England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Hereford Crown Court
Mr Justice Jowitt
T960515

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/03/2014

Lord Justice Fulford :

Introduction

1. On 22 January 1997 at Hereford Crown Court the appellant was convicted of the attempted rape of Ms Zoe E on 9 August 1996. On 12 March 1997, Jowitt J sentenced the appellant to life imprisonment with a minimum term of 7 years' imprisonment. The Full Court dismissed his first appeal against conviction on 27 January 1998.
2. On 17 July 2012, the Criminal Cases Review Commission ("CCRC") referred the appellant's conviction to the Court of Appeal Criminal Division on the grounds of fresh DNA evidence (following the appellant's third application to the CCRC). It is contended that the new evidence, in all the circumstances of the case, gives rise to a real possibility that the Court of Appeal will conclude that the appellant's conviction is unsafe and ought to be set aside. Accordingly, the appellant invites the court to receive this fresh evidence.
3. The provisions of the Sexual Offences (Amendment) Act 1992 apply to this offence. No matter relating to the victim ("Ms E") shall be included in any publication during her lifetime if it is likely to lead members of the public to identify her as the victim of this offence.

The Facts

The Witnesses at the Scene

4. It is helpful to indicate at the outset that the appellant has a distinctive pockmarked face.

Ms E

5. On 8/9 August 1996, Ms E had been celebrating her 22^nd birthday at the Rackets nightclub in Redditch. She was very drunk. About half an hour before she left she noticed that a man, who was about 20 feet away, was staring fixedly at her with what she interpreted as sexual interest. She particularly noted his intense gaze and a lump that was like a scratch on his forehead. He was notably older than most of the other men at the nightclub. She was unable to say if his face was pockmarked. Ms E left the club in the early hours of 9 August 1996 with a friend, Aimee Marshall (who had also consumed a considerable amount of alcohol), and as they walked towards the house of Ms E's mother, they saw a man in the bushes who may have been urinating.
6. As the two women passed under a bridge, Ms E was seized from behind and a man began mauling her. Whilst she fought to free herself, he tried to kiss her and at this point Ms E realised it was the same man with the lump on his forehead who had been staring at her earlier. Ms E blanked out.
7. When she regained consciousness, Ms E was lying on a nearby verge with the man on top of her. His hand was inside her blouse, over her brassiere, and he was pulling at her knickers and tights. He got his penis out from trousers, but when she punched and kicked him he ran away. After the attack, Ms E (along with other witnesses) described how the front of her blouse was completely unbuttoned, whereas when she left the club only the two top buttons were undone.
8. It is to be noted that following the attack Ms E was taken to her home, and within an hour and half of the incident her blouse and brassiere had been seized by the police.
9. Ms E did not attend at the identification parade that took place on 19 September 1996.

Ms Marshall

10. Ms Marshall indicated that the lighting at the scene of the attack was not very good, and as her main concern was to summon help she did not get more than a chance of a few seconds to look at the man's face. She was sure, however, that it was the same person who had been staring at Ms E in Rackets, and she said he was wearing the same black trousers and black paisley panelled shirt. She described him as stocky and about the same height as Ms E when the latter is wearing heels. Ms Marshall suggested that the man in the club who had been staring was "very clean shaven with strange, very small lips and an evil looking face. He was in his late thirties to about forty, or early forties". She indicated he had a lump on the right side of his forehead which she described as follows "It was a prominent feature. The man had a small forehead as well, save for the bit of hair across his forehead, his hair was quite short and it was dark. He face was round and he had flesh hanging down under his chin. He was podgy under chin. His eyes were round and fairly big and his eyebrows were dark and full". She changed her account as regards the colour of his eyes from brown to blue.
11. An artist used Ms Marshall's description to complete an "E-fit" of the attacker, which she considered was a good likeness. However, the artist, on her instructions, placed the lump on the left side of the man's forehead whereas her evidence at trial was that it was on the right. Ms Marshall picked out someone other than the appellant on the identification parade.

