Shirley v R [2003] EWCA Crim 1976

Case No 2001/02302/X1[2003] EWCA Crim 1976
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM WINCHESTER CROWN
(Mr Justice Hutchison)
Venue Royal Courts of JusticeDate Tuesday 29 July 2003
Strand,
London, WC2A 2LL
Before
LORD JUSTICE LAWSMR JUSTICE GAGEMR JUSTICE MITTING
Between
SHIRLEYAppellantREGINARespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Wordwave Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr M Mansfield QC and Mr A Masters (instructed by Nelsons) for AppellantMr N Mylne QC and Miss J Knight(instructed by Crown Prosecution Service) for Crown
Judgment
[1]On 28 January 1988 before Hutchison J at the Winchester Crown Court, after a ten day trial, this appellant was convicted (by a majority of 11-1) of an offence of murder and sentenced to life imprisonment. He appeals against his conviction following a reference by the Criminal Cases Review Commission made under s.9(1) of the Criminal Appeal Act 1995 on 20 April 2001. The appellant had much earlier applied for leave to appeal against conviction in the ordinary way, but that application was refused by the full court (Croom-Johnson LJ, Leonard and Potts JJ) on 4 May 1989. The essential basis of the Commission's reference is that there exists new evidence in the form of DNA profiling of material found in the victim's body which is said to exonerate the appellant or at least render his conviction unsafe.[2]The outline facts may be shortly stated, though it will be necessary to look at some of the details in considering the arguments on the appeal. The murder victim was a young woman by name Linda Cook who between about 12.30 am and 1 am on 9 December 1986 was raped, perhaps also buggered, and killed by a man stamping on her head and neck. Her body, virtually stripped naked, was discovered the following day on some waste ground at Merry Row, Portsmouth. There is no suggestion that the body had been moved, and so that was where the killing took place. The appellant was then an Able Seaman in the Royal Navy serving on HMS Apollo, which was docked in Portsmouth at the time.[3]Earlier that evening (that is to say on 8 December 1986) the appellant had been at a nightclub called Joanna's, where sailors often went to pick up girls. He met a young woman there called Deena Fogg. At length they left the club in a taxi. It is clear that he hoped she would consent to have sexual intercourse with him. She had, however, decided to give him the slip. They arrived at a block of flats where she got out of the taxi, telling the appellant that she was going to get her baby which was being looked after by her mother, and then she would rejoin him. But she did not return to the taxi. At length the appellant went to look for her, with no success. His account was that he went back and paid off the taxi, had another look around for Deena, and then returned to his ship. The Crown's case was that after Deena had given him the slip, he saw Miss Cook who was walking along Merry Row (having left a house nearby at 119 Sultan Road); and in his frustrated and angry state he attacked her, raped her and murdered her before going back to HMS Apollo.[4]The evidence against the appellant consisted largely in what were described as four main planks, as follows. First, semen found on swabs taken from the victim's vagina, vulva and anus was shown to have come from a male with the same blood group as the appellant. 23.3% of the British adult male population shared this blood group. Secondly injuries on the appellant's face, arms and back, visible when he was arrested on 5 January 1987 and thereafter examined by a doctor, could, it was said, have been inflicted upon the appellant by the victim during his attack on her. Thirdly, the victim's abdomen bore the impression of a right shoe, such that it could have come from a pair of shoes belonging to the appellant which he accepted he had probably been wearing on the night in question. The impression included the word 'Flash' in the heel. Lastly, the appellant was by his own admission in the area at the time that the attack must have occurred, and the prosecution alleged that the account he gave of his movements after Deena Fogg had given him the slip left half an hour unaccounted for: a period in which he could have committed the crime. The evidence was that the duration of the assault would have been not less than 15 minutes.[5]Dismissing his application for leave to appeal against conviction on 4 May 1989 Croom-Johnson LJ, giving the judgment of the court, said this (transcript 13 C-G):
"The question that we have to consider is whether upon the evidence that it was, which was in the view of the court not overwhelming but bare, the jury were entitled to come to the conclusion which they did come to. In the view of the court they were. They were fully entitled to take their time, as they did, to add up all the elements of the evidence, to put on one side the many irrelevances which the prosecution sought to introduce and which the judge pointed out in the course of his summing up were very largely quite irrelevant, but nevertheless looking at those four matters of vital fact to say that that convinced them that Shirley was guilty of the murder. The court thinks that they were so entitled"
