BARBADOS

[Unreported]

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL

Criminal Appeal No. 15 of 2006

BETWEEN

BEFORE: The Hon. Peter D.H. Williams, the Hon. John A. Connell and the Hon. Sherman R. Moore, Justices of Appeal.

2008 January 23 and 24; September 18

Mr. Arthur Holder and Mr. Dennis Headley for the Appellant.

Mr. Alliston Seale for the Respondent.

DECISION

PETER WILLIAMS JA

INDEX

I. Introduction para [1] to [5]

II. The prosecution's case

(a) Summary para [6]

(b) The events of 19 May 2001 para [7] to [9]

(c) The appellant's written statement para [10] to [15]

(d) The evidence of events from

20 May to 17 July 2001 para [16] to [32]

(e) The arrest and subsequent

charge of the appellant para [33] to [35]

(f) The DNA tests and results para [36] to [39]

(g) The random match probability para [40]

III. The defence

(a) The appellant's statements para [41] to [42]

(b) The defence expert evidence para [43] to [49]

IV. The grounds of appeal para [50] to [51]

V. DNA

(a) DNA defined and the random

(b) Chain of custody: submissions

and discussion para [59] to [69]

(c) Inconsistencies and discrepancies:

submissions and discussion para [70] to [73]

(d) Expert evidence and hearsay para [74] to [77]

(e) Conclusion para [78] to [80]

VI. Other issues

(a) Statement of appellant and

(b) Intention para [83] to [85]

(c) Verdict safe and satisfactory para [86]

VII. Disposal para [87]

I. INTRODUCTION

[ 1] On 19 May 2001, Rosanna Marlene Griffith left her home accompanied by her sisters to go to the supermarket. She never returned; she was sexually assaulted and murdered. DNA evidence linked the appellant, Clyde Anderson Grazette to the crime. On 21 November 2006, a jury convicted the appellant of the murder and Cornelius J imposed the mandatory death sentence. The Court is required to determine whether the verdict of the jury should be set aside on the ground that under all the circumstances it is unsafe or unsatisfactory.

[2] Rosanna Griffith was 18 years old and lived at Nurse Land, St Stephen's Hill, Black Rock, St. Michael with her mother, Juliette Griffith, her grandmother, Daphne Griffith, her aunt, Jennifer Griffith and her younger sisters, Crystal Griffith and Cindy Dates. She was a student at St. Lucy Secondary School before entering the Barbados Youth Service, where she spent two years prior to the completion of her training in February 2001.

[3] On Saturday 19 May 2001 around 9.00 p.m. Rosanna left home with her two sisters and a friend, Rhea King, to go to Carlton Supermarket. At the time, Crystal and Rhea were 13 and Cindy was 9 years old. The girls bought a few items in the supermarket. Rosanna paid for them and held them in a supermarket bag. When they reached the exit door of the supermarket, Rhea complained of feeling hungry. Rosanna remained standing at the door while Crystal, Cindy and Rhea re-entered the supermarket and purchased yogurt and ice cream for themselves. When the three returned to the spot where they had left Rosanna, they did not see her. And, when they reached home she was not there.

[4] Juliette Griffith did not recall the time that the children returned home but after they had, she went searching for Rosanna. Daphne Griffith also went down St. Stephen's Hill and all through Clevedale looking for her granddaughter. The children also went back out to search for Rosanna. There is no evidence however that Rosanna's disappearance had at that time been reported to the police.

[5] On the morning of Sunday 20 May, Rosanna's mother had to go to work and while she was at work, she telephoned her mother at home and became aware of Rosanna's death. Carlos Archer, a school friend of Rosanna, on his way home from playing football about 10.15 a.m. saw her body lying down in the track next to his house in St. Stephen's Hill.

II. THE PROSECUTION'S CASE

(a) Summary

[6] The prosecution's case against the appellant was based primarily on DNA evidence, which we set out in detail below. However, before doing so, it is helpful to relate the other evidence linking the appellant to the scene of the murder for it is in this context that the DNA evidence has to be assessed.

(b) The events of 19 May 2001

[7] Police Constable Dalton Thorne gave evidence of seeing the appellant on 19 May sometime after 9.00 p.m. on the compound of Carlton Supermarket. The appellant was dressed in a black pants and a black long-sleeved shirt. PC Thorne was not on duty and he did not speak to the appellant.

[8] Cheryl Waterman, who lived at Black Rock said that she was in a house on St. Stephen's Hill when she saw Rosanna on 19 May around 7.30 p.m. "walking up the street with a [Carlton Supermarket] bag in her hand". She later said, "it could be about 8.00, 8.30 anywhere around there I am not sure of the time" (Emphasis added). She did not remember anything else happening after that except "hearing a dog barking or a sound like a dog barking". The following day she saw Rosanna's body at St. Stephen's Hill "lying through a rocky road".

[9] Japeth Williams, who lived at St. Stephen's Hill, said that he was at home on 19 May around 9.45 p.m. He "heard a voice, a 'fainty' voice, like a female…that screamed…I heard [the female person] scream and that scream did not take for long, about, just four seconds". Later in his evidence he said that he went for a searchlight and he also put on his apartment's patio light. Although the place "was a bit dark and it was bushy", he saw a man standing, but he could not make out the person's face. All that he could remember was that the person was wearing "a black T-shirt with a white streak at the two sides". The person was also wearing a hat, but he did not take note of its colour. He then went back into his apartment. He also heard some dogs barking "both from Clevedale side and from St. Stephen's Hill side". He was not cross-examined.

(c) The appellant's written statement

[10] On 31 May 2001, eleven days after Rosanna's body was discovered, the appellant gave PC David Rouse, a written ten page movement statement. It was a Form B Witness Statement taken to obtain information at a time when the appellant was not a suspect or an accused person under caution. The statement was read to the court by PC Rouse. There was no objection taken to this procedure. Nevertheless, the statement was very similar to the appellant's unsworn statement made from the dock at his trial and set out in part at paragraph [42] below. We make a précis of the written statement highlighting the evidence that the appellant gave of his movements on 19 May.

