Lewis, R. v

MR JUSTICE MORRIS: This is an application for leave to appeal against conviction which has been referred to the Full Court by the Registrar. We grant leave to appeal.

On 24 August 2017, at Isleworth Crown Court, the appellant was convicted on count 1 of wounding with intent, contrary to section 18 of the Offences Against the Person Act 1861 and on count 3, of possession of an offensive weapon, contrary to section 1(1) of the Prevention of Crime Act 1953. On count 1 he was sentenced to 13 years' imprisonment, with no separate penalty being imposed in respect of count 3. In respect of a further count (count 2), unlawful wounding, the judge found there was no case to answer and a not guilty verdict was entered.

The Background Facts

On 23 September 2016 Tyler Julian left his address at Grenfell Tower in London and was immediately attacked by an unknown assailant. His father came to his aid and pursued the assailant whereupon the two of them fought. The appellant's blood was found on the wall where some of the fighting occurred.

The prosecution case was that the general description given of the assailant together with the DNA evidence placed the appellant at the scene as the man who had attacked the complainant. That was the attack the subject of count 1. He had at the time been in possession of a knife. That allegation formed the subject of count 3.

The defence case was that he had not been present at the scene of the attack or in London at the time. The issue for the jury therefore was identity, namely whether they were satisfied the appellant was the assailant.

The Prosecution Evidence

The prosecution evidence included the following. Tyler Julian gave evidence by ABE interview that on that day (23 September) he had exited his flat and turned the corner whereupon he was struck in the face. He had looked up and was hit in the face again and fell to the floor calling out to his father. The male, who he had never seen before, stood over him. He was black, stocky, under 5 feet 11 inches tall, with stubble and big eyes. He was silent. He was wearing a black hoodie, sport-ish gloves with white markings on the back of them and black and white trainers. The male ran off.

Junior Julian, the father, his evidence was that when his son left the flat he heard banging and screaming. He saw his son's assailant and gave chase. He punched the male as hard as he could as they ran down the stairs and then they reached the mezzanine level which appeared to be a dead end. The male turned to face him and he punched the male to his face. The male in turn punched his shoulder. The man fell back onto the door or wall which was near a flat door and they fought grappling against the wall. The man reached out for what he thought was his, that is Junior Julian's, pen which was attached to a lanyard worn by Junior Julian and which fell off. The man had a "Rambo" knife. He, Junior Julian, had not seen the assailant bleeding and had not realised that he himself had been stabbed until later. He described the man as black, 5 feet 9 inches, medium to stocky build with stubble and dark eyes.

Expert evidence was called. The blue lanyard worn by Junior Julian was examined and swabbed and those swabs were submitted for DNA profiling. A mixed DNA result was obtained which indicated the presence of DNA from at least three individuals. The majority of the DNA appeared to have originated from one individual, with lesser contributions from at least two others. The profile of Junior Julian was the probable source of the majority of the DNA. The DNA of the appellant was fully represented within this result in such a manner that he could be one of the two lesser contributions of DNA.

The experts used specialist probabilistic genotyping software to assess the result, considering the two following propositions: (i) the DNA consists of contribution from Junior Julian, Lyndon Lewis and an unknown individual, or (ii) the DNA consists of contributions from Junior Julian and two unknown individuals. The findings were in excess of 1 billion times more likely if the first of these two propositions were true.

Secondly, there was a mark on the wall made in blood where the male had fought with Junior Julian. Wet and dry swabs were taken from the blood staining and a single complete DNA profile was obtained which matched the components from the DNA profile attributed to the appellant from the national DNA database.

The expert evidence went on to explain that the DNA could have resulted from direct transfer from the appellant or secondary transfer. It was not possible to say when the DNA was transferred to a particular surface, or for how long the DNA had been present on the surface. There was no expert evidence on the blood transfer. The evidence was that the blood could be transferred if wet, if dry, or if dried blood had become really animated because it had become wet.

The prosecution relied upon a section 34 inference from the appellant's failure in interview to deal with how his blood may have been found on the wall outside No 6 Grenfell Tower.

The Defence Evidence

The appellant gave evidence that he had not been in London in 2016, he had been in Liverpool. He had visited his grandmother in London for one night in August 2015. In June 2016 he had suffered a bleeding injury from two punches to his mouth and he had had dental work undertaken in December 2016.

His evidence was that he had never touched the wall outside flat 6 Grenfell Tower. He accepted, to some extent, that his blood was on that wall and possibly the lanyard. Asked how his blood might have ended up outside Flat 6 he said: "The only thing that comes to mind is that I've a lot of family in that area and a family member went into Grenfell Tower". He explained that he did not have faith in the police and therefore gave no information or comment in interview.

