_59, 2017 SCL 828, 2018 JC 45, [2017] HCJAC 59, 2017 SCCR 463
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APPEAL COURT, HIGH COURT OF JUSTICIARY
Lord Justice General
Lord Justice Clerk
Lord Menzies
Lord Brodie
Lord Turnbull
[2017] HCJAC 59
HCA/2016/290/XC and HCA/2016/286/XC
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, Peterhead
Appellant (Radavicius): Duguid QC, Hughes; Faculty Services Ltd (for Adam & 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
[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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“You are here as judges ... and not as witnesses so you form a judgement about what
the footage shows, just as you would form a judgement about eye witnesses’
descriptions of what has happened otherwise. ... just because you have seen a record
of the events made on the phone at the time or through the CCTV cameras at [the
nightclub], you do not somehow become witnesses to these events yourselves. You
stand back from what is depicted on the screen so far as this video evidence and
CCTV footage is concerned, and you form your own conclusions about what it
depicts.
... [W]e have had witnesses who have given in their evidence descriptions of
what they say the phone film footage shows. [RD] did that. DC [WR] was asked for
her views about what she thought it showed. You have to determine if their
interpretation of what the footage shows as happening is correct. You have to decide
what the footage shows and if it supports proof of the crime charged.
... [Y]ou can take into account what witnesses have said it showed, but you
are not bound by their views. You must form your own views about what this video
footage depicts and what inferences you can draw from it, such as whether or not the
acts depicted were consensual on the part of [RD].
You’ve heard conflicting interpretations about what the video evidence
shows. In assessing that evidence, you’ll have to decide which view you prefer just
as you’ll decide between conflicting accounts by eye witnesses in any other aspects of
the evidence in the case.
... [A]s I have been saying, in general you could form your own view about
what the video evidence depicts, but the identification of a person depicted in the
video or CCTV footage must come from a witness and, in that situation, you would
have to decide if the witness’s identification of the person said to be participating in
the footage is correct.
And so far as reasonable belief is concerned, then, again, the starting point for
you is RD’s evidence. You’ll have to take into account what she said about the video
footage taken by the phone depicts. You’ll remember her comment ‘appearances can
be deceptive’. Her position was that what we see on the video is a person not
knowing what she’s doing, so you’ll have to take that into account in this regard.”
[9] After the jury had been secluded, they requested a further viewing of the video;
notably that part which allegedly showed a gesture. This was permitted in the court room,
in the presence of the judge, clerk and video operator.
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Submissions
First appellant
[10] Under reference to Bowie v Tudhope 1986 SCCR 205, Steele v HM Advocate 1992 JC 1,
maintained that, although the law was not clear, certain broad principles could be
understood. Finders of fact were not entitled to make identifications of accused persons
simply by viewing video images. There had to be testimony from witnesses. Apart from
that, fact finders could form a view of what the images showed. Because jurors were not
witnesses, that view could not be translated into evidence. Even relatively innocuous parts
of what was shown were not evidence, but were inextricably bound to, and defined by, the
testimony given.
[11] Real evidence required to be spoken to (Hogg v Clark 1959 JC 7, Patterson v Howdle
1999 JC 56). This was not the same in other jurisdictions, where the fact finders could draw
their own conclusions from what could be seen (eg Bryant: Law of Evidence in Canada (3rd ed)
paras 2.13 et seq; Hoffman: South African Law of Evidence (2nd ed) 285-6; May Criminal Evidence
(6th ed) para 2-33). The images spoke for themselves and should be shown without
comment, since it was for the jury to decide what they revealed (R v Dodson [1984] 1 WLR
971; R v Downey [1995] 1 Cr App R 547). The approach in England had been codified in
Attorney General’s Reference (No. 2 of 2002) [2003] 1 Cr App R 21 (p 321), but this was far
removed from Scots law because of the different approach to real evidence.
[12] The Australian position (Smith v R [2001] 206 CLR 650) was not to permit testimony
to be given by the police about what a video recording showed, since the jury could do that
themselves. In Canada (R v Nikolovski [1996] 3 SCR 1197) a video recording was regarded as
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real evidence and the court could decide what it showed. In New Zealand (R v Howe
[1982] 1 NZLR 618), a commentary by the police was regarded as a legitimate aid for the jury.
[13] In this case, the jury had asked to view the mobile images, notably the gesture part,
as part of their deliberations. The recording was of importance. The trial judge’s directions
had been confusing and, in so far as they permitted the jury to decide for themselves what
was shown, wrong in law. A jury could not be invited to consider a production or a label
without relative testimony. Although the jury could use what they made of the images in
assessing that testimony, their views could not be used in substitution for those of the
witnesses. Where the jury’s view differed from the testimony, that view required to be set
aside. It could not be used to prove fact.
[14] If fact finders were entitled to consider what video images showed, that would
amount to one source of evidence. At present, a number of witnesses could look at the
images and, if their evidence coincided, this would provide corroborative testimony. If the
images were “self proving”, that would be a change in the law which ought to be considered
by the Scottish Law Commission. In terms of section 283 of the Criminal Procedure
(Scotland) Act 1995, the time and place of CCTV images could be certified. The images
would then enable the fact finder to determine the essential facts, without supporting
testimony which could be tested by cross-examination. In that event, parties ought to be
allowed to object to the images as lacking a sufficient baseline quality to allow such a
determination.
[15] The basis of the jury’s verdict would not be known if images were self proving. It
would not be possible to ascertain the reason for the jury identifying the accused as the
perpetrator. The jury could not be cross-examined. Section 97D of the 1995 Act, which
provided that a judge could not sustain a submission that no reasonable jury could convict
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on the basis of the evidence led, would restrict the circumstances in which a “no case to
answer” submission could be made.
[16] There were three possible outcomes. First, the law as explained in Steele v HM
Advocate (supra) was correct and there was a discretion vested in the trial judge to direct the
jury that they were bound by the descriptions provided in testimony. Secondly, the first
appellant’s submissions were correct and the jury could only base their verdict on such
testimony. In either event, the appeal had to be sustained. Thirdly, the jury did not need to
pay any heed to testimony, or to choose between conflicting accounts given by the
witnesses, as to what video images showed. At present, the model jury directions, which
had been adopted by the trial judge, encompassed all three possibilities. They constituted a
misdirection. A material miscarriage of justice had resulted.
Second appellant
[17] The second appellant contended that the law was soundly set out in Steele v HM
Advocate (supra) and had been followed in Donnelly v HM Advocate (supra) and HM Advocate
v Ronald (No. 2) (supra)). There was no general principle applying to video images.