[11] The appellant gave his age as 37 years, his occupation as carpenter and his address as St. Stephen's Hill, where his mother lived. He stated that his relationship with his girlfriend, Pamela Collymore, had ended on 2 May 2001 when he was evicted from her home at Brandons. Thereafter he was sleeping on the street, on the premises of Carlton Club, in abandoned houses and with friends as he was not on good terms with his mother and did not go to her house in St. Stephen's Hill. On Saturday 19 May for most of the day he was in Temple Yard, where he drank "several bottles of Guinness and some brandy". Sometime after 5.00 p.m. he took a bath at a friend's residence and changed into "a full length black jeans, a pair of black and white soft wears and a black, green and white Fabu shirt". He caught a van to St. Stephen's Hill and alighted from the van near to Carlton Supermarket. He went to the phone booth and called Pamela but no one answered. He said at page 252 (page references are to the record of appeal):

"By this time outside was dark, but I cannot say what time it was."

[12] He then went up St. Stephen's Hill where he spent time with some men that he knew. It was there that he saw Rosanna walking past with the other girls; he said at page 253:

"Whilst I was there speaking with 'Sweetboy', a young girl, who I know as living in the St. Stephen's area walked past with three little children walking with her. I know this young lady by seeing her walking through the district, but I do not know her name. I usually would pull at her or make numerous remarks as she passed. As she passed, I reached out at her, but I did not touch her. She walked across the road in front of Hinkson's shop and disappeared from my view."

[13] The appellant remained in St. Stephen's Hill before changing a silver dollar into four quarters to enable him to speak for an extended period on a pay phone. He then returned to the phone booth by the supermarket and made a second call to Pamela, again without hearing her. He sat on a bench for a while before making a third call to Pamela but there was no answer. He then went back to the bottom of St. Stephen's Hill and into the St. Stephen's Church yard before going back to the phone booth to make his fourth unsuccessful call to Pamela. He went into the supermarket and purchased a large passion fruit juice. As he walked out of the supermarket he saw his sister, Shelly, standing by the door with some grocery bags and assisted her with the bags to the bottom of St. Stephen's Hill near the track leading to his mother's house. He then continued up the hill. He said at page 252:

"As I was walking up the hill, I saw a woman who is one of a twin. She is either the girl who I had teased earlier mother or aunt. I said good night to her and I continued walking."

[14] He eventually caught a van to Bridgetown and another to Roach Village, but he could not give an account of the time that he was in Roach Village. He said at page 256:

"I cannot speak about exact times because I did not have a watch."

He then got a lift back to the supermarket and eventually slept in an abandoned house. He said also at page 256:

"The next day, I caught a van to Temple Yard and I remained there throughout the day and during the evening. I saw 'Iroy' in Temple Yard and he told me that Black Rock was hot because a young girl had been murdered. He described who the person was and I realised it was the same young girl that I usually interfere with."

[15] The evidence of the appellant's movements and those of Rosanna on the night of 19 May in relation to the offence is as follows. The appellant arrived at Carlton Supermarket between 8.00 and 8.15 p.m. He later went up St. Stephen's Hill. Around 9.00 p.m. Rosanna and the other girls passed the appellant on St. Stephen's Hill on their way to the supermarket. The appellant thereafter went back to the supermarket where he was seen by PC Thorne sometime after 9.00 p.m. Rosanna left the supermarket sometime after 9.00 p.m. and was seen by Cheryl Waterman (the witness who last saw Rosanna alive) going up St. Stephen's Hill with a Carlton Supermarket bag. The appellant also returned to St. Stephen's Hill. It was around 9.45 p.m. that Japeth Williams heard at St. Stephen's Hill "a voice like a female that screamed". According to him, he heard dogs barking; Cheryl Waterman also heard a dog barking after she saw Rosanna. The appellant saw Rosanna's mother or aunt (he wasn't sure which one) pass him going down St. Stephen's Hill, sometime after Rosanna did not return home. In short, the appellant was on his own admission in the vicinity of the crime at the time it was committed or estimated to have been committed.

(d) The evidence of events from 20 May to 17 July 2001

[16] Station Sergeant David Lewis (at the time Sergeant) was the first policeman on duty at the scene on 20 May about 10.30 a.m. On his arrival, he saw the body of a female lying on her back motionless in a bushy area. He described what he saw at page 180 as follows:

"Her body was partially naked. There was a black and blue panty with a white seat tied tightly around her neck. She was wearing a green blouse which was up to her neck. She was also wearing black tights, a pair of black tights on her left foot. Her legs were apart and her hands were above her head. There was a pair of red slippers and a black ruffle above her head. Her hair was open and there was a mark to the left side of her chin." (Emphasis added.)

[17] Dr. Andrew Murray met S/Sgt. Lewis at the scene. Dr. Murray found the body of a young female in a track lying in a supine position. The body showed no signs of life. He noted "a cloth tied tightly around the neck and the body without clothes" (page 225). He certified death at 11.17 a.m. and the body was identified to him as that of Rosanna Griffith.

[18] S/Sgt. Lewis was later joined by S/Sgt Roderick Walcott (at the time Sergeant), a forensic scientist attached to the Forensic Scenes of Crime Unit of the Criminal Investigation Division ("CID"). S/Sgt. Walcott has a Bachelor of Science degree and other qualifications in forensic science and his evidence was treated as that of an expert witness. He gave evidence of his examination of the scene and of the body. According to his description of the body at pages 188 and 189:

"The body was in a prone position with the legs spread apart and hands above the head, both being bent at the elbow. There was a piece of panty tied around the neck. A green blouse worn by the deceased was raised above the breast. A black cycle shorts [was] torn and was partially off, being only on the left leg. The rear piece of the flowered panty was under the buttock of the deceased. There were what appeared to be a bruise to the left cheek, and blood-shots in the left palm." (Emphasis added.)

[19] On 22 May 2001, S/Sgt. Walcott with S/Sgt. Bernard Harte (at the time Sergeant) attended the autopsy of Rosanna and requested Dr. Stephen Jones, the Consultant Pathologist, "to take vaginal, oral and anal swabs, along with fingernail clippings, pubic hair combings and a sample of whole blood from the deceased" (page 189). Dr. Jones confirmed that he collected the samples and handed them to S/Sgt. Walcott. Dr. Jones stated that "they were given in (separate) containers that were labelled and would have borne my initials" (page 233). S/Sgt. Walcott kept the items (including the clothing) in police custody in the appropriate environment and labelled them RW 1 to RW 9 (page 189). In cross-examination S/Sgt. Walcott also stated that he placed his initials on each exhibit (page 294).

[20] Dr. Jones' findings of the external injuries to Rosanna's body were: "a mottled area of abrasion-contusion" located on the neck and "over the angle of the left mandible [jawbone]"; two abrasion-contusions, one behind the left ear and the other was "two centimeters inferior to the attachment of the left ear, but in the midline of the anterior neck". Dr. Jones explained that the term "abrasion-contusion" is used "to describe two characteristics: (i) that there is some loss of surface tissue and (ii) that there is some bleeding below the surface. The abrasion is the loss of tissue component; the contusion is the bleeding beneath the skin." Dr. Jones also found an area of contusion and indentation around the neck. By indentation, he meant "that there was some depression of the skin". There was protrusion or bulging of the eye, but no haemorrhage. Dr. Jones found on dissecting the structures of the neck that "there was a small amount of bleeding into the soft tissues around the larynx…The mucosal lining of the larynx was hyperemic, meaning that it was red."

[21] On examination of the genitalia, there was blood around the opening of the vagina; on the lining as well as on the skin.

[22] Dr. Jones concluded at pages 232 and 233:

"Based on these examination findings, I am of the opinion that death was a result of, or was due to ligature strangulation.

Strangulation usually refers to, or as a cause of death, usually refers to death as a result of pressure being applied to the neck. When the term ligature is used, it means that it is a ligature, something like a string, rope, wire, cord -- even cloth."

Dr. Jones was not cross-examined. We would add that there was no criticism of his evidence.

[23] On 31 May 2001, the appellant, who heard that the police were looking for him, went to Central Police Station accompanied by his lawyer, Mr. Keith Simmons. PC Rouse, who was the officer on duty, interviewed the appellant in the presence of PC Richard Garrett in order to determine the extent to which the appellant could assist in the murder investigation having regard to the fact that he was seen in the area of Carlton Supermarket and St. Stephen's Hill on the evening of 19 May. The interview resulted in the appellant's written statement which was summarised in paragraph [10] to [15] above.

[24] After the interview, PC Rouse asked the appellant if he was willing to give a blood and hair sample as this was the means by which tests could be done to determine from whom the semen found on the body of Rosanna had come. The appellant replied, "I frighten for needles, but I will give the blood and hair". PC Rouse accompanied by PC Garrett then took him to Dr. Murray.

[25] PC Rouse gave evidence that he was "in possession of two containers, a transparent bag and the Police Medical Journal". He stated that in his presence and that of PC Garrett, Dr. Murray consulted with the appellant and then took a blood sample from his right hand and "handed the items to PC Garrett and made an entry in the Police [Medical] Journal". PC Rouse then took possession of the items and kept them in his custody. In cross-examination, PC Rouse stated that the blood was contained in two sealed phials placed in a sealed evidence bag: "the phials were sealed in the evidence bag when I got them from Dr. Murray" (page 279). PC Rouse placed his signature (he later said initials) on the evidence bag, which was taken back to the CID and put in a refrigerator. PC Rouse further stated in cross-examination that the appellant placed his signature on the two phials of blood and that this fact was recorded in his police notebook.

[26] Dr. Murray's evidence was that on the evening of 31 May 2001 the appellant visited his office accompanied by PC Garrett and that he obtained the appellant's consent to take a sample of blood. He said at page 219:

"The sample of blood was taken from his right upper limb. It was put into a phial which was labelled, then this phial was put into an envelope which was sealed and handed back to the constable. An entry was made into the [Police] Medical Journal, which was also handed to the constable." (Emphasis added.)

He was not cross-examined in relation to the taking and storage of the blood sample or in respect of the entry in the Police Medical Journal.

[27] Dr. Murray's evidence was confirmed by the appellant himself in his unsworn statement from the dock at the trial. The appellant told the jury that he did not place his initials on "the" phial in which the doctor put the blood nor did he see the doctor or PC Rouse place their initials on the phial. Similarly, Ms. Jennifer Luttman's evidence was that the Federal Bureau of Investigation ("FBI") laboratory received one phial of blood with no signature or initials on the phial, but it did have the name of the individual from whom it came and the date on which it was taken.

[28] PC Garrett's evidence was that PC Rouse was in possession of "a sealed phial, transparent evidence bag and the Police Medical Journal". However, PC Garrett later stated that the sealed evidence bag contained two phials with blood and that Dr. Murray made an entry in the Police Medical Journal. PC Garrett stated that he placed his initials on the evidence bag.

[29] After the appellant attended Dr. Murray's Office to give the blood sample, he was taken back to the CID where he provided two hair samples, one from his head and the other from his pubic area. There is some difference in the evidence given between that of PC Rouse and PC Garrett. However, the difference in the evidence is not material to any issue as in any event the hair samples did not form part of the DNA tests.

[30] Also, on 31 May, the appellant was taken to Reed Street by PC Rouse and PC Garrett and it was there that he handed them a black full length pants and a green and white shirt which according to him, he was wearing on the night of 19 May. However, these items of clothing were not sent for testing because according to S/Sgt. Walcott (at page 201) they were not consistent with the description of the clothing that the appellant was wearing on the night of 19 May and further, they appeared to have been laundered.

[31] Later that same day PC Rouse told the appellant that he was treating him as a prime suspect in the death of Rosanna and that he was arresting him on suspicion of murder. He then arrested and cautioned him (page 243). He also asked the appellant if he wished to speak to his attorney-at-law, but the appellant replied that "[i]t late, so I ain't gine call he, but I know he gine come and check me in the morning, once my mother tell he I ain't come home" (page 244). PC Rouse continued to investigate the case but on 3 June 2001, he informed the appellant that although he had conducted extensive investigations, he had discovered nothing that would suggest that the appellant "was culpable in the death of Rosanna" and that he was free to go.

[32] On 13 July 2001, PC Rouse handed over all the samples taken from the appellant to S/Sgt. Walcott. On 17 July 2001, S/Sgt. Walcott travelled to Washington DC and submitted to the FBI laboratory the samples RW 1 to RW 9 of Rosanna and the sample SP 1, which was the marking designated to the appellant, as well as samples SP 2 to SP 4 from other suspects.

