Scottish High Court of Justiciary Decisons

APPEAL COURT, HIGH COURT OF JUSTICIARY
Lady Paton Lady Smith Lady Dorrian	[2009] HCJAC INFO95 Appeal No: XC414/02 OPINION OF THE COURT delivered by LADY DORRIAN in NOTE OF APPEAL AGAINST CONVICTION by DESMOND DINNELL or UTTLEY Appellant; against HER MAJESTY'S ADVOCATE Respondent: _______

Appellant: C Shead; More & Co, Edinburgh:

Respondent: G Allan, QC, Crown Agent

10 December 2009

Background

[1] The accused appellant was convicted on 31 October 2002 of a charge of rape. The report of the trial judge tells us that the complainer, M then aged 15, had been out on the night in question with her friend David McArthur, then aged 14. Both had become extremely intoxicated. Late at night the complainer was unable to stand unaided and was lying on the roadway in puddles in the pouring rain. David McArthur was not quite as drunk as the complainer. Outside the Sunblest factory in Lochend Road the appellant came up and assisted McArthur to pick the complainer off the ground. He invited them both back to his house, to which he carried the complainer and where he laid her on a bed. She gave an account of feeling her clothes being removed, of the accusedappellant saying "for fuck's sake she's shit herself", and of falling asleep. She said that she woke to find the appellant having sex with her. She told him to "fuck off" and struck him with her fists but he did not stop. She started crying and the appellant got off from on top of her and said that if she did not shut up he would phone the police. She fell asleep again. Although she identified the appellant in court as her attacker, the descriptions she had given the police of the man who attacked her were first, of someone with dark curly hair and brown eyes, wearing spectacles; and secondly of someone with dark, thinning hair wearing octagonal, hexagonal or rectangular spectacles. Neither description matched that of the appellant..

[2] David McArthur gave evidence of returning to the appellant's house and of seeing the appellant undressing the complainer, which he said he was doing because she was wet. Later the appellant went into the bedroom where Michelle was, and the witness then heard her screaming "David, please help me". He went into the bedroom. The appellant was wearing boxer shorts and his penis was erect. He told David McArthur to "fuck off".

[3] Dr Kranti Hiremath spoke to examining the complainer and finding vaginal injuries consistent with forceful penile penetration. Whilst some of these injuries might have been caused by digital penetration they could not have been caused by the complainer herself. Emily Jane Service, a forensic scientist spoke to examination of inter alia vaginal swabs taken from the complainer and penile swabs from the appellant. No blood or semen was found on the vaginal swabs. Cellular material was identified on the penile swabs and these were sent for DNA examination. A joint minute revealed that DNA recovered from the penile swabs bore a profile consistent with that of the complainer. Finally, there was evidence from a police officer speaking to the distress of the complainer when he arrived at the house.

[4] The appellant denied that intercourse had taken place. In evidence his explanation for the finding of DNA matching that of the complainer on the penile swabs was that the complainer had made advances towards him, had put her hand inside the zip of her his jeans and had grabbed his penis. As for her injuries, these must have been caused by her digitally penetrating herself.

[5] The jury retired to consider their verdict then returned with a question in the following terms: "were there any tests carried out on the swabs from M and if so was any DNA from the accusedappellant present?" After hearing submissions the trial judge answered the question by saying that "swabs were taken from MP and no blood or semen was found on those swabs and there is no DNA evidence in respect of those swabs." The jury later returned seeking further clarification. On their behalf the foreman said "...we found that the jury had interpreted the answer in two different ways so we would just like to clarify it. One interpretation was a DNA test was carried out on M's swabs and no DNA from the accusedappellant was found. The second interpretation was that no DNA test was carried out on M's swabs and we just wanted clarification on that." The trial judge advised the jury that they had to base their verdict on the evidence that they had heard, repeated the answer he had previously given them and advised them that they must not speculate about what may or may not have happened.