However, a jury could only proceed on the evidence. In so far as essentials such as place,
time, identity and the crime were concerned, a jury could not speculate upon matters which
had not been the subject of testimony. In this case the correct interpretation of the mobile
images had been disputed. The trial judge’s directions were conflicting, contradictory and,
in part, erroneous. The erroneous part was where the jury had been told that they could
form their own views on what the images demonstrated. Such a direction should not be
given where: (a) identification was an issue; (b) there was a need for expertise to understand
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what was shown; or (c) there was a substantial dispute in the testimony about what was
shown.
[18] The approach in England and Wales (Attorney General’s Reference (No. 2 of 2002)
(supra); R v Downey (supra); and R v Shanmugarajah [2015] 2 Cr App R 14 (p 215)) was
substantially different. Were such an approach to be adopted in Scotland, substantial
safeguards, along the lines of the direction given in eye-witness identification cases (R v
Turnbull [1977] QB 224; Code of Practice D), would be needed.
[19] Any alteration of the law, as set out in Steele, would change some fundamental
tenets; notably that jurors were judges and not witnesses. If the jury were entitled to
determine what video images showed for themselves, no “no case to answer” submission
could be upheld.
The Crown
[20] The written Case and Argument for the Crown set out what were said to be the
principles in Steele v HM Advocate (supra), viz.: a jury required to proceed only on the
evidence; a judge could direct the jury that they could be guided only by testimony of what
video images showed; and it was undesirable to replay recordings when testimony could
highlight the points shown more effectively. The purpose of leading witnesses to speak to
the content of video images was: to prove their provenance, the identity of participants and
what had occurred; to direct the jury to relevant parts; and to prevent the jury from
speculating. Otherwise, if no expertise was required, the jury could assess the content of a
video for themselves.
[21] Contrary dicta could be found in Gray v HM Advocate (supra) but, as observed in Hunt
v Aitken (supra), Gray had proceeded upon a concession and was of little value as a
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precedent. Donnelly v HM Advocate (supra) was about identification and thus
distinguishable. There could be circumstances in which a judge should direct a jury that
they could not assess the content of video images, such as where that would involve
speculation, but generally a jury was free to assess content. In Singh v HM Advocate 2013
SCCR 337, leave to add a new ground of appeal, which alleged a misdirection to the effect
that a jury could reject testimony on the basis of what they thought a video showed, was
refused. The law was clear. A jury was not entitled to make a comparison between video
images and the accused as he or she appeared in court. The jury had to be guided by the
testimony of witnesses who were familiar with the accused (Bowie v Tudhope 1986 SCCR 205;
Robertson v Docherty 2011 SCCR 123).
[22] A warning in relation to the dangers of identification evidence was required (McAvoy
v HM Advocate 1991 JC 16 at 26). Identification had not been a live issue in this case. The
mobile images were shown as evidence of the crime. No expertise was required to
understand what the images showed. The jury had been entitled to make up their own
minds. In any event, no miscarriage of justice had occurred. The jury had been directed that
they could only convict if they accepted the complainer as credible and reliable.
[23] The Case and Argument did not seek to advance any propositions in relation to the
development of the law or to analyse any of the Commonwealth cases upon which the court
sought guidance. However, in oral submission, the advocate depute acknowledged the
direction of travel in the cases from England. In Clare and Peach [1995] 2 Cr App R 333,
Taylor LCJ (at 339) had made reference to the need for “evidential practice to evolve to
accommodate unfamiliar material.” Ultimately, the advocate depute, in response to some
probing by the court, submitted that a jury should be entitled to make up their own minds
on what video images showed, subject to a direction not to speculate in that exercise. This
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included the identification of participants. There ought to be no distinction between
identifying persons seen in the images and determining what events were shown.
Precedent
[24] In delivering the earlier Opinion of the Court (supra), the Lord Justice Clerk observed
(at para [26]) that the circumstances in which a jury may examine for themselves the content
of a video recording are ill-defined.
Scotland
[25] Twenty five years ago, in Steele v HM Advocate 1992 JC 1, there was evidence of
surveillance video recordings; the nature or relevance of which is not clear from the Opinion
of the Court. The sheriff had directed the jury that:
“... you cannot make, draw any conclusions yourselves from your viewing of the
video tape and you must be guided by the evidence of the witnesses as to what they
believe that they saw on the tape ... [T]his is purely a question of whether you accept
the evidence of these witnesses or not and ... where there may be ... a conflict of
evidence as to what they saw, it is really a matter for you to decide which evidence
you accept and which evidence you don’t accept, but you are not entitled ... to
become witnesses in the case because ... you haven’t been put on oath”.
The argument for the appellant was that the video was the best evidence and the jury were
entitled to form their own view as to what it showed. The Crown had argued that there had
to be testimony from witnesses. The jury’s function was limited to whether or not to believe
what the witnesses said.
[26] The court approached the matter as one of practicality rather than principle. The
Lord Justice General (Hope), delivering the Opinion of the Court, referred to the “rule” that
the jury must proceed “only on the evidence” and continued (at 5):
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“for this reason evidence will almost always be required to speak to such essential
details as place and time and the identity of persons or things shown on the
recording”.
He placed reliance on the view expressed in Hopes and Lavery v HM Advocate 1960 JC 104
(LJG (Clyde) at 111) about the undesirability of repeated replays in the court or jury room.
Hopes and Lavery concerned a tape recorded (bugged) conversation which had been
transcribed by a stenographer.
[27] The Lord Justice General in Steele continued (at 5):
“So it is likely to be of advantage for the witnesses to be asked to give their own
opinions as to what is being shown on the tape in order that the jury’s minds can be
directed to the relevant points while the tape is being played. But, except in cases
where some particular expertise is required to understand what is going on, the jury
are free to make up their own minds about what the tape reveals. It is not necessary
for them to be provided with a running commentary on every detail.”
The somewhat confusing conclusion was that the sheriff’s direction was not “accurate as a
statement of principle” even if it “may well have been appropriate”.
licence was shown to witnesses who had not been present. They had identified the accused,
having seen him earlier in the day. The issue was whether the trial judge had erred in
refusing a request from the jury to see the recording again during their deliberations. The
judge had wrongly held that this was incompetent, but, the court held, he had nevertheless
correctly refused the application because the “real issue” was the quality of the identification
evidence given by the witnesses rather than that of the video recording. The Lord Justice
General (Rodger), in delivering the Opinion of the Court said (at 26), that it was “common
ground” that the jury were not permitted to view the video and to decide for themselves
whether they could identify the appellant. The video could only be used to assist in the
assessment of the evidence of identification from witnesses.
