England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SWANSEA
His Honour Judge Keith Thomas

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/01/2012

President of the Queen's Bench Division :

1. On 26 February 2010 the applicant was convicted at the Crown Court at Swansea, before HH Judge Keith Thomas and a jury, of rape by a majority of 10 to 2. He was subsequently sentenced to six years imprisonment. He renews his application for leave to appeal after refusal by the Single Judge. The principal issue in the application is whether the court should permit fresh evidence to be called in relation to the DNA evidence given at trial. Although at the end of the hearing we announced our decision to refuse the renewed application, we said we would set out our reasons in writing as the application disclosed important issues as to the way in which expert evidence should be adduced before the court. Before turning to that issue we will briefly set out the factual evidence.

The factual evidence

2. On the night of 10 October 2008 the applicant, then aged 21, and a number of younger persons aged between 16 and 17, including the complainant KS, her boyfriend Alex T and others, attended a party to celebrate the birthday of a friend. Most of the partygoers drifted away but KS and Alex T, the applicant and one or two others remained. KS and Alex T went to bed together and had sexual intercourse. Alex T did not ejaculate. KS went to sleep in a room on her own, Alex T went back downstairs. Later she half woke up to find a person trying to put his penis into her vagina. At first she thought it was her boyfriend, Alex T. Then she realised it was another person trying to have sexual intercourse with her. She told him to get off. She caught a glimpse of his face and saw him standing up, going out the door and pulling up his trousers. She said that when he stood up she saw it was the applicant and that he was wearing a white belt. Her boyfriend, Alex T, then came into the room. She told him what had happened and identified the applicant to Alex T as the person who had raped her.
3. The applicant's evidence was that although he had gone into her room for a "dare" he had done no more than turn the light on, turn it off and go out. He had swapped belts with another person during the evening and had not been wearing a white belt at the time. Three others in the house gave evidence. The person with whom the belt had been swapped denied it had been swapped. One of the others, a young woman, said she saw the applicant go into the room while KS was sleeping, pull the covers off and go out again. Another said she heard the latch of the door to the room where KS was asleep open; when she went downstairs she saw everyone was there except the applicant.
4. In addition to the account we have given above, there were two other aspects of the defence evidence which were relevant to the evidence of DNA. First there was evidence that he had had sexual intercourse with his girlfriend, SF, during the afternoon. Second he had during the night gone upstairs to the toilet. He was taken short and urinated on his jeans and underpants. He had then wiped himself on the towel in the toilet.

The DNA evidence

5. Swabs were taken from KS, Alex T, SF and the applicant. Items of clothing, including the applicant's blue boxer shorts, were examined. In a report dated 21 November 2008, Miss Marion Stone of the Forensic Science Service reported:

i) No semen or blood were obtained from the vaginal swabs of KS or her knickers; this was consistent either with her not having had sexual intercourse or no ejaculation having taken place.

ii) Swabs from the shaft of the applicant's penis did not contain reportable DNA. Some of the DNA components could be entirely accounted for by a mixture of DNA of the applicant and his girlfriend, SF. DNA from the coronal sulcus of the applicant's penis was entirely accounted for by DNA from the applicant and SF.

iii) A stain from the inside front of the applicant's boxer shorts showed the presence of DNA from at least three individuals. This consisted of a major profile matching that of SF, with a few additional minor DNA components from more than one individual. The majority of these could be accounted for as having originated from the applicant; however there were two reportable DNA components which could not have come from SF or the applicant. These components matched the corresponding component present in KS's profile. The DNA profiles of SF, KS and the applicant were similar as they shared several DNA components.

Miss Stone concluded that the absence of semen from KS's vaginal swab and knickers was consistent with vaginal intercourse having occurred without ejaculation or there having been no vaginal intercourse. Although Miss Stone would have expected to find DNA from KS on the applicant's penile swabs it was possible that any of KS's DNA transferred to his penis would have been transferred onto his underpants or been washed off. The DNA on the applicant's underpants came from three persons; KS could have been a potential contributor to some of it.

6. After that report had been served, the applicant asked to be interviewed again. That interview took place on 28 February 2009. In that interview the applicant told the police that he had not mentioned the fact that he had been taken short and urinated on his trousers, the toilet seat, the floor and the towel that was close to the toilet. He had not done so because he had not been asked about it.
7. The applicant obtained expert evidence in relation to the DNA from Miss Lynch of Hayward Associates of St Ives, Cambridge. Although a copy of her report was not produced, it is apparent that there was a discussion between her and Miss Stone prior to their giving evidence during the trial which took place between 15 and 26 February 2010. In the result there was no substantial disagreement between the two experts. There was, in particular, no challenge to the results of the DNA profiles obtained, nor to evidence given by Miss Stone that a wet vagina was more likely to transfer cellular material than a dry vagina. In consequence Miss Stone's evidence on the latter point was not challenged.
8. Before the jury, both Miss Stone and Miss Lynch gave evidence about the possibility of secondary transfer from the towel and the significance of the two components found in the underpants which did not originate from the applicant or SF but which could have originated from KS. Although both agreed that no match probability could be given, they gave evidence of differing emphasis on the significance of those two components. Nothing was said about the possibility of secondary transfer of the applicant's DNA from any item other than the towel in the bathroom.
9. In his careful and clear summing up the judge correctly identified the issues for the jury. He drew attention to the fact that there was no DNA from the applicant found in the vagina of KS, to the evidence relating to what was found on the underpants and to the possibility that two of the components, which did not come from SF or the applicant, coming from KS. He expressly drew their attention to the possibility of secondary transfer. No criticism was, or could, be made of the way in which the Judge so clearly summed the case up to the jury on the evidence that was before him.