Grounds of appeal

[6] Original grounds of appeal ((a) and (b)) were lodged in April 2003, being grounds of an Anderson nature relating to the forensic evidence given by Emily Jane Service. The grounds stated that since Miss Service's report had not indicated whether the swabs taken from the complainer had been sent for DNA analysis, the absence of the appellant's DNA on those swabs was not explored before the jury who, by their questions, indicated that they considered this issue to be of importance. It was alleged that the jury's questions indicated that they were confused and speculating as a result of the manner in which defence counsel had addressed this matter. It was further alleged that the solicitor at the trial had been at fault in failing to investigate the matter. Subsequently additional grounds were lodged, of which two passed the sift. Ground (c) related to fresh evidence in that the defence now had a report from Dr Adrian Linacre who had examined the swabs and had found on them no DNA matching the appellant, but DNA from three separate male donors. It is averred that had this evidence been available to the jury they would have been bound to acquit and had the evidence been available to the defence cross-examination would have proceeded on a different basis. The tests carried out by Dr Linacre were not standard tests and there was thus a reasonable explanation why the evidence had not been heard at the original trial. Ground (d) suggests that the trial judge misdirected the jury by directing them that the evidence of David McArthur was capable of corroborating that of the complainer in respect of penetration. A further ground (e) that the trial judge misdirected the jury by failing to give them adequate directions on the issue of mens rea in the crime of rape failed both first and second sifts.

[7] Counsel who conducted the trial was asked by the court to answer certain questions relating to ground (c). She indicated that at the time of the trial she was unaware of the type of test carried out by Dr Linacre. Had she known about such a test, she "would have told him (the appellant) about itthe test, the pros and cons connected thereto - including the fact that the vaginal swab results as they stood supported his position, and the possibility that the results of further analysis might support the Crown case - and taken his specific instructions on whether or not he wished to proceed with this line of enquiry." From the earliest stage of the case the appellant's instructions were that there had been no penile penetration by him of the complainer. Finally, counsel was asked whether the results of the tests conducted by Dr Linacre would have altered her approach to the cross-examination of the Crown witnesses. In a detailed answer she said that it was a "bizarre feature that the complainer's description of her attacker did not match Mr Uttley." Had Dr Linacre's evidence been available "this feature in the evidence becomes a point of substance, rather than an oddity. I would have been able to suggest to the jury (subject to a successful s275 application) that there was a real man in the frame for rape - the rapist's description did not match Mr Uttley and the male DNA found in both the internal and external vaginal swabs did not match Mr Uttley either." Her cross-examination of the experts would not have changed, other than to lay a foundation for the evidence of Dr Linacre. However, she might possibly have altered her cross-examination of David McArthur.

The appeal

[8] At the outset of the appeal counsel indicated that the principal grounds to be argued were the fresh evidence ground (c) and the misdirection ground (d). The remaining Anderson grounds might be argued to the extent necessary to answer any argument advanced by the Crown as to a lack of reasonable explanation for the absence of the fresh evidence at the trial. It was now recognised that the second sift decision refusing leave to advance ground (e) was incompetent and counsel intended to seek leave to argue that ground of appeal in due course. During the course of the appeal he presented a petition to the Nobile Officium which was granted, allowing him leave to advance ground (e).

Evidence

Dr Adrian Linacre

[89] The first witness was Dr Adrian Linacre, a senior lecturer in forensic science at Strathclyde University since 2000. In 2004, having been asked to examine swabs originally taken from the complainer and from the accusedappellant in 2002, he prepared a report dated 4 June 2004. He explained that he undertook a particular type of DNA analysis on the Y chromosome. This test is known as the Y-STR test and is distinct from the standard test used in most DNA profiling, the SGM+ test. The latter was the standard test both in 2002 and today. Although it targets an X and Y type chromosome for the purpose of identifying whether a particular bit of DNA is from a male or female donor, the X and Y type targeted in such a test is not variable and is thus the same in all males. Otherwise, the standard test examines DNA held in common by both males and females so that there may be an element of "masking" of results when material containing a mixture of male and female DNA is examined. In the Y-STR test , only variable bits of the Y chromosome are examined. It therefore targets only male DNA and by targeting variable parts of the chromosome it is possible to obtain a DNA profile for comparison with a control sample and thus identify the donor of that DNA.

