R v Michael David Bryon
| Jurisdiction | England & Wales |
| Judge | Lord Justice Jackson |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWCA Crim 997 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 201405071/C1 |
| Date | 22 April 2015 |
[2015] EWCA Crim 997
Lord Justice Jackson
Mr Justice Nicol
RECORDER OF LEEDS
( His Honour Judge Collier)
(Sitting as a Judge of the CACD)
No: 201405071/C1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2A 2LL
Mr J Goodman appeared on behalf of the Appellant
Mr L Cox appeared on behalf of the Crown
This judgment is in four parts, namely:
Part 1. Introduction;
Part 2. The facts;
Part 3. The criminal proceedings
Part 4. The appeal to the Court of Appeal.
This is an appeal against conviction for burglary. The issue in this appeal is whether the jury were entitled to convict the appellant solely on the basis of DNA evidence and him previously having committed a similar offence.
The burglary in question was committed at a Sainsbury supermarket. For a proper understanding of this case it is necessary for us to say something about the way in which supermarkets handle the large quantities of cash which they receive.
At a number of supermarkets it is common practice for cash to be transferred from the tills to the secure cash office in containers called "flight pods". The flight pods travel swiftly to their destination through a vacuum tube in the roof void of the supermarket.
One statute is relevant to this appeal, namely the Criminal Justice Act 2003 to which we shall refer as "the 2003 Act". Section 101(1) of the 2003 Act provides:
i. "In criminal proceedings evidence of the defendant's bad character is admissible if and only if …
ii. (d) it is relevant to an important matter in issue between the defendant and the prosecution."
Section 103( 1) 2003 Act provides:
i. "(1) For the purposes of section 101(1)(d) the matters in issue between the defendant and the prosecution include—
ii. (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence…"
After these introductory remarks we must now turn to the facts.
On the evening of 11th January 2014 staff at Sainsbury supermarket in Bury St Edmunds discovered that a number of flight pods were arriving empty at the secure cash office. It appeared therefore that a thief must have intercepted the flight pods en route and stolen the cash inside. Sainsbury staff contacted the police and reported the theft.
Police officers arrived at 10.30 pm. They discovered that someone had gained access to the roof void and cut open the vacuum tube. The thief must have captured the passing flight pods and extracted the contents. Then he had put the flight pods back into the vacuum tube to continue their journey. In order to maintain the vacuum in the tube the thief had used tape to seal the hole which he had cut, except presumably during periods when he was extracting or replacing flight pods.
A forensic examiner carefully removed the tape from the vacuum pipe and took it away for examination. The pieces of tape were swabbed. Then Ms Marion Stone, a forensic scientist, carried out a DNA analysis. She found a mixed DNA profile. In other words the DNA came from at least two people. The major portion of the DNA matched the DNA of Michael Bryon, the present appellant. Ms Stone estimated the likelihood ratio as 1 in a billion. In other words the match was one billion times more likely to occur if the DNA came from Mr Bryon rather than from someone unrelated to him.
Mr Bryon was not a man of good character. He had a criminal record. That criminal record included a conviction in November 2010 for a burglary committed at Tescos supermarket in Swindon. The Swindon burglary was carried out in exactly the same manner as the latest Bury St Edmunds burglary. Mr Bryon had pleaded guilty to the Swindon burglary on the basis that he was the driver.
The police arrested Mr Bryon and interviewed him. Mr Bryon chose to give "no comment" answers to most of the questions including such harmless questions as: have you ever visited Sainsbury's? In the latter part of the interview the police asked Mr Bryon how his DNA came to be on the tape found on the pipe in the roof void of Sainsbury's at Bury St Edmunds. Mr Bryon replied that he and his partner had a circle of friends who sometimes committed burglaries of that nature. Mr Bryon said that his house and shed were generally open. Possibly his friends had gone in and had borrowed Mr Bryon's masking tape for the purpose of committing the Bury St Edmunds burglary. The police did not find these answers compelling. Criminal proceedings followed.
