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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v Marlowe [2019] IECA 263 (22 October 2019)
URL: http://www.bailii.org/ie/cases/IECA/2019/2019_IECA_263.html
Cite as: [2019] IECA 263
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THE COURT OF APPEAL
Edwards J.
Kennedy J.
Donnelly J.
Record No: CA224/2018
THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
V
ADAM MARLOWE
APPELLANT
JUDGMENT of the Court delivered the 22ndof October 2019 by Mr. Justice Edwards.
Introduction
1. On the 5th of June 2018 the appellant was convicted by the unanimous verdict of a jury
in the Dublin Circuit Criminal Court of all three counts on the indictment proffered against
him: namely of Count No 1, being the offence of assault causing harm contrary to s.3 of
the Non-Fatal Offences Against the Person Act 1997; of Count No 2, being the offence of
robbery contrary to s.14 of the Criminal Justice (Theft and Fraud Offences) Act 2001; and
of Count No 3, being the offence of aggravated burglary contrary to s. 13 (1) and (3) of
the Criminal Justice (Theft and Fraud Offences) Act 2001.
2. Subsequently, on the 6th of July 2018 the appellant was sentenced to imprisonment for
three years on Count No 1, imprisonment for eight years on Count No 2 and
imprisonment for twelve years on Count No 3, all sentences to run concurrently and to
date from the 17th of December 2016.
3. The appellant has now appealed against his conviction only.
The evidence before the jury
4. The trial in this matter lasted four days, with evidence being heard on three of those
dates. The key witnesses from the point of view of this appeal were the injured party, Mr
Malachy Turley, whose evidence was presented to the jury using the procedure provided
for in s.21 of the Criminal Justice Act 1984; Garda Kevin Hynes, a garda who participated
in a search at the scene of the crimes and who recovered a piece of physical evidence
that was crucial to the prosecution’s case against the appellant, and Dr Yvonne O’Dowd, a
forensic scientist who examined that physical evidence and recovered DNA material from
it which she subsequently subjected to a DNA profiling process which revealed the
presence of one complete male DNA profile matching that of the appellant, and two
partial DNA profiles which it was not possible to discriminate.
5. Briefly, the uncontroversial circumstances of the case were that Mr Malachy Turley, who
was born on the 4th of November 1935, lived alone at the material time in a small
cottage on farmland at Kettle’s Lane in Drynam, Co Dublin. In the early hours of the 26th
of July 2016, Mr Turley was the victim of an aggravated burglary of his home, in the
course of which he was also robbed and assaulted by the burglars.
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6. As Mr Turley’s evidence was in statement form, and as there was no cross-examination
because of the procedure used, it is convenient for the purposes of this judgment to
simply recite (to the extent relevant) the s.21 statement that was read to the jury:
"I, Malachy Turley, with date of birth the 04/11/35 live at Drynam, Kettles Lane,
Swords, County Dublin. I have lived at this address since 1952. I live alone and
have done so since my mother passed in 1986. The house is a small cottage on
farmland that I used to farm up until a few years ago. There is a side entrance that
leads into the back of the house where the barn is located. I used this entrance to
access the house as the front door is locked permanently and the area is overgrown
with trees and shrubs. The barn consists of a workshop, but I don't use it
anymore. There is a gate beside the barn which leads to the stables and the land.
I allow use of this land to a few people to keep their horses, in return for a hundred
euro a month fee. This land isn't used as often since the recession but there is still
a handful of people who use it. I don't get many visitors to the house. The
postman and the handful of people who use the land are the only frequent visitors.
I rarely leave the house these days. Only once a week of a Tuesday, to do my
shopping in Dunnes Stores Pavillions Shopping Centre. The last time I left the
house was the 26th of July when I did my shop. I didn't go anywhere else. I last
went to the bank two months ago. I use Bank of Ireland, Swords, Main Street.
On the 28th of July 2016 I remember taking a shower and then going to bed at
about 9:30. It had been an ordinary day with nothing unusual or any strange
callers. I woke up at 3 am on the 29th of July 2016 for a cup of tea and a slice of
apple tart. This would be a regular occurrence for me. I went into the kitchen and
had my cup of tea and tart before going back to bed. I usually stay up for about
half an hour. So I went back to bed at about 03:30. I am a very heavy sleeper, so
I went back to bed and fell asleep straight away. I sleep in the bedroom which is
on the left as you come from the sitting room. I heard a noise a short time after
getting into bed. I always sleep with the door open, so I looked and seen one
person standing in the doorway of my bedroom. I got out my bed and grabbed my
walking stick to defend myself. Then, I saw two other people coming into my
bedroom. They were all dressed in dark clothing. They all had on balaclavas but
not ones made of cloth. It looked like they had made them themselves from a
nylon-type material. The three of them were between 5ft 7 and 5ft 9, and fit lads,
I think. I saw one of them had a stick or a bat in his hands. Another one was
carrying a bat and a small dagger. The blade looked about four inches long. The
third person had a firearm in his hand. It looked like a new type gun, not a cowboy
gun. I think it was an imitation firearm. It didn't look real. As I grabbed my cane
the three people ran at me and pushed the cane out of my hand. They pushed me
back onto the bed. I grabbed the bed sheets and covered up. They began
screaming at me, 'Where's the safe? Where's the safe?' They kept saying,
'Malachy, where's the safe? We will leave you half the money.' They kept calling
me by my name. As they were doing this they kept hitting me with the sticks. I
was getting hit by more than one bat and just kept covering up. I went
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unconscious for a moment. I could hear them talking but I felt like I couldn't
respond. One leaned right over into my face yelling, 'Show me where the safe is.'
I think the other two went out looking around the house. I don't think they used
any vile language towards me. The accents sounded like a Dublin accent, but not
the Moore Street accent, but like someone from the Dublin suburbs. This lasted for
a few minutes. As this person was yelling at me he kept hitting me. I was just
lying there taking the beating, not thinking ahead. I was just wishing he would
stop. The other two came back into the room and they pulled me from the bed onto
the ground. They did this by grabbing hold of the sheet and pulled me using the
sheets. I landed on the ground hard and then they threw the mattress down on top
of me. I heard them searching the bedroom and pulling the bed apart. My
trousers had been beside the bed with my phone, my wallet and my keys in them.
I heard them get hold of my keys and walk out of the room. I could hear them
outside of my bedroom. I lay under the mattress for about 20 or 30 minutes after I
last heard them to make sure they were gone. I got out from under the mattress
and put it back on the bed which was difficult because I have a bad hip and need an
operation. I use two walking sticks at the moment.
I put the mattress and the sheets back on the bed and I looked for my trousers to
find my phone. I couldn't find them, so I went back to bed to try and sleep. I lay
awake in bed thinking for a while thinking if I couldn't find my phone and they took
my car, then I would be badly stuck. I was worried I would be left in the house
alone. I think I fell asleep around 04:00 for a few hours. When I woke up, I went
searching again for my trousers. I can't remember feeling any pain at the time, but
I think I was in shock. I found all the cards and driving licence which were in my
wallet on the sitting room floor. The house had been ransacked with everything
thrown on the floor. I searched around and found my wallet. There had been fifty
euro in ten euro notes in it which was gone. The whole house looked like it was
searched. Two small bags of coin had been taken form the bookshelf. I eventually
found my phone, but it was still early, and I didn't want to bother my brother too
early. I rang him when it got to 10 am. I spoke to his wife first and then my
brother, Fergus. I told him what had happened, and he rang the gardaí. I spoke to
the guards a few months later. I showed them a deep cut to my right hand,
bruising to my left shoulder and chest, and bad bruising on my right knee. I told
them what had happened. At this point I seen the barn door padlock had been
opened using my keys, but they were left in the lock on the ground.
An ambulance came a short period later and took me to Beaumont Hospital where I
was given five stitches in my right hand and painkillers. I gave the gardaí
permission to examine my house and search the area. I did not give any person
permission to enter my house to assault me or to take any items from my property.
This incident has been very traumatic. I am in a lot of pain now from my injuries.
My main concern is that this incident could have been worse and that these people
could go on to do this to other people. I don't want anyone else to have to go
through this. I allowed people to use my land for their horses in return for a
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hundred euro a month. This money was paid the first date when the horses arrived
and was due that date each month subsequently. This money was always paid in
cash. The last time I was paid was in June when I got paid for three horses. It can
be very difficult to get the money at times.