[10] Dr Linacre carried out the tests at the laboratory of the Forensic Science Department at the University of Strathclyde. In the first place the standard SGM + test was conducted on the internal and external vaginal swab samples. In each case a full DNA profile, consistent with one originating from one person, namely the complainer, was obtained. Using this test there was no indication of a second DNA profile. Thereafter Y-STR profiling was conducted on the internal and external vaginal swabs with a negative result, indicating that either no male DNA was present or the amount was too low to be detected. The standard test will usually work when the material contains about 150 cells, whereas the Y-STR test will work on about 100 cells. To conduct the Y-STR test Dr Linacre removed about half the material left on the swab. To conduct the first part of the test, which produced the results referred to above, he used about 5% of the material. Having failed to identify male DNA in this way, the remaining 95% of the material was concentrated and a further test carried out. Once this was done the internal vaginal swab produced a Y-STR profile consistent with material originating from more than one male. The results indicated one major DNA profile and traces of two minor DNA profiles. Neither the major nor the minor profiles matched the appellant. Tests on the external vaginal swabs produced similar results.

[11] Dr Linacre said that if one assumes that the major profile was from one person then the results exclude the appellant as the source of that DNA. Asked whether such an assumption was reasonable to make, Dr Linacre indicated that the results were sufficient for him to consider there was indeed one major profile. Allowing for possible variations in results, he was satisfied that he could describe this as one major profile along with other minor trace profiles, in other words there was present DNA from three separate male persons, none of whom was the appellant.

[12] He observed that had a Y-STR profile been obtained from the internal vaginal swab matching the profile obtained from the appellant, then this would have given scientific support for the Crown case. In indicating to the solicitors that the Y-STR test could be carried out, he had made it clear that the test had the potential to support the Crown case. He was nevertheless instructed to proceed. The finding of no DNA from the accusedappellant on the internal vaginal swab indicated either that no penetration had occurred or, if penetration had occurred too little DNA was present to produce a result. There was also a possibility that the quality and quantity of the sample had been reduced as a result of deterioration through time and the effect of repeated sampling. Over time cell types start to break down, mainly through bacterial growth. It is necessary to maintain the integrity of the sample. It should be kept in a freezer but of course requires to be at room temperature when transported to and from Court and for examination. The issue of how people shed DNA is very complicated but it is recognised that the penile shaft is not a good shedder of skin. Factors which will affect the transfer of DNA are the time period of the contact, the pressure involved and the question of whether there was any friction involved.

[13] The Y-STR test is one which he Dr Linacre described as having its own niche or particular use. Where material consists of a lot of female DNA but a small amount of male DNA, the large amount of female DNA might mask DNA from a male source under the standard test. The use of markers targeting the Y chromosome is a way of attempting to identify the male component in such a mixed picture. Use of the Y-STR test remains uncommon although it is now well validated. Prior to being approached by the appellant's solicitors, Dr. Linacre had been carrying out research into testing the Y chromosome. His research had two elements. One related to the commonality of Y chromosome types. The other had a forensic application. In cases where there was a presumptive test for semen but no spermatozoa identified, the SGM + test might be unsuccessful. He was interested in identifying how useful a Y-STR test might be in such cases. Had he been asked to do this test in 2002 he would not have been able to do so. In the summer of that year he was just embarking on his research. Furthermore he would not at that stage have carried out the necessary internal validation procedures in the laboratory to enable him to be satisfied as to the validity and consistency of any results produced. There was no obvious reason why solicitors or counsel in 2002 should have appreciated the nature of the research that he was carrying out.

[14] In cross examination he accepted that a negative finding did not support the absence of an incident. One strong possibility from a positive result would have been penile penetration but the results could not distinguish between that and digital penetration. The results are those he would expect were the accusedappellant's statement true but he would of course have to consider alternative possibilities.

[15] In 2002, any forensic scientist in the field of DNA would, he supposed, have been aware that work in general was being carried out on testing the Y chromosome. He could not remember whether Orchid Biosciences, the only other lab who carried out such tests, were doing so in 2002. In reality for most labs to use the technique it would require a commercially produced kit to be available, which Orchid produced sometime in 2001 or 2002. Forensic Science Services were not at that time doing Y testing. He was instructed for this appeal since he had previously done work for the solicitors involved. The suggestion that a test on the Y chromosome might be done came from him on being consulted by the solicitor.

Emily Service

[16] Evidence was next given by Emily Service, a forensic scientist working for the Scottish Police Authorities Forensic Laboratory. She worked for Lothian and Borders Police when she prepared a report in this case in August 2002 in respect of samples taken in June 2002. She did not then work in the field of DNA and it is not her primary field of expertise. In 2002 she worked in the Biology Department and her remit was the examination of swabs for the identification of materials such as blood, cellular material and so on. She examined a total of 8 swabs taken from the complainer including two internal vaginal swabs and two external vaginal swabs. No blood or semen was found on any of the above swabs and they were not submitted for DNA testing. Cellular material was found on penile swabs taken from the accusedappellant and these were sent for DNA testing. Even today, if no blood, semen or cellular material were identified on vaginal swabs, the same result would follow, namely they would not be sent for DNA analysis.