Mr Bryon was charged on an indictment containing a single count. This count was that he committed burglary having entered a Sainsbury's store at Bury St Edmunds as a trespasser and stealing from that store £14,800. Mr Bryon pleaded not guilty to that count.
The defendant stood trial at Ipswich Crown Court before His Honour Judge Devaux and a jury in October 2014. The defence was one of alibi. The defendant asserted that on the day of the burglary he was in the area of Walsall where he lived and was occupied in ordinary domestic life, with his then partner, Ms Kissy Brooks.
At the start of the trial Mr Jonathan Goodman, the defendant's counsel, submitted that the case should not proceed because it rested entirely on DNA evidence. The judge rejected that submission.
The trial duly proceeded. The prosecution called evidence from Sainsbury as to the system of transferring cash from tills to the secure office and as to the discovery of the loss. Police officers gave evidence of their investigations. Ms Stone explained to the jury her DNA findings. Another expert witness instructed by the defence gave uncontested evidence that DNA could remain where it was deposited for months if not years.
There was an issue between the parties as to whether the defendant's previous conviction should go before the jury. The judge ruled that that evidence should go in, pursuant to section 101(1)(d) and section 103(1) of the 2003 Act. The judge allowed the previous conviction in essentially on the basis that it indicated propensity and rebutted coincidence.
At the conclusion of the prosecution evidence Mr Goodman made a submission of no case to answer. The judge rejected that submission. The defence then called their evidence. The defendant told the jury that on 11th January 2014 he was in Walsall where he lived with Ms Brooks and their three children. He had never been to Bury St Edmunds. The defendant gave an account of the Swindon burglary. He said that he drove his fellow burglars from Walsall to Swindon. They were going to buy some duct tape at B & Q on the way in order to use it in the burglary. Luckily however there was duct tape in the defendant's car, so the burglary team did not need to stop in order to make that purchase. The defendant offered the same explanation for the presence of his DNA on the duct tape found at the Bury St Edmunds Sainsbury store as he had proferred during his interview.
Ms Brooks was the second defence witness. She said that on 11th January 2014, in the afternoon, she visited her sister. The defendant drove Ms Brooks and the children to the sister's house. Ms Brooks said that there was a shed at her home. The shed was unlocked. There was nothing to stop people going in and taking things out of the shed.
When the judge came to sum the case up he provided a pithy summary of the defence as follows:
i. "So the defendant says he played no part; he was in the Walsall area at the time that this burglary was committed; he played no part whatever in the burglary. There may be DNA on the tape that matches his, but there is an innocent explanation for that; he had such tape, he said, in his car back at the time of the Swindon burglary, and he is now saying that he kept a lot of things in the shed in the garden, including tape, and anyone at any time could have removed the tape from there for use on such an occasion. It seems that he, or his now former partner, are connected, one way or another, with others who may commit burglaries of this kind and could well have been deposited by one of them; it was not him."
The jury did not see any merit in that defence. They unanimously convicted the defendant of burglary. The judge sentenced the defendant to 4 years' imprisonment.
The defendant was aggrieved by his conviction. Accordingly, he has appealed to the Court of Appeal.
The appellant appeals to the Court of Appeal essentially on two grounds which need to be considered together. The first ground is that the appellant's previous conviction should not have been admitted in evidence before the jury. The second ground is that the jury were not entitled to convict the appellant on the basis of DNA evidence alone. There was no other evidence to identify the appellant as having been present, for example, CCTV evidence. In those circumstances, says the appellant, the judge ought to have acceded to the submission made by the defence counsel at half time and to have stopped the trial then.
Mr Goodman who appears for the defence, as he did at the trial, has drawn our attention to the relevant authorities, as has Mr Cox, who appears for the prosecution as he did at the trial. We are grateful to both counsel for their assistance.
The relevant authorities which have been drawn to our attention are as follows. First, there is a helpful statement of principle made by the Court of Appeal in Doheny and Adams [1997] 1 Cr App R(S) 369, which has been referred to in...
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