When the only evidence is DNA – R v Tsekiri [2017] EWCA Crim 40

The Court determined DNA Evidence alone can lead to a conviction but it depends on the circumstances

The facts of this appeal require us to determine the position when a defendant’s DNA profile at the scene is the only evidence. In our view the fact that DNA was on an article left at the scene of a crime can be sufficient without more to raise a case to answer where the match probability is 1:1 billion or similar. Whether it is will depend on the facts of the particular case. Relevant factors will include the following matters.

Is there any evidence of some other explanation for the presence of the defendant’s DNA on the item other than involvement in the crime? If a defendant in interview gives an apparently plausible account of the presence of his DNA profile, that might indicate that the prosecution had not raised a case to answer. On the other hand, the total absence of any explanation would leave the evidence of the defendant’s DNA unexplained. This is not to say that the absence of explanation of itself would provide additional support for the prosecution case. Section 34 of the Criminal Justice and Public Order allows for the possibility of an adverse inference capable of being considered when a judge determines whether a defendant has a case to answer in which case the adverse inference would be additional support for the prosecution case. But that is unlikely to arise in a case involving DNA evidence for the reasons as explained fully in FNC at paragraphs 14 to 18. Rather, the absence of explanation in such a case would mean that there would be no material to undermine the conclusion to be drawn from the DNA evidence.

Was the article apparently associated with the offence itself? Here the DNA profile was found on the door handle which was used by the offender in the course of committing the offence. There can be no doubt that the offender did touch the article in question. The position could be different if the article was not necessarily so connected with the offence e.g. if a DNA profile were to be found on a cigarette stub discarded at the scene of a street robbery.

How readily movable was the article in question? A DNA profile on a small article of clothing or something such as a cigarette end at the scene of a crime might be of less probative force than (as was the case here) the same profile on a vehicle.

Is there evidence of some geographical association between the offence and the offender? The facts of this case are an example of this.

In the case of a mixed profile is the DNA profile which matches the defendant the major contributor to the overall DNA profile?

Is it more or less likely that the DNA profile attributable to the defendant was deposited by primary or secondary transfer? In this case the expert evidence was that secondary transfer was an unlikely explanation for the presence of the appellant’s DNA on the door handle.

This is not an exhaustive list and each case will depend on its own facts. The crucial point is that there is no evidential or legal principle which prevents a case solely dependent on the presence of the defendant’s DNA profile on an article left at the scene of a crime being considered by a jury.

On the facts of this case it is quite clear that there was a case for the appellant to answer. His was the major DNA profile on the door handle of the car which was used by the offender in the course of the robbery. The expert evidence was that the likely reason for the defendant’s DNA profile being on the door handle was that he had touched it. At the close of the prosecution case there was no explanation for this fact. The rhetorical question posed by the judge demonstrated some geographical connection between the location of the offence and the appellant albeit not sufficient to amount to supporting evidence qua Bryon.”

Categories: Caselaw, Criminal Appeals

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