Pringle v The Queen

[Delivered by Lord Hope of Craighead]

This is an appeal against the decision of the Court of Appeal of Jamaica (Downer, Walker and Panton JJA) on 31 July 2000 dismissing the appellant's application for leave to appeal against his conviction for the capital murder of Kevan Davidson in the St Ann Circuit Court (Cooke J and a jury) on 30 October 1998 and the mandatory death sentence which he received upon his conviction. Special leave to appeal on both issues was granted on 2 October 2001, but the appeal against sentence was adjourned pending the consideration by the Board of other cases raising the same issue. This judgment is concerned only with his appeal against conviction.

The appellant was charged on an indictment which alleged that between 9 and 10 June 1996 in the parish of St Ann he murdered Kevan Davidson during the course or furtherance of rape, contrary to section 2(1)(d)(iv) of the Offences against the Person Act 1864 as amended by the Offences against the Person (Amendment) Act 1992. The case for the prosecution relied on three principal pieces of evidence. These were (1) a confession which the appellant was alleged to have made to another prisoner while he was in a cell at Runaway Bay Police Station some days after he had been taken into custody; (2) the results of DNA testing of a vaginal swab taken from the deceased and a sample of blood taken from the appellant which were said to link the appellant to the crime; and (3) evidence of motive.

The facts

During the evening of 9 June 1996 the deceased had been drinking with her husband Donald Davidson at a bar in Hampstead Square. They returned to their home in the Mount Arrarat District, but shortly afterwards the deceased left the house on her own to go back out drinking. The following morning she was found lying on her back in a gully a short distance from their home. Her throat had been cut and she was dead. There were blood stains on the shrubs around where she was lying and the grass appeared trampled, indicating that there had been a struggle. On 14 July 1996 Corporal Edgar Brown, who was the investigating officer, went to the appellant's home armed with a search warrant. He took possession of a number of items, including two machetes and a pair of "Karl Kani" boots. The appellant was not at home, but later the same day he was arrested at another address and taken into custody at Runaway Bay Police Station.

On 24 July 1996 Frederick Simmonds was arrested for the possession of a stolen vehicle. He was taken to St Ann's Bay Police Station, but about one week later he was transferred to Runaway Bay Police Station. Three days after his arrival there the appellant was put into the same cell as Simmonds. There were about five men in the cell. Simmonds said that the appellant was introduced to him by a police officer who told him that his name was Pringle. He said that about three days later another man in the cell named Winston Montgomery asked the appellant why he was there. The appellant replied that maybe it was because of a white lady whom they had found up the road dead who had already sent him to prison for rape and robbery. According to Simmonds he then gave the following account of the incident. He said that he was coming down the road and saw the deceased in the bar. He went down to his house and changed his clothes and put on an overall. He picked up his machete and put on his "Kalcanine" shoes. He went up through the gully and heard her singing coming down. He came out and covered her mouth and pulled her down to the gully. He used a cutlass and sawed her throat. He then went back down through the gully and went to his house, where he took off the overall and put back on the other clothes that he was wearing. He burned the overall, buried his gloves, scraped the cutlass handle and polished his shoes. He then went back to his house and went to sleep. The next morning a little boy came into the house saying that a white lady was dead, and he went to look like everyone else. He later heard that the police were looking for him so he went to his girl friend's house.

Simmonds said that about six days later he was taken to court, remanded and then taken back to St Ann's Bay Police Station. Some days later, on 20 August 1996, while he was still in custody there he gave a statement to the police in which he described the appellant's conversation with Montgomery. He said that he had been taken from his cell to the CIB office where a police officer named Mr Bailey asked him how he was doing. He replied that he felt bad and wanted to go home. Mr Bailey then asked him if he had heard the appellant saying anything. When he said yes, Mr Bailey asked him what was said and he then told him. He was then asked to give a statement to Detective Sergeant Coleman who was stationed at Runaway Bay Police Station which he did and then signed. About one week later Simmonds pleaded guilty to the charge of possession of a stolen motor vehicle. He received a suspended sentence of three years' imprisonment and was released from custody.

DNA tests on various blood and other samples including a swab of the deceased's vagina were carried out by Dr Yvonne Cruickshank, who was a government analyst and Director of the Police Forensic Laboratory. Among the samples of blood was a sample provided by the deceased's husband Donald Davidson and a sample which had been taken from the appellant with his consent. Semen was found on the vaginal swab. Two tests were used to establish the DNA on the blood samples and the swab. These were the HLADQa test and the D1S80 test. The results which were obtained by Dr Cruickshank gave the following readings on the HLADQa test: Donald Davidson's blood sample – 2,3; the appellant's blood sample – 2,4; the male fraction on the swab – 2,4. She obtained the following readings on the D1S80 test: Donald Davidson's blood sample – 29, 34; the appellant's blood sample – 20, 21; the male fraction on the swab- 20, 21. Dr Cruickshank said that she had no evidence, based on these results, of the presence of any body fluid from Donald Davidson in the deceased's vagina and that the spermatozoa which she found on the vaginal swab did not come from him. But she said that the spermatozoa could have come from the appellant. It will be necessary to refer later to the evidence which she then gave in reply to questions by the trial judge and during her cross-examination.

It can be seen from this brief summary that the case for the prosecution was quite straightforward. The appellant had confessed to the murder in the account of the incident which he gave when he was in the cell with Simmonds during his conversation with Montgomery. On his own admission he had a motive for subjecting the deceased to physical violence, as she had been responsible for his being sent to prison for rape and robbery. He did not say anything about having raped the deceased, but the state of the vegetation where she was found was consistent with there having been a struggle before she was killed. Spermatozoa were found in her vagina which the DNA tests showed could not have come from her husband but could have come from him. The case for the appellant, who gave evidence, was alibi. He admitted that he knew the deceased and her husband. But he said that he did not see her that night. He had gone to his cousin's house that evening at 6.00 pm. At 8.00 pm he went home where he watched television until 10.00 pm. He then went to bed and slept until 7.30 am the next morning.

The issues in the appeal

The appellant challenges his conviction on four grounds. The first relates to the DNA evidence. He says that Dr Cruickshank's evidence was both misleading and inaccurate and that the trial judge repeated her errors in his summing up. The second relates to Simmonds's evidence about the appellant's confession to Montgomery while they were together in the cell. He says that Simmonds was a prison informer with an obvious interest to serve, as he gave his statement to the police while he was an untried prisoner on remand. Shortly afterwards he was released from custody having received a suspended sentence of imprisonment. So this was tainted evidence and it should have been the subject of directions which were not given by the trial judge in his summing up. The third ground is that the judge omitted to give the usual directions as to the approach that should be taken by the jury if they concluded that the appellant had told lies when he was giving his evidence. The fourth relates to interruptions by the judge during crucial passages of the evidence.

None of these grounds were mentioned during the argument in the Court of Appeal. But very properly, in the particular circumstances of this case, Mr Guthrie QC for the Crown did not object to their being advanced now before the Board. There is no doubt that the Board has power to intervene if it is shown that an appellant has suffered a real injustice at his trial. Their Lordships are in as good a position as the Court of Appeal would have been in this case to determine whether on these grounds the conviction was unsafe.

The DNA evidence

The criticisms which the appellant makes of this evidence, and where relevant of the summing up also, fall into five distinct categories. These are (i) assertions that it was the appellant's spermatozoa that were in the deceased's vagina – "the prosecutor's fallacy"; (ii) miscalculation of the "random occurrence ratio"; (iii) confusing evidence suggesting a closer match between the appellant's DNA and that on the vaginal swab than the results justified; (iv) the...