Gubinas and Radavicius v HM Advocate

Criminal evidence and procedure – Rape – Video evidence – Judge's charge. High Court of Justiciary: Refusing appeals by two appellants who were convicted of raping the complainer whilst she was intoxicated and incapable of giving or withholding consent, in which the issue was whether the trial judge had misdirected the jury on the way in which they could approach video images of the event recorded on the appellants' mobile phones, the court held that the judge's directions were generally correct in their material aspects; once the provenance of the images was proved, they became real evidence in causa which the sheriff or jury could use to establish fact, irrespective of concurring or conflicting testimony, and the same principles applied in relation to proof of the identity of persons as they did to proof of events, including, but not exclusively, the identity of accused shown in video images: the court also set out an appropriate form of direction to the jury in cases involving video evidence.

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