Saunders v The Queen
| Jurisdiction | UK Non-devolved |
| Judge | Lord Lloyd-Jones |
| Judgment Date | 27 January 2020 |
| Neutral Citation | [2020] UKPC 4 |
| Date | 27 January 2020 |
| Docket Number | Privy Council Appeal No 0045 of 2015 |
| Court | Privy Council |
[2020] UKPC 4
Hilary Term
From the Court of Appeal of the Commonwealth of the Bahamas
Lord Carnwath
Lord Hodge
Lady Black
Lord Lloyd-Jones
Lady Arden
Privy Council Appeal No 0045 of 2015
Appellant
James Wood QC
Richard Thomas
(Instructed by Simons Muirhead & Burton LLP)
Respondent
Rowan Pennington-Benton
(Instructed by Charles Russell Speechlys LLP)
Heard on 27 November 2019
On 15 October 1996, following a trial before the Supreme Court of the Commonwealth of the Bahamas, the appellant, Melvin Saunders, was convicted by a majority (8–4) of the rape of the complainant on 22 June 1993. The appellant was acquitted of a further count of armed robbery which was alleged to have been committed during the rape. The appellant was sentenced to 14 years' imprisonment to be served consecutively to a term of imprisonment he was already serving.
On 16 October 1996 the appellant appealed against his conviction and sentence to the Court of Appeal of the Bahamas. The appeal was dismissed on 7 October 1997.
On 20 March 2015 the appellant, who was at that time unrepresented, submitted an application for leave to appeal against conviction dated 20 March 2015 to the Judicial Committee of the Privy Council. On 14 March 2018 permission to appeal was granted on limited grounds.
The complainant gave evidence at trial that on the 22 June 1993 she was grabbed in the street by a man who threatened her with a knife and dragged her into woods where he vaginally raped her. She did not look at him as he said he would kill her if she did. During the rape some of his sperm got onto her leg and the rapist used a tissue to wipe sperm from her legs and vagina. She was then bound and blindfolded, put in a car, taken to a beach where he orally and vaginally raped her. She was then driven back to a point close to where she had first been abducted where she was released. At no point did she see her attacker's face. She ran to the lobby of the resort where she was staying. The police were called and she and her husband went to the hospital.
The following morning the complainant had gone with police to the location of the first rape. A police officer found a tissue which he preserved as an exhibit. On 23 August 1993 samples were taken from the appellant with his consent.
At the trial Keith Howland, a special agent of the FBI, was called as an expert witness in the field of DNA analysis. He gave a detailed explanation of DNA analysis and profiling. He explained that in this particular case he looked at four separate locations out of the DNA in the cell samples. He explained that “These DNA tests that I spoke of to you do not result in an absolute identification”. He explained that whilst only identical twins would have the same DNA, other persons closely related such as siblings may have “similar profiles” such that “for one, two, or three of the four genetic loci tested, two brothers might have the same profile and it wouldn't be until you get to the fourth one that you would see the difference”.
Mr Howland's evidence was that he was able to identify two different DNA profiles from the tissue; one relating to the complainant and one relating to the appellant. He explained:
“The DNA match that I declared between … the tissue and the … blood sample from Melvin Saunders, the probability of selecting another individual selected at random in the black population is less than one in 100 million… [and] in the white population is also less than one in 100 million. And in the Hispanic population it is less than one in 18 million”.
No statistical result was given in relation to the complainant.
In cross examination Mr Howland explained that there was a possibility of the stain not coming from the appellant. In answer to questions by the defendant's counsel, Mr Bradley Cooper, whether he might find another person with the same DNA profile from the black race, he said he would have to sample more than 100 million individuals before he might find a match. In response to questions from the jury Mr Howland explained that only identical twins would have the same DNA and that even if brothers shared the same DNA, after testing four locations he could test further locations and there would be a difference.