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[29] Donnelly v HM Advocate 2000 SCCR 861 concerned the murder of a woman in Central
Glasgow. She had been wearing a black jacket when she had met the appellant, who was
jacketless. The jacket was never recovered, but a photograph, which had been in it, had
been found in a loading bay in Bath Street. There were CCTV images at the relevant time of
a man wearing a black jacket walking from the locus along Bath Street. The accused had not
been identified from these images. However, the trial judge mentioned the images in his
charge as showing a young man in a dark jacket. The argument, which was sustained, was
that, if the jury had identified the appellant as the young man from their own assessment of
the images, and had held that he had been wearing the deceased’s jacket, that would have
been “a very serious matter for the appellant’s defence” (at 869).
[30] Lord Allanbridge, delivering the Opinion of the Court (at 871), endorsed the earlier
view expressed by the Lord Justice Clerk (Cullen) (at 867, following Gray) that the jury were
not entitled to decide for themselves whether they could identify the appellant from the
images. Under reference to the dictum in Steele (supra), he said (at 871):
“These observations support the view that a jury cannot decide for themselves the
identity of a person shown on a video recording”.
The court held that it had been an error to have allowed the jury to speculate on the identity
of the man shown in Bath Street.
Falkirk town centre. The Crown had served certificates under section 283(1) of the Criminal
Procedure (Scotland) Act 1995. This permits an operator of a video surveillance system to
certify that images recorded on the system are of events at a particular place and time. The
certificate becomes sufficient evidence of these matters. The certificates were productions,
but no mention was made of them prior to the close of the Crown case. The images were not
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shown to the complainer, who had identified the appellant as the red shirted man who had
attacked him. Police officers spoke to having obtained excerpts from the system which
showed the assault. They were able to speak to the locus and said that the images showed
the assault. They identified the appellant as the red shirted assailant. The court held that
the certificates were not evidence unless they were brought to the jury’s attention. The court
was of the view that this left the evidence “barely” sufficient, but that the jury had been
entitled to hold that the images did show the assault and were thus corroborative of the
complainer’s evidence of identity.
images of sexual activity involving a complainer, taken by the accused on his mobile phone.
During the course of his interview, the police put to the appellant that, in the view of one
officer, the images showed that the complainer had been asleep or unconscious at the
relevant time, since there was no noise recorded. This prompted the appellant to admit that
the complainer had probably been asleep. It was argued that this admission had been
unfairly obtained, since the officer’s view would itself have been inadmissible. The judge at
first instance (Lord Hodge) repelled this objection. He was (at para [15]) not satisfied that
there is a rule of law that renders inadmissible evidence from a witness of his or her
understanding of what a video shows, even if what was shown addressed the principal
issue for the jury. In so doing, he relied on the comments in Steele v HM Advocate (supra) that
it was advantageous for witnesses to express their own opinions on what a tape showed.
[33] In Henry v HM Advocate 2012 SCCR 768, the appellant had taken an objection, as a
preliminary issue, to police officers, who had not known the appellant prior to his arrest,
testifying that he was the masked raider of a shop in Cumbernauld. Lord Pentland repelled
the objection, but in doing so (see para [10] 8) left open the possibility that such an objection
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could be sustained if unfairness would inevitably arise from this type of evidence. Lord
Brodie, delivering the Opinion of the Court (at para [19]), agreed but qualified that by saying
that the “supposed inadequacy of the evidence would have to be capable of being very
clearly demonstrated” given that the assessment of the quality of the evidence was a matter
for the jury. It would only be in an “extreme” case that such an objection would be upheld.
[34] Finally, Singh v HM Advocate 2013 SCCR 337 involved a conviction of raping a
woman in a doorway in central Glasgow. The court refused to allow a Note of Appeal to be
amended by adding a new ground that the trial judge had erred in directing a jury that they
required both to consider the testimony about what CCTV images revealed and to form their
own judgment as to what was shown in the images. The complainer had testified to the
content of the images, the provenance of which had been agreed. The Lord Justice Clerk
(Carloway), delivering the Opinion of the Court, observed (at para [7]) that the judge had
correctly told the jury that it was the testimony of what the CCTV images showed that they
had to consider, albeit that, in carrying out that exercise, they were entitled to take into
account what the images appeared to show.
[35] These solemn cases have resulted in a form of direction, currently enshrined in the
Jury Manual (35.2/123) as follows:
“You are here as judges, not as witnesses. You form a judgement about what this
video tape shows, just as you form a judgement about eye-witnesses’ descriptions of
what happened. Just because you have seen a record of events made on video at the
time they took place, you do not become witnesses to these events yourselves. You
stand apart from these events, and form your own conclusions about the video
evidence.”
These sentences may not be very helpful. The directions go on as follows:
“Where video relied on as proof of the commission of crime
‘Witnesses have told you about what this video shows concerning the commission of
the crime charged. You have to decide if their interpretation of what the tape shows
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as happening is correct. You have to decide what the tape shows and if it supports
proof of the crime charged. You can take into account what they said it showed, but
you’re not bound by their views. (Where witnesses give conflicting interpretations
add) – Here you’ve heard conflicting interpretations on what the video shows.
You’ll have to decide which view you prefer, just as you’ll decide between
conflicting accounts given by eye-witnesses.’
Where video relied on as proof of identification
‘Very often because of the quality of the video, it would be difficult for you to
conclude that it was the accused who was participating in the events it showed. In
such cases you cannot make an identification yourselves of the accused from the
video. The identification of a person must come from a witness. You have to decide
if the witnesses’ identification of the accused as participating in the commission of
the crime is correct. You will want to consider whether the witnesses and the
accused were strangers to one another, how recently they had seen one another, how
well acquainted they were with each other or in general the circumstances under
which the identification was made.’
Where quality of video is challenged
‘Here the defence challenge the quality of the footage. It is said that it is so poor that
the witnesses’ evidence about identification/what the tape shows is happening is not
reliable. You have to consider the quality of the tape in assessing the reliability of
this evidence, but you cannot make your own independent judgement of who or
what is shown on the tape.’”
[36] As with the cases, there appear to be two strands or approaches being illustrated, but
which may be seen as pulling against each other. The first is that the jury can “form [their]
own conclusions about the video evidence”. That would entitle the jury to decide that the
video shows an event or a person not mentioned or even contradicted, by the testimony of
the witnesses. The second is that they can only use the video in gauging the acceptability of
oral testimony; at least where the video is not clear.