[17] She Miss Service gave evidence of the practice of storing swabs in a freezer when they were brought to the laboratory. They would then be taken at room temperature to Court and frozen again on return to the laboratory. In this case the swabs taken from the complainer but not submitted for DNA analysis were sent to Court on 29 November 2002 but returned on the 30^th. All the other swabs would be taken to Court on the 29^th and were returned to the lab on 6 February 2004. She had found no indication in the file that she was asked to give a statement or precognition to representatives of the accusedappellant or to discuss the case with them and she had no recollection of doing so. Nor could she find any indication that her DNA colleagues had been asked to do so.

[18] She hasMiss Service heard of Y-STR chromosome analysis as a DNA technique but it is was not carried out at the Scottish Police Services Laboratory. However they have had sent cases out for such a test to be done. Such a decision would be made in consultation with the Procurator Fiscal and the DNA experts. The view of the Y-STR expert would also be sought as to whether examination might be worthwhile. She could not recall being aware of Y chromosome testing as an area of research or inquiry in 2002. She thought she would not have been aware of it then since she did not carry out DNA testing herself at that time, but she felt that it was now a much more established and talked about test. In cross examination she acknowledged that there was a growing recognition of the potential importance of Y testing compared to the position in 2002.

Andrew John McDonald.

[19] The Crown then led the evidence of Andrew John McDonald, a forensic scientist at Orchid Cellmark, formerly Orchid Biosciences Europe Ltd. He had repeated the tests carried out by Dr Linacre but his attempts to obtain a DNA profile from the swabs was unsuccessful. A second attempt also produced a negative result. He was aware of the results obtained by Dr Linacre and considered that the absence of a profile matching the accusedappellant could be explained in two ways. Either penetration might not have occurred or penetration had occurred but too little DNA was transferred into the vagina for testing to detect. The absence of Y-STR profiles in the retesting carried out by him might be explained by differences in the sensitivity of the instrumentation used by Dr Linacre and himself.

[20] He Mr McDonald had been involved in DNA testing since 1992 and from some time in the late 1990s or 2000 was aware of a technique for testing the Y chromosome. An early Y-STR kit was produced by Reliagene, a US company, but not before 1999 or 2000. At that stage very few people were doing Y testing. It was very rarely used but if you one knew where to go you one could get the test carried out. Not much was being written about it at the time. As the kits became more refined more people took them up and more papers were published. The original kit was very primitive and of no use for forensic purposes. In the early 2000s, from about 2001 onwards, a US company called Promega started to produce a kit which had the potential for forensic application. There was thereafter general good awareness of the technique amongst forensic scientists. However, in order to introduce a new technique into a laboratory, considerable a lot of validation work is was required, and if the test is was not to be carried out often frequently it might not be worth the effort to carry out that work. Therefore As a result only a couple of laboratories carried out the validation, Orchid being one of them. Orchid experimented with the primitive kit from about 2000 and began to use the Promega kit as soon as it became available in about 2002. They Mr McDonald waswere aware that Strathclyde University were doing Y testing. Otherwise he was not sure whether other labs were running tests.

[21] The forensic science community is was quite a small one and there is was a lot of sharing of information amongst scientists. In 2002 it would not be widely known that Orchid were doing Y-STR testing, although the key people in some laboratories would know. He Mr McDonald did not know whether this would be known amongst police laboratories. He had not been contacted by anyone about this case in 2002. In 2002 Y testing was a tiny part of his work and is nowwas still a very small part of his work. It was now probably a smaller percentage overall than it had been in 2002. The SGM + test is was used in 99.9% of DNA testing. Y-STR is was a niche market and is was not commonly used even now. There has had been an increase in the knowledge about Y testing since 2002.