(e) The arrest and subsequent charge of the appellant

[33] On Sunday 12 May 2002, S/Sgt. Bernard Harte (at the time Sergeant) arrested the appellant at St. Stephen's Hill while he was selling coconuts, having on 10 May 2002 received from S/Sgt. Walcott a copy of the report of the FBI's analytical findings. S/Sgt. Harte cautioned the appellant and informed him of his right to have an attorney-at-law of his choice at any stage during the course of the investigation. Mr. Andrew Pilgrim arrived within an hour and had a private conversation with the appellant, who declined to be interviewed. Mr. Keith Simmons arrived later. In the presence of Mr. Simmons, S/Sgt. Harte asked the appellant if he was maintaining what he had said in his movement statement. He read the statement and said, "Yes, I maintaining that". S/Sgt. Harte then asked the appellant if he had ever "conversed with" Rosanna and he replied, "Yes, a few times". He was asked if he had "any type of sexual contact" with Rosanna "whether vaginal or anal intercourse" and he replied, "No". S/Sgt. Harte then told the appellant that it could not be true to say that he had no sexual contact with Rosanna considering the positive match from the DNA testing. He replied, "I ain't know nothing 'bout that girl".

[34] On 13 May 2002, at the CID he was formally charged with murder, the particulars of which were that sometime between 19 and 20 May 2001, in the parish of St. Michael he murdered Rosanna Griffith. His response was, "I ain't do that".

[35] S/Sgt. Harte stated at page 322 that on 13 May 2002, after the appellant was arrested, he was taken to Dr. Ermine Belle, a psychiatrist at the Psychiatric Hospital, where he was interviewed by her. However, Dr. Belle did not give evidence and no mental report was produced. There was therefore no evidence presented at the trial relating to the appellant's mental state.

(f) The DNA tests and results

[36] Ms. Jennifer Luttman, a Forensic DNA Examiner for the FBI gave details of her qualifications and professional experience. She was treated without objection as an expert witness. She described the nature of DNA and the process by which it was analysed so as to determine the probability that the sample came from a particular person. The process employed by the FBI is known as polymerase chain reaction ("PCR") as was described by Ms. Luttman for the jury at pages 341 and 343 as follows:

"At the FBI laboratory, we conduct nuclear DNA analysis known as Short Tandem Repeat or STR analysis. This is a type of DNA analysis that looks at areas of the DNA that [vary in] length, from person to person. So this method allows us to go in and measure the specific 13 areas that vary in length from person to person and then compare the DNA from a piece of evidence to the DNA profile from a known individual.

[O]ver 180 forensic laboratories in the United Sates do the same type of Short Tandem Repeat analysis, looking at the same 13 locations and, in addition, this type of analysis is done all over the world for forensic DNA testing.

A typical examination is done in which an item of evidence is looked for, body fluids such as blood and semen.

[B]ecause you can't see DNA with your naked eye…the next step in the process is to determine: is there enough DNA and is that DNA human. Once that's determined, then we go in with a process known as the polymerase chain reaction, also known as PCR. And this is a process that copies the DNA at those 13 regions that we want to look at, that varies from person to person in length. Once those areas are targeted and copied, we then measure them on an instrument. Once we measure them, we do the comparison from the DNA profile that was found on the evidence to the DNA profile from a known individual.

And when we do this comparison, there are three possible outcomes. The first possible outcome is that the DNA does not match. The second possibility is when we have an inconclusive result. And then the third possibility is when we have a DNA match. And that is when the DNA from the evidence matches a known individual at all the DNA locations that are available."

[37] The FBI laboratory received from S/Sgt. Walcott personally on behalf of the Royal Barbados Police Force samples from Rosanna's body, the appellant and other suspects for examination. Ms. Luttman explained the procedure at the FBI for receipt of samples at pages 349 and 353 as follows:

"[A] contributor is a police agency or an investigative agency that submits evidence to the FBI lab for us to do examinations on them. They must submit a letter requesting examinations and tell us which items of evidence are going to be submitted. Once the letter is read, the items of evidence are inventorised and then they are given Q or questioned numbers or K [known] numbers...[The reference to Q or questioned] items are those that examinations will be conducted on for DNA, we are looking for DNA other than the victim's obviously…"

[38] Mr. Seale prepared for us as part of his helpful submissions, a table showing the items received by the FBI laboratory which Ms. Luttman described in her evidence at page 353 to 355. To that table we have added a third column showing the results of the preliminary tests for semen or blood on the items, as set out below:

SAMPLES SUBMITTED TO THE LABORATORY REGARDED AS QUESTIONED ITEMS AND LABELLED "Q".

Labelled by S/Sgt. Walcott Labelled by FBI Lab. Tests for Semen and Blood

RW1 Vaginal Swab Lab ID/Q5 Semen and blood found

(DNA test done)

RW2 Oral Swab Lab ID/Q4 No semen, but positive for presence of blood

RW3 Anal Swab Lab ID/Q6 Semen and blood found

(DNA test done)

RW4 Nail Clippings Lab ID/Q2 & 3 No blood

RW5 Pubic Combings Lab ID/Q1 No testing appropriate for DNA

RW7 Torn Panty Lab ID/Q7 No semen or blood found

possible presence of blood

RW9 (Black) Shorts Lab ID/Q9 No semen or blood found

SAMPLES SUBMITTED TO THE LABORATORY REGARDED AS KNOWN ITEMS AND LABELLED "K".

RW6 Deceased Blood Lab ID/K1 (DNA test done)

SP1 Grazette's Head Hair Lab ID/K2 -

SP1 Grazette's Pubic Hair Lab ID/K3 -

SP1 Grazette's Blood Lab ID/K4 (DNA test done)

Sample

Samples of blood and/or pubic hair and/or head hair of five other named suspects were also submitted.

