London, WC2A 2LL
B e f o r e :
MR JUSTICE MORRIS
HIS HONOUR JUDGE LODDER QC
(Sitting as a Judge of the CACD)
|R E G I N A|
|LYNDON JERMAINE LEWIS|
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: firstname.lastname@example.org (Official Shorthand Writers to the Court)
Mr G Morrison appeared on behalf of the Crown
Crown Copyright ©
i. "You need to be sure that the only sensible explanation for his silence was that he had no response to make or none that would stand up to scrutiny."
(1) The Recorder erred in finding that there was sufficient evidence on the issue of identification to allow the jury, properly directed, to return a guilty verdict.
(2) The Recorder erred in permitting the jury to draw an adverse inference against the defendant under section 34 of the Criminal Justice and Public Order Act 1994 ("the 1994 Act").
(1) Where it is clear that the DNA has been directly deposited in the course of the commission of a crime by the assailant, a very high DNA match with the defendant would be sufficient without more to give rise to a case for the defendant to answer: (see Tsekiri, paragraph 6).
(2) Where the DNA found on movable articles left at the scene of a crime is the only evidence, nevertheless that can be sufficient without more to raise a case to answer where the match probability is 1: 1 billion or similar. (The conclusion to the contrary in the case of Bryon is not correct): Tsekiri paragraph 14.
(3) In this second class of case, whether the DNA alone is sufficient to raise a case to answer will depend on the facts of the particular case. Relevant factors include non-exhaustively the following six factors (set out at Tsekiri paragraphs 15 to 20 and 21):
(a) Is there any evidence of some other explanation for the presence of the defendant's DNA on the item other than involvement in the crime?
(b) Was the article apparently associated with the offence itself?
(c) How readily movable was the article (on which the DNA was found) in question?
(d) Is there evidence of some geographical association between the offence and the assailant?
(e) Where the case is one of mixed profile is the DNA profile which matches the defendant the major contributor to that profile?
(f) Is it more or less likely that the DNA profile attributable to the defendant was deposited by primary or secondary transfer?
(4) Finally, there is not evidential or legal principle which prevents a case, solely dependent on the presence of DNA on an article left at the scene of a crime being considered by a jury: Tsekiri at paragraph 21.
(1) The Legislation: