C v R.

On an application under section 23 of the Criminal Appeal Act 1968, the appellate court may receive fresh evidence tendered by the Crown, but must remain focussed on the safety of the conviction in light of the evidence before the trial jury. Disputed and collateral bad-character evidence cannot cure an otherwise material misdirection about central DNA evidence.

It is improper to ask a defendant to speculate about matters outside his knowledge, including the occurrence of an offence or the validity of scientific evidence. The error will render a conviction unsafe only if, viewed with the trial as a whole, it materially affects its safety. A prosecutor’s-fallacy misstatement in a DNA direction must likewise be assessed in context, including the random-match probability and the other directions given.

Following a cold-case review of a 1990 sexual attack, improved DNA techniques produced a full male profile from fabric cuttings taken from the complainant’s bra and knickers. The prosecution alleged that the profile matched C and that the chance of a random match was one in a billion. C denied involvement, challenged the reliability and provenance of the DNA evidence, and relied on an alibi.

At the Crown Court at Ipswich, C was convicted of rape, two counts of buggery and two counts of indecent assault. He appealed against conviction. The Crown applied to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968, concerning an alleged earlier sexual offence. The appeal raised the admissibility of that evidence, the propriety of the cross-examination of C, the adequacy of the DNA directions, including the prosecutor’s fallacy, and the fairness of the summing-up on the alibi and defence case.

1. Appeal dismissed. The court refused the Crown’s application to adduce fresh evidence under section 23 of the Criminal Appeal Act 1968. Although the Crown may in principle adduce fresh evidence to demonstrate safety, as recognised in R v Hakala [2002] EWCA Crim 730 and R v Hanratty decd [2002] EWCA Crim 1141, the appellate inquiry remains directed to the safety of the conviction on the trial evidence. The proposed evidence was disputed, collateral bad-character material and had no direct relationship with guilt in this prosecution. It could not cure a material failure to direct the jury on the central DNA evidence.

2. R v Fitzgerald [2006] EWCA Crim 1655 did not undermine the use in Hanratty of newly available DNA evidence directly relevant to guilt. Its concern was with using fresh evidence to advance a wholly new causation basis which had never been put to the jury. The proposed evidence here was inadmissible independently of that general limitation.

3. The prosecutor was entitled to test whether there was an innocent explanation for C’s DNA on the complainant’s clothing. However, questions inviting C to express opinions about whether the complainant had been raped or whether the DNA evidence was valid required impermissible speculation on matters outside his knowledge. The proper course was to require counsel to define the defence case and, if necessary, recall the complainant so that any allegation could be put fairly. The erroneous questions did not make the convictions unsafe: the answers did not materially undermine C’s factual defence, and the jury had been told that questions were not evidence.

4. The judge’s directions adequately placed the challenge to the DNA evidence before the jury. Consistently with R v Reed and Reed [2010] 1 Cr App R 23, they explained the relevance of the match probability and the evidence bearing on reliability. The jury had to evaluate the scientists’ answers, rather than counsel’s assertions, and decide whether to accept the expert evidence.

5. The judge did commit the prosecutor’s fallacy by briefly equating the random-match probability with the probability that somebody other than C was the source. Applying R v Doheny and Adams [1997] 1 Cr App R 369, the error was not significant in context. The one-in-a-billion random-match probability, the substantially correct remainder of the direction, the scientific evidence, and counsel’s closing address meant that the verdict remained safe. The summing-up on the alibi and other defence evidence was also fair and sufficient.

• Court of Appeal (Criminal Division). In [2011] EWCA Crim 1607, dismissed C’s appeal against conviction and refused the Crown’s application to adduce fresh evidence.
• Crown Court at Ipswich. On 29 January 2010, a jury convicted C of rape, two counts of buggery and two counts of indecent assault, imposing concurrent sentences of up to 10 years’ imprisonment.