. The court proceeded to consider whether there remained a lingering doubt in the case, and held that there did not.[6]On any view the fresh DNA evidence transforms the picture relating to the first of the "four planks", that is to say the semen found in the intimate swabs taken from the victim. At the time of the offence and its investigation the state of relevant scientific knowledge and expertise did not allow effective DNA profiling from samples bearing such little material as was to hand in this case; all that could sensibly be done was to test the recovered semen for blood grouping. But as is very well known, the science in this area has moved on. Using samples which at length were found still to be available for testing Dr Jonathan Whitaker carried out DNA tests on behalf of the Commission and provided reports respectively dated 24 January 2001 and 28 March 2001. His results have been considered by an expert instructed for the appellant, Ms Woodroffe, who has herself given three reports, dated 30 May 2002, 23 December 2002 and 7 May 2003. The terms of these reports have in turn been agreed by Dr Whitaker and an expert instructed for the Crown, Mr Malcolm Boots.[7]We should explain just a little of the history of the new investigations. When the Commission was first involved in the case in 1999 there appeared to be difficulty in locating the relevant slides bearing the material taken from swabs from the victim's body. However they were eventually discovered, and the Commission was so informed in February 2000. An analysis of the material on the slides was undertaken using the latest LCN+SGM techniques. But this was inconclusive. What was required was a reference sample from the victim and a reference sample from the appellant. In December 2000, the appellant (who in protesting his innocence since his conviction had consistently asked that DNA tests be carried out) provided a mouth swab sample from which a DNA profile was extracted. In February 2001 the Commission was informed that the Forensic Science Service had located a slide containing a blood-stained mouth swab from the victim which had been tested for the presence of semen, and none was present. The view was taken (and is not now departed from) that this slide was highly suitable as a reference sample of the victim's DNA for comparison purposes. So it was then possible to proceed with meaningful DNA testing procedures upon the slides containing material originally found in intimate swabs from the victim.[8]The victim's DNA bands, identified by means of the reference sample, were found in and subtracted from the mixed DNA profile in the material from the original swabs. We should notice in passing a point taken by the Crown, namely that some of these bands attributed to the victim could have been common with the appellant's DNA; their attribution to Miss Cooke was really notional. There remained an array of 'foreign' DNA bands which could not have come form the victim or the appellant – save for one: but the agreed evidence is that this single band will occur in the profile of approximately 1 in 3 unrelated individuals among the population at large.[9]In the result, the Crown accepts that there was a male contributor to the DNA found in the material of the intimate swabs taken from the victim who was not the appellant. It follows that if the only sources of the DNA in those swabs were the victim and one other person, the other person cannot have been the appellant. The Crown have to submit, as they do, that two males contributed DNA to the swabs: the appellant and another, unidentified man. The Crown disavow any suggestion that Miss Cooke was assaulted by two attackers on the night of her death. Their case is that the appellant alone attacked and murdered her. That is consistent with the DNA evidence, given the single band which matches the appellant's profile, but only if it is assumed that another, unknown male had sexual intercourse with her at some time prior to her death, so as to account for the other bands which match neither the appellant's profile nor hers.[10]It was at length accepted for the Crown in the course of argument that the safety of the appellant's conviction required this court to be satisfied so that it was sure that this assumption of a second, unknown, contributor to the DNA bands found in the victim's body was true. That must be so, since without that assumption the appellant is exonerated.[11]An important aspect of the evidence which bears on the strength or otherwise of this assumption concerns the victim's knickers, which must have been taken off her by her killer, and were found near the body on the waste ground by Merry Row. It is agreed that no semen was found anywhere on this garment. Accordingly it may be thought that the semen found in the intimate samples must have been deposited by the killer, after he had taken off the victim's knickers to have sexual intercourse with her. But as we have said, the Crown disavowed any suggestion of two attackers.[12]There being no semen found on the knickers, the Crown made this submission (skeleton argument, page 31):
"There is no evidence to preclude the possibility that Linda Cook may have had sexual intercourse with someone other than her attacker during the evening and/or day prior to this offence, and that vaginal drainage might have ceased before she put on the knickers, which she was wearing at the time of the offence."