I wish to add that I have viewed a piece of blue latex glove which was seized from
my bedroom following a report by me on the 29th of July 2016. I have never seen
that piece of glove before. I have never had gloves like that in or near my
bedroom. I would have no need for plastic gloves like this in or around the house.
I would use heavier gloves for wandering around the house or on my land. This is
the first time I have seen a glove like this on my property. There was no sign of
this piece of glove or a glove like it in my house prior to the incident I reported on
the 29th of July 2016.”
7. The jury heard that after the incident had been reported to the gardai, a number of gardai
were involved in the investigation that ensued, including Garda Kevin Hynes who, later on
the 29th of July 2016, participated in a search of Mr Turley’s cottage. Garda Hynes told
the jury that he commenced search at 17.15 on that date, accompanied by Garda Thomas
Tighe, and at 17.55 he located a small piece of blue material under the bed sheets in the
bedroom of Mr Turley. He elaborated on this under cross-examination, using the eighth
photograph in a book of photographs introduced by the prosecution, as follows:
Q. JUDGE: Could you just perhaps confirm again which photo you're looking at?
A. This photograph here, Judge.
JUDGE: Very good. Thank you.
Q. MR HENEGHAN: Is that --
A. But yes that was the position of the bed when we went in.
Q. Yes. It wasn't interfered with?
A. No, Judge.
Q. You're certain about that?
A. Well, when we walked into the room that's the position that the bed was in.
Q. And where was this piece of latex found?
A. Judge, it was found --I suppose on top there would be what you'd refer to as
the duvet, it was under --
Q. JUDGE: When you are describing it maybe you'd just hold it over to the jury
there.
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A. This would be the duvet so to speak, bed sheet/duvet, and that would be the
underlay sheet. It was found underneath the duvet on top of the underlay
sheet on the bed.
8. The jury heard that the piece of blue latex material was placed in an evidence bag, which
was appropriately sealed and labelled, and in due course it was delivered to the Forensic
Science Laboratory for forensic examination. In cross-examination of Garda Hynes by
counsel for the appellant it was put to him, inter alia, that the wearing of a glove prevents
the leaving of a fingerprint, and he agreed with that.
9. Dr Yvonne O’Dowd, who examined the physical evidence, and in particular the piece of
blue latex recovered by Garda Hynes, told the jury:
“Okay. Particularly with reference to the blue latex, exhibit KH1, I examined the
I opened the bag in a specific facility we have for examining items in the
laboratory. I examined the item. I took a sample of it with a swab and then I
generated a DNA profile from this item. I also DNA profiles were generated from
the DNA reference samples of Malachy Turley and Adam Marlowe for comparison
with any profiles obtained from the blue latex. I obtained a single male DNA profile
from the blue latex which matched the reference DNA profile of Adam Marlowe and
I estimate the chance of finding this DNA profile, if the DNA had come from
someone unrelated to Adam Marlowe, is considerably less than one in a thousand
million. In addition to this profile, there were additional DNA elements at a very
minor level present. These DNA elements were from more than one source. They
didn't affect my interpretation and they were at such a low level it wasn't possible
to discriminate them.”
10. Dr O’Dowd stated that there was a significant quantity of DNA on the small piece of latex
amounting to 0.04 nanograms per microlitre, in circumstances where the maximum that
would be used in the DNA profiling process was one nanogram per microlitre. She went
on to say:
“Over 93 % of this contribution came from one individual. This was very clear from
the end result of the profiling process and that contribution matched the reference
DNA profile of Adam Marlowe. The additional minor DNA elements were made up
of less than 7 % coming from at least two people. So they were at such a low level
it wasn't possible to put any significance on them.”
11. Dr O’Dowd was cross-examined by counsel for the appellant. The cross-examination
commenced as follows:
“Q. Just in respect of the piece of latex, it seems to be in the shape of a fingertip,
would that be
A. It looked like a fingertip pulled off the top of a glove. I often five days a
week I wear gloves in work so as not to contaminate exhibits from myself
Page 6 ⇓
and I change gloves between exhibits so that I don't cause contamination
between exhibits, that's standard practice in a Forensic Science Laboratory.
So, gloves are coming on and off all day. Sometimes they come off in a
hurry. It wouldn't be unusual for you to tear them when you pull them off.
So, when I saw this to me that looked like a glove.
Q. It looks like the tip of
A. It looks like the tip of a glove, yes.
Q. The tip of a glove. Did you can you tell when you obtained the samples
from the tip, if we call it the glove tip, was it from the inside or outside?
A. It was from the inside.
Q. Inside?
A. Yes.
Q. And did you you took a swab; isn't that correct?
A. That's correct.
Q. And did you swab the entire
A. The entire inside of the latex.
Q. Did you swab the outside?
A. No.
Q. And is there any reason for that?
A. I was looking for the wearer of the glove.
Q. Yes.
A. And you're more likely to find the wearer of the glove on the inside then on
the outside.
Q. And in terms of the tip of the glove, it's a tip?
A. That's right.
Q. If you cut a glove, if you just were to slice the top of a glove, is it reversible?
A. It is reversible.
Q. So how do you know which is inside and which is outside?
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A. Because if you pull the top of this glove you'll be able to tell from me wearing
it which is inside and which is outside, it's quite warm. When we get warm
sometimes we leave staining on the inside of the glove, particularly when the
temperatures are hot or if people are involved in activity which would cause
them to heat up and it can leave staining on the inside of the glove and I
observed staining on what I believed to be the inside of this
Q. What you believed to be the inside?
A. Yes.
Q. But you can't be certain it was the inside?
A. Well, the outside was quite clean.
Q. Yes. But you can't be certain; is that right?
A. It is my
Q. Because it's reversible. Once it's cut it's reversible; isn't that right?
A. It is reversible, yes.
Q. So you can't be sure whether it's inside or outside?
A. In my opinion it's more likely to have been the inside.”
12. The witness stated that she could not say when the DNA was deposited on the glove, and
agreed with counsel that it could have been there for weeks, months or years. She stated
that whether or not DNA will persist on an item depends on the conditions under which it
is stored. The cross-examination then continued:
“Q. So, we just don't know and we'll never know when that DNA was deposited
on that glove?
A. It was likely to be deposited when it was worn.
Q. When it was worn but we don't know when it was worn?
A. Yes. We don't know when it was worn, no.”
13. When asked about the possible mechanisms by means of which DNA can be transferred to
a surface, the witness stated:
“There are a number of variables which determine whether DNA will or will not
transfer to a surface, particularly when touched. It would depend on how much
friction there was, on how long there was contact and on what we call the shedder
status of the person we would be touching. Some people don't shed a lot of cells,
others do. If you consider people with dandruff, they shed a lot of cells. You'll get
Page 8 ⇓
a DNA profile from someone like that. So, if a surface is touched there may or may
not be transfer of DNA.”
14. This was the prelude to the following exchanges on which the cross-examination
concluded:
“Q. Yes. And in respect of the sample you analysed, you found Mr Marlowe's
DNA without doubt?
A. I found a DNA profile which matched Mr Marlowe's reference DNA profile.
Q. And that's without doubt. But there was also two at least two other traces
from other people; is that right?
A. That's correct, yes.
Q. And in terms of you can't determine when those other sources were
deposited on the glove also; isn't that right?
A. No, you can't.
Q. You can't. So, you don't know which was first or last or second or third or
A. We know from studies that have been done and from experience in the lab
that if an item is worn the person who wears it is the person who is going to
come through the most as the major contributor.