Submissions

Appellant

[22] Mr Shead referred to section 106 (3) of the Criminal Procedure (Scotland) Act 1995 which provides that in an appeal under that section a person "may bring under review of the High Court any alleged miscarriage of justice, which may include such a miscarriage of justice based on -

(a) subject to subsections (3A) to (3D) below, the existence and significance of evidence which was not heard at the original proceedings"

Subsection (3A) provides that:

"Evidence such as is mentioned in subsection (3)(a) above may found an appeal only where there is a reasonable explanation of why it was not so heard."

He submitted that there was a reasonable explanation why this evidence had not been heard at the trial and referred to Campbell v HM Advocate 1998 SCCR 214 in support of the proposition that a broadly flexible approach was to be taken to this matter. In Gilmour v HM Advocate 2007 SCCR 417, the court considered the test which applied to new evidence cases, at paragraphs .79 to 82 as follows:

"[79] Where an appellant tenders evidence in support of a plea that there has been a miscarriage of justice (1995 Act, s 106(3)(a)), he must first satisfy us that that evidence is fresh evidence and not merely an amplification of evidence led at the trial.

[80] If the evidence is held to be fresh evidence, the appellant must then provide a reasonable explanation as to why it was not heard at the trial (1995 Act, s 106 (3A)). If he fails to do so, the question as to the effect that the new evidence might have had on the jury's consideration of the case does not arise....

[81] If the appellant provides a reasonable explanation, the court must then consider whether the fresh evidence is of such significance that it may reasonably conclude that if the jury had heard it, they would have been bound to acquit; or whether it is at least capable of being described as important and reliable and is of such significance that a verdict returned in ignorance of it must be regarded as a miscarriage of justice.... In this appeal we are concerned with the latter question only.

[82] Our decision in a fresh evidence appeal of this kind is not a verdict on the guilt or innocence of the appellant. The critical question is as to the effect that the new evidence might have had on the minds of the jury."

Reference was also made to the unreported case of Brian Kelly (6 August 2004).

[23] Counsel submitted that the evidence showed that the Y chromosome test does did not feature in general use but is was a niche test with particular application. A combination of the evidence of Dr Linacre about the history of the testing and the circumstances in which the Y test in this case came to be done, together with the observations of trial counsel as to the use to which that material might have been made put are were together sufficient to meet the reasonable explanation test. The test is was not whether the evidence was available but whether it was reasonable that it was not led. Only two labs were doing this work and only in from 2002 could they do it on a commercial basis. Even now within the legal profession there is was little knowledge of the test because it has had a niche function.

[24] If the Crown were to suggest that the absence of the evidence at trial arose as a result of the fault of those who were then instructed, he would demur from that suggestion, but maintainedbut maintained that it was quite possible for this to provide a reasonable explanation in any event. Even if the SGM+ test had been done in 2002 there would have been nothing to trigger the idea of thisthat this was as a case which was suitable for Y chromosome testing. It was only because of a suggestion from Dr Linacre that the Y test was carried out even in 2004. It was not possible to say that a proper professional standard of preparation would have demanded investigation of the DNA issue at a trial in 2002.

[25] Turning to the significance of the evidence, the Court had to assume that Dr Linacre would have given evidence along the lines that he has had done today. The Court has had the advantage of the responses from counsel at the trial. Dr Linacre told the agents that it was possible that the test might prove adverse to the accusedappellant and there is was a clear recognition of that possibility in the note from trial counsel. Instructions were taken from the accusedappellant and the test was authorised. Counsel submitted it was far from irrelevant that such authorisation was given by the accusedappellant.

[2526] He then referred to the case of Megrahi 2002 SCCR 509 at para.219 where a number of propositions are set out as to the appropriate approach to be taken in a case such as this, as follows:

"(1) The court may allow an appeal against conviction on any ground only if it is satisfied that there has been a miscarriage of justice.

(2) In an appeal based on the existence and significance of additional evidence not heard at the trial, the court will quash the conviction if it is satisfied that the original jury, if it had heard the new evidence, would have been bound to acquit.

(3) Where the court cannot be satisfied that the jury would have been bound to acquit, it may nevertheless be satisfied that a miscarriage of justice has occurred.

(4) Since setting aside the verdict of a jury is no light matter, before the court can hold that there has been a miscarriage of justice it will require to be satisfied that the additional evidence is not merely relevant but also of such significance that it will be reasonable to conclude that the verdict of the jury, reached in ignorance of its existence, must be regarded as a miscarriage of justice.