[39] The vaginal swab (RW 1/Q5) and the anal swab (RW 3/Q6) were submitted for DNA testing, along with the known blood sample from Rosanna (RW 6/K1) and the known blood sample from the appellant (SP 1/K4). The known blood samples from the other suspects were also tested. Ms. Luttman explained the DNA results at pages 358 and 359 as follows:

"[F]irst, let's talk about the vaginal swab. When we do DNA on a vaginal swab, it comes from the vagina of the victim. I expect DNA from the victim to be there. What I am looking for is DNA that is foreign to the victim, and in this case, based on the fact there was still semen which comes from males, must come from males, found on that vaginal swab, it was submitted for DNA testing, and DNA from a male was found on that swab, along with the DNA from the victim, which I expected. The DNA from the male was then compared to all the known samples from everyone obviously, but the victim, and I was able to exclude [the named suspects]. However, at all 13 locations, the DNA matched Clyde Grazette.

Based on that DNA match that I found on the evidence found from the male profile on the vaginal swab, I then wanted to determine how common or rare that DNA profile that we found on the vaginal swab was in the general population.

At all 13 locations, the DNA did match [therefore] Grazette could not be excluded as a potential contributory to that DNA. However, because there is also DNA from the female, sometimes the DNA from the female may mask the DNA from the male. So in order to be extremely conservative, we only do statistics where we can clearly pull out a male profile, and in this case we were able to do statistics at six of the 13 locations, and remember all 13 of them matched, he could not be excluded, but we could only do statistics of six. So based on the DNA typing results, the DNA results from specimen K4, the liquid blood from Grazette, matched Q5, the vaginal swab." (Emphasis added.)

No evidence was given on the results of the tests on the anal swab nor was Ms. Luttman cross-examined on the same.

(g) The random match probability

[40] When a DNA match is obtained, it is then necessary to determine the match probability or the statistical likelihood that a particular sample of DNA originated from the person whose profile is being used for comparison. Ms. Luttman explained the match probability at pages 344, 360 and 361:

"After we have a match, we calculate a probability, because we want to find out, based on the DNA from the evidence, is that DNA profile common or rare in the general population…So, basically, what I am calculating is what is known as the random match probability, the probability of picking someone from the general population at random that would have the same DNA profile as that found on the evidence.

….[T]he probability of selecting an unrelated individual at random having the same DNA profile from the questioned evidence is approximately one in three hundred and seventy million from the Black population…one in two hundred and fifty million from the Bahamian population; one in ninety-three million from the Jamaican population; and one in three hundred and eighty million from the Trinidadian population.

…Based on the matching probabilities, these are just estimates that we used for population databases. At the FBI laboratory, whenever there is a case in the United States, we always use four of the major racial groups…never, I should say, all of the racial groups. We always use African/American, Caucasian, South Eastern Hispanic and South Western Hispanic population databases.

In addition, when we do cases from the islands, we add three additional population databases that we have at the FBI lab. … the Bahamian population; the Jamaican population and the Trinidadian population, and that's just to give additional information or additional range of numbers who could be - what is the chance of picking someone out at random in those populations that would have the same DNA that's found on the evidence."

III. THE DEFENCE

(a) The appellant's statements

[41] The appellant in his movement statement given on 31 May 2001 referred to in paragraph [11] above also said at page 263:

"The police interviewed me about the death of Rosanna Griffith but I told them I know nothing."

After the appellant was arrested on the same date and cautioned by PC Rouse as stated in paragraph [32] above, he said at page 244:

"I don't care what you do, I ain't kill that girl."

When the appellant was again arrested one year later, on 12 May and charged on 13 May 2002, he denied any knowledge or involvement in Rosanna's murder as stated in paragraphs [34] and [35] above.

[42] The appellant gave an unsworn statement from the dock on 16 November 2006 at his trial (page 449 to 453). He had said in his previous written statement to the police that when he reached Carlton Supermarket and made his first telephone call to Pamela that he did not know what time it was but that outside was dark (paragraph [12] above). However in his unsworn statement from the dock he gave a time at page 449 to 450 as follows:

"That time, that was around somewhere, I would say, about 8.00 or quarter past 8.00 or so."

He then left the supermarket, walked up St. Stephen's Hill, where he "limed" for a while. He said at page 450:

"Whilst there talking to the fellas, I saw a young lady, a young girl, who I now know as Rosanna Griffith, who was in the St. Stephen's area, walked past, she and I think about three or some -- some little children was wid her at the time. I did not know her name at that time."

He eventually went back by the supermarket, then by St. Stephen's Church and again to the supermarket, where he saw his sister and assisted her to take her groceries home to St. Stephen's Hill. After that and while he continued walking up the Hill, he said at page 450:

"I meet a lady coming down the hill walking, which is one of a twin, which I assume she was either the deceased's aunt or mother. I said good night to her and continued walking."

He ended his statement by saying at page 453:

"I know nothing about that girl death and I did not do it. That is all I have to say."

(b) The defence expert evidence

[43] A Professor of Forensic Science at George Washington University, Moses Schanfield, gave evidence for the defence. He had reviewed the transcript of Ms. Luttman's evidence given at the trial, a two page FBI report dated 3 January 2002 and a three page report of examination from Ms. Luttman dated 3 May 2002 (pages 457 and 499 to 501). Professor Schanfield explained the process of DNA testing. He stated at page 459 to 460:

"[I]t's critical that the known samples have chain of custody on them that's absolutely impeccable. So the normal procedure of collecting what we call 'Known' samples or 'Reference' samples would be that the phials are labelled with the individual's name; they are dated; the person that collected the blood normally initials them; often a witness initials them. So these are on the tubes of blood, so that when we have the tube of blood, we have a chain of custody on that tube of blood…it would normally be put into some kind of evidence container. Normally the tube would be sealed with evidence tape to show that it hasn't been opened…what should be placed on the phial? Minimally, the name of the individual it was drawn from; the date; the initials of the person drawing the blood; the initials of the person witnessing the blood drawing."

[44] Professor Schanfield gave evidence as to the general procedure for handling DNA evidence. He stated that appropriate storage is important so that the DNA obtained does not degrade. Blood samples are not stored frozen; they are stored in refrigerators and are collected normally with a preservative. They are then placed in a sealed container and in some kind of locked storage facility where there is control of the evidence. Therefore most police departments have evidence facilities where evidence is logged in and locked. He explained the process after the evidence leaves the police department at page 464:

[T]he material is transferred from the originating agency to the testing agency. At that point it becomes part of that agency's evidence system, so it's logged into their evidence system, most of which are now computerised and evidence is bar coded, so we can track the evidence".