[37] Two summary cases fall to be noticed. First, in Bowie v Tudhope 1986 SCCR 205, the
principle that a police officer, who knew the accused, was entitled to identify him having
viewed video images taken at the scene of a robbery, was (following R v Fowden & White
[1982] Crim LR 588) endorsed. It is of some note that the sheriff (but not the court), in
considering Fowden & White, observed (at 207) that reliance on the police identification was
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legitimate as it prevented the jury from speculating about identity by comparing the images
with the accused in court.
[38] The second is the Scottish Criminal Cases Review Commission reference in Hunt v
Aitken 2008 SCCR 919. Despite his plea of self-defence, the appellant had been convicted of
assaulting a neighbour. The complainer’s wife had been driving down a disputed road,
which ran through the appellant’s garden. The complainer was at the locus. As he walked
back to his own house, the appellant punched him. The Crown had adduced the appellant’s
wife as a witness. She had said that she had looked out of a window and had seen the
complainer elbowing the appellant, and the appellant reacting to that by punching him. In
cross-examination, the appellant put a photograph to the appellant’s wife, upon which an
“x” had marked the locus of the punch. This was about 15 metres from the window.
Contrary to the appellant’s wife’s testimony that she had had a clear view, the Justice of the
Peace, upon examining the photograph, did not consider it possible that she could have seen
the incident as the view would have been obscured by outbuildings.
[39] The reference was on the basis that the JP had not been entitled to draw his own
conclusion from the photograph “in private”. In delivering the Opinion of the Court and
refusing the appeal, Lord Reed drew attention to the distinction between hearing or taking
evidence and assessing it. The submission for the appellant, based on Gray v HM Advocate
(supra), that the JP had turned himself into a witness was rejected. Lord Reed noted (at
para [16]) that, as Gray had proceeded upon a concession, it was of “little value as a
precedent”. The JP had, “rather like the jury in ... Gray” been entitled to look at the
photograph in order to test the witness’s testimony. Most important, the court endorsed the
sentence in Steele v HM Advocate (supra) that, except where expertise was needed, “the jury
are free to make up their own minds about what the tape reveals”.
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[40] As is often the case, it is instructive to look at how this matter is approached in other
jurisdictions, especially those which use a jury in a similar way to that in Scotland.
England and Wales
[41] In England and Wales, the issue had been raised in a number of cases in the 1980s
and 1990s. R v Fowden & White (supra) has already been noticed. In R v Dodson [1984] 1
WLR 971, security cameras at the scene of a building society robbery had taken photographs
at half second intervals. These were developed and enlarged. They “plainly” showed the
robbers, who were originally from Guyana and Jamaica. One of them admitted to the police
that he was shown in the photographs. The other accepted that he had participated in the
robbery. The jury were provided with copies of the photographs. The jury were, the Court
of Appeal noted (Watkins LJ at 975), able to compare them both to the accused in court over
the 12 days of trial and to photographs of the accused at the time of their arrests. The
appellants’ argument was that this was worse than dock identification. Foreshadowing the
first appellant’s submissions, it was said that the jurors could not be cross-examined and it
would not be possible to tell what the basis for their verdicts might be. The court was
content (at 978-979) that the jury could carry out this comparison since it involved no special
training or expertise. The jurors were doing no more than an average person did in
domestic, social or other situations. They would, however, require to be warned of the
relevant perils, notably those arising from the quality of the photographs.
[42] Ten years later, in R v Downey [1994] 1 Cr App R 547, a still from a video recording of
a stocking masked petrol station robber was shown to the jury. The jury were directed that
they could compare the still with a photograph of the accused taken at the time of his arrest
and with his appearance in court. The complaint on appeal concerned the absence of a
Page 18 ⇓
18
direction on the need for a special warning, as had been given in R v Dodson (supra).
However, the Court of Appeal (Evans LJ at 555) distinguished the situation from that where
a witness identified a person based on his recognition of the accused as the person he had
seen at the time, since experience demonstrated fallibility in that regard. The same principle
applied, the court said, to the need for corroboration (at that time) in sexual offence cases.
Evans LJ continued:
“In both kinds of situations, the jury is cautioned against accepting too readily the
evidence of a witness whom they have heard. Inviting the jury to consider whether
the person shown in a photograph is the defendant who has appeared before them is
a different process.”
Any difficulties, he added (at 556), such as the quality of the photograph, would be obvious
to any layman.
[43] The authorities were reviewed by the Court of Appeal in Attorney General’s Reference
(No. 2 of 2002) [2003] 1 Cr App R 21 (p 321). This prosecution had involved police officers
identifying rioters from video film. One officer had known the appellant, but the trial judge
had ruled his evidence to be inadmissible as he had no specific skills beyond those of the
jury, albeit that he had studied the film under controlled conditions. The subsequent ruling
was that there was then an insufficiency of evidence. The Court (Rose LJ, delivering the
Opinion of the Court, at para 19) concluded that:
“... there are at least four circumstances in which, subject to the judicial discretion to
exclude, evidence is admissible to show and, subject to appropriate directions in the
summing-up, a jury can be invited to conclude, that the defendant committed the
offence on the basis of a photographic image from the scene of the crime:
(i) where the photographic image is sufficiently clear, the jury can
compare it with the defendant sitting in the dock [R v] Dodson [(supra)];
(ii) where a witness knows the defendant sufficiently well to recognise
him as the offender depicted in the photographic image, he can give evidence
([R v] Fowden ... [(supra)] ...; and this may be so even if the photographic
image was no longer available for the jury (Taylor v Chief Constable of Chester
[(1987) 84 Cr App R 191]);
Page 19 ⇓
19
(iii) where a witness who does not know the defendant spends time
viewing and analysing the photographic images from the scene, thereby
acquiring special knowledge that the jury does not have, he can give evidence
of identification based on a comparison between those images and a
reasonably contemporary photograph of the defendant, provided that the
images and the contemporary photograph are available for the jury (R v Clare
and Peach [(supra)];
(iv) a suitably qualified expert with facial mapping skills can give opinion
evidence of identification based on a comparison between images from the
scene, (whether expertly enhanced or not) and a reasonably contemporary
photograph of the defendant, provided the images and the photograph are
available to the jury ...”.