Mr Wyatt

12. Mr Wyatt who as in the club that night saw a man by the bar, in the vicinity of Ms E and Ms Marshall. The lighting was reasonable in his estimation. He said the man had "a lump to the forehead, more central than to either side, but it was the dark lines underneath it about two centimetres long which attracted his attention rather than the lump, though that was getting on for the size of half an egg". He described the man as of average build, less than 5' 10" tall; he had quite short hair, greying slightly at the sides but otherwise dark brown or black. He thought he was over 30, and he could not say if his face was pockmarked. During the identification parade, Mr Wyatt said "I'm unsure, I'm afraid" but he made a statement afterwards, once he had seen the appellant with his solicitor, in which he said he was sure it was number 3 on the parade (where the appellant was standing).

Mr Morris

13. Mr Morris saw a man with "quite a lump" on his forehead ordering food from a burger bar which was in the vicinity of the attack. He was 5' 8" to 5' 10" tall, of medium build and in his late 30s. His hair was short and receding, and he was wearing dark trousers and a shirt with a large red and white check pattern down the front. In his statement, Mr Morris described the lump as "about the size of half an egg, just above his left eye. It was darker in colour than the rest of his forehead as if it was bruised". He identified the appellant on the identification parade with the words "I'm not sure but I think its number three". During his evidence, he accepted there was a degree of uncertainty on his part as regards this identification.

Ms Oakes

14. Ms Oakes was working at the burger bar referred to above, and while she was serving Ms Marshall and Ms E, a man came and stood between them. She said "his face was quite striking with piercing eyes, and two marks on his forehead above his eyes which she thought were natural marks rather than injuries. He had a red nose like a drinker's nose … the man's hair was dark". She indicated he was slightly taller than the two women, 40 – 45 years old, wearing a dark shirt with a check pattern on the front. Shortly after he walked off, Ms Marshall and Ms E followed in the same direction. Ms Oakes picked out one of the volunteers on the identification parade.

Ms Hocking

15. Her fellow worker at the burger, Wendy Hocking, also saw a man with "some kind of lump on his forehead over his left eye". He was at the bar at the same time as the two women.  Ms Hocking referred to someone other than the appellant at the identification parade as having the build of the man she had seen.

Ms Lissmore

16. Ms Lissmore, a barmaid at the club, served a man with a noticeable raised lump on the left side of his forehead. He was about 5' 8" tall, of stocky build with dark receding hair. He had a mild Scottish (or possibly Irish) accent and he had distinctive marks on his face, like scars on one cheek (however, it is to be noted that she did not mention the lump or the scars when she made her statement to the police). She saw this man again in the area of the attack on Ms E emerging from some bushes, in that she particularly recognised the shirt he had been wearing in the club. She picked out the appellant as someone whom she had served on 5 or 6 occasions with beer, although she did not take particular notice of him.

Mr McCann

17. The doorman, Mr McCann, saw a man with a prominent lump on his head (over his left eye) enter the club; he was about 5' 6", of small build and in his forties. He had short grey or light-coloured receding hair. He had a Scottish accent and was wearing black jeans and a black shirt with a light-coloured pattern on the front. He did not make any kind of identification on the parade.

The Appellant's Arrest

18. The appellant was arrested on 15 September 1996. When cautioned, he offered a DNA sample. In interview, he indicated he spent most of his evenings at home with his partner, Maria Campbell, and her children. Although he could not recall what he had been doing on that particular evening he stated he did not go out very often. When further interviewed after the identification parade, he maintained his innocence and offered to give a sample of blood and hair.