But that would not be enough. As we have indicated the Crown's case has to be that this 'possibility' is by no means a mere possibility, but a fact established to the criminal standard to the satisfaction of this court. The 'possibility' was however not investigated at trial, because of course there was then no suggestion of a second man having had sexual intercourse with the victim. There is some information about Linda Cook's movements over some hours before she was attacked, and we will look at that shortly. We emphasise at this stage that the identity of the Crown's putative second man is wholly speculative; so is the place where the intercourse may have happened. Moreover, some of the spermatozoa found in the intimate swabs taken from the victim's body still had their tails intact; and this is a sign, as it is put in the expert material, that at least some of the semen detected was relatively 'fresh'.[13]Ms Woodroffe considered the uncontested evidence relating to the semen found in the swabs, and the state of the victim's knickers, and in her first and principal report of 30 May 2002 she said this:
"93. Following an act of sexual intercourse in which semen has been deposited in the vagina of a female it would be expected that over a period of time the semen would drain from the vagina on to the crotch region of any pants worn by the female. In this particular case there was no semen staining detected in the crotch region of the pants recovered from the scene. In the light of the findings on the vaginal swabs taken from COOKE had the semen detected in her vagina been deposited there prior to the removal of the pants I would have expected there to have been detectable levels of semen straining in the crotch region. 94. All this tends to the conclusion that the semen found inside Cooke's vagina had been deposited there after her pants had been removed and consequently was deposited by her attacker and is therefore material to matters at issue…"
[14]As for Linda Cook's movements, the judge noted (summing-up transcript 9C) that she left the house where she was living in Victoria Road North in Portsmouth at about 11.30pm on 8 December; but that was not much more than an hour before she was attacked. We also have the witness statement of Linda Gray. She did not, we understand, give evidence before the jury. The house at Victoria Road North was her family home. Her son Barry had been going out with Linda Cook since August or September 1986, and at the beginning of November 1986, Linda Cooke moved into the Victoria Road North house. But then on 14 November Barry was sentenced to a 3 month term in a detention centre. Linda Cook remained at Victoria Road North, with Linda Gray and her two daughters. Linda Gray states:
"During the time that Linda Cook lived with us I have not been aware of her having any other boyfriends. In fact I am sure she didn't as she was with me virtually all the time."
She then gives an account of Linda Cook's movements from about 10.30 am on 8 December 1986. The two of them (on Linda Gray's statement) were not together the whole time. It is certainly theoretically possible that Linda Cook might have had sex with someone on 8 December 1986 unknown to Linda Gray. But the two women were together from about 10.30 am to about 3 pm, when Linda Cooke went to collect Linda Gray's daughters from school and give them their tea. Linda Gray next saw her just after 10 pm. Linda Cook was in the house, with Linda Gray's daughters and a man with whom Linda Gray was having a relationship. The whole impression one has is that an interlude of sexual passion, languorous enough for the semen to have drained from Linda Cook's vagina before she put her knickers back on, was an unlikely visitor among these facts.[15]At an extremely late stage the Crown sought to rely upon a new report which had been provided by Dr Ford, Senior Research Fellow at the Division of Obstetrics and Gynaecology at St Michael's Hospital, Bristol. The report is dated 20 June 2003. Dr Ford accepts that after intercourse the bulk of deposited seminal fluids would drain from the vagina of an upright and active woman in less than three hours, although some sperm and seminal plasma components might remain for much longer. He states also that intact sperm (that is sperm still bearing their tails) have been commonly found up to 16 hours after intercourse.