DNA Evidence Alone as a Case to Answer

DOI10.1177/0022018315625255
Published date01 February 2016
AuthorTony Ward
Date01 February 2016
Subject MatterCourt of Appeal
when considering the admissibility and probity of voice recording evidence. This is particularly the case
when the court is being asked to consider the factors set out in paragraph 16 of Flynn in relation to ‘lay
listener’ evidence. Although Kapikanya did not involve ‘lay listener’ evidence, it is a good example of
compelling voice recording evidence. It was admitted despite the absence of formal witness evidence
purporting to identify the voice. This case involved good-quality recording of speech, of a nature and
duration to be sufficient for comparison, with no gap in time between the listener hearing the recording
and the individual that the voice on the recording was being attributed to.
RvKapikanya could, therefore, be a useful authority for arguing that a voice recording ought to be
admitted, as it demonstrates the kind of characteristics that may justify admitting it. This may be the case
if either expert or ‘lay listener’ evidence identifying the voice were to be adduced as well as in circum-
stances when the jury are simply being invited to compare the recording to the person they have heard
give evidence in the witness box.
Stephen Colman
DNA Evidence Alone as a Case to Answer
Keywords
DNA, adverse inferences, no case to answer
C was charged with a sexual offence committed in 2003, to which he was linked by a DNA profile which
was obtained more than 10 years later, after he was arrested for an unrelated matter. The charge is not
specified in the judgment but would appear to have been indecent assault under the Sexual Offences Act
1956, which was still in force at the time. A man standing behind the complainant on a London Under-
ground train had bumped against her several times and then ejaculated on her trousers. DNA from the
sperm deposited on her trousers was found to match that of C with a random match probability of one in
one billion. When interviewed, C read a prepared statement denying involvement but declined to answer
questions about whether he had been in London at the material time or used the underground.
Without hearing the prosecution evidence the trial judge, Mr Recorder Day, acceded to a defence sub-
mission that following the Court of Appeal decisions in RvLashley [2000] EWCA Crim 88, RvGrant
[2008] EWCA Crim 1890 and RvOgden [2013] EWCA Crim 1294, DNA evidence alone was insuffi-
cient to constitute a case to answer. The prosecution appealed against this terminating ruling under the
Criminal Justice Act 2003, s. 58. In addition to arguing that the DNA evidence together with complai-
nant’s account amounted to sufficient evidence, the prosecution sought to rely on the defendant’s refusal
to answer questions at interview as the basis for an adverse inference under the Criminal Justice and Pub-
lic Order Act 1994 (CJPOA), s. 34.
HELD, ALLOWING THE APPEAL: (1) the Recorder had been wrong to rule that there was no
case to answer before the close of the prosecution evidence (RvNLtd[2009] 1 Cr App R 3 applied);
but because the prosecution had consented to this course, it would be wrong to allow the appeal on this
ground.
(2) There had been no opportunity to see whether the defendant would put a positive case. It could not
therefore be said that he had failed to mention when questioned any fact on which he later relied, and
CJPOA, s. 34 had no application.
(3) It was clear from the decision in RvSampson and Kelly [2014] EWCA Crim 1968 and the
approach of Lord Bingham CJ in RvAdams (no. 2) [1998] 1 Cr App R 377 that where DNA evidence
was directly deposited in the course of the commission of a crime, a very high DNA match was sufficient
Court of Appeal 7

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