[44] Where, in England and Wales, a jury is invited to compare a photograph with the
accused in court, they may require to be directed on the dangers of doing so, whether or not
there is supporting testimony, but this depends upon the facts. In R v Shanmugarajah
[2015] 2 Cr App R 14 (p 215), there was no witness identification of the accused as one of a group of
men, caught on CCTV recording attacking a woman at night in a railway station. The jury
were invited to compare the accused with a still from the recording. No warning of the
dangers of identification was given, although the trial judge did direct the jury to bear in
mind the quality and clarity of the photography. The appeal was refused. The court, Hallett
LJ at para 9, following R v Downey (supra), said:
“... the approach and analysis in Downey is correct. There is no invariable or
inflexible rule that a jury have to be expressly warned in every case of the risk that
they might make a mistaken identification. As Watkins LJ pointed out [in R v Dodson
(supra)], and as the court approved in [R v] Downey [(supra)], the task that the jury are
being asked to perform is a perfectly straightforward one, and it is a statement of the
obvious to direct the jury that they must be careful and that they must bear very
much in mind all the kinds of warnings that [counsel for the appellant] has insisted
should be given. Modern practice in these courts is not to require trial judges to
direct the jury as to the obvious ...”.
Ireland
[45] In Ireland, the issue of video evidence for the purposes of identification was
Page 20 ⇓
20
considered in People (DPP) v Maguire [1995] 2 IR 286. The accused had been convicted on the
basis of video images of a robbery and stills taken from them. There had been no other
evidence of identification. The appeal succeeded on the basis of inadequate directions rather
than insufficiency. Barron J, delivering the Opinion of the Court of Criminal Appeal, noted
(at 288) that it was common to ask a jury to identify an accused from film and stills taken of
a crime. He referred to three situations in which video evidence could be used: (1) to bolster
or undermine the testimony of a witness purporting to identify the accused; (2) to allow
persons who are known to have seen the accused, but who were not at the scene, to identify
the person in the video images; and (3) to allow persons, such as police officers, to compare
the image of the miscreant to that of the accused. He continued (at 290):
“Even though the evidence of the video film is admissible, nevertheless the usual
and proper warnings required in relation to evidence of identification must be given
to the jury. It must be made clear to the jury also that its function is to assess the
credibility of the witnesses and that, only where there is no independent evidence of
identification, should it seek to form its own view of the identity of the accused.
When it is proper for it do so, it may use such view together with its view as to the
rest of the evidence in making its decision. Such direction must also make it clear to
the jury that before it can convict it must be satisfied that the person in the dock is
the person shown on the film.
Whichever way the video is used, the role of the jury is not primarily to
decide on its own view of identity, but to decide whether the evidence which it has
heard is credible. In so doing, it must have regard to the video evidence, but in the
same way as it has regard to maps, photographs, drawings etc. Its role is similar to
that of a jury brought to the scene of a crime. It is not brought so that it can decide
for itself whether some action was or was not possible, but to decide whether the
evidence of a witness giving evidence that it was or was not, as the case may be,
should be accepted as credible.
...
It is clearly unsatisfactory to ask a jury to identify an accused from a video
film without adducing any evidence in support of such identification. There may be
cases where no one can be found who can or who is prepared to come to court to
identify an accused. In such cases, where the trial judge is satisfied that no such
evidence is available, then the matter can be left to the jury. That appears to have
been the case here. There was apparently no evidence to identify the applicant as
one of the two persons shown on the video film.”
Page 21 ⇓
21
The preferred route is then to use the video as an accessory to testimony, but a jury could
convict (or acquit) on the basis of their own view of what, or rather who, the video showed,
provided that adequate warnings, along the lines of those given in eye-witness identification
cases, are given and there is no alternative to doing so (see also People (DPP) v Allen [2003] 4
IR 295).
Canada
[46] In Canada, the issue was addressed comprehensively by the Supreme Court in R v
Nikolovski [1996] 3 RCS 1197. This was a videoed robbery in which the employee was unable
to identify the robber in court. A police officer, who knew the accused, testified that the
accused’s appearance in court differed from that at the time of his arrest. The trial judge
took the view that the video was sufficiently clear to allow her to conclude that the robber
was the accused and found him guilty. The Court of Appeal quashed the conviction on the
basis that the trial judge ought not to have relied solely on her own comparison of the video
images and the accused in court. The Supreme Court, by a majority of 7-2, reinstated the
verdict at first instance.
[47] The Opinion of the majority, contained in a judgment delivered by Cory J, is worth
repeating at length:
“14 With the progress of scientific studies and advances in technology, evidence
put forward particularly as to identification has changed over the years. The
admission of new types of evidence is often resisted at first and yet, later accepted as
commonplace and essential to the task of truth finding.
...
15 It may be helpful to consider the evolution of the use of audio and video tape
evidence in Canada. In R v Pleich (1980), 55 C.C.C. (2d) 13, at p 32, the Court of
Appeal for Ontario recognized that tape recordings are real evidence that had, as
well, many of the characteristics of testimonial evidence. In R v Rowbotham (1988), 41
C.C.C. (3d) 1, the use of audio tapes was considered by the same court. It found that
Page 22 ⇓
22
it was the tapes themselves that constituted the evidence which should be considered
by the jury.
...
17 The admission of videotapes as evidence seems to be a natural progression
from audio tapes. In R v B (KG), [1993] 1 S.C.R. 740, at pp 768 and 774, this Court
praised the evidence obtained from videotapes as a ‘milestone’ contributing to the
‘triumph of a principled analysis over a set of ossified judicially created categories’.
In R v Leaney, [1989] 2 S.C.R. 393, the main identification evidence against the
accused was a videotape of the crime in progress and the testimony of five police
officers. Although this Court held that the evidence of four of the police officers
ought to have been excluded, it upheld the conviction of Leaney on the basis of the
trial judge’s own observations of the videotape and his comparison of the tape to the
accused in the box. ...
18 Similarly in R v L (DO), [1993] 4 S.C.R. 419, L’Heureux-Dubé J, in concurring
reasons, noted that the modern trend had been to admit all relevant and probative
evidence and allow the trier of fact to determine the weight which should be given to
that evidence, in order to arrive at a just result. She observed that this is most likely
to be achieved when the decision makers have all the relevant probative information
before them.
...
20 It cannot be forgotten that a robbery can be a terrifying traumatic event for
the victim and witnesses. Not every witness can have the fictional James Bond’s cool
and unflinching ability to act and observe in the face of flying bullets and flashing
knives. Even Bond might have difficulty accurately describing his would be
assassin. He certainly might earnestly desire his attacker’s conviction and be biased
in that direction.
21 The video camera on the other hand is never subject to stress. Through
tumultuous events it continues to record accurately and dispassionately all that
comes before it. Although silent, it remains a constant, unbiased witness with instant
and total recall of all that it observed. The trier of fact may review the evidence of
this silent witness as often as desired. The tape may be stopped and studied at a
critical juncture.