[16]We have read Dr Ford's report <I>de bene esse</I>, on a provisional basis without a admitting it in evidence in the appeal. Mr Mansfield QC for the appellant vigorously objected to its being so admitted. We have a great deal of sympathy with Mr Mansfield's position. It must have appeared, in the weeks leading up to the hearing of this appeal and not least when this court last gave directions on 12 June 2003, that the expert evidence was in effect finalised. If we considered that Dr Ford's report might have a substantial effect, to the benefit of the Crown's case, upon the outcome of this appeal we would in the circumstances have hesitated long and hard before admitting it. At the very least it might have been necessary to adjourn the appeal so that an expert instructed for the appellant might have an opportunity to comment on what Dr Ford had said. We have concluded, however, that Dr Ford's contribution makes little difference to a proper and reasonable perception of the facts here. The truth is that, taking the scientific evidence together with such knowledge as we have of Miss Cooke's movements in the hours before she was attacked, the overwhelming probability is that <I>all </I>the semen found in the intimate swabs was deposited by one man on one occasion, that is to say by her killer when he raped her.[17]The Crown were accordingly driven, as we understand Mr Mylne QC to accept, to submit that the other circumstantial evidence against the appellant was so strong as to dispel this improbability of a second DNA contributor.[18]Of the four planks originally relied on by the Crown, one – the blood grouping – is of course subsumed by the up to date DNA evidence. The Crown rely on the other three: injuries on the appellant's body; the right shoe impression; the timing of the appellant's movements and the 'missing half hour'. In addition the Crown have some other points. They refer to the way in which the appellant behaved towards Deena Fogg two days after the killing, his failure to go to the police after being told by a taxi driver where the murder had happened, and his behaviour on arrest.[19]It is convenient first to deal with the case relating to the injuries. After his arrest the appellant was examined by Dr Pickstock on 6 January 1987. She found scars to the right cheek and right eyebrow, a weal across the collar bone, a small healed scratch below the tip of the left shoulder, a pink scar on the outer side of the right elbow, a similar but smaller scar across the middle of the back of the right forearm, scratches to the front of the right forearm, a well-healed scab on the back of the right index finger, a healed scratch on the front of the left upper arm, and two scratches just below the left elbow. Dr Pickstock's evidence was that all these injuries were about four weeks old. That would, of course, put their occurrence at about the time of the murder.[20]The appellant offered no explanation of these injuries to Dr Pickstock. He said nothing to the effect that the injuries to his right arm had been occasioned in Barbados (where he had been in the course of his service in October 1986), although that was something he told the police quite soon afterwards.[21]If all these injuries were properly dated to about four weeks before Dr Pickstock's examination, that might seem to amount to a powerful suggestion that they were inflicted on the appellant by the actions of the victim in defending herself against him. But the suggestion is by no means free of difficulty. There are essentially two points. The first concerns the state of the victim's body. Fibres found under Miss Cook's fingernails were not in any way linked to fibres in any clothes of the appellant. And her fingernails were long and unbroken, suggesting that she did not scratch her attacker, or at least did not do so with any ferocity. The second point is that there was no evidence from anyone (save for one seaman who saw a minor scratch), and there must have been many candidates, to the effect that these injuries upon the appellant were more obviously visible in the days after the killing. The judge at trial had this point in mind. He told the jury (summing-up transcript 32H – 33C):
"Is it not the case that if this defendant had a number of injuries inflicted on him in the course of a violent struggle on the evening of the 8<SUP>th</SUP> when he was attacking poor Linda, is it not the fact that his shipmates would have noticed something about his appearance. Down in the mess when he gets into his bunk, goes to wash and so on he is stripped to the waist. What if any significance do you attach to the fact that nobody has said, and indeed you can infer that there is nobody who could say, that there were any such injuries."
