R v Tsekiri
| Jurisdiction | England & Wales |
| Judge | Mr Justice William Davis |
| Judgment Date | 17 February 2017 |
| Neutral Citation | [2017] EWCA Crim 40 |
| Docket Number | Case No: 2016/04668/C3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 February 2017 |
[2017] EWCA Crim 40
The Lord Justice of England and Wales
Mr Justice Dingemans
and
Mr Justice William Davis
Case No: 2016/04668/C3
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Mr Recorder Clements
Kingston upon Thames Crown Court
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr N Hoon (instructed by CPS Special Crime Division) for the Respondent
Mr L Edwards (instructed by LLM Solicitors) for the Applicant
Hearing date: 1 February 2017
On 9 September 2016 in the Crown Court in Kingston upon Thames Jonathan Tsekiri was convicted of a single count of robbery. His application for leave to appeal against that conviction has been referred to the Full Court by the Registrar. We shall give leave.
The Offence
At about 10.45 p.m. on 11 June 2016 a lady named Janice Carr came out of Wimbledon Park Tube station and walked the short distance to her car which was parked on a street close to the station. She intended to drive home. She got into the driver's seat and prepared to drive away. Before she could do so a man who was outside the car opened the driver's door. The man put one hand over her mouth and the other hand at the back of her head. He held Ms Carr tight and twisted her head round. She was able to see that the man was white, of stocky build and wearing a woollen hat. Whether because she was struggling or because the man pulled her, Ms Carr ended up out of her car. She was aware of a second man who appeared to be associated with her assailant. When she screamed for help both men ran away. At some point in the struggle a gold necklace was taken from her neck. Later some segments of it were found on the road nearby.
The scientific evidence
Swabs were taken from the exterior driver's door handle of Ms Carr's car. A mixed DNA result was obtained from the swabs. The scientist who examined the result concluded that the profile consisted of components relating to a single major contributor and to at least one minor contributor. The DNA from the major contributor was consistent with the DNA profile of the appellant. The match probability was 1:1 billion. No conclusion could be reached in relation to the minor components due to their low level. The scientist could not say when the major components of the DNA had been deposited or what the source was of those components i.e. blood, saliva or some other bodily deposit. The scientist said that the deposit of the major contributor could have been due to the person touching the door handle or due to secondary transfer though she considered secondary transfer was unlikely given that the DNA in question was the major contributor to the profile.
Arrest and interview
The appellant was arrested at his home address. The postal district of that address was SW6. The robbery took place in SW19. When arresting the appellant, the police officer mistakenly identified the stolen property as a watch. The appellant's response was to say "a watch". When the police officer corrected himself and said that a necklace had been taken, the appellant made no further comment. When interviewed under caution, the appellant said nothing in response to all questions. He was the subject of an identification procedure. Ms Carr did not identify him.
The trial
At the conclusion of the prosecution case a submission was made to the trial judge that he should withdraw the case from the jury on the basis that no reasonable jury properly directed could convict on the available evidence. The trial judge rejected that submission. In his ruling he said that, where the finding of DNA attributable to a defendant at the scene of a crime was the sole evidence against a defendant, it was necessary to examine the circumstances of the particular case. Whether such evidence was sufficient to justify consideration by a jury would be dependent on the particular facts of the case. He concluded that the totality of the evidence called by the prosecution was sufficient to go before the jury.
The legal principles
This court has very recently had the opportunity to review the authorities relating to DNA evidence and the extent to which such evidence of itself can provide a sufficient basis for a jury convict: see R v FNC [2016] 1 Cr.App.R. 13 at paragraphs 19 to 26. It is not necessary for that review to be repeated here. The conclusion of the court was that the authorities established that, where it was clear that DNA had been directly deposited in the course of the commission of a crime by the offender, a very high DNA match with the defendant would be sufficient without more to give rise to a case for the defendant to answer. That was the factual position in FNC. A man had masturbated onto the complainant and left semen on her clothing. There was no doubt that the man whose semen it was had committed the offence of indecent assault. A DNA profile was obtained from the semen. No match was then found on the database. Over 10 years later the appellant was arrested for an unrelated matter. His DNA profile was obtained. It matched the DNA profile of the semen, the match probability being 1:1 billion. Applying the decision of this court in Sampson and Kelly [2014] EWCA Crim 1968 and the approach suggested by Lord Bingham CJ in Adams (No.) [1998] 1 Cr. App. R. 377 this court allowed the prosecution's appeal against the terminating ruling of the judge at first instance. There was plainly a case for the defendant to answer that the semen on the clothing was his.
In FNC it was noted that there were decisions of this court in which the defendant's DNA had been found on movable articles left at the scene of a crime such as a hat or a scarf where the court had quashed convictions based solely on that evidence: see Grant [2008] EWCA Crim 1890; Ogden [2013] EWCA Crim 1294. In Bryon [2015] 2 Cr.App.R. 21 it was stated that, where a movable item with mixed DNA profiles, one being the defendant's, was found at the scene, this would not be sufficient on its own to support a conviction. The court in that case suggested that the same may be true even if there is a single DNA profile on the item. In Bryon the conviction was upheld because the DNA evidence was supported by bad character evidence. It is clear that the court in Bryon would not have upheld the conviction in the absence of supporting evidence pointing towards the appellant.
The submissions of the parties
On behalf of the appellant it is argued that this was a case where the prosecution case relied solely on the presence of the DNA of the appellant on a car at the scene of the offence. On the basis of the proposition stated in Bryon the submission of no case to answer ought to have succeeded. There were plausible explanations to account for the presence of the appellant's DNA which did not involve him being party to the robbery. The presence of a second DNA profile meant that it was impossible to say whether the person who touched the door handle at the time of the robbery was the appellant or some other person.
The argument put on behalf of the respondent was that this was a case in which there was other evidence which tended to show that the appellant was the robber independent of the DNA evidence. The robber's general description matched that of the appellant. His response on arrest showed that he knew what had been stolen in the robbery. The appellant had lodged a defence statement in which he had said that he was in the general vicinity of the robbery when it occurred, the judge being entitled to take that into account at the close of the prosecution case. The circumstances called for an explanation and the appellant's silence in interview meant that an adverse inference could be drawn.
Conclusion
We are satisfied that this is a case in which, at the close of the prosecution case, the only evidence to connect the appellant to the robbery was the DNA evidence. The matters relied on before us by the respondent did not provide...
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