The application for permission to appeal

10. After the applicant's conviction, the applicant's family instructed new counsel through the solicitors who had represented him at trial. Transcripts of the summing up, defence counsel's speech and the expert evidence were obtained and a new expert instructed. That new expert was Mr James Clery of DNA Defence Limited, Bristol. He is a member of various professional bodies. He had worked as a criminalist for the Chief Medical Examiner in New York and as a reporting officer for LGC and Forensic Alliance before becoming Managing Director of Defence Forensics Limited and subsequently Managing Director and Chief Scientific Officer of DNA Defence Limited. The CV appended to his report stated he had extensive knowledge and experience of forensic science.
11. He produced two reports, one dated 20 September 2010 and the second dated 25 January 2011 in which he made a number of criticisms of Miss Lynch and the conduct of the trial by defence trial counsel. His three primary criticisms were:

i) No attempt had been made to deal with the match probability of the two components that possibly might have come from KS which were found in the underpants of the applicant which also contained the DNA of SF and the applicant. As no statistical value had been calculated, he added:

"In my experience the court may decide not to admit it as evidence."

ii) The evidence given by Miss Stone at trial (which was not challenged as Miss Lynch agreed with it) that the dryness of the vagina might have been the reason why there was no DNA from KS on the penis of the applicant was contrary to what had been reported in an article published in the American Journal of Forensic Medicine in 2000. His view was that a dry vagina was likely to be a greater source of DNA than a wet vagina.

iii) The experts had not explored other transfer mechanisms, as the DNA could have been transferred from other surfaces "such as drinking glasses or bottles, door handles or games consoles". The experts had been wrong to consider the towel alone.

12. Not content with criticising the experts at the trial and defence counsel, Mr Clery expressed the view that:

"The scientific evidence appears to have played a fundamental role in the case."

His report contained over two pages of criticism of the summing up. He commenced:

"However, I do feel that, possibly due to the complexities of the scientific evidence and the apparent re-iteration and clarification of the scientific evidence as it came out in court could have misled the importance to be placed on it by the judge in his summing up."

He criticised one passage of the summing up as being

"A very simplified version of the evidence as it was presented by both experts."

He concluded:

"In summary I find there have been a number of occasions where either the scientific evidence has not been explored fully on behalf of the defendant, the scientific evidence is incorrect or the summing up by the judge has not been comprehensive enough to deal with the complex issues put forward by both experts."

13. It was on the basis of what was contained in these two reports that Mr Benjamin Douglas-Jones sought to renew the application after a refusal by the Single Judge. In detailed reasons the Single Judge explained why the grounds were unarguable, pointing out that the DNA evidence was not at the heart of the prosecution case; that this was a case where there was strong evidence of identification and other evidence which, on its own, was quite sufficient to make the conviction safe.

The other evidence

14. In our judgement, the Single Judge was correct. There was strong evidence, quite apart from the DNA evidence, which made the conviction unarguably safe. We have summarised that evidence and see no point in repeating it. There was plainly evidence, apart from the DNA evidence, which entitled the jury to convict.