[22]The appellant has now obtained further evidence relevant to the injuries from Dr Clarke, a consultant forensic physician, who has provided two reports dated 25 March 1995 and 4 June 1995. In summary he asserts that it is not possible to date the injuries with the accuracy claimed by Dr Pickstock. But we would conclude in any event, given the two substantial points which we have already outlined, that the evidence of injuries to the appellant does not begin to dislodge the powerful improbability of a second DNA contributor.[23]We turn to the impression of a shoe found on the victim's abdomen. As we have said, the impression was of a right shoe. It was similar to the impression made by the right shoe of a pair belonging to the appellant. In both, the word 'Flash' was to be seen in the heel. The impression on the body could have been made by a size 43, 44 or 45 shoe. The appellant's size was 44. The judge reminded the jury (23F) that in 1986 1,058 pairs of shoes manufactured to the order of Marks Shoes were sold in the United Kingdom, the majority bearing the logo 'Flash'. In the same year 1,721 Melkrose shoes were sold in the United Kingdom: they were not supposed to have the 'Flash' logo, but a significant number did. Then there were 4,200 sales of C & A Avanti shoes, none of which should have had 'Flash' on them, but a small proportion did. However none of those were sold in Portsmouth. After setting out further details to be found in the evidence, the judge put before the jury (25A) a figure of 51 pairs of shoes sold in Portsmouth in 1986 with the logo 'Flash'. He acknowledged that that was not absolutely accurate, and that he was referring to shoes of all sizes. In his first police interview the appellant had said that he had bought his shoes bearing the logo 'Flash' in Portsmouth three months earlier.[24]The appellant (at paragraph 3.10 of the Grounds) points to the fact that the learned trial judge concentrated his remarks on the sales of shoes in Portsmouth, whereas there were very much larger numbers sold countrywide, and larger yet if one considers the period 1983 to 1986, rather than just the year 1986. The Commission stated (paragraph 1.20 of their Statement of Reasons):
"The Commission considers that by concentrating mainly on 1986 sales in Portsmouth, the jury were perhaps not fully aware of how common shoes with this logo in the heel actually were."
In addition the appellant relies on the following paragraph in the Commission's statement of Reasons:
"10.21 The Commission has had access to the police enquiry papers and is aware that some outlets were unable to provide accurate figures and that not all sales were traceable. Some were cash sales and as such the identity of the buyer is not known. The Commission is also aware from photographic evidence that there were a number of very different looking shoes with the same logo in the heel. It is easy to make the mistake of thinking that the evidence referred to the same pair of shoes as opposed to a pair of shoes with the same logo in the heel."
[25]We do not agree with the criticism advanced of the judge, to the effect that he concentrated overmuch on sales of shoes in Portsmouth. The whole passage of the summing up dealing with the shoe evidence gives a perfectly fair overall picture. However, it is in our judgment obvious that this piece of circumstantial evidence cannot on its own overturn the probability that there was only one DNA contributor. It is no less clear to our minds that it cannot do so taken in conjunction with the evidence about the injuries.[26]We turn, then, to the evidence about the timing of the appellant's movements on the night in question, and the so-called missing half hour.[27]The appellant was to tell the jury that he believed he returned to his ship at about 01.45 am: he could hear the men getting up for the next watch, which would start at 0200. He had given a like account to the police (though with some variations: they do not, however, touch the essence of this part of the case). The Crown's argument is and was that, given the appellant's return to HMS Apollo at 0145 hours on his own account of events, and given also the time he himself said he had left Joanna's nightclub with Deena Fogg – about midnight, half an hour of the period in between is unexplained by his account of his movements when one bears in mind the geography and distances involved. The Crown says that the appellant attacked and killed the victim within this missing period. As we have indicated, the evidence was that the duration of the assault would have been not less than fifteen minutes.[28]At the hearing we examined the relevant geography and distances with the assistance of counsel and a large scale plan. It is unnecessary to replicate all the details in this judgment; the force of the points respectively made by the Crown and defence can be explained without that being done.