This appeal comes before the Board in very unsatisfactory circumstances. The appellant was convicted in October 1996. The history is incomplete and, at this late date, it is not surprising that it is often undocumented. In many respects it is not possible to confirm from contemporary records the accuracy of the account which is now provided by the appellant. The solicitors now acting for the appellant have informed the court by letter dated 25 November 2019 that enquiries have been made of counsel previously instructed on behalf of the appellant. However, Mr Wayne Munroe QC has advised that he is no longer in possession of the appellant's file and Mr Bradley Cooper has not responded to the requests. We have, however, been greatly assisted at the hearing of the appeal by the appellant's counsel who have acted pro bono. We are grateful to all counsel for their submissions.
The appellant's original proposed grounds of appeal to the Judicial Committee of the Privy Council included a complaint about the constitutionality of the committal proceedings. Permission to appeal was refused on this ground. For convenience we have renumbered the grounds on which permission was granted.
The appellant contends that, despite requests from the defence, there was a failure to provide samples which would have permitted the defence to obtain an independent analysis of the DNA evidence. It is clear that the DNA evidence was critical to the outcome of the trial. It linked both the appellant and the complainant to the tissue which was found at the scene.
In the grounds of appeal the appellant states that during the course of the preliminary inquiry he requested samples of the relevant material evidence and, the Magistrate agreeing to his request, the prosecution was instructed to ensure that access to the relevant exhibits was provided to him. The appellant repeats this claim in an affidavit sworn on 30 October 2019. Support for this claim is to be found in an entry in the Magistrate's Court log:
“27/3/95 … Adj[ourned] to 3/5/95-fpo [for the purpose of] mention samples. D further remanded.”
It is not known whether the further hearing in fact took place on 3 May 1995.
In his affidavit the appellant states that after his committal Mr Wayne Munroe QC briefly assisted him with the matter. He states:
“Prior to my arraignment, I understand Mr Munroe made an application to the Attorney General's office in relation to the DNA samples.”
This refers to late 1995 or January 1996 when the appellant was arraigned. Thereafter the appellant appeared at the Supreme Court in connection with this charge in February 1996, 1 April 1996, 1 July 1996 and 27 September 1996. It seems that the trial was set for 7 October 1996 on three working days' notice.
At the opening of the trial on 7 October 1996 the appellant, who was at that time unrepresented, challenged the legality of his committal. The transcript of this submission by the appellant includes a reference to the Magistrate's Court log:
“I had also, as seen on page two of the charge sheet, made a request to be provided with certain samples for defensive purposes.”
The challenge to the legality of the committal was dismissed. The appellant then explained that he had not taken steps to instruct counsel to represent him at the trial until that issue had been resolved. The judge refused the application for an adjournment of the trial.
On 8 October 1996 Mr Munroe appeared on a limited brief to submit on behalf of the appellant that he had not had adequate time or facilities to prepare his defence. He submitted that three working days was inadequate time to prepare the case and engage counsel. However, Mr Munroe did not refer to any failure to produce exhibits for DNA testing by the defence. The judge refused an adjournment. He considered that the appellant had been given ample time to prepare his defence. He had not been deprived of an opportunity to engage counsel and was not taken by surprise.
Mr Munroe then withdrew and the trial started with the appellant representing himself. It began with the evidence of the complainant and her husband. Mr Bradley Cooper was then instructed on behalf of the appellant and he took part in the proceedings from 3:20pm on 8 October 1996. On 9 October 1996 Mr Howland, the expert called by the prosecution, gave his evidence. He was cross examined by Mr Cooper who questioned him as to the likelihood of finding another person with the same DNA sample and the possibility of contamination or deterioration of the samples sent for testing. Subsequently, police officers were cross examined by Mr Cooper as to the custody of the tissue with the stains on it.
The appellant gave evidence and also called witnesses in support of his alibi defence. On 15 October 1996 the appellant was convicted and sentenced to 14 years imprisonment, that term to be consecutive to a sentence he was already serving.
On 16 October 1996 the appellant lodged an appeal against conviction and sentence in the Court of Appeal. The grounds simply stated that under all the circumstances of the case the conviction was unsafe and unsatisfactory and that there were wrong decisions and misdirections on questions of law and fact. The appellant also asked that he be allowed to present additional grounds when he had been provided with a copy of the transcript. No additional grounds are before us on this appeal. On 7 October 1997 the Court of Appeal...
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