Asgodom, R. v

Where a recording has been properly adduced as an exhibit, jurors may examine it in their retiring room, provided they are warned not to manipulate it. That examination does not introduce fresh evidence merely because a different machine permits closer or clearer viewing, or because a detail not separately debated becomes apparent. The essential question is whether the jury has received any new or different material. A material irregularity may arise where a jury discovers evidential material which was neither noticed nor tested in court.

The appellant, a taxi driver, was convicted at Sheffield Crown Court of sexual assault against one student passenger and rape against another. The prosecution relied, among other evidence, on CCTV footage of the taxi in a car park and DNA evidence.

During deliberations, the jury received a different machine for viewing the admitted DVDs because the original machine could not fast-forward. The appellant contended that the replacement enabled clearer viewing and thereby introduced fresh evidence. He also renewed an application for permission to appeal against a consecutive nine-month sentence for the sexual assault. The central issue was whether the jury's use of the replacement machine created a material irregularity that rendered the convictions unsafe.

1. The appeal against conviction was dismissed. The jury's note did not establish that the replacement machine showed the CCTV more clearly than it had been shown in court. It was equally consistent with the jury comparing it with the original machine in the jury room, which could not fast-forward.
2. In any event, a clearer opportunity to inspect the already admitted CCTV did not provide new evidence. The DVD was properly before the jury throughout the trial. The replacement machine merely enabled fuller examination of that exhibit. Jurors may inspect film in private, provided they are warned not to manipulate it.
3. The court distinguished R v Devichand [1991] Crim.L.R 446. In that case, the jury discovered labels on exhibits which had not previously been noticed, examined or debated and which contradicted the defendant's account. Here, nothing new or different was supplied to the jury. Consistently with R v Douglas Edwards [2006] EWCA Crim. 1944, the fact that images in a properly admitted exhibit had not previously been debated did not turn the jury's closer examination into fresh evidence. There was therefore no impropriety, unfairness or irregularity, and the verdicts were safe.
4. The renewed application for permission to appeal against sentence was refused. Although the relevant guideline did not identify an aggravating factor, the assault was serious. It occurred in the early hours against a vulnerable student, and the appellant had seriously abused the responsibility which a taxi driver owes to passengers. Those features crossed the custody threshold. Credit was to be given for 110 days of qualifying bail, subject to correction of the recorded total.

• Court of Appeal (Criminal Division): In Asgodom, R. v [2012] EWCA Crim 2054, the court dismissed the appeal against conviction and refused renewed permission to appeal against sentence.
• Sheffield Crown Court: On 18 November 2011, the appellant was convicted of sexual assault and rape. A consecutive nine-month sentence was imposed for the sexual assault.