[29]The premise of the missing half hour was that the appellant left Joanna's nightclub by taxi with Deena Fogg at about midnight, and they got to the point where Deena Fogg left the taxi at about 12.15. There were substantial pieces of evidence which were undoubtedly consistent with this premise. They include what the appellant told the police, that he thought they left Joanna's at about '12.00 to half past'. Deena Fogg's evidence was that she thought they got into the taxi from Joanna's at about 12. Deena's baby-sitter, Stephen Miles, gave a statement which was read to the jury. He said he had watched a film on the television that night, 'Freebie and the Bean'. Deena arrived back about three minutes before the film finished. Evidence from the appropriate records was put before the jury to show that this film finished on the TV at ten seconds before midnight. In Mr Miles' statement he said that he told Deena, on her arrival, that she had just missed a good car chase; meaning, of course, a scene from the movie. In her evidence Deena Fogg made a comment to the jury about Stephen Miles saying she had just missed the film. She also said that she had a look at the television herself, and there was snooker on one channel. Again, there was objective material from the records to show that snooker transmissions that evening ended at 11 minutes past 12.[30]Thus as the judge indicated to the jury (summing up, 14B) there was 'pretty convincing' evidence that Deena got home just around midnight, seemingly about ten or fifteen minutes earlier than she herself had thought. Now, in an attempt to assist the jury, the trial judge put before them his own analysis of the appellant's movements after leaving Deena Fogg. The analysis proceeded on the premise to which we have referred, that Deena Fogg left the taxi, and the taxi left the scene, at about 12.15. Deploying other evidence of timings which he explained to the jury, the judge suggested that, given the premise, the appellant arrived at HMS Apollo at about 01.15 hours, about half an hour adrift from his own timing of 01.45. It is of particular significance that on the judge's suggested analysis, the appellant would have been in the vicinity of Merry Row at about the time when it was estimated that Linda Cooke arrived there: between 00.25 and 00.45 (summing up, 10E–F).[31]It is a striking feature of the appeal that part of the case being put on the appellant's behalf by Mr Back QC was consistent with the Crown's timings, or at any rate the analysis put by the judge to the jury. In terms Mr Back asked Deena Fogg in cross-examination 'You left about midnight did you not?' and obtained the answer 'Yes' (transcript, 295a). And Mr Back appears (297a) if anything to have adopted and endorsed Deena Fogg's evidence that it was about 00.15 when she got home.[32]The Crown have some other points about the route taken by the appellant back to his ship, but the real thrust of this part of the case is the combined suggestion that the appellant was in the vicinity of the place where the victim was attacked at the time she was attacked, and cannot on his explanation of events account for the passage of half and an hour. He should, on that explanation, have got to the ship at about 01.15 hours, but did not do so until 01.45.[33]On the face of it there is more substance in this than in the other two areas of circumstantial evidence, the injuries and the shoeprint. But the Commission were plainly troubled by the fact that there exists evidence, some of it hard evidence, to suggest that Deena Fogg and the appellant left Joanna's nightclub significantly later than midnight or so. This evidence was not gone into at trial, and to our minds it remains something of a mystery why that was so.[34]In her first statement given to the police on 21 December 1986, Deena Fogg said that she and the appellant left Joanna's 'about 0030 hours and got into a taxi at the nearby rank'. A little later in the same statement:
"When I got indoors it was about 00.45, Stephen my baby-sitter was still up watching TV. I cannot remember what programme was on but it was some kind of discussion. I looked to see what other programmes were on the other channels in the paper, but they had all closed down and the programme that was actually on then finished and the TV shut down altogether."
The Commission followed this up. They have gathered information to show that on the night in question only one of the main terrestrial channels (BBC1, BBC2, ITV, Channel 4) was still broadcasting after 00.21. That was a programme on Channel 4 called 'Their Lordships' House'. It stared at 00.30 and finished at 00.44. It might reasonably have been referred to as a discussion programme.[35]We also have the statement of the taxi driver, Mr Smith. It was made to the police on 30 December 1986. In it Mr Smith said:
"Most evenings I would visit the rank at South Parade Pier between 12 am and 3 am. However, this particular night I had jobs at 12.15 am and 2.10 am which would have left me on the rank between 12.25 and 2 am."