The Ruling on No Case

At the trial the appellant submitted that the results in respect of the DNA evidence on the lanyard were inconclusive. In respect of the DNA from the wall, this was more likely on the evidence to have been by way of secondary transfer. It was otherwise inconsistent with the evidence of the fight which had taken place. In either case it was argued that the likely transfer of the DNA was from the exterior of the gloves worn by the assailant and therefore by secondary transfer. Further enough was known about the appellant to place him in Liverpool at the time of the incident.

The judge rejected this submission of no case to answer. He rejected the latter assertion in relation to alibi, in that what was known was only that the appellant had a home address in Liverpool. There was no evidence of alibi advanced. On the other hand, there was no evidence that the appellant was near the scene of the crime. The Recorder directed himself by reference to the specific question identified in the recent case of R v Tsekiri [2017] EWCA Crim 40, at paragraph 14.

Applying the relevant factors identified in that judgment, those which supported the submission of no case were as follows. There was no evidence of geographical association; there was evidence which made it likely that the transfers of DNA were secondary; one of the DNA results was mixed profile; the clothing and gloves should be treated as highly movable articles. On the other hand, he said that factors which supported there being a case to answer were as follows: most importantly that there were two items of DNA (unlike, in Tsekiri and other cases, there was a full profile of the appellant on one of those items. Direct transfer to the wall could not be precluded. The wall was not movable and the lanyard could not be regarded as highly movable. Finally, there was no plausible evidence as to how the appellant's DNA had got where it did on the wall and the lanyard. There was a case for the jury.

The ruling on section 34 and adverse inference.

In discussion with counsel in relation to legal directions it was argued that whilst the appellant had not put forward in interview that he had family in London, that should not attract a section 34 direction because it was not a fact in issue. The appellant had only put that forward as an explanation for his blood transference, having been asked to speculate in cross-examination and therefore it was a theory and not a fact. When he was questioned in interview the purpose of the questions was to show that the appellant had family and connections to London which was a different issue to accounting for his DNA.

The judge ruled that he would give a section 34 direction in respect of the appellant not having given an explanation as to why his DNA was found at the scene. He had been questioned in interview on the point and remained silent. He had, in evidence, put forward the fact that he has family in the area and that it was possible the family had been to Grenfell Tower. That was a fact which had been put forward as an explanation as to how the DNA might have been there and the defendant had the opportunity of making known that fact in interview in answer to questions directly relevant to the matter.

In his legal directions to the jury the judge pointed out that the appellant had made a "no comment" interview and the prosecution relied on his failure to answer a question relating to how the blood might have got onto the wall. That question had now been responded to by the appellant in his evidence at trial and he, the appellant, now sought to rely upon that response. The judge pointed out that the prosecution argued that, if there was any truth in that response, then the appellant could have commented on the question in his interview. He directed the jury that they must consider the appellant's explanation from making a "no comment" interview. That explanation had been that he, the appellant, did not have much faith in the police. That explanation did not preclude the jury from considering whether it was the real reason for the silence. The judge went on to direct that if the jury were sure that the real reason for his silence was that he had no response to make, then the jury were entitled to reach the conclusion that his present response was false. However, he went on to point out that the jury should not convict wholly or mainly because of his silence, stating:

The Grounds of Appeal

The grounds of appeal are follows:

Discussion and Analysis

Ground 1: submission of no case

The relevant legal principles

There is considerable recent authority from this court relating to DNA evidence, and the extent to which such evidence of itself can provide a sufficient basis for an jury to convict. Most recently in R v Tsekiri those authorities were drawn together. There is no need for us to review those authorities again. The following principles are to be derived from Tsekiri:

(2) The Parties' Submissions

Mr McGrath, for the appellant, submits as follows. First, there was no sufficient identification evidence in this case. The two witnesses had identified the assailant as being less than 5 feet 11 inches tall, whereas the appellant is 6 feet. Secondly, the DNA evidence was not sufficient for a jury to discount the disparity in height. As regards the DNA evidence the assailant was wearing gloves and the jury could not discount that it had been found as a result of secondary transfer through the mechanism of a glove or other garment. He submits that it is more likely that the DNA present on either of the two exhibits was the result of secondary transfer from "a highly mobile item", namely the exterior part of a pair of gloves. The case fell into the second case of class identified in paragraphs 7 and 14 of Tsekiri. A further factor relied upon is the geographic disparity between the location of the attack and the appellant's residence in Liverpool. He also relies upon the Recorder's own statement that there was evidence that makes it likely that the transfers of DNA material were secondary.