Q. But you don't know when the others were deposited?
A. No.
Q. Or you don't know when Mr Marlowe's DNA was deposited?
A. No.
Q. qThank you very much.”
15. Dr O’Dowd was not re-examined.
The Application for a Direction
16. Counsel for the defence applied for a direction at the close of the prosecution’s case. In
doing so, he relied on the first limb of the test in R. v Galbraith, namely that there was
insufficient evidence connecting the appellant to the crime to allow the case to go to the
jury. Specifically, he contended, the prosecution could not prove when the accused’s DNA
(which it was accepted was on the piece of glove recovered at the crime scene) had been
deposited, nor could they say when the other two contributors’ DNA had been deposited
on the glove. Moreover, only one side of the latex piece, which the forensic scientist
believed to have been the inside, was swabbed, but the evidence had been that, once cut,
a fingertip of the glove type concerned was reversible. Accordingly, he contended, the
Page 9 ⇓
evidence did not exclude the possibility that the DNA found, the major component of
which it was conceded was that of his client, had in fact been on the outside of the
fingertip and that it could therefore have been deposited other than somebody wearing
the glove to which the latex fingertip belonged in the course of the commission of the
crime. In substance, his contention was that there was insufficient evidence to connect
his client with the crime. He concluded:
“I say it can't go to the jury because the jury would be being asked to speculate on
two matters; 1) when was DNA deposited, in what sequence, who was the last
person to wear the glove and 2) they'd have to speculate as to how the glove got
into the house in the first place. There's no evidence that it was left by any of the
raiders at all in circumstances, although Mr Turley I think his name is, Mr Turley in
his evidence said he didn't have gloves like that in the house or never had gloves
like that in the house, there's still no evidence that any of the persons in the house
that night were wearing gloves. He doesn't indicate at all that any of the persons
who went into his house were wearing gloves. That's my point, Judge, effectively
that, you know, you are asking the jury to speculate.”
17. In those circumstances, and relying on two fairly recent decisions of the superior courts
as ostensibly providing support for his submission, namely that of the Court of Criminal
and that of the Supreme Court in The People (Director of Public Prosecutions) v. Wilson
[2017] IESC 54, he contended that no properly charged jury could be satisfied beyond
reasonable doubt of the guilt of his client. In that regard, he stated, inter alia:
“The jury would have to have a reasonable doubt. They'd have to. That's why I
am seeking the direction because they'd have to have a reasonable doubt. They
cannot for certain say. If there was only one person's DNA I would still be saying
that this case is flimsy for other reasons but there's no other evidence in the case.
There's absolutely no other evidence in the case and there is a possibility of two
other persons or at least two other persons having touched that glove or worn that
glove after Mr Marlowe had contact with it. That is a real possibility. It is a
genuine possibility. It's a real possibility and I say to allow that to go to the jury is
dangerous …”
18. The application for a direction was opposed by counsel for the prosecution, who argued
that there was in fact enough evidence to allow the matter to proceed to the jury.
19. Having heard both sides the trial judge refused to grant the direction sought, ruling as
follows:
“JUDGE: All right. Well, I am satisfied from the evidence which was given by Dr
O'Dowd and the percentage of DNA that was found being at a very, very high level,
that of 93 %, and the remaining 7 % having been shared by two unidentified
persons and the level of DNA not being sufficient from which to extract a profile, I
am satisfied that the percentage is sufficiently high and the methodology used by
Page 10 ⇓
Dr O'Dowd which was directed towards establishing the wearer of the glove and the
evidence which she gave in that regard as to the high probability that the DNA was
that of the wearer of the glove due to the high volume which she gave, and she
gave a precise figure which I don't have, but she specifically noted that there was a
very significant amount of DNA found for the purposes of profiling but it is the
circumstances under which this particular fragment of latex which is the most
compelling aspect of the evidence because it was in Mr Turley's bed where this
particular item was retrieved on the day, albeit at a significantly later stage on the
day, of the incident. It was found and there is evidence that Mr Turley was
somebody who was not accustomed to having visitors in his house and in my view
that is sufficiently compelling evidence which a jury, if properly directed, could
convict in relation to each of the offences on the indictment.
Now, it is undoubtedly the case from the O'Callaghan decision and the Wilson
decision that the jury will have to be carefully charged in relation to the DNA aspect
of the case and those are aspects of my charge which I will have to give careful
consideration to based on the guidance that's been given in the Wilson case.”
20. Following the refusal of the direction application, the defence elected not to go into
evidence.
The Trial Judge’s Charge to the Jury
21. Following closing speeches by both prosecution and defence counsel, the trial judge
charged the jury. Most of her charge is uncontroversial and does not require to be
reviewed. However, as we shall see, one of the appellant’s grounds of appeal relates to
how she charged the jury in respect of the significance of the physical evidence,
specifically the piece of blue latex, and the DNA trace evidence found on that.
Accordingly, it is appropriate at this point in our judgment to rehearse the portion of the
judges charge relating to these matters.
22. Having reviewed Dr O’Dowd’s evidence in detail, the trial judge gave the following
instructions, inter alia, to the jury:
“So, in this case, before you consider the conclusion you are being invited to draw
from the DNA evidence, you must first consider the significance of the latex of the
being found in Mr Turley's bed or in his bedroom on the afternoon after these
offences were committed. You must consider all rational innocent explanations for
the presence of the piece of latex in Mr Turley's bed clothes or in his bedroom on
the date these crimes were committed. It is only if you have excluded all rational
explanations consistent with innocence for the presence of the latex that you go on
to consider the issue of whether you are satisfied beyond a reasonable doubt that
the wearer of the glove from which the latex came committed the offences and
whether the DNA evidence satisfies you beyond a reasonable doubt that the wearer
of the glove was the accused. As DNA does not provide direct proof of guilt it
should be treated by you with care and you should be aware of its possible
infirmities as you are being invited to draw a highly significant conclusion, a guilty
Page 11 ⇓
verdict, from a single piece of evidence. For this reason a degree of circumspection
is necessary in assessing this type of evidence and DNA evidence requires to be
approached with care. Not only must you be satisfied that the finding of an item
with a DNA profile matching that of the accused is consistent with guilt but you
must also be satisfied that its presence is inconsistent with any other rational
conclusion consistent with innocence.
The prosecution case rests on the comparison of the profiles taken from the latex
material and the sample taken from Andrew Marlowe when he was arrested and
you have heard that there was a match. The first thing of which you must be
satisfied beyond a reasonable doubt is that the piece of latex which was analysed
by Dr O'Dowd was the same piece of latex which was covered from the bed clothes
of Mr Turley's bed or from his bedroom.”
23. After some further elaboration on this requirement, the trial judge continued:
“However, if you are satisfied beyond a reasonable doubt that the latex analysed by
Dr O'Dowd was the piece of latex which came from Mr Turley's bed”…“you can then
go on to consider what inferences may be drawn from that fact. Just because there
is a DNA match you must guard against jumping to an automatic conclusion of
guilt. The finding of DNA evidence is not necessarily probative of guilt. You are
required to consider the statistical basis which feeds into the conclusion of Dr
O'Dowd before you accept it. DNA evidence, while technical and scientific by
nature, is not infallible and it is opinion evidence. DNA is based on points of
comparison between the population at large and other groups such as siblings or
relatives of the person in respect of whom the match is made and there are
different levels of probability. Look and examine the DNA evidence in the same
way you would consider any other aspect of the evidence and scrutinise it.
Consider the probabilities of the DNA being that of someone unrelated to the
accused. The probability of the DNA being that of someone unrelated to the
accused was stated by Dr O'Dowd to be considerably less than one in one thousand
million. There was a large amount of DNA extracted and a full profile matching that
of the accused was obtained. In reality it is accepted in this case that the
probability of the DNA being that of someone other than the accused is extremely
remote indeed. Less remote however is the possibility raised that one or other of
the other sources of DNA of unknown origin found on the latex glove was the DNA
of the wearer of the glove during the commission of the offences. Over 93 % of the
DNA found on the latex tip matched that of the accused. However, there is a
further amount which was said to be less than 7 % from two or more unknown
contributors. That is evidence from which it can be inferred that at least two other
unknown persons had sufficient contact with the inside of the tip of the glove to
collectively account for less than 7 % of the DNA extracted. Does that percentage
of DNA from the other unidentified sources cause you a reasonable doubt as to the
wearer of the glove? If it does you must acquit. Even if you are not convinced that
the wearer of the glove found was one of the other unidentified sources of DNA but
Page 12 ⇓
if that might reasonably be possible you must acquit. Because it is accepted that
there is no other evidence against the accused and because the other sources of
the 7 % of the DNA extracted remain unidentified and because the particle which
was found represents only a very small of the entire glove you must be especially
cautious before relying on the DNA evidence before convicting.