The Appellant's Case at Trial

19. The appellant gave evidence that he had never been to Rackets nightclub, and he was not in the vicinity of that venue on the night of 8/9 August 1996. He said that since the police had interviewed him his memory of what he had been doing on 9 August 1996 had been jogged by the contents of his stepdaughter's diary. They had gone out on their bicycles and had rented some videos from a local video shop. They returned home and watched some of them; one was called Lock Up starring Sylvester Stallone and another was the Shawshank Redemption. He went to bed between 2.30 and 2.45 am.
20. Ms Campbell gave confirmatory evidence, and said that she had looked at her daughter's diary when the appellant's solicitor had commented that it was a shame that no one in the family had a relevant diary. Her daughter, Lisa, gave evidence and there was some confusion as to when she had written in her diary that they had watched two films, one of which concerned a prison. We interpolate to note that the Crown called rebuttal evidence to the effect that the films rented by the appellant on the evening of 8 August 1996 did not include Lock Up or the Shawshank Redemption.
21. Ms Campbell and Lisa stated that the appellant had never owned a shirt of the kind described by many of the witnesses.
22. There was evidence before the jury about the appellant's face. On 30 and 31 May 1996 he had attended at the Alexander hospital for treatment, and swelling to his right eye and cuts to the right side of his face were observed. However, he did not have an injury to the forehead.
23. At the end of June the appellant was involved in a scuffle with another man which he accepted caused a sizeable lump on his head, but he suggested this was not on his forehead and therefore would not have matched the man described by many of the prosecution witnesses. Furthermore, it was his evidence that the lump on his head had disappeared by 8 August 1996. Ms Campbell indicated that the lump had been "on the middle of the top of his head on his bald patch", and this account was confirmed by Lisa Campbell. Furthermore, a probation officer saw the appellant on 4, 7 and 14 August and he did not notice a lump on his forehead.
24. Dr Barnes, who examined the appellant on 8 January 1997, gave evidence. He said that the appellant had acne scars on both cheeks, although the left cheek was the worst. He had no congenital deformity and he was not of the view that the appellant's acne could result in a lump of the kind described by the witnesses. Although it was possible for a cyst to reach the relevant size, it would take months to develop and it would need a period of time to subside, or surgical intervention. The trial judge observed to the jury in this context that:

"[…] what Dr Barnes can't exclude though, because it would occur without leaving any signs, is a swelling caused by a blow of some kind or other, a swelling from a heavy blow can come up very quickly and then will subside over just a few days. It will not leave any visible sign of its former presence, though in some, but not in all cases there can a thickening of the underlying tissue which can be felt, although there remains no visible sign of the former swelling. There wasn't any thickening of that nature in this case but, as Dr Barnes said, that doesn't exclude the possibility of there having been some sort of blow, a large lump and then quickly going down again. So the medical evidence doesn't show the defendant can't have had a lump on his forehead …"

The 1998 Appeal against Conviction

25. On 27 January 1998, the Full Court considered the appellant's argument that the conviction was unsafe because of the suggested poor quality of the identification evidence. The court was taken to the evidence that tended to demonstrate that the appellant did not have a conspicuous lump on his forehead at the relevant time and the appellant submitted then (as now) that the prosecution identification evidence in any event contained a considerable number of weaknesses, against the background of the lack of any forensic evidence connecting the appellant with the offence. The court, having identified the criticisms that could properly be made of the identification evidence, observed that the appellant had been unable to advance a submission that the case should be withdrawn from the jury because a number of witnesses had picked him out on the identification parade, and that the judge's summing had been fair and balanced. In those circumstances it was considered there was "abundant evidence" for the jury consider. The appeal was dismissed.

The Reference by the CCRC

26. Following the decision in R v Robert Hodgson (2009) EWCA (Crim) 490, the appellant's solicitors applied for scientific tests to be carried out on Ms E's clothing. It is to be noted that in Hodgson, many years after the appellant's conviction, an expert in DNA analysis was instructed to review certain critical swabs of semen left by the perpetrator following the considerable scientific developments since the trial (the gap was between 1979 and 2009). The samples were re-examined and analyzed against known samples taken from Hodgson which demonstrated they could not have come from him. They proved that the appellant was not the killer and rapist, and accordingly this new evidence demolished the Crown's case.
27. Five items of Ms E's clothing were retained following the trial at the property store at Redditch police station, and they were released on 22 March 2010 in order for Keith Borer Consultants ("KBC") to subject them to scientific investigation. Tests were carried out, which have led to expert opinions being offered, principally by Ms Sower at KBC and Ms Morgan and Dr Clayton at the Forensic Science Service ("FSS"). In broad terms, the following conclusions have been reached:

i) A sample from the lower right front of Ms E's blouse revealed a full male DNA sample from what was probably a saliva stain. It is not from the appellant, and it had been deposited by a man who was designated as the "unknown male".

