Julian Washington v The King

Heard on 17 June 2024

Lord Lloyd-Jones AND

On Sunday 8 January 2012, Stefan Burgess (“the deceased”) was shot dead and Davano Jahkai Brimmer was shot. Julian Marcus Washington, the appellant, was later charged with: (a) the premeditated murder of the deceased; (b) the attempted murder of Mr Brimmer; (c) using a firearm to commit an indictable offence; and (d) unlawfully handling ammunition.

Between 21 April and 6 May 2014, the appellant was tried before Carlisle Greaves J and a jury. At trial there was no witness who identified the appellant as the person who fired the shots. There was evidence that on 5 January 2012 a friend of the appellant, Anthony Smith, had been assaulted by the deceased, Mr Brimmer and a Mr Haywood. The prosecution relied on this evidence as providing a motive for the appellant to shoot the deceased and Mr Brimmer. However, apart from that evidence to implicate the appellant in the shootings, the prosecution's case was entirely dependent upon: (a) expert DNA evidence provided by Ms Candy Zuleger of Trinity DNA Solutions LLC, Florida, USA, to the effect that the appellant's DNA was on bullet casings found at the scene; and (b) expert gunshot residue evidence about particles identified on the appellant through samples taken the day after the shootings, which was said to support an inference that he had recently discharged a firearm. The ammunition at the scene was identified as containing lead, barium and antimony. The particles found on the appellant and his clothing comprised a large number of single-component particles of lead, barium or antimony, and three two-component particles of lead-antimony. However, the expert did not find any fused three-component particles of lead, barium and antimony, also known as gunshot residue particles or “GSR particles”, on the appellant or his clothing.

On 6 May 2014, the appellant was convicted of all four offences. On 19 September 2014, he was sentenced to life imprisonment with an overall minimum term of 30 years' imprisonment. On 17 May 2016, the appellant's appeal against his convictions was dismissed by the Court of Appeal (Baker, President, Kay and Bell, JJA).

On 4 May 2022, the appellant filed an application for permission to appeal to the Board on three grounds. The first ground related to possible bias within the jury. The second and third grounds related to the gunshot residue evidence that was adduced by the prosecution at trial. In support of the second and third grounds the appellant sought permission to rely on fresh evidence including a report dated 5 March 2022 prepared by a gunshot residue expert, Angela Shaw. The appellant contended that there was no material difference between the trial judge's misdirections over the gunshot residue evidence in his case and misdirections over the same evidence identified by the Board in Hewey v The Queen [2022] UKPC 12.

On 30 September 2022, the appellant filed an application to rely on: (a) an additional ground of appeal relating to the expert DNA evidence provided by the prosecution at trial (“the additional DNA ground of appeal”); and (b) fresh evidence contained in a report dated 22 September 2022 from a DNA expert, Dr Dan Krane, in support of the additional DNA ground of appeal.

On 15 February 2023, the Board granted the appellant permission to appeal against his convictions on all grounds except for the ground relating to possible jury bias.

In preparation for the hearing of the present appeal, the respondent instructed Dr Barbara E Llewellyn to provide her opinion on the DNA results obtained by Ms Zuleger of Trinity DNA Solutions and relied on by the Crown at the appellant's trial.

In her report dated 18 April 2024 Dr Llewellyn agreed with Dr Krane's main conclusion, and in addition opined that the DNA samples relied on by the Crown should have been deemed inconclusive and no statistics given because Trinity DNA Solutions did not have a protocol for creating a composite DNA profile from five different electropherograms.

On 25 April 2024, after considering this evidence, Charles Russell Speechlys LLP (“CRS”), solicitors for the respondent, wrote to Simons Muirhead Burton LLP (“SMB”), solicitors for the appellant, stating that the respondent no longer contested the appeal. In the letter CRS stated:

“… the Crown no longer opposes the appellant's [additional DNA] ground of appeal, namely that the DNA evidence presented at trial was flawed. … it is the Crown's position that the flaws in the DNA evidence render the appellant's conviction unsafe.”