The other significant aspect of the DNA evidence is that Dr O'Dowd cannot say
when the DNA was deposited. All the DNA match tells you is that the glove was
worn by the accused at some stage. However, Dr O'Dowd's evidence is that from
studies and from experience in the lab if an article is worn the person who wears it
is the person who is going to come through as the most major contributor. In
considering this aspect of the case you are at liberty to consider the nature of the
item involved by reference to your own knowledge and experience or indeed your
own use of latex gloves. You are entitled to consider issues such as their durability
and the disposable nature of latex gloves and the purposes for which latex gloves
are used and how they are used. You are entitled to legitimately consider whether
a disposable glove is an item which, by its nature, is one which is worn and reworn
by multiple persons at different times.
You must also consider the evidence as to the methodology used by Dr O'Dowd in
confining her examination to what she considered to be the inside of the glove.
Although she could not say as a matter of certainty that it was the inside of the
glove, she expressed a high level of confidence that it was. However, you must ask
yourselves are you satisfied beyond a reasonable doubt that she was correct in that
evidence, that it was the inside of the tip of the glove which she examined. Are you
satisfied that confining her examination to the inside of the glove was the correct
and reasonable approach to take in seeking to establish the wearer of the glove? If
you have any doubts in relation to the completeness or the reliability of the process
followed by Dr O'Dowd you must resolve these doubts in favour of the accused and
acquit.
DNA evidence does not exist alone and must be considered in conjunction with the
other evidence in the case as to how the offences were committed and evidence
regarding the number of people who were likely to have been in Mr Turley's bed or
bedroom in or around the date of the offences. Mr Heneghan has criticised aspects
of the investigation … .”
“If any aspect of the investigation causes you to have reservations of a serious
nature in relation to any aspect of the evidence the accused must be given the
benefit of the doubt and you should acquit.”
24. Then, having summarised both the prosecution and defence cases, respectively, the trial
judge added:
“Now, in relation to your verdicts, you may only convict the accused of these
offences if, having considered the DNA evidence, in conjunction with the other
Page 13 ⇓
evidence in the case, you reach a point where you consider that the percentage of
the DNA which is a match for the accused is so high as to exclude the reasonable
possibility that someone other than the accused was wearing the glove during the
commission of these offences. However, if the size of the particle or the fragment
or if the fact that less than 7 % from at least two unidentified sources causes you a
reasonable doubt you must acquit.”
The Grounds of Appeal
25. The appellant relies upon four grounds of appeal, as follows:
(i). The trial judge erred in law and in fact in refusing the application made on behalf of
the appellant at the close of the prosecution case to withdraw the case from the
jury and direct the acquittal of the appellant;
(ii). The trial judge erred in law and in fact in her assessment of the weight to be
attached to the forensic evidence (DNA) in the case, such forensic evidence being
the only evidence in the case tending to implicate the appellant in the commission
of the offenses charged;
(iii). The trial judge erred in her directions to the jury as to the manner in which they
should consider the forensic evidence (DNA) in the case and, in particular, erred in
her directions to the jury as to the interpretation of the ‘mixed profile’DNA sample
in the case;
(iv). The verdict of the jury is perverse and against the weight of the evidence and,
accordingly, the conviction of the appellant is unsafe.
Ground of Appeal No’s (i) and (ii) – the failure to grant a direction, and the weight
attributed to the forensic evidence by the trial judge in considering that application.
26. Grounds no’s (i) and (ii) are in truth interrelated and for convenience may be dealt with
together.
27. In his submissions to this Court, both written and oral, counsel for the appellant has again
sought to place great reliance on the judgments in The People (Director of Public
Prosecutions) v. Wilson [2017] IESC 54, respectively.
28. O’Callaghan’s case involved a scenario in which there was an armed robbery of a Post
Office by two men wearing balaclavas. They had made their getaway by initially running
for a short distance along the street outside the Post Office before being intercepted by,
and getting into, a car driven by an accomplice, which had clearly been prepositioned to
await their emergence, and which then drove away from the scene at speed. However, as
the two men wearing balaclavas had been running along the street they were observed by
an eye-witness who noticed one of the men remove his balaclava and discard it on an
adjacent canal bank. The witness later pointed out this balaclava to Gardai who took
possession of it. Subsequent forensic analysis revealed that it was a homemade balaclava
fashioned from the sleeve of a woollen garment, and mixed DNA trace material was found
Page 14 ⇓
on it that was said to come from more than two people. The mixture was said to be
comprised of a major component which matched the DNA profile of the accused Mr
O’Callaghan, and a minor component. The chance that an unrelated person chosen at
random would have the same DNA profile was estimated at “considerably less than one in
one thousand million”. The State’s forensic expert conceded at trial that it was not
possible to say when any of the persons who had been the source of DNA material found
on the balaclava had come in contact with the balaclava or with the sleeve. She had
added “The only thing we say is that, more than likely, this – they’ve been deposited
since the sleeve had been washed.” However there was no evidence whatever as to any
washing of the item, or of any possible donor garment. The only evidence before the
court of trial relied upon by the State as tending to connect Mr O’Callaghan to the Post
Office robbery was the fact that his DNA had been found on the discarded balaclava.
29. Although Mr O’Callaghan was convicted at first instance, the Court of Criminal Appeal
allowed his appeal, concluding that the only evidential value of the forensic evidence was
in establishing that he could have been one of three people who had been in contact with
the balaclava or sleeve at some unknown point but probably since it was last washed.
There was nothing in the forensic evidence which would entitle the jury to differentiate
between the various persons who had been in contact at some point with the balaclava
material for the purpose of determining which one of them was wearing it at the time the
robbery was committed. Accordingly, the court was satisfied that there was no evidence
on which a jury properly directed could rationally find beyond reasonable doubt that one
of those persons rather than another was the person who was wearing it at the time of
the robbery.
30. The Wilson case, which was also relied upon, had concerned a murder perpetrated by a
lone gunman. In a superficial similarity with the O’Callaghan case, the perpetrator of the
crime had also been observed discarding clothing and other items as he made his
getaway. Amongst these items were a revolver, a cotton glove, a baseball cap and a
hoodie, all of which we recovered by gardai in the subsequent investigation. On forensic
examination these were found to bear trace material, including firearms residue and DNA
material. DNA analysis succeeded in generating a full male DNA profile from the cotton
glove, and mixed DNA profiles from the baseball cap and hoodie. In the case of the mixed
profiles, although there was DNA present from more than one person, the major profile,
in the case of both items, matched that found on the cotton glove. DNA present on
swabs from the grip of the revolver also matched that on the cotton glove. Mr Wilson was
identified as a suspect and was arrested and detained. While in detention he refused to
provide a sample of his DNA for reference purposes, to be taken by the normal means of
a buccal swab. Although one of the Supreme Court’s findings was to the effect that such a
sample could have been lawfully taken from him by the use of reasonable force, the
Gardai in fact obtained the required reference sample by the alternative means of
collecting cigarette butts discarded by the suspect. When a DNA profile was generated
from the trace material on the discarded cigarette butts, it matched the major profile that
had been found on the items discarded by the fleeing gunman.
Page 15 ⇓
31. Mr Wilson was charged, tried and convicted of murder in circumstances where, although
there were three acknowledged strands to the prosecution’s case, the crucial evidence
against him tending to link him to the shooting was the DNA evidence. He appealed
unsuccessfully, but the Court of Criminal Appeal certified a question for the Supreme
Court, namely “Is evidence of DNA samples taken from cigarette butts used and discarded
by the detained person whilst in custody admissible evidence at trial.” While the Supreme
Court addressed this question, and answered it in the affirmative, they allowed other
issues to be raised and dealt with them. These included an additional question framed in
terms “When the sole evidence against an accused person is DNA evidence, is such
sufficient to convict an accused or upon the prosecution case being closed, should a judge
withdraw a case from the jury upon an application of the defence that there was no case
to answer?”; as well as contentions that Mr Wilson’s constitutional right to privacy had
been breached by the manner in which the reference sample had been obtained from
him.
32. While the additional question just referred to was answered in the negative, and the
Supreme Court stated “[t]here is no reason in principle why a jury may not be satisfied to
the criminal standard of the identity of the perpetrator of a crime where the only evidence
of such identity derives from DNA profiling”, they added the following caveat:
“However, we make clear that, in our view, it is necessary that the evidence
concerning the obtaining of a DNA profile from a crime scene, the probative
connection between the presence of the DNA at a crime scene and participation in
the crime as charged, the preservation, analysis and comparison of any DNA found
at the crime scene with any DNA which can be established to be that of the accused
together with evidence concerning the likelihood that the DNA of the perpetrator
might not, despite a match, be that of the accused, must be sufficiently robust to
warrant it being possible for the jury properly to conclude that proof beyond
reasonable doubt has been established. Where such evidence is insufficiently robust
to that end it is, of course, appropriate for the trial judge to direct the jury to
acquit.”