22 So long as the videotape is of good quality and gives a clear picture of events
and the perpetrator, it may provide the best evidence of the identity of the
perpetrator. It is relevant and admissible evidence that can by itself be cogent and
convincing evidence on the issue of identity. Indeed, it may be the only evidence
available. For example, in the course of a robbery, every eyewitness may be killed
yet the video camera will steadfastly continue to impassively record the robbery and
the actions of the robbers. Should a trier of fact be denied the use of the videotape
because there is no intermediary in the form of a human witness to make some
identification of the accused? Such a conclusion would be contrary to common sense
and a totally unacceptable result. It would deny the trier of fact the use of clear,
accurate and convincing evidence readily available by modern technology. The
powerful and probative record provided by the videotape should not be excluded
Page 23 ⇓
23
when it can provide such valuable assistance in the search for truth. In the course of
their deliberations, triers of fact will make their assessment of the weight that should
be accorded the evidence of the videotape just as they assess the weight of the
evidence given by viva voce testimony.
23 It is precisely because videotape evidence can present such very clear and
convincing evidence of identification that triers of fact can use it as the sole basis for
the identification of the accused before them as the perpetrator of the crime. It is
clear that a trier of fact may, despite all the potential frailties, find an accused guilty
beyond a reasonable doubt on the basis of the testimony of a single eyewitness. It
follows that the same result may be reached with even greater certainty upon the
basis of good quality video evidence. Surely, if a jury had only the videotape and the
accused before them, they would be at liberty to find that the accused they see in the
box was the person shown in the videotape at the scene of the crime committing the
offence. If an appellate court, upon a review of the tape, is satisfied that it is of
sufficient clarity and quality that it would be reasonable for the trier of fact to
identify the accused as the person in the tape beyond any reasonable doubt then that
decision should not be disturbed. Similarly, a judge sitting alone can identify the
accused as the person depicted in the videotape.”
[48] The court considered some of the cases from England and Wales, notably R v Dodson
(supra) and R v Downey (supra), before looking at an interesting passage, relating to the
position in the United States of America, in Wigmore: Evidence (vol 3, rev. ed 1970, para 790).
This contained an advance on the previous position that a photograph was only admissible
as an adjunct to the testimony of a witness. Wigmore recognised that:
“once there is an adequate assurance of the accuracy of the process producing the
picture, the photograph should be received as a so called silent witness or a witness
which ‘speaks for itself’.”
Cory J continued:
“28 Once it is established that a videotape has not been altered or changed, and
that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
Not only is the tape (or photograph) real evidence in the sense that that term has
been used in earlier cases, but it is to a certain extent, testimonial evidence as well. It
can and should be used by a trier of fact in determining whether a crime has been
committed and whether the accused before the court committed the crime. It may
indeed be a silent, trustworthy, unemotional, unbiased and accurate witness who has
complete and instant recall of events. It may provide such strong and convincing
evidence that of itself it will demonstrate clearly either the innocence or guilt of the
accused.
Page 24 ⇓
24
...
31 The jury or trial judge sitting alone must be able to review the videotape
during their deliberations.”
The fact finder can thus draw his or her own conclusions from a video, whether in relation
to events or identity, without the need for a witness to describe what is shown in the relative
images (see also eg R v Delorme 2017 SKCA 3, citing (at paras [37-40]) R v Nikolovski (supra)
and R v Benson 2015 ONCA 827 and R v Turpin 2011 ONCA 193).
Australia
[49] In Smith v R [2001] 206 CR 650, the High Court considered an appeal concerning the
admissibility of the testimony of police officers who identified the accused, whom they
knew, from security photographs taken at a bank robbery. The majority regarded the
evidence of the police as irrelevant because they were in no better a position to identify the
accused from the photographs than the jury, or any member of the public. In this regard, it
was not suggested that the accused’s appearance in court differed from that at the time or
that the police officer’s knowledge of his appearance gave them an advantage. In an
interesting concurring opinion, Kirby J expressed the view that, although the majority’s
reasoning was wrong, the officers’ testimony was inadmissible as being evidence of opinion
and incapable of proving the facts underlying it.
New Zealand
[50] In R v Howe [1982] 1 NZLR 618 a police officer provided a commentary to a series of
photographs of a riot. He identified accused persons in the course of that exercise. It was
held (at 627) that the commentary was legitimate as an aid to the jury in understanding the
photographs. The identifications were also admissible, as the officer had made a study of
Page 25 ⇓
25
the photographs for the purposes of reliably identifying the individuals in them. The court
approached the issue of the admissibility, of what it regarded as a type of opinion evidence,
as it was described, from the angle of fairness. It regarded it as fair, even if it suggested (at
628) that any commentary should be kept to a minimum.
[51] In Matara v R [2015] NZCA 261, the Court of Appeal determined that a warning to a
jury, to take care, in relation to the jury comparing video images with accused in court or
arrest photographs, was not required. The jury was not considering evidence of
identification from a witness, nor would the comparison have been decisive. There were a
number of other strands of evidence available.
South Africa
[52] Under reference to S v M 2002 (2) SACR 411 (SCA) Zeffertt; South African Law of
Evidence (2nd ed) (at 849) describes real evidence as being things, which are examined by the
court as a means of proof, and which “upon proper identification ... becomes, of itself
evidence.” Examples of weapons, handwriting, personal appearances, casts of footprints are
given. The judge is entitled to rely upon his or her perceptions and to draw such inferences
as may reasonably be drawn without expert qualifications. However, it is also said that real
evidence is seldom of assistance without testimony. Nevertheless, video recordings are real
evidence (S v Mpumlo 1986 (3) SA 485; S v Mdlongwa 2010 (2) SACR 419). They require to be
identified but not necessarily by the photographer. A witness can be asked whether he
recognises a particular scene or person shown in a photograph, the origin of which may be
unknown (S v Ramgobin 1986 (4) SA 117 (N), Milne JP at 125).
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26
Conclusions
[53] The court does not consider that there is a material difference, between Scots law and
that in the other jurisdictions examined, concerning the general approach to real evidence.
In any system there will be a requirement to demonstrate the provenance of the thing. For a
video recording to be used as proof of fact in a criminal trial, it will be necessary to show
that the recording is of the relevant event. How that is done will depend upon the
circumstances. Section 283 of the 1995 Act is an obvious method. The person responsible
for the operation of the system can certify that visual images and sounds recorded on a
particular device are of, or relate to, events at a particular time or place. That certificate,
when formally produced at trial, will be “sufficient evidence” of what is certified. However,
that is not the only mode of proof.