(5) The decision on the issue of the significance of the additional evidence is for the appeal court, which will require to be satisfied that it is important and of such a kind and quality that it was likely that a reasonable jury properly directed would have found it of material assistance in its consideration of a critical issue at the trial.

(6) The appeal court will therefore require to be persuaded that the additional evidence is (a) capable of being regarded as credible and reliable by a reasonable jury, and (b) likely to have had a material bearing on, or a material part to play in, the determination by such a jury of a critical issue at the trial.,"

[27] A critical issue at the trial was whether there was penile penetration by the accusedappellant. The question was whether Dr Linacre's evidence would have a material effect on that issue. No relevant issue now arose in relation to the question of deterioration of the swabs, standing the evidence of Emily Service about how they had been stored. Of course a negative cannot could not be proved but Dr Linacre's conclusions are were bound to have been something which would have had a material bearing on the jury's deliberation of whether penetration by the accusedappellant had been established. A further issue arises arose in relation to what counsel at the trial states stated in her note, namely the oddity of the descriptions given by the complainer of the man who raped her. She gave two separate descriptions in some detail, neither of which matched the accusedappellant. Counsel in her note points pointed out that this would have transformed itself into a quite different point had she had access to the information now provided by Dr Linacre. It might also have had a bearing on the evidence of the injuries reported which at trial were linked with the issue of penetration. The evidence of Dr Linacre as to the effect of friction in assisting the transfer of cells would also have had a bearing on this matter. Had this information been available there would have been a much greater concentration on these issues and examination of these issues at trial.

[28] One of Dr Linacre's conclusions supported the contention of the accusedappellant - there is was perhaps nothing better for the defence than a chance to lead an independent expert in support of the accusedappellant's position. It is was not unreasonable to say that from their questioning the jury were concerned about this matter. It was not just critical as a matter of law; it was of practical concern to the jury who decided the case. The conviction was by a majority. It is was hard to imagine a more cogent case of new evidence or to say that it would not have had a material bearing on the issues at the trial. Counsel submitted that the evidence met both the reasonable explanation and the significance test in which case the Court should reach the conclusion that there had been a miscarriage of justice and allow the appeal.

Crown

[29] On the question of reasonable explanation the Advocate Depute submitted that at the time of preparation of the defence the apparent conflict between the position advanced by the accusedappellant and the scientific findings of the complainer's DNA on his penis was such as to raise an area of inquiry which, at that time, would have been self-evident and could have been followed up by precognition of Miss Service who took the samples which revealed that subsequent DNA finding. The absence of evidence as to his DNA in any sample from the complainer threw up an obvious question for investigation. Failure to take any steps to investigate this was a matter which contributed to the situation at the trial. An analysis technique was available which might explain the conundrum. It was an area of inquiry which should have suggested itself and inquiry should have been made not only of Miss Service but of the DNA experts.

[30] The Advocate Depute recognised that the response from trial counsel was indicative of a concern that her approach might have been different. However it also indicated that there were tactical issues since as the evidence stood the defence could quite properly say there is was no scientific evidence to show penetration. That is was a tactical decision and falls fell some ways short of an Anderson point. The tactical discussion has had since taken place but of course now the accusedappellant, having been convicted, has had nothing to lose. This could reasonably have been done at the time of the trial. Counsel could reasonably have opened up inquiry with those involved which might reasonably have led to the possibility of this test to answer the conundrum in this case. He submitted that the evidence did not pass the reasonable explanation test.

[31] Turning to the question of significance, it was obvious to say that one view of the evidence of Dr Linacre was that it did no more - in one alternative - than say exactly what the evidence to the jury had been, namely that there was no evidence of a scientific nature to support the essential fact of penetration by the accusedappellant. Therefore the accusedappellant's position could not have been advanced in any way by Dr. Linacre's evidence. There was still no scientific evidence before the jury to support penetration by him, and indeed the jury were told that following the questions they asked. The evidence at the time of the trial was consistent with the account the accusedappellant gave in evidence. Following the evidence of Dr Linacre that would have remained the position.

[32] The finding of DNA profiles from a number of other male persons does did not advance the defence case either. The jury had before them the critical issue of whether it was established beyond reasonable doubt that penetration by the accusedappellant had occurred. The evidence from the subsequent Y-STR testing doesn't did not answer that at all.