33. For completeness, we should add that the Supreme Court also took the opportunity to
promulgate certain guidance for the benefit of trial judges concerning the directions that
ought to be given to juries in relation to DNA evidence. Ultimately, however, Mr Wilson
was unsuccessful in sustaining any of the issues that he had raised before the Supreme
Court.
34. Counsel for the appellant in the present case, referring to the Wilson case in the first
instance, relied in particular on the following passages from the joint judgment of Clarke
J, Dunne J and O’Malley J (with which Denham C.J. and O’Donnell J concurred) dealing
with the contention put forward on behalf of Mr. Wilson to the effect that DNA evidence,
without more, and no matter what the statistical probabilities, cannot be sufficient to
establish proof beyond reasonable doubt:
Page 16 ⇓
“5.2 It is perhaps appropriate to start by taking a more general view of the
circumstances in which DNA evidence can be proffered as evidence of guilt. The
following analysis, which identifies three significant elements of the evidential
chain, is not intended to be exhaustive for there will undoubtedly be unusual cases
where different variations on that analysis may require to be considered.
5. 3 The first issue concerns the potential connection between a DNA sample found at
what one might loosely call a crime scene and the potential guilt of the accused.
The term “crime scene” is used loosely for it may involve the actual scene of the
alleged crime but also may involve some other location where there is evidence of a
connection with the crime. DNA may, for example, be found in a car which can be
associated with a crime.
5. 4 For the purposes of this aspect of the analysis it is appropriate to assume, but for
the purposes of the argument only, that it can be shown that the DNA found in a
particular location is in fact DNA which comes from the accused. But even if that is
so to what extent can it be said that this tends to establish the guilt of the accused?
Here there may be a range of circumstances stretching from those where there is a
very high likelihood that the DNA found at a particular aspect of the crime scene
must be that of the perpetrator of a crime to those which only demonstrate, at
least in and of themselves, a tangential connection. For example, the sole DNA
found on a murder weapon where there was evidence that the accused was not
wearing a glove and used his or her hands to deploy the weapon concerned falls
into a very different category from the finding of DNA on, for example, a cigarette
butt located at the scene of a crime but where there is no direct evidence that the
perpetrator discarded a cigarette at the time of the crime and no evidence to
suggest that the cigarette butt on which the relevant DNA sample was found was
necessarily discarded in the course of the commission of the relevant crime and by
a participant in that crime. Doubtless a whole range of intermediate examples could
be given where the connection between the relevant DNA sample and the identity
of the perpetrator of the crime might be established to a greater or lesser degree.
5. 5 In passing it is appropriate to emphasise that the Court is not here concerned with
the admissibility of such evidence. Clearly even evidence of a tangential connection
may be relevant in the overall context of a particular case but would be unlikely to
provide sufficient evidence, without more, to allow for a safe conviction. The extent
to which the DNA evidence concerned provides evidence of guilt will depend on all
the circumstances of the case. It follows that there will undoubtedly be cases
where, even should it prove possible to establish that the DNA sample concerned is
that of the accused, the connection of the DNA sample to the perpetrator, having
regard to the circumstances in which the sample concerned was found, may fall
short, or, indeed, a long way short, of providing sufficient evidence, certainly in and
of itself, to establish guilt.
Page 17 ⇓
5. 6 However, there may be other cases where there is an inextricable logic in
connecting the sample found at the crime scene with the perpetrator. Whether that
is so will depend initially on the assessment by the trial judge as to whether the
evidence is sufficient to go to the jury and, if so, ultimately on the view which the
jury takes.
5. 7 It is, however, important to emphasise that the starting point in any analysis of
DNA evidence must be an assessment of the extent to which it can be said that the
identification of a sample found at a crime scene as potentially that of the accused
can, in all the circumstances, be probative of guilt of the offence as charged and in
particular, in a case where there is no other evidence, whether that association is
capable of establishing proof beyond reasonable doubt.”
35. As mentioned already, counsel for the appellant also relies on the earlier O’Callaghan
case, which was reviewed in detail by the Supreme Court in the Wilson judgment, and he
draws our attention to the fact that the Supreme Court’s joint judgment comments in
relation to it, at paragraph 8.2 thereof, that:
“The Court went on to express the view that the evidential value of the DNA in that
case was that the appellant could have been one of three people who had been in
contact with the balaclava or sleeve at some unknown point but probably since it
was last washed. The Court went on to note that there was no forensic evidence
which would entitle the jury to differentiate between the various people who had
been in contact with the material for the purpose of determining which one of them
was wearing it at the time the robbery was committed. On that basis the Court was
satisfied that there was no evidence on which a jury properly directed could
rationally find beyond reasonable doubt that one of those persons rather than
another was the person wearing it at the time of the robbery. Accordingly, the
appeal was allowed. This case highlights the fact that there was a DNA sample
relating to the accused person found on a balaclava, the balaclava was found near
the crime scene, there was also evidence that other persons had worn the balaclava
but there was no evidence to connect the accused person directly with the crime
scene. There was, of course, evidence to connect him with the balaclava but that
does not mean that he had been wearing it at the particular time when the robbery
was committed. Thus, although there was a DNA match, it did not amount to proof
of guilt.”
(Counsel for the appellant’s emphasis)
36. It has been submitted to us on behalf of the appellant that the DNA evidence connecting
him to the piece of blue latex material found at the crime scene went no further than to
establish that, at some undetermined point in time, the appellant (or a person with the
same DNA profile as the appellant) was in contact with the material, as was any of the
other persons whose DNA was found on it. The fact that a lot more DNA from the
appellant (or a person with the same DNA profile of the appellant), rather than from the
other persons, was found on the piece of blue latex material was not evidence from which
Page 18 ⇓
a jury could conclude beyond reasonable doubt that the appellant wore a blue latex glove
(or was in contact with the piece of blue latex material) at the time of the robbery. It was
urged upon us that nothing in the evidence establishes that the appellant (or a person
with the same DNA profile as the appellant) was in contact with the piece of blue latex
material at the time the robbery was committed. In fact, there was no evidence that any
of the persons who committed the robbery was wearing a glove or gloves, let alone blue
latex gloves.
37. Further, in circumstances where there was nothing in the evidence which would permit
the jury to differentiate between the various persons who had at some point in time been
in contact with the piece of blue latex material for the purpose of determining which one
of them was wearing a blue latex glove (or in contact with the piece of blue latex
material) at the time the robbery was committed, the trial judge erred in refusing the
application to withdraw the case from the jury at the close of the prosecution case.
38. Responding to these submissions, counsel for the respondent contends that the trial judge
was correct to allow the case to go to the jury. While accepting that the sole evidence
linking the appellant to the crimes was DNA evidence found on the piece of blue latex
material, counsel has submitted that other compelling evidence in the case served to
heighten the probative nature of this DNA evidence.
39. We were asked to note, in particular, that the piece of blue latex material was located
mixed up in the bed sheets of Mr. Turley’s bed, where the assault had taken place. In his
evidence Mr. Turley recalled being pulled from the bed onto the ground and his attackers
“grabbing hold of the sheet” and pulling him “using the sheets”. Mr. Turley gave evidence
to the effect that he didn’t have many visitors to his house, that the postman and “a
handful” of people who use his land were the only frequent visitors. Location maps
exhibited during the trial bore out the remoteness and isolation of the location where Mr.
Turley resides. When Mr. Turley was shown the piece of blue latex material seized during
the search of his home, he confirmed that “there was no sign of this piece of glove or a
glove like it in my house prior to the incident I reported on the 29thof July 2016”.