ii) Further probable saliva stains were detected on the right and left cups of Ms E's brassiere, as well as other DNA material from the inside and outside of the brassiere. It is accepted that there is no scientific support for the proposition that the appellant contributed to these deposits. However, Ms Sower suggested there was a "high degree of similarity" between what was found on the brassiere and the DNA of the "unknown male" discovered on the blouse; Dr Clayton put his conclusions on this slightly differently, namely the "unknown male" may have been a contributor to the material; and Ms Morgan suggested there were consistencies between the samples from the brassiere and the blouse.

iii) Complex mixtures of DNA were retrieved from Ms E's skirt and tights. Each mixture included DNA from at least three individuals of whom at least one was a woman. Although the appellant shared some of the DNA components in this "mixed profile", the complexity of the results is such that a large proportion of the population would show concordance with these findings. This meant that the failure to eliminate the appellant from these mixtures has little significance.

28. Ms E was re-interviewed and she told the officers that the brassiere and blouse were new and she had bought them either on 8 August 1996 (the day of the attack) or a couple of days before. This was the first time she had worn either garment in public. She had been in a relationship with the late Colin Watson at the time and she could not recall any consensual contact with any other man since she bought the blouse and brassiere. Subsequent tests have eliminated Mr Watson, eight of the officers involved in the investigation, four men who arrived at the scene shortly after the attack and the scientists involved in the initial analysis.

The Appeal

The Submissions of the Respondent

29. It is convenient to consider the submissions of the prosecution at the outset. Ms Whitehouse, for the respondent, argues that the attacker may not have transferred the DNA, since there are other possible explanations. It is suggested the attacker may not have left any DNA at all. Dr Clayton had observed on this issue:

"[h]aving worked on a number of these types of cases over the years, I have to say that my expectation of finding detectable levels of the offender's DNA at the outset would have been low. In my opinion, at this juncture it remains quite plausible that the attacker transferred little or no DNA to the C's clothing during the commission of the offence and that the DNA from the unknown male is not crime related."

30. Furthermore, it is argued that the DNA may have been deposited on the clothes as a result of handling in the shop at the time of purchase or as a result of re-distribution from other items. It is suggested that DNA from an unknown female on the clothes tends to indicate that the presence of DNA may have had nothing to do with this incident, particularly given Ms E said that "there would have been lots of men that I would of (sic) hugged and kissed and wished me happy birthday but I cannot remember anybody specific".

The Submissions of the Appellant

31. It is submitted that the significance of this fresh evidence needs to be assessed against the background of what is said to be markedly unsatisfactory identification evidence. Of seven witnesses who attended at the identification parade, four either picked out someone other than the appellant or they did not select any of the members of the line up. The three who identified the appellant – Ms Lismore, Mr Wyatt and Mr Morris – did so in circumstances that casts a significant shadow over the suggested accuracy of their selection of the appellant as the perpetrator. Ms Lismore identified a man whom she had served five or six times with a distinctive lump on the left side of his forehead and whom she believed was Scottish. She had no particular cause to recall his appearance, and it is argued there is no evidence that the appellant had a lump of the kind she or the other witnesses described. We note, however, that she was categorical in stating that she was accurate in her identification. Mr Wyatt said the man had a lump the size of half an egg, but during the parade he indicated that he was unsure and he did not make any identification. It was only after he had seen the appellant with his solicitor that he said the man he had seen was standing at position number 3, where the appellant was positioned. Mr Morris also referred to a lump the size of half an egg and although he picked out the appellant at position 3, he indicated he was uncertain.
32. It is submitted that when the court is considering the consequences of the DNA evidence in this appeal, it is important to have in mind that Ms E said that her attacker "mauled" her, and tried to kiss and lie on top of her. She said that "he had his hand insider her blouse over her brassiere and he pulled as well at her knickers and tights". When she left the club only the two top buttons of her blouse were undone but after the attack her blouse was completely unbuttoned. It is suggested that the attacker, therefore, touched Ms E in the areas where the DNA samples discussed above were found. It is argued this represents more than fleeting contact. Although Mr Wilcock Q.C., on behalf of the applicant, accepts that it is plausible that the perpetrator left little or no DNA on Ms E and that the DNA could have been deposited on the garments before Ms E wore them (as Dr Clayton has opined, as set out above), the court is asked to look at the overall circumstances of the incident and the fact that the particular DNA samples were recovered on areas of her clothing that were touched by the attacker.
33. Furthermore, Ms E was uncertain as to where she bought the relevant items of clothing (save for the bra), and it is by no means clear that they came from the same shop or that they were carried home in the same bag. On this basis it is submitted that it may not have been feasible for the unknown male's DNA to have been deposited while the items of clothing were in the same shop or that they may have been redistributed as a result of being in the same bag. Furthermore, it is argued that although there may have been some drunken hugging and kissing at Rackets, given Ms E's blouse seems to have remained buttoned up, DNA would not have been deposited on her bra as a result.

