Gjikokaj, R v

Primary forensic evidence obtained by a reliable method may be admitted even where the expert cannot provide an evaluative opinion. In a circumstantial case, it may show that there is no absence of scientific evidence connecting the defendant with the offence.

A jury may aggregate such evidence with other evidence only if it is sure of the relevant surrounding facts and can exclude innocent contamination or chance. A mixed police interview must be assessed as a whole. An asserted earlier departure from the scene, unsupported by evidence, does not necessarily require an alibi direction.

The appellant was convicted at the Central Criminal Court of the murder of Cima Sogojeva and sentenced to life imprisonment with a minimum term of 28 years less time on remand.

The Crown case was wholly circumstantial. It relied on alleged debt and motive, the appellant’s admitted visit shortly before the killing, matching cartridge cases near his parked hired car, and two gunshot-residue particles later found in that car. The appellant relied on his police interviews to maintain that he had left before the killing, and advanced alternative-perpetrator evidence based on an alleged blood feud.

His appeal challenged the admission and use of the gunshot-residue evidence, directions on his interviews and alibi, exclusion of part of the blood-feud evidence, and the judge’s summary of his finances.

1. Appeal dismissed. The conviction was safe when the summing-up and the evidence were assessed as a whole.
2. The expert’s primary scientific evidence was admissible. The expert reliably identified two types of gunshot residue in the hired car and identified possible explanations for their presence. The absence of an evaluative opinion did not deprive that evidence of relevance. It could show that the appellant could not rely on an asserted absence of forensic evidence. There was consequently no basis to exclude it under section 78 of the Police and Criminal Evidence Act 1984.
3. The jury were entitled to treat the residue as part of the circumstantial evidence if they were sure, from the other firearms evidence, that the appellant had been close to the murder weapon, and if they excluded innocent contamination and chance. The judge should have avoided describing the evidence as confirmatory, but the directions made clear that it could only be aggregated with the other evidence. They did not invite the jury to make an evaluative scientific assessment which the expert could not make.
4. The initial description of the appellant’s interview account as assertions was erroneous because the interviews contained both inculpatory and exculpatory material. The error was not material. Elsewhere the judge directed the jury to decide whether they accepted the account, reviewed it in detail, and placed the whole case fairly before them.
5. No alibi direction was required. The asserted fact that the appellant had left the flat shortly before the killing was not evidence supporting an alibi within Johnson [1995] 2 Cr App R 1. The jury would have understood that the Crown bore the burden of proving his presence at the time of the murder.
6. The judge was entitled to exclude the 2002 incident said to concern a blood feud. There was ample material for the conclusion that it was unconnected with the later violence or the murder. Any lack of clarity in the financial summary was sufficiently corrected. The timing evidence did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division): appeal against conviction dismissed: [2014] EWCA Crim 386.
• Central Criminal Court: the appellant was convicted of murder on 25 October 2012 and sentenced to life imprisonment with a minimum term of 28 years less time on remand.