40. Moreover, during the course of her evidence, Dr. O’Dowd confirmed that the piece of
material she examined looked like the finger tip of a glove. She explained that in her own
work she used gloves every day to avoid contamination of exhibits and, although she did
not expressly characterise them as such, it was clear that she was speaking of disposable
surgical type gloves. In that regard the piece of material in question was an exhibit in the
case and a piece of real evidence which the jury was entitled to scrutinise and have
regard to. Dr O’Dowd testified to the effect that it was easy to detach a piece when
pulling off such gloves. (“Sometimes they come off in a hurry. It wouldn't be unusual for
you to tear them when you pull them off.”) She gave evidence that she examined what
she believed to be the inside of the piece of latex in question, which she believed to be
from a glove (“in all probability this was the inside of the glove”) in an effort to ascertain
the wearer of the glove (“I was looking for the wearer. When you’re looking for the
wearer you swab the inside”) and obtained a single male DNA profile. She confirmed that
Page 19 ⇓
there was “a significant amount of DNA on the small piece of latex” and that 93% of the
contribution came from one individual, which contribution matched the reference profile of
the appellant. She stated that the “chance of finding this DNA profile, if the DNA had
come from someone unrelated to [the appellant] is considerably less than one in a
thousand million”. Dr. O’Dowd explained that the “additional minor DNA elements were
made up of less than 7% coming from at least two people. So they were at such a low
level it wasn’t possible to put any significance on them”.
41. The respondent maintains that in considering the appellant’s direction application, the
trial judge assessed the evidence as a whole and concluded that there was sufficient
evidence in the case to allow matters proceed to the jury. Counsel for the respondent has
submitted that she was perfectly entitled to come to this conclusion, in accordance with
the principles outlined in The People (Director of Public Prosecutions) v Wilson, and that
there was no error in fact or in law.
42. Counsel for the respondent has sought to distinguish The People (Director of Public
Prosecutions) v O’Callaghan. She has submitted that in O’Callaghan a DNA sample
matching the DNA of the accused had been recovered from a homemade balaclava made
from the sleeve of a jumper. The balaclava had been worn by one of two men who robbed
a post office. When analysed, the nose/mouth area of the balaclava generated a profile
which “indicated the presence of a mixture; this means that there is DNA from more than
two people present. This mixture consisted of a major male component and a minor
component.”
43. However, there was nothing in the judgment to indicate that there was evidence in that
case as to what was the percentage of the major component of DNA material versus the
percentage of the minor component of that material. The present case can be
differentiated on the basis that the jury here had received evidence indicating that the
major component of DNA recovered from the blue latex material, matching the DNA of
the Appellant, represented 93% of the DNA found on the exhibit.
44. Furthermore, it was submitted, the facts of O’Callaghan are otherwise distinguishable
from the present case when one compares and contrasts the exhibits which were
subjected to forensic analysis. Counsel submitted that a balaclava, a robust item of
clothing which can be worn over and over, by many individuals, is fundamentally different
to a latex glove, which by its very nature is intended for wear by one person on one
occasion, to be disposed of thereafter.
Decision
45. We consider that this was a finely balanced case, but ultimately are of the view that the
trial judge was correct to allow the case to go to the jury. We have arrived at that view
following a careful consideration of the evidence, during which we have focussed in
particular on certain subsidiary issues.
46. The first such issue is whether there was evidence on foot of which a jury could be
satisfied beyond reasonable doubt that the piece of latex in question, found at the scene
Page 20 ⇓
in the aftermath of the crime, was deposited there by one of the perpetrators of the
crime. There was certainly evidence on foot of which the jury could be satisfied to the
required standard that the piece of blue latex represented the torn off fingertip of a
disposable glove. In that regard there was the evidence of Dr O’Dowd concerning her
opinion as to the nature of the item she examined, and an explanation of the likely
mechanism by means of which it had become detached. The was also the nature of
material itself. The piece of latex was real evidence in the case. It was before the jury as
an exhibit and it was available to the jury to examine and scrutinise in assessing the
reliability and credibility of the opinion offered by Dr O’Dowd as to the nature of the item.
47. There was no specific evidence from Mr Turley to the effect that he had observed the
perpetrators, or at least one of them, to be wearing a glove or gloves. While the absence
of evidence of any direct observation by the victim of gloves being worn by the
perpetrators is certainly something which a jury would have been entitled to take into
account, we do not consider the absence of evidence of direct observation to be
determinative necessarily of the issue. We carefully considered whether there was
circumstantial evidence which, notwithstanding the absence of direct evidence, might
have justified the drawing of inference that the perpetrators, or at least one of them, may
have been wearing a glove or gloves.
48. In that regard there was evidence that Mr Turley lived alone and had few visitors apart
from the Postman and persons who used his land. There was no suggestion that any of
these persons had entered his house at any time. His evidence was that “I have never
seen that piece of glove before. I have never had gloves like that in or near my bedroom.
I would have no need for plastic gloves like this in or around the house. I would use
heavier gloves for wandering around the house or on my land. This is the first time I
have seen a glove like this on my property. There was no sign of this piece of glove or a
glove like it in my house prior to the incident.”
49. In addition, the location in which the piece of latex was found was a piece of potentially
important circumstantial evidence. It was found underneath the duvet and on top of the
underlay sheet on Mr Turley’s bed. This was against a background of evidence from Mr
Turley that the perpetrators had grabbed hold of a sheet with which Mr Turley was
covering himself, and pulled him on to the floor, following which they had thrown the
mattress down on top of him. There was also evidence that after his assailants had left Mr
Turley had put the mattress and the sheets back on the bed, and that he had gone back
to bed to try to sleep. The jury had photographs before them, taken by a scene of crime
examiner, of how the bedding had been found upon the arrival of the gardai and before it
was disturbed for the purposes of the search.
50. We consider that it was open to a jury properly charged and depending on the view they
took of the evidence, to have drawn the inference that the piece of latex found at the
scene came from a glove being worn by one of the burglars. We are satisfied that the
circumstantial evidence, taken at its height, would have permitted the drawing of that
inference.
Page 21 ⇓
51. Although we did not specifically take it into account in arriving at the conclusion just
stated, there was some other evidence that was potentially consistent with, if perhaps not
directly supportive of, the suggestion that the burglars, or one of them, might have worn
a glove or gloves. There was the evidence from Mr Turley that his house was ransacked
and that in the course of that ransacking numerous items of his property were handled by
the burglars. Despite this there was no evidence of any fingerprints of interest having
been detected in the subsequent scene of crime examination. In that context, the
evidence from Garda Hynes that the wearing of a glove prevents the leaving of a
fingerprint offers a potential explanation as why a burglar, such as one of Mr Turley’s
assailants, might have worn a glove or gloves in the course of the burglary. We accept,
however, that on its own such evidence could not assist with respect to whether a glove
or gloves were in fact worn by the burglars, and for that reason that we excluded it from
our consideration.
52. Proceeding on the premise that there was evidence on foot of which the jury could have
inferred that the burglars, or at least one of them, wore a glove or gloves, the next
subsidiary issue to which we were required to give careful consideration was whether a
jury, properly charged, could have regarded the DNA evidence as sufficient to place the
appellant at the scene of the crime at the time of its perpetration, and to justify an
inference that he was one of the perpetrators. It is uncontroversial that the appellant (or
a person sharing his DNA profile although the odds of that were on the evidence
exceedingly remote) is linked via DNA trace evidence to the piece of torn latex found at
the scene of the crime. If the jury were to accept that the piece of latex came from a
glove worn by one of the perpetrators during the commission of the crime, the issue then
becomes whether that evidence, taken at its height and combined with the other evidence
in the case, goes so far as to allow a jury, properly charged, to conclude beyond
reasonable doubt that the appellant was one of those perpetrators.
53. We accept that it does not follow that simply because the appellant’s DNA was on a glove
believed to have been worn by one of the perpetrators during the commission of the
crime, that the appellant was necessarily one of the perpetrators. If that was the high-
water mark of the evidence, then it would leave open the possibility that his DNA, and
indeed that of the other (unidentified) minor contributors, could have been deposited on
another occasion. Moreover, it would not foreclose on the possibility that one of the minor
contributors could have been a perpetrator wearing the glove during the commission of
the crime, rather than the appellant. If it were the case that the evidence, taken at its
height, admitted of the reasonable possibility that the appellant’s DNA could have been
deposited on the glove on an occasion other than during the commission of the crime,
then no jury, properly charged, could convict him, and the case ought properly to have
been withdrawn from the jury.