[54] With public area CCTV images, for example, a police officer downloading images
may be able to testify to recovering them for a particular location or time. The content of the
images, when compared with other evidence of events, may be such that an inference can be
drawn that what is shown is a recording of the event. In this regard, the evidence in
Robertson v HM Advocate (supra) may be seen as more than “barely” sufficient. Private CCTV
may involve an employee of the relevant organisation testifying to the same effect.
Individuals recording events on cameras or mobile phones, which are matters not covered
by section 283, can speak to doing so. Even without anyone speaking to the recovery of the
images, a witness to the scene may legitimately be asked if what is shown in images
produced is of the relevant event. The fact finder may infer from that that someone, perhaps
unidentified, recorded the images at the time. This may be sufficient evidence of
provenance. Once the provenance has been established, the question is then what can the
fact finder make of the images.
Page 27 ⇓
27
[55] Dickson: Evidence (Grierson ed, at para 1815) equates real evidence with “evidence
derived from things”. This is referred to in Walker & Walker: Evidence (3rd ed, at para 18.1),
where the authors (Ross and Chalmers) cite the observation in Cross & Tapper: Evidence (11th
ed, at p 60) that the term “covers the production of material objects for inspection by the
judge or jury in court” (emphasis added; see also Davidson: Evidence para 5.01). The purpose
of any such inspection by the fact finder is with a view to drawing inferences from what can
be observed upon examination. As the authors correctly state:
“Matters which in the past might have been left to the recollection of a witness may
now be the subject of real evidence in the form of an automatic recording”.
[56] In Hopes and Lavery v HM Advocate (supra at 110) the Lord Justice General (Clyde)
said that the recording is “primary evidence”. It is thus, if duly proved to have been made
at the relevant time and place, equivalent to a witness speaking to events seen or heard. In
this sense it is indeed Wigmore’s “silent witness” (Wigmore (supra at 219-21, cited in R v
Nikolovski (supra, Cory J at para 26)). Once before the fact finder, the recording’s content is
available as proof of fact. The fact finder is free to make such inferences from the audio or
video components as would be open to any judge or jury hearing oral testimony descriptive
of the same events. This does not convert the fact finder into a witness.
[57] This approach is consistent with the obiter dictum in Steele v HM Advocate (supra)
about the freedom of fact finders, including a jury, to make up their own minds about what
video images reveal. Interpreting what the court said in Steele may not be entirely
straightforward. On the one hand, the court equates “evidence” with testimony and states
that testimony is “almost always” needed to speak to the essentials, including identity of the
perpetrator and the facts of the crime. Leaving aside the qualification of “almost always”,
the statement, that a jury are at liberty to form their own view, may be interpreted as
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28
contradicting this, since a recording may clearly show a crime being committed and the
accused committing it. It may be because of this perceived contradiction that the law
developed in a somewhat confused manner.
[58] However, what was said about the freedom of the fact finder in Steele is consistent
with Hunt v Aitken (supra), which endorsed that dictum, and with Singh v HM Advocate
(supra). Hunt dealt with the common-place situation in which the fact finder has a piece of
real evidence, in that case a photograph, and can see for himself or herself what is
demonstrated by, or can be inferred from, the state of the thing. Sheriffs and juries are
regularly shown things, particularly photographs but also weapons and other objects, with a
view to being able to understand what appears from looking at them.
[59] No doubt, as was said in Steele, testimony will “almost always” be given by eye
witnesses who were present at the event shown in the video images. It will often, as the
court in Steele also said, be advantageous for witnesses, who were present and who saw
what happened, to comment on what the images depict. This will be so, especially if the
witness testifies to something not obviously apparent from the images or denies something
apparently shown in the images. None of this detracts from the fundamental position that,
once the provenance of the images is proved, they become real evidence in causa which the
sheriff or jury can use to establish fact, irrespective of concurring or conflicting testimony.
Even if all the witnesses say that the deceased was stabbed in the conservatory, if CCTV
images show that he was shot in the library, then so be it.
[60] The same principles must apply in relation to proof of the identity of persons as they
do to proof of events, including, but not exclusively, the identity of accused shown in video
images. There is no logical reason for any distinction. The “common ground” upon which
the court proceeded in Gray v HM Advocate (supra) must therefore be regarded as more than
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29
shaky. It contradicted the position outlined in Steele, to which the court had been referred,
concerning the jury’s ability to make up their own minds. It may, with hindsight, be
regarded as regrettable that the court in Gray was not taken to the developing jurisprudence
(supra) in England, and especially Canada, rather than the case proceeding upon common
ground of doubtful validity.
[61] Similarly, the approach in Donnelly v HM Advocate (supra) must be seen as erroneous.
The court in Donnelly took the view that Steele was authority for the proposition that a jury
could not decide for themselves the identity of a person shown in a video recording. It is
not; if anything it says the opposite. Once again, with hindsight, it is unfortunate that, in
such an important area of the law of evidence, there appears to have been no consideration
of the foreign jurisprudence.
[62] It follows that, in an appropriate case, a fact finder, including jury or sheriff, will be
entitled to form their own view on whether or not an image is that of an accused. They may
also hold that it shows a person resembling the accused, so as to provide corroboration of a
single eye witness identification (see Ralston v HM Advocate 1987 SCCR 467) and in a
circumstantial case. In carrying out this task they would be entitled to compare the image
with a photograph of the accused taken at or about the time of the incident and/or with his
appearance in court (Irvine v Donnelly 2012 SCCR 486).
[63] In reaching this view, which attempts to resolve the conflicting authority in Scotland,
the court has paid particular attention to the sound reasoning of Cory J in the Canadian
Supreme Court case of R v Nikolovski (supra). This represents an enlightened and sensible
approach to video or audio recordings. This court adopts that reasoning in so far as quoted
above. In particular, “so long as the videotape is of good quality and gives a clear picture of
events and the perpetrator, it may provide the best evidence of the identity of the
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30
perpetrator.” It may assist in the assessment of testimony. It may supplement testimony
concerning identity, but it may also supersede it.
[64] The court agrees with the circumstances in which a jury can be invited to conclude
that the identity of an accused as perpetrator is proved, as set out by the Court of Appeal of
England and Wales in Attorney General’s Reference (No. 2 of 2002) (supra). If the image is
sufficiently clear, the jury can compare it with the accused in court. A person who knows
the accused can be asked to identify him from the image (even if the image has been lost). If
a person, such as a police officer, has spent time viewing and analysing the images and thus
acquires a knowledge beyond that which the jury might attain in the course of a trial, he or
she can give comparison evidence if there is a contemporary photograph available. Such a
photograph may not be necessary where it is not disputed, or it is proved, that the accused’s
appearance in court is not materially different from his appearance at the time of the crime.