On 29 April 2024, CRS informed the Board that the respondent no longer contested the appeal and invited the Board to set aside the appellant's conviction and sentence. CRS also informed the Board that the Crown did not seek a retrial.

On 1 May 2024, SMB wrote to the Registry of the Privy Council (“the Registry”) providing a draft order, which had been agreed by the parties, to be sealed by the Registrar. The draft order made no provision for the Board to give a reasoned judgment disposing of the appeal.

It is for the Board to determine whether to advise His Majesty that the convictions should be set aside on the basis that a miscarriage of justice has occurred. However, having considered the fresh evidence of Dr Krane and Dr Llewellyn which identified flaws in the DNA evidence relied on by the prosecution at trial and the parties' written submissions, the Board considered that it was appropriate to advise His Majesty that an order should be made: (a) granting permission for the appellant to rely on the additional DNA ground of appeal and on the evidence of Dr Krane; and (b) setting aside the appellant's conviction and sentence. The Board also considered that the appellant, who had been incarcerated for over 10 years, was entitled to his liberty in advance of His Majesty considering the advice of the Board. Accordingly, the Board, exercising its inherent power to admit an appellant before it to bail (see Cukurova Finance International Ltd v Alfa Telecom Turkey Ltd [2013] UKPC 25; [2016] AC 923, para 17), by order dated 3 May 2024, directed that the appellant be released on unconditional bail.

Even though the parties agreed, and the Board was prepared to advise His Majesty that an order should be made allowing the appeal, the appellant contended that the Board was required to hold an oral hearing and to provide written reasons for the disposal of the appeal. The respondent initially asserted that a written judgment was unnecessary in circumstances where the parties had agreed, and the Board had accepted, that His Majesty should be advised to allow the appeal. Subsequently, the respondent withdrew its objection and an oral hearing was held at which counsel for the appellant addressed the Board on the flaws in the DNA evidence presented at the trial. Counsel for the respondent did not take issue with those submissions.

The Board now gives its reasons for advising His Majesty that a miscarriage of justice has occurred and that the convictions should be set aside.

The charges against the appellant and his subsequent trial and conviction arose out of the shootings which occurred on 8 January 2012.

On 8 January 2012, the deceased, Mr Brimmer, Mr Haywood, and others, were at Mr Haywood's house playing a video game. Between 8.30 pm and 9.00 pm, the deceased decided to leave. However, when he opened the front door between five and seven shots were fired. The deceased fell to the ground and died from his wounds. Mr Brimmer was also injured. Mr Haywood and the others ran to the bathroom to hide. Witnesses described how the person who fired the shots (“the shooter”) came a short way into the house, but then left. The witnesses also stated that the shooter was dressed all in black, with a black helmet and visor, and black gloves. The witnesses could not describe the shooter's height but stated that he was of average build. He was seen driving away on a black Scoopy 125 motorcycle.

Two bullet casings labelled MP-1 and MP-2 were retrieved by one officer from the vicinity of the shooting. Four others, labelled JAH 1, 2, 3 and 5, were retrieved by another officer.

On 9 January 2012, the appellant and Malik Outerbridge were stopped while riding Mr Outerbridge's motorcycle (which was not a black Scoopy 125). The appellant and Mr Outerbridge were arrested. The appellant's clothes were seized at the police station and a DNA sample was taken from him. The police also searched his home and seized more dark clothing.

Several other people were arrested in the immediate aftermath of the shooting. Other persons suspected by the police were: (a) Mr Smith who, on 5 January 2012, had been assaulted by the deceased, amongst others; (b) Mr Haywood, in whose house the shootings took place; and (c) Mr Outerbridge. DNA samples were taken from each of them.

The appellant was interviewed by the police and asked about the murder. He said that he did not know anything about it and had not had anything to do with it. The appellant was interviewed twice more in the presence of a legal representative, when he exercised his right to silence.

All those who had been arrested in connection with the shooting,...