England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		15 February 2018

1. MR JUSTICE SWEENEY: This is a renewed application for leave to appeal against conviction, and for a representation order, after refusal by the single judge.
2. On 23 June 2017, at the conclusion of his trial in the Crown Court at Liverpool before Miss Recorder Loram and a jury, the applicant was convicted of causing serious injury by dangerous driving. On 31 July 2017, for that offence and for breach of a suspended sentence, he was sentenced by the Recorder to a total of 20 months' imprisonment, disqualified from driving for 3 years and ordered to take an extended re-test.
3. The sole ground of appeal is that in rejecting the submission of no case, made at the conclusion of the prosecution case, the Recorder: (i) failed to properly assess the agreed evidence in the case; (ii) interpreted the test set out in R v Tsekiri [2017] EWCA Crim 40, at paragraphs 15 - 21, too narrowly; and (iii) failed to reject realistic possibilities consistent with innocence.
4. There is no dispute that, at the conclusion of the prosecution case, there was evidence that:

(i) On 13 April 2015 a three door Audi S3 motor vehicle was driven dangerously on a road in Formby, Merseyside;

(ii) In consequence of that dangerous driving the Audi crashed into a Honda Jazz motor vehicle causing serious injury to the driver of that vehicle, Francis Williamson;

(iii) As a result of the crash the driver's air bag of the Audi was deployed and the driver's door was jammed shut;

(iv) An eyewitness saw three white males exiting from the passenger door and making good their escape;

(v) When police officers attended some 15 minutes later the front passenger seat in the Audi had been pushed forward, consistent with allowing exit from the back seats via the front passenger door.

5. The issue on the submission of no case was whether there was sufficient evidence to prove that the applicant was the driver of the Audi. The prosecution relied on DNA evidence that had been agreed between the prosecution and the defence experts and had been reduced into writing in Admission 6, which was to the following effect:

"a. The reference profile from Jordan Bech was analysed. The sample taken from the airbag (DH/1) was analysed.

b. No presumptive tests for the presence of saliva were carried out on the driver's airbag. If the airbag deploys after a crash then the driver would come into contact with it. Testing the airbag for the possible presence of saliva may assist in addressing the type of contact that has taken place.

c. The central area of the airbag was sampled for DNA testing, on the basis that this is where the driver of the car would contact it in the event of deployment. The sample recovered was invisible to the naked eye. No samples were taken from the other areas of this airbag.

d. DNA from at least three other unidentified people was present in the result from the airbag.

e. The major DNA contribution obtained from the airbag is 1 billion times more likely if the DNA came from Jordan Bech rather than from an unknown unrelated person.

f. The statistical calculation provided addresses only the possible donors of the DNA and does not consider the mechanism, either direct (such as physical contact with the airbag) or indirect (such as the airbag coming into contact with DNA already on the driver's seat or airborne such saliva being deposited by talking), by which any DNA was deposited nor the time at which it may have been deposited. Nor do these calculations assist in attributing DNA to a body fluid.

g. One view for the findings is that Jordan Bech was the driver of the Audi when it crashed. This is based on the finding that stronger DNA components at the ten sites within the mixture matched those of Jordan Bech, compared to the DNA from other people present in the centre of the airbag.

h. If Jordan Bech was the last person to leave the car, and if he did so by through the gap between the two front seats then he may have been the last person to touch it. If this occurred then he would be expected to deposit some DNA and may also wipe off some of the existing DNA.

i. If the passenger seat had been tilted forward and if he left the car by exiting past the back of the seat, rather than between the front seats then clearly the deployed driver's airbag is much less accessible. So although it is still possible that he came into contact with the driver's airbag and transferred his DNA to it during his exit.

j. There is no experimental data to assist in interpreting this DNA result, no information about the presence of saliva and no information about the other contributors to the mixed DNA result. So it is difficult to scientifically assess the probabilities for these alternatives."