The court does not agree with the approach of the Irish courts, as set out in People (DPP) v
Maguire (supra), to the effect that comparing the images to the accused in court by the jury
should only be permissible in extremis. If it is possible for the jury to make a comparison,
then the fact that there is testimony on identity should not operate as a bar to that exercise.
[65] The extent to which a witness may be asked to provide a commentary on the images
will depend upon the circumstances. Clearly, witnesses who were at the scene may be
asked about what is shown in the images, by way of an aide memoire or contradiction. There
may, of course, be no such witnesses. In that event, and in any event, it may be helpful for
an investigating police officer, or other person who was not present at the time, to provide a
commentary on what is shown in the recording. The court agrees with the New Zealand
Court of Appeal in R v Howe (supra at 627-8), and disagrees with that of the High Court in
Australia in Smith v R (supra) that such evidence is admissible in so far as it can be said to
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31
aid the jury’s understanding of the images. It may assist in pointing out specific features. It
is not opinion evidence on a matter which the jury are to decide. It is simply descriptive of a
piece of real evidence. The court also agrees that any such commentary should be kept to a
reasonable minimum.
[66] Where the line does requires to be drawn is where, rather than using the witness as a
commentator to assist the jury to understand what is shown and what may be important, a
party seeks to obtain from a witness, who was not present at the time, that witness’s
impression or interpretation of what the images show; that is to say, strays beyond what is
physically obvious when pointed out. In this case, seeking evidence from the police officer
about whether what was shown in the images was consistent with consensual sexual activity
was illegitimate. The questioning of her should have been disallowed. It is legitimate to put
such a proposition to a complainer or to those present at the time, but not to a police officer
who is in no better a position to comment than a member of the jury.
[67] In this case, the trial judge’s directions were generally correct in their material
aspects. Those parts, derived from the Jury Manual, in which reference was made to jurors
being judges and not witnesses were not helpful. It is not easy to understand what this
distinction means. The passage concerning the need for a witness to testify to identity was
wrong, but was not significant in this case in which identity was not an issue. The direction
to the jury to form a judgment about what the images showed, just as if they would form a
judgment about eye witness descriptions of what happened, was correct. The statement that
the jury could draw their own conclusions about what the images depicted was also correct.
The parts permitting the jury to assess the testimony of the witnesses, but not being bound
by that testimony, were consistent with the views expressed in this Opinion. Having
admitted the testimony of the police officer on whether the images showed consensual
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32
activity should have been excluded, the directions on this were not material and in any
event favoured the appellants. It follows that there was no misdirection leading to a
miscarriage of justice. The appeals must therefore be refused.
Addendum
[68] In relation to corroboration, no difficulty arises. If the only evidence of, for example,
identity comes by way of a comparison of video images with the accused in a photograph,
there will be corroboration if the provenance of the recording and the photograph are each
proved by two witnesses. In this respect, the situation is little different from proof that a
fingerprint or DNA has been found at a particular location and is that of the accused (Reid v
that in fingerprint or DNA cases a comparison requires the involvement of an expert.
Identification does not.
[69] In England and Wales a judge has a discretionary power to exclude evidence of
identification from video images as inadmissible on the basis of the quality of the images (R
v West [2005] EWCA Crim 3034). There is a general statutory power in that jurisdiction to
exclude evidence, if it would have such an adverse effect on the proceedings that the court
ought not to admit it (Police and Criminal Evidence Act 1984, s 78). In Scotland, as was said
in Henry v HM Advocate (supra) at para [19]), it would only be in an “extreme” case that such
evidence could be excluded as rendering a trial inevitably unfair in terms of Article 6 of the
European Convention. Assessment of the quality of the evidence is generally a matter for
the fact finder, ie the jury. If there is a concern about the inferences of fact to be drawn from
the images, that would require to be expressed in the context of a submission based upon an
insufficiency of evidence.
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33
[70] A “no case to answer” submission could be made in relation to the evidential import
of video images in the same way as it might be made about the sufficiency of testimony
concerning the identity of a perpetrator. Just as witness testimony on the identification of an
accused may be strong or weak, video images will have the same characteristic. Judges and
sheriffs may have to decide whether the totality of the evidence reaches the base line of
quality required to constitute a sufficiency. This does not involve a decision on the
reasonableness of a verdict, but is a straightforward determination of whether there are two
sources of evidence which, taken at their highest, are sufficient to enable the fact finder to
return a verdict of guilt.
[71] The form of the direction to a jury in cases involving video evidence does require
revisal in relation, in particular, to those parts which refer to juries being judges and not
witnesses and to those other sections referring to the need for testimony in order to prove
identification. In the normal case where there is both eye witness testimony of the events
and relatively clear video images, the following would be regarded as acceptable,
depending upon the circumstances:
[72] “Witnesses have testified about what they say is happening in the video images and
who is shown in them. You have to consider which, if any, of the witnesses is credible and
reliable. You may find the testimony of a witness helpful in interpreting what is shown in
the images. You are not bound by what each witness says. You can take into account, in
determining the facts, what and who you consider to be shown in the images. You can have
regard to the images when deciding who did what.”
[73] There ought to be no reason to give the jury a cum nota warning on the dangers of
eye witness identification evidence when referring to the assessment of video images. The
reasoning expressed by Hallett LJ in R v Shanmugarajah (supra, following R v Dodson (supra)
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as approved in Downey (supra)) and by the New Zealand Court of Appeal in Matara v R
(supra) is sound and ought to be preferred to the contrary views in, for example, People
(DPP) v Maguire (supra) and R v Nikolovski (supra). The jury is not, in this exercise, being
asked to look at the testimony of a witness purporting to recognise a person, perhaps a
stranger, whom he or he saw at the material time, perhaps in a fleeting glimpse. The jury
are being asked to analyse, at their leisure, video images to see if they depict the accused as
he appears in court or in photographs taken at an earlier stage in the proceedings. In this
respect, the comments about replaying audio tapes in Hopes and Lavery v HM Advocate
(supra), where there was a prepared transcript of what was said, are not applicable to the
current era where video images can be replayed with facility in the course of a trial,
including after the jury have been secluded. That is not to say that, in a given case, the trial
judge or sheriff may wish to say something about the quality of the images shown.
[74] Where appropriate directions are also given on the operation of corroboration, there
ought to be little difficulty in understanding the basis for a jury’s verdict. Where it is one of
guilt, they will have been satisfied beyond reasonable doubt, upon the evidence of two
sources (which may include the content of the video images), that the accused committed
the crime charged.