As regards the fact that there were two items of DNA this, he submits, was not significant; it could be accounted for by secondary transfer from the same agent of transfer, namely the glove. He further relies upon the Recorder's direction to the jury on this issue where the Recorder had said that, if the jury concluded that secondary transfer was possible, they could not be sure that the DNA was the DNA of the appellant and so their verdict should be not guilty. Given the Recorder's own conclusion about secondary transfer, then secondary transfer, he submits, was plainly possible and the case should not have been left to the jury.

Mr Morrison, for the prosecution, relies on the points made by the Recorder in his ruling. He submits overall that there was enough supportive evidence for the matter to go before the jury.

(3) Conclusions

In our judgment the Recorder was not wrong to dismiss the submission of no case to answer. First, we do not consider that the present case falls clearly within the second category of case identified in Tsekiri (paragraph 14). We reach that view for two reasons. First, this is not a case where the DNA evidence was the only evidence that the appellant was the assailant. There was the identification evidence of the assailant's ethnicity and stocky build which was consistent with the appellant's features. The discrepancy in the evidence in relation to height is not sufficient to exclude the appellant as being the assailant. Secondly, the appellant maintains that here there was a movable item, namely the assailant's gloves, being an item left at the scene of the crime. However, the relevant DNA was not found on those gloves, rather it was found on (a) the wall (plainly not a movable item) and (b) the lanyard, again hardly an item left at the scene of the crime - but rather an item worn by one of the victims of the assault. Moreover, even on the appellant's theory of the DNA transfer the DNA (on the wall and on the lanyard) had been deposited in the course of the commission of the crime “by the assailant” and not some other point in time or other location.

Secondly and in any event, even if this case does fall within the second category in Tsekiri (i.e. an article left at the scene) the analysis in Tsekiri applies, namely DNA alone, left at the scene of the crime can be sufficient without more to raise a case to answer where the match probability is 1: 1 billion, depending on the relevant factors identified at paragraphs 15 to 20 of Tsekiri. Here, the relevant factors establish that there was a sufficient case to answer.

First, the absence of an alternative explanation is relevant (see Tsekiri paragraph 15). At that stage of the case no explanation had been offered by the appellant himself, either in interview or elsewhere, as to how the DNA came to be found. The alternative explanation subsequently put forward by the appellant's counsel in argument was that the appellant's DNA had been deposited by secondary transfer from the assailant's gloves. Whilst put forward as a possibility, there was and is no clear explanation as to how the appellant's DNA found its way onto the gloves of the assailant. It is speculation that the DNA came from the glove. Moreover, as Mr Morrison pointed out, it was not known that the assailant was not bleeding.

Secondly, the appellant's DNA was found in two different locations. Whilst it is suggested that the source of the DNA on the lanyard was also blood, there was no evidence either way to that effect. Thirdly, both of the “articles” on which the DNA was found were "associated with the offence itself". Just as in Tsekiri, where the DNA found on the car door handle used by the assailant in the course of committing the offence, here the DNA was found on the lanyard worn by one of the victims of the attack and on the wall where the struggle took place. In the words of Tsekiri (paragraph 16) “there can be no doubt that the assailant did touch the articles in question”. Fourthly (Tsekiri paragraph 17), the “articles” (the wall and the lanyard) were not “readily movable”. Fifthly (Tsekiri paragraph 19), in relation to the DNA from the blood on the wall it was a single complete DNA profile which matched the appellant's profile. As regards the DNA profile in relation to the lanyard, even though not the major contributor nevertheless the match for the appellant in respect of that DNA was statistically very strong.

Finally, as regards primarily or secondary transfer (Tsekiri paragraph 20) whilst it is the case that the expert evidence suggested that it could have resulted from either primary or secondary transfer, that evidence did not favour one or the other. In any event in considering secondary transfer that takes one back to the plausibility of the glove theory of secondary transfer and the fact that no explanation had been given as to how the appellant's DNA might have found its way onto the glove. It was up to the jury to decide and it was entitled to discount the possibility of secondary transfer.

In his ruling the Recorder went through all the Tsekiri factors and covered all this ground. We consider that he reached the correct conclusion.

Ground 2: section 34 of the 1994 Act

Section 34(1) and (2) provide in summary that: “Where, in any proceedings against a person for an offence, evidence is given that the accused— (a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings; …being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned... the court or jury, in determining whether the accused is guilty of the offence charged, may draw such inferences from the failure as appear proper."