54. Following a careful review of the entire transcript we are satisfied that the evidence in this
case went considerably further than merely suggesting that the appellant’s DNA was on a
glove believed to have been worn by one of the perpetrators during the commission of
the crime. The evidence of Dr O’Dowd was to the effect that while there were a number of
Page 22 ⇓
contributors to the DNA found, there was a disproportionality in the amount of DNA
found. Ninety three per cent of it came from the major contributor, with a profile
matching that of the appellant, and the remaining seven per cent came from at least two
other people. She stated that “We know from studies that have been done and from
experience in the lab that if an item is worn the person who wears it is the person who is
going to come through the most as the major contributor.” In addition, her evidence was
that she had observed staining on the portion of the latex piece that she believed to be
the inside of the torn off glove fingertip. She explained that when a glove is worn
“sometimes we leave staining on the inside of the glove” and that she had taken her swab
from that area, because “I was looking for the wearer of the glove.” In our estimation this
provided sufficient evidence for a jury, properly charged, to infer, if they were minded to
do so, that the appellant’s DNA had been deposited on an occasion when he had worn the
glove. Counsel for the appellant suggested in his submission to the court below that,
even assuming that to be the case, the jury would nonetheless be required “to speculate
on … when was DNA deposited, in what sequence, who was the last person to wear the
glove”. In that regard, however, the jury would be entitled to conclude that the type of
glove involved was a disposable type glove intended to be worn only once. Although no
witness either expressly characterised the glove as disposable, or referred to it in terms of
it being intended only to be worn once, it was implicit in the evidence of Dr O’Dowd, and
evident from the piece of material itself which was before the jury as real evidence, that
this was the type of glove that Dr O’Dowd was speaking of. Moreover, that this was not in
controversy, and indeed that it was the common understanding of all involved in the trial,
is evident from the fact that the trial judge, without any objection being raised, and
without being subsequently requisitioned in respect of it, said to the jury in the course of
her charge that:
“Dr O'Dowd's evidence is that from studies and from experience in the lab if an
article is worn the person who wears it is the person who is going to come through
as the most major contributor. In considering this aspect of the case you are at
liberty to consider the nature of the item involved by reference to your own
knowledge and experience or indeed your own use of latex gloves. You are entitled
to consider issues such as their durability and the disposable nature of latex gloves
and the purposes for which latex gloves are used and how they are used. You are
entitled to legitimately consider whether a disposable glove is an item which, by its
nature, is one which is worn and reworn by multiple persons at different times.”
55. At no point was it suggested that the trial judge had overstated the evidence. It was
manifest that the type of glove from which the latex piece was considered to have come
was, in Dr O’Dowd’s understanding, a disposable type of glove intended to worn only once
and then discarded, not dissimilar to those she routinely used in her own work.
56. Based on this, we consider that the respondent is right in suggesting that the facts of this
case are materially distinguishable from those which led the Court of Criminal Appeal in
the O’Callaghan case to conclude that the evidence did not go so far as to establish when
Mr O’Callaghan’s DNA, and that of the other minor contributors, had been deposited on
Page 23 ⇓
the balaclava, beyond the fact that it was likely to have been deposited at some point
since the item, a reference that was not established with any specificity. The balaclava in
that case, or the garment from which a sleeve was cut to fashion it, was clearly not
intended to worn only once or, necessarily, by just one wearer. In contrast, while the
evidence in the present case did not go so far as to suggest that disposable gloves
intended to be worn only once could never be worn more than once, the nature of such
gloves, and their usual and clearly intended manner of use, was nonetheless a highly
material circumstance in the case. It was an important additional circumstance that was
not present in the O’Callaghan case, and one which the jury were entitled to have regard
to as the trial judge rightly suggested they should.
57. In addition, there was no evidence in the O’Callaghan case to suggest that the
proportions in which the various persons whose DNA was found on the balaclava had
contributed was of any potential significance, either in determining whether deposition
had occurred in the course of a wearing the item, or if so, in assessing how recently it
might have been worn and by whom. On the contrary, the Court of Criminal Appeal had
expressly noted that:
“35. DNA found on the homemade balaclava, which the other evidence in the trial
established had been worn and discarded by one of the two men, was identified by
the forensic scientist as matching the DNA profile of the applicant. However, the
forensic scientist also established that DNA from two or more other persons was
also present on this balaclava. The forensic evidence therefore went no further than
establishing that the wearer of the balaclava could have been the applicant, a
person with the same DNA profile, or any of these two or more persons. The finding
of a lot more DNA matching the DNA profile of the applicant in the nose and mouth
area of this homemade balaclava than DNA which did not match that profile was
not shown to be evidence from which a jury, properly directed, could conclude
beyond reasonable doubt that the applicant rather than one of the others had worn
the balaclava after it had been fabricated from the severed sleeve.”
58. In contrast, in the present case, the jury had the evidence of Dr O’Dowd that “if an item
is worn the person who wears it is going to come through as the major contributor”.
59. We consider that having regard to all of the evidence in the case, including the fact that
the DNA had been deposited on a piece of a glove intended to be disposable, and not
intended to be worn more than once; the fact that the likely mechanism by means of
which the glove fingertip had been detached suggested that it had occurred in the course
of being removed by the most recent wearer; the fact that Dr O’Dowd detected visible
staining on what she considered to be the inside of the detached glove fingertip; the fact
that such staining was in the opinion of the forensic scientist most likely to have been left
by the wearer; the fact that this area when swabbed revealed DNA evidence comprising a
major male contributor to the extent of 93%, with the remaining 7% from at least two
minor contributors whom it wasn’t possible to discriminate; and the fact that the forensic
scientist had testified that both studies and experience suggested that if an item is worn
Page 24 ⇓
the person who wears it is the person who is going to come through as the major
contributor; it would have been open to a jury properly charged to conclude by inference
that the appellant had not just worn the glove but that he had likely been the only
wearer, and certainly had been the most recent wearer, of the glove, and to be satisfied
of all of that to the standard of beyond reasonable doubt. The standard of proof, it must
be remembered, is proof beyond “reasonable” doubt and not proof beyond any shadow of
a doubt however theoretical or fanciful. We are satisfied that on the evidence before the
jury the appellant was sufficiently linked to the crime to allow them, if so minded, to
justifiably attribute guilt to him, which in fact they did.
60. In relation to ground no (ii) we should add that we have specifically considered the trial
judge’s ruling on the application for a direction, and indeed all of the exchanges between
her and counsel on both sides during the submissions that were made in advance of the
delivery of her ruling. We find no evidence that the trial judge attributed inappropriate
weight to the forensic evidence, or any aspect thereof.
61. In the circumstances outlined we reject grounds of appeal no’s (i) and (ii).
Ground of Appeal No (iii) – the trial judge’s charge in relation to the DNA evidence
62. In substance, the complaint here is that the trial judge failed to provide any guidance
(because, counsel for the appellant contends, no such guidance could be given) as to how
it might be possible for the jury, for the purpose of identifying the wearer of the glove (or
person in contact with the piece of blue latex material) at the time of commission of the
robbery, to differentiate between the various persons whose DNA was found on the piece
of blue latex material. There was simply no evidence on which the jury could rationally
conclude beyond reasonable doubt that the appellant, as to any of the other persons, was
the wearer of the glove (or in contact with the piece of blue latex material) at the time of
commission of the robbery.
63. In the joint judgment in the Supreme Court case of The People (Director of Public
Prosecutions) v Wilson the judges concerned offered the following guidance to trial judges
concerning how they should instruct juries with respect to DNA evidence. They said:
“8.1 When it comes to giving directions to the jury in relation to DNA evidence, the
trial judge should point out that DNA evidence is given by an expert and as such
the evidence is opinion evidence. They should be reminded of the approach to be
taken by the jury in assessing and weighing expert evidence. The jury should be
told that DNA evidence, whilst it is technical and scientific by nature, is not
infallible. Depending on the facts of the case it may be necessary to point out to the
jury any issues that arise from the circumstances of the case. The fact that a
sample of DNA is found at a crime scene which is a match for the DNA profile of the
accused is not necessarily probative of the guilt of the accused. For example, one
judgment of the Court of Criminal Appeal.”
64. Having outlined the facts in the O’Callaghan case the judges went on to say:
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“This case highlights the fact that there was a DNA sample relating to the accused
person found on a balaclava, the balaclava was found near the crime scene, there
was also evidence that other persons had worn the balaclava but there was no
evidence to connect the accused person directly with the crime scene. There was,
of course, evidence to connect him with the balaclava but that does not mean that
he had been wearing it at the particular time when the robbery was committed.
Thus, although there was a DNA match, it did not amount to proof of guilt.