[45] Professor Schanfield explained the chain of custody at page 466 to 467:

"Chain of custody is, in a sense, a legal document or a series of legal documents that establishes the origin and the outcome of the path of an item of evidence, and everything is an item of evidence, once it has been taken into custody. But it documents where and when it was collected; by whom it was collected and what happened to it. And so, for instance, one of the reasons we now have computers and bar code systems is when an analyst takes evidence out of the evidence locker, he scans it and it shows that it was checked out to that individual. When test results are put in, they are put in under that bar code, so that the evidence then becomes associated with that sample number. When the evidence goes back into the evidence room, it's bar coded back in. When the evidence is checked out of the property room to the police agency, it's bar coded out. So that in the facility you have a total record of everything that was done with that sample and you can electronically print that out, so that we can document where it's been; that it has been appropriately handled; that it's been under the appropriate control. And these become, in the United States anyway, these become very big issues."

[46] There is no doubt that the purpose of Professor Schanfield's examination-in-chief by Mr. Keith Simmons (who represented the appellant with Mr. Holder at the trial) and the evidence that he gave, was to cast doubt on the integrity of the DNA evidence and particularly whether the blood sample SP1/Lab ID/K4 was in fact that of the appellant. This point is illustrated by some of the questions put by Mr. Simmons to Professor Schanfield and the answers he gave at pages 467 and 468 as follows:

"Q. How important is the chain of custody?

A. Well, I know of cases where evidence has been thrown out because chain of custody could not be verified.

Q. So how important is it?

A. Well, it's absolutely critical. If you cannot establish chain of custody of evidence, then it's not really evidence."

[47] Mr. Simmons then proceeded to ask Professor Schanfield on the basis of the evidence of Ms. Luttman and of S/Sgt. Walcott how he would "describe" the chain of custody in this case. Mrs. Donna Babb-Agard (who represented the Crown with Mr. Seale at the trial) objected to that line of questioning on the ground that Professor Schanfield had not read all of the transcripts of evidence given at the trial. He had read only the deposition of S/Sgt. Walcott's evidence given in the preliminary inquiry, which was not, of course, evidence given at the trial. Mr. Simmons therefore limited his question to an answer based only on Ms. Luttman's evidence. Mr. Simmons asked Professor Schanfield to explain the procedure when the sample went to the FBI (page 472). Professor Schanfield replied at pages 472 and 473 and page 475 to 477:

"A. The FBI, basically, is a testing laboratory. They simply test evidence that they receive. They cannot make any claims about the chain of custody evidence, prior to its coming to the laboratory. No laboratory can. So the results of any testing are only as good as what happened prior to what they have. Not having seen the photographs or seen the evidence, I don't know what's on the evidence, but from Ms. Luttman's description, there does not appear to be a lot of chain of custody on the two phials of blood.

…

Q. Could you explain that?

A. Well, she described the phials of blood as having a name and a date on them. She did not say there were initials of anybody or, in fact, whether or not the tubes were even sealed. So I don't know whether somebody didn't ask the question --

…

THE COURT: But he cannot speculate on any other evidence…he can only give his opinion of Ms. Luttman's evidence, Mr. Simmons.

MR. SIMMONS: That's what he is doing. He said that from Ms. Luttman's evidence, he does not see anything which indicates that the phial was sealed. That's what he said.

…

A. [B]ased on Ms. Luttman's testimony…In which she describes the phials of blood, states that there was a name and dates and no other information on the tubes of blood, which to me says that there was no other chain of custody documentation on the phials of blood that would be expected.

Q. Would this be normal procedure? Or, what would you say about that procedure?

A. In the United States, that would not be a normal procedure…It would not be considered a good practice in testing DNA to have blood samples that are not identifiable with corroborating chain of custody, that's correct.

Q. And what effect can that have on the results?

A. Well, the obvious effect is that if you don't know who the blood sample came from, then there is no way of stating that the profile came from that individual.

MR. SIMMONS: My Lady, that's all."

[48] Professor Schanfield was cross-examined by Mrs. Babb-Agard. The purpose of the cross-examination was to show that Professor Schanfield had no personal knowledge in relation to the procedures used in this particular case (page 487) and that he carried out no personal investigation of what was done at the FBI by for example, examining the bench notes. In short, his evidence was based solely on his reading of two short reports of the FBI, which were not put into evidence (page 499), and of the transcript of Ms. Luttman's evidence.

[49] The highlights of the cross-examination were at pages 491, 496, 501 and 502, as follows:

"Q. So in your experience and within your particular knowledge, what would a forensic lab do with a sample that does not have an adequate chain of custody on the identity documentation?

A. They would notify the sender and refuse to test it.

…

Q. Can you say definitively, Professor, that there was improper chain of custody used in this particular case, based on the two reports you read and the evidence of Miss Luttman?

A. Based on the FBI reports, there is no information one way or the other.

Q. And the evidence of Miss Luttman?

A. Based on Miss Luttman's evidence, it would indicate that there is incomplete chain of custody on the blood specimens.

Q. And what is the indication, in your opinion?

A. Her description of the labelling of the tubes of blood.

….

Q. So with respect could you refute then, Professor, the results that showed that the blood sample of this accused man, Clyde Grazette, matched the semen stain found on the vaginal swab of Miss Rosanna Griffith? Could you refute those results?

A. I can't refute those results.

MRS. BABB-AGARD: Thank you, Professor. Thank you so much.

MR. SIMMONS: No questions, ma'am. No re-examination." (Emphasis added.)

IV. THE GROUNDS OF APPEAL

[50] There were 15 grounds of appeal filed; grounds 2, 4, 10 and 11 were abandoned. The remaining 11 grounds cover a disparate number of matters. We have therefore tried to identify the issues raised in the appeal and to discuss the grounds in so far as they relate to those issues.

