Kelly, R. v

DNA found on an article may be capable of proving possession of that article where possession, rather than presence at a particular place and time, is the offence charged. A possible secondary transfer of DNA does not automatically require withdrawal of the case from the jury. The jury must decide, on all the evidence and under proper directions on the burden and standard of proof, whether that possibility may reasonably be true.

A summing-up is adequate if, read as a whole, it makes clear that the prosecution must prove knowing possession and that the defendant must be acquitted if the account excluding handling may be true.

Kelly appealed his conviction for possessing a prohibited firearm contrary to Firearms Act 1968, section 5(1) (aba). His DNA was found on the muzzle of a pistol recovered from a Mazda. He denied handling the firearm and contended that the DNA could have reached it by indirect transfer from a missing glove or clothing left at another person's home.

Sampson renewed applications for leave to appeal against conviction and sentence following his retrial. He challenged the joinder of indictments concerning robbery, kidnapping and firearms, the sufficiency of identification evidence, and consecutive sentences. The central issue in Kelly's appeal was whether the DNA evidence and the possibility of secondary transfer required the firearm count to be withdrawn from the jury.

1. Disposition. Kelly's appeal against conviction was dismissed. Sampson's renewed applications for leave to appeal against conviction and sentence were refused.
2. Kelly's conviction. The authorities concerning DNA on clothing at a crime scene were distinguishable. In those cases the DNA was relied upon to place the defendant at a particular place and time. Here, possession of the firearm was the alleged offence. DNA on the muzzle was therefore capable of being evidence that Kelly had possessed the firearm before the date alleged.
3. The evidence was consistent with both direct and indirect transfer. Whether indirect transfer might have occurred was a jury question. At the close of the prosecution case, Kelly's account was untested and the jury could reject it. If the jury considered that indirect transfer might have occurred, it had to acquit; but that was not the only permissible conclusion.
4. The summing-up would preferably have expressly linked that issue to the burden of proof. Read as a whole, however, it correctly directed the jury on proof of knowing possession and stated that Kelly was not guilty if it was or might be right that he had never handled a gun. It adequately covered the only live issue and the conviction was safe.
5. Sampson's applications. The indictments had a sufficient nexus and could properly be joined under the Criminal Procedure Rules. The identification evidence was not so poor and unsupported that it had to be withdrawn, because there was supporting evidence capable of assisting the jury. Consecutive sentences were justified for distinct criminal activity, including storing firearms and possessing drugs with intent to supply. The total sentence of ten years was not manifestly excessive after allowance for youth and totality.

• Court of Appeal (Criminal Division). In [2014] EWCA Crim 1968, the court dismissed Kelly's appeal against conviction and refused Sampson leave to appeal against conviction and sentence.
• Woolwich Crown Court. On 9 July 2013, Kelly was convicted of possessing a prohibited firearm. Following a retrial, Sampson was convicted of robbery, firearms offences and possession of a Class A drug with intent to supply, and received a total sentence of ten years' detention in a young offender institution.
• Woolwich Crown Court. On 20 February 2013, the jury convicted three co-accused but could not reach a verdict concerning Sampson. A retrial was directed.