8. 3 Equally if an issue arises as to a particular feature of the DNA evidence in a
case concerning the way in which the relevant sample was obtained, maintained,
analysed, or compared, the trial judge should explain the issue to the jury and
outline the relevant evidence in that regard, from both the prosecution and the
defense. This should usually be a straightforward process arising from the evidence.
Thus, it may be that an issue arises in relation to the possibility of cross-
contamination or an issue may arise as to the quality of the sample of DNA
obtained at the crime scene. It is not necessary for a trial judge to advise the jury
as to potential difficulties that may arise in some cases if those issues have not in
fact arisen in the case at hand. Accordingly, if there is no evidence of contamination
of forensic samples or laboratory error there is no need to warn the jury that there
may be a risk of inaccuracy in assessing whether the suspect's DNA profile matches
the relevant sample despite what was contended in this respect by counsel on
behalf of Mr. Wilson. Directions given to the jury should be relevant to the
particular case before the Court and to the issues that arise in that case.
8. 4 Perhaps the area of greatest potential for confusion in terms of the instructions
to be given to a jury in relation to DNA evidence concerns the statistical analysis
which underpins DNA evidence. Care should be taken by the trial judge that the
jury are not led into any confusion in relation to the statistics and in particular that
the evidence is not presented in such a way as to involve what has been described
previously in the course of this judgment as the prosecutor's fallacy.”
65. While the Supreme Court had much more to say concerning the type of guidance with
respect to statistics, and how to avoid the prosecutor’s fallacy, it is not necessary to quote
that for the purposes of this judgment in circumstances where the extent and quality of
the instructions in relation to such matters does not form part of the appellant’s complaint
about the specific charge in his case. Rather, the complaint is focussed entirely on aspects
of the charge bearing on the necessity for the jury to be satisfied beyond reasonable
doubt that the appellant was not just linked by DNA to the piece of blue latex, but also
that the presence of his DNA on that piece of latex, taken with other evidence in the case,
was sufficient to link him to the crime, particularly in circumstances where other persons’
DNA had also been found on that exhibit, where there was no direct evidence that gloves
had been worn, and where the forensic scientist could not say with certainty how or when
the DNA evidence found, or any component of it, had been deposited.
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66. Earlier in this judgment we quoted at length from the trial judge’s charge with respect to
the forensic evidence, and in particular the DNA evidence. We were impressed by the
detail of her remarks and the careful and conscientious way in which she instructed the
jury on this issue. She emphasised the importance of excluding all rational explanations
for the presence of the piece of latex in Mr Turley's bed or in his bedroom on the
afternoon after these offences were committed, and instructed the jury, with admirable
clarity, that “[i]t is only if you have excluded all rational explanations consistent with
innocence for the presence of the latex that you go on to consider the issue of whether
you are satisfied beyond a reasonable doubt that the wearer of the glove from which the
latex came committed the offences and whether the DNA evidence satisfies you beyond a
reasonable doubt that the wearer of the glove was the accused.” She added “As DNA
does not provide direct proof of guilt it should be treated by you with care and you should
be aware of its possible infirmities as you are being invited to draw a highly significant
conclusion, a guilty verdict, from a single piece of evidence. For this reason a degree of
circumspection is necessary in assessing this type of evidence and DNA evidence requires
to be approached with care. Not only must you be satisfied that the finding of an item
with a DNA profile matching that of the accused is consistent with guilt but you must also
be satisfied that its presence is inconsistent with any other rational conclusion consistent
with innocence.”
67. The trial judge then proceeded to point out each evidential component of the prosecution
case about which they were required to be satisfied to the standard of beyond reasonable
doubt. She stressed:
“Just because there is a DNA match you must guard against jumping to an
automatic conclusion of guilt. The finding of DNA evidence is not necessarily
probative of guilt. You are required to consider the statistical basis which feeds into
the conclusion of Dr O'Dowd before you accept it. DNA evidence, while technical
and scientific by nature, is not infallible and it is opinion evidence. DNA is based on
points of comparison between the population at large and other groups such as
siblings or relatives of the person in respect of whom the match is made and there
are different levels of probability. Look and examine the DNA evidence in the same
way you would consider any other aspect of the evidence and scrutinise it.
Consider the probabilities of the DNA being that of someone unrelated to the
accused. The probability of the DNA being that of someone unrelated to the
accused was stated by Dr O'Dowd to be considerably less than one in one thousand
million. There was a large amount of DNA extracted and a full profile matching that
of the accused was obtained. In reality it is accepted in this case that the
probability of the DNA being that of someone other than the accused is extremely
remote indeed. Less remote however is the possibility raised that one or other of
the other sources of DNA of unknown origin found on the latex glove was the DNA
of the wearer of the glove during the commission of the offences. Over 93 % of the
DNA found on the latex tip matched that of the accused. However, there is a
further amount which was said to be less than 7 % from two or more unknown
contributors. That is evidence from which it can be inferred that at least two other
Page 27 ⇓
unknown persons had sufficient contact with the inside of the tip of the glove to
collectively account for less than 7 % of the DNA extracted. Does that percentage
of DNA from the other unidentified sources cause you a reasonable doubt as to the
wearer of the glove? If it does you must acquit. Even if you are not convinced that
the wearer of the glove found was one of the other unidentified sources of DNA but
if that might reasonably be possible you must acquit. Because it is accepted that
there is no other evidence against the accused and because the other sources of
the 7 % of the DNA extracted remain unidentified and because the particle which
was found represents only a very small of the entire glove you must be especially
cautious before relying on the DNA evidence before convicting.”
68. Further, she gave the jury this additional guidance on the linkage being contended for by
the prosecution:
“The other significant aspect of the DNA evidence is that Dr O'Dowd cannot say
when the DNA was deposited. All the DNA match tells you is that the glove was
worn by the accused at some stage. However, Dr O'Dowd's evidence is that from
studies and from experience in the lab if an article is worn the person who wears it
is the person who is going to come through as the most major contributor. In
considering this aspect of the case you are at liberty to consider the nature of the
item involved by reference to your own knowledge and experience or indeed your
own use of latex gloves. You are entitled to consider issues such as their durability
and the disposable nature of latex gloves and the purposes for which latex gloves
are used and how they are used. You are entitled to legitimately consider whether
a disposable glove is an item which, by its nature, is one which is worn and reworn
by multiple persons at different times.”
69. Finally, having dealt with issues relating to methodology and statistics she recapped by
saying to the jury:
70. “If any aspect of the investigation causes you to have reservations of a serious nature in
relation to any aspect of the evidence the accused must be given the benefit of the doubt
and you should acquit.”
71. Then, having summarised both the prosecution and defence cases, respectively, the trial
judge added:
“Now, in relation to your verdicts, you may only convict the accused of these
offences if, having considered the DNA evidence, in conjunction with the other
evidence in the case, you reach a point where you consider that the percentage of
the DNA which is a match for the accused is so high as to exclude the reasonable
possibility that someone other than the accused was wearing the glove during the
commission of these offences. However, if the size of the particle or the fragment
or if the fact that less than 7 % from at least two unidentified sources causes you a
reasonable doubt you must acquit.”
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72. We consider that the trial judge’s charge was impeccable in terms of the guidance that it
offered. It is manifest that a great deal of thought had been given to it and that
preparatory work was done. The result was a careful and conscientious charge that
communicated clearly to the jury what was required of them, and which would have
caused them to focus appropriately on the key issues concerning which they needed to be
satisfied before they could convict. The guidance offered was pellucid and to the point,
and entirely adequate in our view.
73. We therefore also reject ground of appeal no (iii).
Ground of Appeal No (iv) – The verdict was perverse
74. We consider that, in circumstances where we have already ruled that there was sufficient
evidence at the conclusion of the prosecution case to allow the case to proceed to the
jury, and no other evidence was offered, the appellant cannot maintain that the verdict
was perverse on grounds of lack of evidence. To succeed based on perversity in such
circumstances, he would have to have shown the existence of something else, some
extrinsic circumstance (e.g., concrete evidence of jury bias), tending to suggest that the
verdict was perverse. He has not done so. We cannot therefore uphold the perversity
complaint.
75. In the circumstances, ground of appeal no (iv) is also rejected.
Conclusion.
76. In circumstances where we have seen fit to reject each of the appellant’s grounds of
appeal, the appeal is dismissed.
Result: Dismiss