[51] The main issue relates to the safety of the conviction based primarily on DNA evidence; in this connection we discuss grounds 1, 5, 6, 7, 8 and 9. The second issue concerns the alleged misdirection of the judge to the jury on the appellant's written statement and that of Ron Freeman: grounds 3 and 15. The third was the general issue that the verdict should be set aside on the ground that under all the circumstances of the case it was unsafe or unsatisfactory: grounds 12, 13 and 14. We granted leave to appeal against the conviction and proceeded to hear the appeal.

V. DNA

(a) DNA defined and the random occurrence ratio

[52] A simple and useful explanation of DNA is quoted in the House of Lords judgment in R(S) v. Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196 atpage 2200:

"DNA stands for deoxyribonucleic acid. DNA is the chemical which is found in virtually every cell in the body and which carries genetic information from one generation to the next. The genetic information carried in DNA is in the form of a code or language which, when translated, determines our physical characteristics and directs all the chemical processes in the body. Except for identical twins, each person's DNA is unique. Half of the DNA is inherited from our father and the other half from our mother. DNA can be extracted from any cells that contain a structure called the nucleus. This includes blood, semen, saliva or hair samples."

[53] Although not cited to us, a case applicable to this jurisdiction is the important Privy Council decision from Jamaica of Pringle (Michael) v. R. (2003) 64 WIR 159, in which Lord Hope of Craighead explained the nature of DNA evidence at page 165:

"[11] DNA profiling is a valuable tool in the hands of the forensic scientist. The principles upon which it depends can be stated quite simply. DNA is found in nearly every cell of the body. It can be extracted from body fluids such as blood or semen, or from the cells contained in other parts of the body such as hair or fingernails. It can be subjected to examination after it has been cut up into sections. A DNA profile can then be compiled by examining these sections, as they have different characteristics and can vary from one person to another, except in the case of identical twins. This profile can provide a genetic blueprint for each individual. But the characteristics of any one section of DNA are not unique to that person. Numerous other individuals may share the same DNA at these specific sites. So the power of DNA profiling to discriminate depends on the number of sections that are subjected to analysis. The more sections there are that are analysed, the greater the statistical likelihood that the DNA found in other material can be identified as coming from the same individual.

[12] Sections of DNA extracted from traces of blood, hair or semen found at the scene of a crime can be compared with sections of DNA extracted from a sample of blood taken from suspects or from persons whom the police wish to eliminate from their inquiries. Any discrepancy which is found after subjecting them to comparison will exclude a suspect from the inquiry, unless there is a satisfactory explanation for the failure of the profiles to match each other. If one or more sections from the crime scene match those found in the suspect's sample, the next stage in the inquiry depends on statistics. The statistical likelihood of an individual section being found in another person of the same race can be predicted. This is what is known as 'the random occurrence ratio'. The more the number of sections that are found to match, the greater is the statistical likelihood that they originate from the same source."

[54] A description of the nature of DNA and the process by which it is analysed to determine the subsequent statistical calculation is discussed in two English Court of Appeal decisions, R. v. Doheny and Adams [1997] 1 Cr.App.R. 369 at pages 371 and372 and R. v. Bates [2006] EWCA Crim. 1395 (7 July 2006) atpara. 10 to13.

[55] Once it has been established that there is a satisfactory DNA "match" between the victim and the suspect of the crime, the statistical significance of the match must be explained in terms of the rarity of that profile within a particular population as was done by Ms. Luttman as stated in paragraph [39] above. This factor is the random match probability or what the cases refer to as the "random occurrence ratio". The occurrence ratio is quite distinct from the probability of the suspect being the perpetrator of the crime; the former is based on population databases while the latter is based on the occurrence ratio as well as any other evidence. To confuse the ratio with the probability is to commit what has been called "the prosecutor's fallacy". The conclusion whether the suspect was (or was not) responsible for the crime is not a matter for the opinion of the expert witness, or counsel or the judge but properly to be decided by the jury taking into consideration the DNA and the other evidence: Pringle at para. [17] to [19] and Doheny and Adams at pages 374 and375.

[56] Finally, it is for the judge to explain carefully and in non-technical language the DNA tests and results, the random occurrence ratio and the significance of any expert challenge to the prosecution's evidence: Pringle at para. [14] and Doheny and Adams at page 375. Statistical or complex mathematical formula should not generally be admitted to evaluate the evidence; the members of the jury should evaluate the evidence and reach a conclusion not by means of a formula, "but by the joint application of their individual common sense and knowledge of the world to the evidence before them": R. v. Adams (Denis) [1996] 2 Cr.App.R. 467 at page 481E; and also Doheny and Adams at page 375B and R. v. Adams (Denis)(No. 2) [1998] 1 Cr.App.R. 377 at page 383 to 385.

[57] Further, it is important that the DNA evidence be evaluated in the context of the totality of the evidence. Lord Hope made this clear in Pringle at para. [19] when he stated:

"[T]he probative effect of the DNA evidence must depend on the question whether there is some other evidence which can demonstrate its significance. And it is for the jury, not the person who gives the DNA evidence, to assess its significance in the light of the other evidence."

[58] Phillips LJ (as he then was) explained this point in Doheny and Adams by giving examples of other evidence which would or would not be of significance in the light of the DNA evidence. He said at page 373 D:

"The significance of the DNA evidence will depend critically upon what else is known about the suspect. If he has a convincing alibi…at the time of the crime, it will appear highly improbable that he can be responsible for the crime, despite the matching DNA profile. If, however, he was near the scene of the crime when it was committed, or has been identified as a suspect because of other evidence which suggests that he may have been responsible for the crime, the DNA evidence becomes very significant".

In the instant case there was other evidence to demonstrate the significance of the DNA evidence, which the judge pointed out to the jury at page 625.

(b) Chain of custody: submissions and discussion

[59] The appellant's main contention is, that if the DNA evidence connected the appellant to Rosanna's death it was not his blood sample that was tested; that there had to have been a mistake; either that there was a "sample switch" of the appellant's blood or that there was an imperfect "chain of custody" in relation to the handling of the appellant's blood sample which resulted in a false DNA identification of the appellant.

