Gubinas v HM Advocate  HCJAC 59
Two men found guilty of rape who claimed that the trial judge “misdirected” the jury over their role in assessing video evidence of the crime have had their appeals against conviction refused. The appellants were convicted at the High Court in Aberdeen in 2016 of sexually assaulting and raping a young woman.
The Appeal Court ruled that the trial judge’s statement that the jury could form a judgment about what the images showed and that they should draw their own conclusions about what they showed was in fact correct. However, it did call for the Jury Manual to be revised to make the position much clearer. The libel indicated the appellants had recorded the event on mobile phones. The images showed the young woman drunk, and at one point her saying ‘no’ clearly. The accused denied this and stated she did consent. The trial judge reminded the jury that there was conflicting evidence led from the crown and the defence and directed them as follows: “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.” It was argued on that the trial judge’s directions had been “confusing” and his statement they should decide for themselves was which was “wrong in law”.
Refusing the appeal, The court concluded: “In this case, the trial judge’s directions were generally correct in their material aspects”,. but “Those parts, derived from the Jury Manual, in which reference was made to jurors being judges and not witnesses were not helpful as it”.. 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.”