Bech, R. v

On a submission of no case to answer, the decisive question remains whether the prosecution evidence, taken at its highest, could properly support a conviction by a properly directed jury. DNA evidence with a very high match probability may be sufficient even where experts cannot determine the precise mechanism or timing of its deposition.

A jury may use common sense, together with the surrounding evidence, to resolve an issue on which expert evidence cannot directly assist. The presence of realistic alternative mechanisms of transfer does not require the case to be withdrawn if the evidence as a whole permits a proper inference of guilt.

The applicant was convicted in the Crown Court at Liverpool of causing serious injury by dangerous driving after an Audi crashed into another vehicle. The central issue was whether he had driven the Audi.

At the close of the prosecution case, the Recorder rejected a submission of no case to answer. The prosecution relied principally on a mixed DNA profile recovered from the centre of the deployed driver’s airbag, together with evidence about the occupants’ exit from the vehicle. The experts could not determine how or when the applicant’s DNA had been deposited.

The applicant renewed his application for leave to appeal against conviction after the single judge refused it. He contended that the Recorder had applied the DNA evidence and the no-case test too narrowly. The question was whether the evidence could properly permit a jury to infer that he was the driver.

1. The renewed application for leave to appeal against conviction was refused. The Recorder had correctly rejected the submission of no case to answer.
2. The governing inquiry was the classic Galbraith question: whether the prosecution evidence, taken at its highest, was such that a properly directed jury could properly convict. That remained the ultimate question in a case involving DNA evidence.
3. The DNA evidence did not have to establish scientifically the precise mechanism by which the applicant’s DNA reached the airbag before the issue could be left to the jury. Expert evidence may leave an issue unresolved, but the jury may nevertheless be able to resolve it by applying common sense to the whole evidential picture.
4. Here, the applicant’s DNA was the major contribution in the central area of the deployed driver’s airbag. The driver’s door was jammed and the passenger seat had been pushed forward, providing a basis on which the jury could assess the competing possibilities of direct and indirect transfer. The Recorder was entitled to conclude that a properly directed jury could infer that the applicant had been the driver.
5. The proposed appeal was not arguable. The court therefore refused the renewed application.

• Court of Appeal (Criminal Division): Renewed application for leave to appeal against conviction refused after refusal by the single judge.
• Crown Court at Liverpool: The applicant was convicted by a jury of causing serious injury by dangerous driving. He was sentenced to a total of 20 months’ imprisonment, disqualified from driving for three years, and ordered to take an extended re-test.