[33] At no time was it suggested by the complainer that she was raped by more than one person. The presence of traces of another male's DNA might lead to an inference that she had had sex with one or more other males, but that was of no relevance to the question of whether the accusedappellant had raped her as she described. The question of admissibility fell to be considered. That and this would have had to be the subject of an application under section 275 but to what purpose? Would it be to test her credibility insofar as she had given no account of intercourse with someone else at about that time? Or would it have been an incrimination? He The Advocate Depute submitted that this was precisely the sort of inquiry prevented by section 274. One can't could not say that because the girl had intercourse with someone else that she was not credible and reliable when she said that the accusedappellant raped her.

Discussion and decision

[34] We are satisfied that the evidence of Dr Linacre is fresh evidence, for the same reasons which satisfy us that there was a reasonable explanation why the evidence was not heard at the trial. It is not simply amplification of evidence heard at the trial. No DNA examination of the swabs was carried out by the Crown prior to the original trial and even if there had been this would have been done by the SGM+ test which would have revealed only DNA of the complainer. At the time of the trial it is highly debatable that it would even have been possible for the type of test carried out by Dr Linacre to be carried out. He himself was only commencing his research into Y testing in 2002 and it was only during that year that commercial kits became available. There was little knowledge of such a test, even amongst forensic scientists. The evidence of Mr McDonald confirms that testing of this type was in its absolute infancy in 2002. It is difficult to see what could have been gained for the defence by precognoscing Miss Service. Had she been precognosced she would simply have said that since neither blood nor semen had been identified theidentified the swabs were not sent for DNA examination. It is also difficult to see why, even had they precognosced her, this should have led to the defence making further inquiries of the DNA experts in the case. Miss Service's evidence was that she would not have suggested Y testing as a possibility because she did not have the knowledge to do so. We are therefore satisfied that this is fresh evidence for the absence of which there is a reasonable explanation.

[35] There is no doubt that the evidence of Dr Linacre is capable of being regarded as credible and reliable by a reasonable jury. That leaves the question of the significance of the evidence. It is in this regard that the questions put by the jury are highly pertinent. Those questions focus on the precise issue which became the subject of the fresh evidence. They reveal that this is an issue which was troubling the jury and they clearly thought that the answer to these questions might be significant to their deliberations. It is hard to escape that the conclusion that had the evidence been available it would have been treated by them as significant. The Advocate Depute submitted that even with the fresh evidence the position would be the same, namely that there would be no scientific evidence before the jury to support the case of penetration by the accusedappellant and that indeed the jury were told that in answer to the question which they posed. In fact, the jury were simply told that there was no evidence of any kind in relation to DNA examination. At the trial therefore they had no DNA evidence relating to the vaginal swabs. With the evidence of Dr Linacre they would have (1) DNA evidence which they previously did not have; and (2) the presence of male DNA which did not match that of the accusedappellant. It is entirely simplistic of the Advocate Depute to suggest that the position of the defence could not in any way have been advanced by the existence of this evidence. The evidence would have had two purposes: first to show consistency with the position advanced by the accusedappellant on the issue of penetration; but secondly, and perhaps more importantly, simply to enhance the defence on the creation of a reasonable doubt. We do not doubt that any s275 application made on the basis of this evidence would have been successful. This was a case in which the complainer had given two detailed descriptions of her attacker neither of which matched that of the accusedappellant; she nevertheless identified the accusedappellant as that person although he did not match either description; and this evidence is evidence suggesting penetration by another person at around the relevant time. Put another way, the description was of someone other than the accusedappellant. The Y-STR findings indicate penetration around the relevant time by a person other than the accusedappellant. These are matters which would be highly relevant when considering the issue of her the complainer's reliability when she identified the accusedappellant as the person who raped her. These factors would enable the defence to put in question the reliability of any identification by the complainer of the appellant as her attacker. We are in no doubt that a reasonable jury properly directed would have found this evidence of material assistance in its consideration of a critical issue at the trial, namely the identification by the complainer of the accusedappellant as her attacker. It is clear from the questions which they asked that the jury considered this to be a material issue.

[36] We are satisfied that the verdict, returned in ignorance of this evidence, must be regarded as a miscarriage of justice and we shall therefore allow the appeal on ground (c). In light of our decision on that ground of appeal, it is unnecessary to deal with the submissions advanced on grounds (a), (b), (d) and (e).