Discussion

34. Given the description by the Full Court on 27 January 1998 that there was sufficient evidence at the time of trial for the jury to consider, we do not intend to undertake an analysis of the precise strengths and weaknesses of identification evidence against Mr Nealon. However, it is self-evident from the rehearsal of the facts summarized above that the prosecution's case was not overwhelming and that there were credible arguments to be made on whether it was sufficient to satisfy the jury (to the criminal standard) that he was guilty. As we have already set out, there was only one witness, Ms Lismore, who made an unequivocal identification of the appellant during the parade. Furthermore, the apparent absence of evidence that the appellant had a significant lump on his forehead was not helpful to the Crown's case. Undoubtedly, however, the jury were entitled to convict the appellant on the material before them – he had been identified by more than one witness and it was for the jury to assess the reliability of that evidence – and there is no suggestion, nor could there be, that the Full Court was wrong to dismiss the first appeal. As it seems to us, on the available material at the time of the trial, the conviction and the decision by this court on 27 January 1998 cannot sustainably be criticized.
35. The real, indeed the only, question on this appeal is the impact of the fresh DNA evidence, which we admit pursuant to section 23 Criminal Appeal Act 1968 given we are of the view that it is necessary and expedient to receive this expert evidence in the interests of justice. It is clear that unlike the situation in Hodgson the fresh evidence has not "demolished" the prosecution case. But its effect on the safety of this conviction is substantial. We are clear in our view that if the jury had heard that in addition to the weaknesses in the identification evidence, it was a real possibility that DNA from a single "unknown male" had been found in some of the key places where the attacker had "mauled" the victim (in particular, the probable saliva stain on the lower right front of Ms E's blouse and probable saliva stains on the right and left cups of Ms E's brassiere, as well as other DNA material on the inside and outside of the brassiere) this could well have led to the appellant's acquittal. The relevant items of clothing had been bought recently (possibly from different shops); they may have been carried in different bags; and the police officers who attended the scene, the deceased's boyfriend and the scientists were all excluded as the source of the unknown DNA. Therefore, every sensible enquiry that could be made to identify a possible innocent source of the DNA has been made. It follows that the jury may reasonably have reached the conclusion, based on the DNA evidence, that it was a real possibility that the "unknown male" – and not the appellant – was the attacker.
36. We stress, therefore, that the effect of this material is to call into question the safety of the conviction because it might reasonably have led the jury to reach a different verdict (R v Pendleton [2001] UKHL 66; [2001] 1 Cr App R 34, page 441 at paragraph 19). While Ms Whitehouse's submissions as to why the jury would have been entitled to reject the possibility that the "unknown male" was responsible for the attack provide a dimension to the debate that requires serious consideration, we have no doubt that the effect of the new evidence is that the case may have resulted in an acquittal. Ms Whitehouse's arguments do not go so far as to provide a basis for suggesting that the jury would undoubtedly have reached the same conclusion if they had heard this evidence.
37. We allowed the appeal and quashed the conviction at the end of the oral hearing. These are our reasons for that decision.