What was there said by Mr Smith is consistent with the contemporaneous log of the taxi office, which is also before us. That shows that Mr Smith was booked to pick up a fare at the 'Sirloin of Beef', an address in Portsmouth, at 00.15 on the same night. Whether the log is a record of advance bookings, or of jobs actually carried out, seems to us to make little difference. There is no contest but that the document is a genuine contemporaneous document.[36]It is said that these materials substantially undermine the Crown's case on the timings of the appellant's movements. Thus if there is a substantial possibility (to put it no higher) that the appellant and Deena Fogg did not leave Joanna's until about 00.30, then on the consequent revised timings, both the alleged coincidence of the appellant's and the victim's arrival at Merry Row and the lost half hour in the appellant's movements effectively disappear.[37]Mr Mylne's response to this position was to submit for the Crown that the defence had possession of Deena Fogg's first statement, the taxi driver's statement, and (we understand) the log, but for reasons presumably inherent in counsel's instructions from the appellant mounted no challenge to the timings relied on by the Crown. In our judgement, however, that does not begin to dispel the force of these further materials. As Mr Mansfield submitted, it is a matter for speculation whether Mr Back QC had distinct instructions to the effect that the appellant and Deena Fogg had left the nightclub at 12. Given that the appellant's account at interview from which it is not suggested he departed, was that he thought they had left 'about 12 to half past' it seems unlikely that he was nailing his colours to a mast labelled 12 midnight.[38]In the result, there is at least a substantial question mark over the Crown's case relating to the timings and the missing half hour. In those circumstances, whether looked at alone or together with the other circumstantial points which we have already discussed, this aspect of the facts cannot serve to dispel the improbability of two male contributors to the DNA found in the intimate swabs.[39]The Crown have some other points. First, they refer to an encounter between the appellant and Deena Fogg two days after the fatal incident. They met by chance. The Crown say he tried to intimidate her. She made some reference to their having two nights before been close to where (as was now known) the killing happened. He urged upon her that they did not leave Joanna's 'until the very end anyway, did we?'. The suggestion is that this was the beginning of an attempt to concoct an alibi.[40]In our judgment, however, this is an insubstantial point. In interview the appellant was to admit, apparently without cavil, that he had been in the relevant area; that he had similar shoes; and after arrest he gave a full account of his movements with Deena. There is nothing in this later encounter with Deena Fogg that can begin to carry the Crown's case.[41]The Crown also rely on the fact that when the appellant passed the scene of the crime in a taxi, thirty-six hours after it happened, and the taxi driver pointed out to him that that was where the killing had taken place, the appellant did not go to the police to tell them what he knew. But this too is surely an insubstantial point.[42]Lastly the Crown seeks to build on the fact that in interview the appellant repeatedly stated that he thought the girl he met at Joanna's was called Sue. When he was told that her real name was Deena, he said, 'I didn't remember that'. The point being made by the Crown was presumably as recorded by the Judge at 60E in the summing up, namely that he was deliberately concealing his knowledge of the girl's identity 'in the hope that he would prevent the police from tracing her'. Given the fact that the appellant gave a full account to the police about his activities with Deena, the judge thought nothing of this point (see generally, summing up 59D – 62D). Nor do we.[43]It is right that we should notice Mr Mansfield's submission that the results of certain further scientific enquiries taking place since the appellant's conviction tend to favour his innocence. First, tests have shown that no trace of the victim's DNA was to be found anywhere inside or outside the appellant's right shoe, said to have been worn on the night in question. Secondly, there had been some evidence of minor bloodstains on the appellant's clothes. In particular there was a suggestion that blood found on his trousers came or may have come from the victim, after she had been raped by him. It has now been confirmed that these traces of blood came from the appellant himself.[44]In the result there is nothing in the materials relied upon by the Crown, all of which we have examined carefully, to dispel the very strong probability that there was only one male contributor to the DNA found in the intimate samples taken from the victim. As we have said it is accepted that if that is the court's conclusion, the appellant cannot have been that contributor. In short, in light of the fresh evidence obtained from the DNA profiles, this appellant's conviction is plainly unsafe. The appeal will be allowed and the conviction quashed.

Cited in 1 later judgment