R v Abadom
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KERR |
| Judgment Date | 25 June 1982 |
| Judgment citation (vLex) | [1982] EWCA Crim J0625-1 |
| Docket Number | No. 1667/A2/80 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 June 1982 |
[1982] EWCA Crim J0625-1
Lord Justice Kerr
Mr. Justice Ewbank
and
Mr. Justice Leonard
No. 1667/A2/80
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. C. J. KNOX appeared on behalf of the Appellant.
MR. D. ROBSON Q.C. appeared on behalf of the Crown.
On the 14th March, 1980, the Appellant was convicted of robbery at the Crown Court at Newcastle-upon-Tyne before Mr. Justice Kenneth Jones by a majority verdict of 11 to 1 and sentenced to 6 years' imprisonment. His application for leave to appeal against conviction and sentence was refused by the single judge, but upon renewal of his application to the full court (Lord Justice Lawton, Mr. Justice Thompson and Mr. Justice Jupp) on the 16th March, 1982, he was given leave to appeal against conviction on one ground which was stated in the following terms by Lord Justice Lawton: "Leave to appeal is granted … on the point which seems to be that raised in this case, that is, the materials which can be used by expert witnesses when giving expert evidence".
On the 18th June, we heard the appeal against conviction. We announced that the appeal would be dismissed and that we would give our reasons later. We also refused a renewed application for leave to appeal against the sentence of 6 years' imprisonment. We now give our reasons for these decisions.
The facts of the case can be shortly stated for present purposes During the afternoon of Saturday, 25th August, 1979, four masked and gloved men broke into the office of a family business run by a Mr. and Mrs Williams who were working there together with other members of the family. The men were all wearing balaclava helmets with slits for the eyes, so that it was only possible for those present to form some general impression of their description, without being able to identify them thereafter. They were armed with cudgels and the leader broke an internal window in the office, no doubt in order to contribute to the fright which was naturally experienced by those present. They then demanded where the money was kept and, upon this being indicated to them, made off with a sum of over £5,000 in cash from a drawer in the office.
The case for the prosecution was that the Appellant was the leader who had broken the window. The main evidence against him was that a pair of his shoes removed by the police from his home after his arrest were found to have fragments of glass adhering and embedded in it, which, as the prosecution contended, had formed part of the broken window. There was evidence concerning the position of the fragments of glass which was consistent with the incident, in that some were found on the upper part and inside the shoes, while others were embedded in the sole, suggesting that some of the fragments had fallen from above and others had been trodden on by the Appellant.
In order to seek to establish the likelihood of the fragments of glass having come from the broken window, the prosecution called two expert witnesses who were Principal Scientific Officers at Home Office Forensic Laboratories with considerable experience in the analysis of fragments of glass, a Mr. R. A. Cooke and a Mr. K. W. Smalldon. The defence also called an expert, a Mr. J. A. Winterburn, an expert in glass technology who was employed by a glass manufacturer. Before considering the point argued in this appeal it is convenient briefly to summarise their evidence, of which we have seen a transcript, and no criticism of the learned Judge's summing-up of their evidence to the Jury was suggested on behalf of the Appellant.
Mr. Cooke explained that all glass has a refractive index, capable of being determined to five decimal places, which constitutes a measure as to how the light is bent when it passes into a particular piece of glass. He described the method of determining this index which he had used in this case. Using this method, he had compared several of the fragments of glass found in and on the shoes with each other and with the control sample, the glass of the broken window, and found that they all had the identical refractive index. Before expressing any opinion as to the likelihood or otherwise of the fragments of glass having come from the window, he was then asked about the frequency with which this particular refractive index is found to occur. In this connection he explained that it had been the practice of the Home Office Central Research Establishment to collate statistics of the refractive index of broken glass which had been analysed in forensic laboratories over a period of years, and that, having consulted these statistics, he found that this particular refractive index only-occurred in 4% of all the analyses which had been made. If the analyses were limited to window glass, the frequency of occurrence was marginally lower. He was then asked whether, on the basis of his expert knowledge and the further analysis made by Mr. Smalldon which he had seen and to which I turn in a moment, he was able to express any opinion as to the likely relationship of the glass fragments with the control sample. He answered this by saying: "Well, considering that only 4% of controlled glass samples actually have this refractive index I consider there is very strong evidence that the glass from the shoes is in fact the same as the glass from the window, in fact it originated from the window."
Mr. Smalldon then gave evidence that he had carried out a chemical analysis of the fragments of glass and of the control sample, and that he found that "the two samples were similar on analysis and the analysis was typical of modern flat production glass", i.e. window glass.
Both experts were then fully cross-examined on their findings and conclusions. Thereafter Mr. Winterburn was called for the defence. He did not challenge the evidence of these witnesses, but he pointed out that in relation to the total annual quantity of window glass which is manufactured, a quantity of 4% nevertheless represented something between 20,000 to 40,000 tons and that window glass having this refractive index was therefore not uncommon.
The point taken on this appeal was that the evidence of Mr. Cooke, that the identical refractive index of the fragments of glass with that of the control sample occurred in only 4% of all controlled glass samples analysed and statistically collated in the Home Office Central Research...
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