The role of an expert on appeal

15. It has become not uncommon to try to persuade this court to reconsider the DNA evidence given at trial by adducing a new report. There are occasions when this is justified where there has, for example, been an advance in DNA science; there may be other cases where it is in the interests of justice for the court to receive fresh evidence. However, as this court has said on many previous occasions, it is for the defence to call their expert evidence at trial. It is not the function of this court to permit expert evidence to be re-litigated on appeal.
16. In the present case, there was not a shred of evidence to suggest that either Miss Stone or Miss Lynch were not competent experts who had set about their task for the Crown and the defence in an entirely professional and proper manner. In accordance with Rule 33 of the Criminal Procedure Rules, the experts had discussed the issues. The evidence that they gave was clear; the difference in emphasis that they placed on the issues left to the jury reflects two experts acting as experts should in narrowing the issues, giving explanations to the jury that were helpful and highlighting their differences of opinion.
17. It may, of course, be the case that after the trial there is some new scientific discovery or other matter which, despite the exercise of due diligence by lawyers for the defence and the work of a competent expert, make it in the interests of justice for this court to consider fresh evidence. That is not the position in this appeal, as would have been apparent if the new expert instructed in this case, Mr Clery, had properly discharged his duty to the court by confining his report to matters within his sphere of expertise, namely the DNA evidence.
18. When an expert is asked to consider a case after a trial, it is essential that the expert presents his report as evidence within his sphere of expertise and not as an advocate's critique of what happened at the trial. If there are issues properly within the province of an expert, then the expert should write a report in relation to those issues. If the report in this case has been written in such a way that it raised the three issues that we have set out at paragraph 11 above, it would have been readily apparent that the grounds advanced were in fact, as the single judge observed, unarguable.
19. As we have noted at paragraph 12 above, Mr Clery also criticised the judge's summing up; we asked counsel, solicitors and Mr Clery for an explanation of how the reports had come to contain these passages and why the reports had read more like submissions than the reports of an independent expert. In a short statement sent to the court after the hearing, Mr Benjamin Douglas-Jones stated that the reason why the report included comments on the summing up was due to some misunderstanding in the way in which the instructions were relayed to Mr Clery. Mr Clery, as he stated in a letter written to the court, was in fact asked through the applicant's solicitors not only to report on the DNA evidence, but also "the way in which the judge referred to the DNA evidence in the summing up". He agreed to do so. When he sent his draft report, he asked to be told if there were any major amendments or arguments that might assist. He had no response and produced the report which included his view as to the role DNA evidence played in the case and the criticisms of the summing up which we have summarised at paragraph 12 above. Mr Douglas-Jones considered that it was his duty not to re-write the report. The report was therefore served on the Crown and this court in the form in which Mr Clery had drafted it.
20. The Crown served its response and a further report from Miss Stone. Of the many points made in the response, the Crown pointed out that the DNA evidence was not an important part of its case and queried the place of a scientific expert expressing a view on the summing up. Those documents were sent to Mr Clery with a request for him to consider a reply. After a telephone conference with counsel, he produced his second report.
21. In his response to us, Mr Clery stated he had commented on the summing up as he was asked to do so and maintained that it was within his competence as a forensic scientist to comment on whether the summing up was consistent with the evidence given by the forensic scientists at trial. Although counsel should not have asked Mr Clery to comment on the summing up in a report to be produced to the court and should have raised this with Mr Clery once the draft had been produced, Mr Clery was wrong in the view he expressed that he was entitled to make these comments. He should have known that he should not have done this. Nor should he have commented on the importance of the forensic evidence in the case. Despite his explanation, we are satisfied that the consequence of his approach to the appeal was that his report read more like a submission to the court rather than the report of an independent expert. Nonetheless we accept his assurance that he did not intend this and was doing his best, given his experience, to help the court. We also accept the expression of regret tendered by Mr Douglas-Jones. No criticism attaches to the solicitors who acted entirely on counsel's advice
22. Nonetheless there was an unfortunate aspect to this. This appeal was privately funded. It cannot be in the interests of anyone, let alone the family of the applicant or the applicant himself, that money is wasted by the approach adopted by those representing the applicant on the appeal in this case. Not only did it raise the expectation of some hope, but it did so on a basis that is misconceived.

Our conclusion on the expert DNA evidence

23. As we have observed, a properly constructed report confined to the issues of science would have made very clear that the appeal was unarguable. The reasons for that conclusion can be briefly expressed.

i) Both prosecution and defence experts had properly explained the significance of the two components of the profile found on the underpants that did not come from the applicant or SF. No match probability could be obtained. The matter was fairly and properly presented at the trial.

ii) Both experts had agreed that a wet vagina was likely to be a richer source of DNA than a dry vagina. The mere citation of an article that was published in 2000 and an expression of opinion by Mr Clery without in any way seeking to show why the balance of scientific opinion was contrary to what both experts had agreed at trial were matters that were plainly insufficient to begin to advance a case that fresh evidence should be received.

iii) The issue of secondary transfer had been raised by both experts. No suggestion was made at trial that secondary transfer could have occurred in another way. The suggestion by Mr Clery that other mechanisms should have been considered was, as we shall explain, a matter for discussion between counsel and the defence expert.

24. If, therefore, the expert evidence given by Mr Clery had been confined to a proper analysis of the scientific evidence, it would have been readily apparent that the appeal was unarguable.
25. We have already dealt sufficiently with the issue in relation to the match probability and the issue in relation to a dry vagina being a less rich source of DNA. We need add only a few words in relation to the suggestion that other sources of secondary transfer than the towel in the bathroom should have been explored. We have set out at paragraph 6 above the fact that it was only after Miss Stone had written her report and it had been served on the defence, that the applicant raised the issue of his contact with the towel in the bathroom. In advancing the case at trial, the Crown made the forcible point that this account by the applicant was an invention of his to explain the presence of KS's DNA in his underpants. It seems to us that trial counsel for the applicant was right not to pursue any further sources of secondary transfer, as it would have exposed the applicant's account to yet further and more powerful criticism.
26. In his first report Mr Clery states that it did not appear that the Crown expert was aware of the defence statement regarding the involvement of a towel at the time she wrote her report. This comment by Mr Clery, quite apart from involving an expert in straying into matters of advocacy rather than providing an expert opinion, further underlines the dangers of an expert so opining because he simply did not understand the sequence of events. It would, in our view, have been ill advised for trial counsel to have suggested other sources of secondary transfer such as those suggested by Mr Clery, because it would have left the defence open to even more powerful criticism by the Crown.

Conclusion

27. In our view the Single Judge was correct. This renewed application must be refused.