R v Peter Weller
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE THOMAS |
| Judgment Date | 29 June 2010 |
| Neutral Citation | [2010] EWCA Crim 1657,[2010] EWCA Crim 1085 |
| Court | Court of Appeal (Criminal Division) |
| Date | 29 June 2010 |
| Docket Number | No: 200804666/B3,No: 2008/4666/B3 |
[2010] EWCA Crim 1085
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: Lord Justice Thomas
Mr Justice Coulson
Sir Geoffrey Grigson
No: 2008/4666/B3
Mr G Cooke appeared on behalf of the Appellant
Mr K Millett appeared on behalf of the Crown
: On 30th November 2006 the appellant was convicted of sexual assault by penetration. He was subsequently sentenced to three years' imprisonment. The appellant applied for leave to appeal out of time. After several preliminary hearings before this court it was eventually argued that fresh evidence was available on the basis of an expert report. Leave was given by the court on the usual basis.
The issue
What is submitted to be fresh evidence relates to DNA evidence given at the trial which occurred at Kingston Crown Court before Her Honour Judge Barnes. At the time the trial took place the Criminal Procedure Rules dealing with expert evidence had not been made, but they have now been made and what happened in this case underlines, (1) the fundamental importance of the strict adherence to Part 33 of the Rules, (2) the necessity in every DNA case for there to be detailed consideration by the parties and the judge of that evidence and (3) there be a refinement of the issues. As this court made clear in Reed and Reed [2009] EWCA Crim. 2698, such a review was essential in each case. We say that because what is submitted to be fresh evidence in this case relates to the issue about the possibilities of transfer of DNA material and the ability of experts to evaluate it. That was also an issue that was considered in Reed and Reed at paragraphs 59 to 61 and 115 to 134. But, as we shall explain in a moment, the only issue was the difference between the experts at the trial over the evaluation of the possibility of transfer. Had that been isolated at trial as the issue, it would have meant that the DNA evidence in the case could have been dealt with much more expeditiously at trial.
However, what is said on this appeal is that fresh evidence shows that this was a case where the evidence was not sufficiently reliable for experts to have been able to express an evaluation of the possibilities. The legal principles are again set out in Reed and Reed at paragraphs 111 to 113. This case has also raised another important issue in relation to DNA evidence, namely the way in which evidence relating to scientific research and experience that is not in published papers should be dealt with. Before turning to deal with that question, it is necessary briefly to set out the facts of this case.
The factual evidence
The complainant, Emma, was 16. In March 2006 she went to a party with a friend at a house in Carshalton. She went, as one would expect with a girl of that age, to see friends of her own age. At the house there lived the appellant who was much older and his partner. Emma knew the appellant and she gave evidence that he had told her that he was attracted to her. He always complimented her on her beauty and would make other remarks to her which showed his interest in her. She described him as a “charmer”.
During the evening in question Emma drank very steadily. At 10 pm the friend with whom she had come went home. Emma did not do so. She was violently vomiting in the bathroom at the time, having drunk clearly far too much. Later because she was vomiting and her mother could not be contacted, it was agreed she should stay the night.
The appellant took her to her bedroom and helped her. Emma's evidence was that he returned several times and on one occasion with a bowl in case she vomited again. She said she got into bed as she felt dizzy and unwell. She then gave evidence that the appellant began to stroke her body, her breasts and her legs and had then inserted his finger into her vagina in a way that she found very painful. Her evidence was that she was too shocked to say or do anything, but later got herself together and tried to put her jeans on. She fell and the noise brought the appellant to her bedroom. She said she wanted to go downstairs and did so. She said she did not then want to tell anyone what had happened as she did not want to create a scene. Eventually she left but did not go home as it was so late and it would cause such trouble at home. She met a friend, told him what had happened and he took her to the police station where she was seen at about 4 o'clock in the morning. She told the police that she had been indecently assaulted.
The appellant's account of events was that he confirmed what she had said about him looking after her when she became sick. He said he had to pull the hair out of her eyes to stop her vomiting on it. He had helped her into bed. When in bed he had checked her several times and on one occasion had had to put her into the recovery position. He had indeed had to pick up her clothes, including her knickers which she had left on the floor. He strongly denied the account of the sexual assault that she had given.
The expert evidence
Apart from Emma's evidence and that of the police officers, there was expert evidence. There was a doctor who had examined Emma. Her evidence was that Emma had injuries to her fourchette and abrasions and it was red; the injuries were not accidental and had not been caused by infection but because something blunt had penetrated her vagina. Fingers were the likely cause of those injuries.
There was also a toxicology expert but that was of very little relevance.
There was also DNA evidence and it is necessary to describe that in more detail as the appeal relates solely to that evidence as we have set out.
The DNA profiles
The way in which the DNA was obtained is not in dispute. First of all the appellant's right hand and left hand fingernails were clipped. Unfortunately the way in which the samples were taken did not identify the surfaces of the nails. That should have been done, because it is important to know which is the underside, as it is on the underside that it is much more common to find DNA residue. The nails were swabbed and on the right hand there was only found a DNA profile for the appellant.
On the left hand a full mixed profile was obtained. The major profile was that of the appellant but there was a minor full profile of another person; there is no dispute, though this was not gone into at trial, that the DNA in the minor profile was that of Emma. The match probability was over one billion to one. In the circumstances it cannot be disputed that it was the DNA of Emma that had been found on his left hand. Furthermore, it was a full profile. This was obtained by the SGM Plus method of analysis, one nanogram being used on the first run and two nanograms being used on the second run. Although this was low template DNA, it was a full profile obtained by a recognised method of analysis with adequate quantities.
It therefore was common ground at the trial and on this appeal that the DNA had come from Emma.
Possibilities of transfer
Furthermore, it was common ground, both at the trial and on this appeal, that there were a number of possibilities as to how the DNA had been transferred—four possibilities of primary transfer and one of secondary transfer. The four possibilities of primary transfer were:
From the appellant's contact with the hair of Emma whilst moving her hair out of the way when she was vomiting or putting her to bed.
Touching Emma when putting her into bed or holding her in the recovery position.
Contact with vomit.
The insertion of fingers into her vagina.
The only possibility of secondary transfer, and that is the fifth possibility in the case, was by contact with her clothes, particularly her knickers which the appellant said he had picked up.
The identification of agreed and disputed issues
The lesson from this case is that, if the procedure in Part 33 of the Criminal Procedure Rules had been followed, all of that would have been isolated as common ground and should have been put before the jury as an agreed statement of expert evidence.
The issue which was identified before the jury in the trial, which is a slightly different issue to that which is before us here on the appeal, related to the evaluation of the possibilities of transfer. At the trial the sole issue was, as it was not in issue that evaluation was possible, the strength of the evaluation. On this appeal the issue was whether there was sufficient scientific certainty and sufficient scientific reliability for an expert to be able to express an opinion on the evaluation of the possibilities.
It is, we think, becoming increasingly common for there to be little dispute in the majority of cases as to whether the DNA is the DNA of a particular person, although that may be in issue where quantities are very small or the amount obtained has been difficult in analysis or there are mixed profiles. But where, as in this case, that is clear, it is essential that this issue is put before the jury as admitted and agreed expert evidence. It makes the task of the jury so much easier if they do not have to plough through and listen to evidence that is simply not in dispute. It enables the jury to perform its essential function of assessing, where it is agreed that there is a sufficient scientific basis for expert evidence to be given, what is in fact in issue without being troubled by matters that are not.
The evidence of evaluation of the possibilities
At the trial the expert called by the Crown, Miss Jones, said that she considered in evaluating the...
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