The word "fact" in section 34(1)(a) should be given a broad meaning, covering any alleged fact that was in issue and was put forward as part of the defence. Section 34 is potentially applicable if the defendant advanced at trial any pure fact "or exculpatory explanation or account that if true he could reasonably have been expected to advance earlier". It encompasses any "fact or matter ": see R v Webber [2014] 1 WLR 404, at paragraph 33.

(2) The Parties' Submissions

Mr McGrath submits that the relevant evidence given by the appellant in cross-examination was a theory accounting for evidence and thus not a fact relied upon in his defence “within the meaning of section 34 of the 1994 Act”. In this regard he relies upon a passage from the judgment of the Court of Appeal in R v Nickolson [1999] Crim LR 61 (CA) which in terms is cited in R v Webber at paragraph 22. Secondly, even if such a theory is a fact, it was not "a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when questioned". It is not reasonable to expect a detained person, not expert in scientific evidence, to develop and present a theory accounting for professed scientific findings within a 2 minute time frame of a tape recorded interview.

Thirdly, it is submitted that the Recorder's direction was not sufficient. He failed to direct the jury to consider whether it was reasonable to expect the defendant to have accounted for his DNA in interview. Finally, he submits the Recorder was in error in taking the initiative in discussions in relation to the directions on this important issue of a section 34 direction.

Mr Morrison, for the prosecution, submits that it was appropriate for the direction to have been given. The explanation given was a fact within section 34. In any event the terms of the direction were not such as to render the conviction unsafe.

(3) Conclusion

The questions here are first, whether the evidence which the appellant gave was "any fact relied upon in his defence" within the meaning of that term in section 34 and whether that fact was one which in the circumstances existing at the time that he was interviewed "the appellant could reasonably have been expected to mention when questioned".

As regards the first question it is important to identify that which is said to be the “fact relied on” in his defence. The evidence relied upon by the appellant in his defence was the statement, which had been given in answer to a question in cross-examination as to how his DNA came to be found in London that: "the only thing that comes to mind is that I have a lot of family in that area and a family member went into Grenfell Tower". The fact relied up was not simply the appellant has family in London, but critically, the suggestion that one of those family members had been to Grenfell Tower and, by necessary implication from the terms of the question that had been asked, that his DNA had or might have been deposited at the scene of the incident by secondary transfer through the agency of one of his family members. As the Recorder put it, the evidence was "put forward in explanation as to how the DNA might have been there by the defendant."

We consider that that “fact” was a fact which fell within section 34. It, as a means of DNA transfer, was plainly an issue between the prosecution and the defence. Moreover, it was an "explanation" relied upon by the appellant in his defence at trial. Even if it only had the characteristics of a “theory”, nevertheless it was proffered at trial as an “explanation” for a critical piece of evidence. That is sufficient for the purposes of section 34.

We do not consider that the observations of the Court of Appeal in the earlier case of Nickolson precludes such a conclusion. Significantly, whilst those observations were indeed cited in R v Webber, Lord Bingham did not adopt them: see the observation of Professor Birch also at paragraph 22 in Webber and further Lord Bingham's conclusion at paragraph 33.

As regards the second question, we consider that the explanation was not one which required an expertise in scientific evidence before being offered. The appellant had been told that his DNA had been found at the location and he was asked how it might have got there. He knew he had family in the area and he might equally have been expected to raise the possibility which he subsequently raised in his cross-examination.

Thirdly, we consider that there is nothing in the suggestion that the manner in which the Recorder discussed the directions with counsel was in any way appropriate. There was in those discussions a very fair and full exchange of views between counsel and the Recorder.

Finally, as regard the terms of the Recorder's legal direction in relation to section 34, whilst we consider that the Recorder in his direction might have expressly invited the jury to consider specifically whether the appellant could reasonably have been expected to give the explanation, which he did give, at the time of the interview, nevertheless overall we consider that the direction which gave was fair and balanced. First, he pointed out that it was the prosecution's argument that he could have commented in interview but that it was a matter for the jury to determine. Secondly, the jury were expressly told that the appellant had not answered in interview because he had no faith in the police. Thirdly the Recorder reminded the jury that they had to be sure that the only explanation for his silence was that he had no response. Fourthly, these directions were given before closing speeches. In his closing speech Mr McGrath himself made the points to the jury that it was not reasonable to have expected the appellant to have given that explanation in interview. What is more, counsel did not, after the giving of the direction, invite the judge to add to or correct the terms of direction either before his speech or before the jury retired.

For these reasons we consider that the second ground of appeal does not succeed.

Accordingly, though we grant leave to appeal we dismiss the appeal on both grounds.