6. There was, however, no evidence as to what the air bag looked like when it was inflated, or as to whether there was any gap between it and the seat. Nevertheless, on the basis of Admission 6 and of the remaining undisputed evidence, the prosecution argued that as a matter of common sense it was open to a jury to reject the other two possibilities postulated in the admission, and to conclude that the applicant's DNA was the predominant trace in the centre of the air bag because he had been the driver.
7. On behalf of the applicant, it was submitted that the finding of the applicant's DNA on the driver's air bag was insufficient - as the very fact of there being three different scenarios considered by the experts, with no statistical likelihood as to which was right, meant that the case should be withdrawn.
8. In rejecting the submission of no case, the Recorder quoted from the judgment in Tsekiri above, as follows:

"In our view the fact that DNA was on an article left at the scene of a crime can be sufficient without more to raise a case to answer where the match probability is 1:1 billion or similar. Whether it is will depend on the facts of the particular case. Relevant factors will include the following matters.

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? If a defendant in interview gives an apparently plausible account of the presence of his DNA profile, that might indicate that the prosecution had not raised a case to answer. On the other hand, the total absence of any explanation would leave the evidence of the defendant's DNA unexplained."

9. Against that background the Recorder concluded as follows:

"The fundamental scenario is this: the defendant's DNA was found on the centre of the airbag. There is therefore a clear inference that he was therefore in the car at the time of the crash due to the very fact the DNA was on the airbag deployed in the crash. The jury are more than entitled to place that evidence in the context of the rest of the evidence in the case. The driver's door was jammed shut, and the front seat was pushed forward. So anyone in the back seat would most likely climb to the side of the car rather than the centre, and therefore away from the airbag. That will be a matter for the jury to consider. There are also entitled to consider that there is no evidence from the defendant to account for finding of his DNA, at least not at this stage, I make clear, because it may well be, Mr Lewis, you wish to take instructions. I remind myself of course the provisions in R v Galbraith, and I conclude that a reasonable jury properly directed could properly convict on the evidence."

11. On the applicant's behalf Mr Lewis submits that the conclusion of the prosecution case there was no direct evidence or admission that the applicant was in the Audi at the relevant time or at all. There was no evidence as to the relevance of the mixed DNA profile. There was no evidence as to how the applicant's DNA was deposited on the air bag or the order in which it was deposited as against other contributors to the profile. There was no evidence as to the owner or the keeper of the Audi. There was only the agreed evidence that the applicant's DNA could have been transferred to the air bag in three ways, and that the expert evidence did not prefer one way over another. Against that background Mr Lewis submits, in his written submissions, that the Recorder failed properly to apply paragraph 16 - 21 of the judgment in Tsekiri in assessing the conclusion to be drawn from what was a mixed profile. All the contributors could not have been the driver and, in any event, the applicant's case is clearly very different, it is submitted, from that of Tsekiri in which the attempted robber undoubtedly touched the driver's door handle of the victim's car on which the appellant's DNA was found, and there was a scientific basis for asserting that the likely method by which the DNA had been deposited had happened. In any event, deployment of the air bag in this case was not necessarily linked to the offence in the way that use of the door handle was in Tsekiri.
12. In the result, Mr Lewis submits, the Recorder's conclusion that, as a matter of common sense, it was more likely than not that the applicant's DNA was deposited directly as a result of him being the driver was at odds with the agreed scientific evidence which did not prefer one explanation as being more likely than another, and at odds with the approach in Goddard and Fallick [2012] EWCA Crim 1756, from which he quoted.
13. We observe that in Goddard and Fallick the court went on immediately to refer to the classic test in Galbraith, and that in the subsequent cases of R v Wassab Khan [2013] EWCA Crim 1345 and R v Lewis [2017] EWCA Crim 1734, this court made clear that the ultimate question in a case of this type is the classic question posed in Galbraith, namely whether the prosecution evidence, taken at its highest, is such that a jury properly directed could properly convict upon it.
14. To state the obvious, there will often be cases involving expert evidence where an issue arises, the resolution of which the experts are unable to directly help with, but where the application of common sense may be capable of providing the answer. This was, in our view, plainly such a case. We agree with the single judge that in the particular circumstances of this case, the Recorder was clearly right. for the reasons which she gave, to reject the submission of no case. The reverse is simply not arguable.
15. Accordingly, this renewed application is refused.

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