[60] Ground 5 of the appeal stated that the judge erred in law by not defining and explaining the technical concept of chain of custody and in directing the jury on Ms. Luttman's and Professor Schanfield's evidence. Ground 6 complained that the judge "erred in law by misdirecting the jury on the case for the appellant and by failing to direct the jury on what the defences of the appellant were". The appellant's skeleton argument prepared by Mr. Holder encapsulated grounds 5 and 6 as follows:

"The case for the appellant relative to the chain of custody was that there was no chain of custody from the inception of the taking of the blood samples, that is, before they reached the FBI lab. The appellant's case was therefore, that while the DNA tests at the lab were reliable they were not valid and correct. The appellant found no fault with the procedures conducted at the lab. The judge was therefore duty bound to put that aspect of the appellant's case to the jury, but failed to do so."

Mr. Holder's contention became clearer with his oral submissions; the results of the DNA tests were "reliable" but in so far as they purported to have been the results of tests conducted on the appellant's blood sample they were not "valid and correct". A positive match could not have been obtained from the appellant's blood sample as he was not in any way involved in the murder of Rosanna. There must have been "a wrong name on the sample".

[61] The appellant can succeed on this ground of appeal only if there is evidence supporting the appellant's contention that the conviction is unsafe or unsatisfactory. It is for this reason that we set out above the evidence in relation to the DNA tests and results in far greater detail than would normally have been necessary.

[62] The issue arising from these grounds of appeal can be considered in three parts: (i) the collection, storage and transmission of the samples; (ii) the receipt and testing of the samples by the FBI; and (iii) the results of the tests and their interpretation by the FBI.

[63] There is no dispute about the samples taken from Rosanna; the controversy surrounds only the blood sample taken from the appellant (SP1 Lab ID/K4). The evidence was that Dr. Murray took the sample and put it in a phial, which was labelled and placed in a sealed envelope: paragraph [26] above. No complaint is made of what Dr. Murray did and he was not cross-examined. We know from Ms. Luttman's evidence that the blood sample which was received at the FBI did in fact have the name of the appellant and the date that it was taken (paragraph [27] above); the reasonable inference is that by labelling, Dr. Murray meant naming and dating the sample. But, again, neither Dr. Murray nor Ms. Luttman was cross-examined on these matters. We are nevertheless confident that the appellant was not prejudiced thereby because there is nothing in the evidence to suggest that the integrity of the collection and labelling process was compromised or that there was the possibility of a "sample switch".

[64] We should mention two points. First, PC Rouse referred to two phials in the evidence bag (paragraph [26] above) and PC Garrett mentioned one phial and then two phials (paragraph [29] above). There was obviously an imperfect recollection on their part but more importantly both Dr. Murray and the appellant made reference to only one phial of blood. A possible explanation is that when PC Rouse gave evidence he was no longer a member of the police force, but was employed as a security manager for an hotel group and was unable to locate his official police notebook in which he had documented some aspects of the sample taking. Consequently, the jury was invited by the judge to consider this possibility as an explanation for the inconsistency in the evidence (pages 641 and 642). Secondly, blood samples were taken from other suspects, also by Dr. Murray (page 274) but there is no evidence to suggest that these were taken on the same day as that of the appellant. Further, there is no reason to believe that Dr. Murray took and labelled the samples of the other suspects in any way that was different to that of the appellant. There is therefore no evidence to support the appellant's contention of a possible police failure to properly identify and keep the sample separate.

[65] We should record that the judge did direct the jury adequately on the chain of custody at pages 626, 635 to 636 and 640 to 642. The judge in particular reviewed the defence invitation to the jury "to find that the chain of custody was so irreparably compromised that the DNA evidence is not reliable…has no value, and the result of a valueless DNA test is that the accused must be acquitted". We are satisfied that the judge did explain to the jury the appellant's defence in relation to the chain of custody and that the jury from the directions given by the judge would have appreciated the importance of the reliability of the chain of custody to the validity of the DNA evidence against the appellant.

[66] Professor Schanfield's evidence did not impugn the integrity of the sample collection process. He merely said at pages 472 and 473:

"I don't know what's on the evidence, but from Ms. Luttman's description, there does not appear to be a lot of chain of custody on the two phials of blood…Well she described the phials of blood as having a name and a date on them. She did not say there were initials of anybody or, in fact, whether or not the tubes were even sealed. So I don't know if somebody didn't ask the question."

However, a careful review of the evidence would have revealed that there was one phial of blood from the appellant and that it was "a sealed phial" (PC Garrett's evidence at page 304) and as stated above the phial was labelled and the evidence bag sealed. PC Garrett also said that he placed his initials on the evidence bag (page 308).

[67] Professor Schanfield said further at pages 476 and 477:

"[T]here was not [any] other chain of custody documentation on the phials of blood that would be expected…In the United States that would not be a normal procedure…It would not be considered a good practice in testing DNA to have blood samples that are not identifiable with corroborating chain of custody…Well, the obvious effect is that if you don't know who the blood sample came from, then there is no way of stating that the profile came from that individual."

In this case the appellant's blood sample was identifiable with corroborating chain of custody as explained by the police witnesses. Further, in this case there was no evidence given to suggest the possibility of mislabelling of the samples or to cast doubt on the prosecution's case that the DNA profile came from the appellant.

[68] Secondly, the receipt and testing of the samples by the FBI was not the subject of criticism by Professor Schanfield. In fact, he said that if a forensic lab received "a sample that does not have an adequate chain of custody on the identity documentation, they would notify the sender and refuse to test it" (page 491). Further, as stated above it was not part of the appellant's case that the testing of the samples was in any way faulty.

[69] Thirdly, the results of the tests and their interpretation were not challenged. Professor Schanfield carried out no independent investigation of the bench notes or of the tests conducted by the FBI; it may be noted that the samples were available having been returned to Barbados. He carried out no tests of his own. He gave no evidence on the match probability. In the end he agreed with Mrs. Babb-Agard that he could not "refute" the DNA results.

(c) Inconsistencies and discrepancies: submissions

and discussion

[70] Ground 7 of the appeal stated that "the judge erred in law by not correctly and appropriately defining and explaining inconsistencies and discrepancies, by not directing the jury adequately on how they had to treat discrepancies and by not assisting the jury in a resolution of the issues raised by the discrepancies". Mr. Holder's submissions were that the judge failed to identify for the jury any difference in the evidence of the prosecution's witnesses and to analyse the significance of any difference with the result that the jury was not made aware of the alleged flawed basis of the DNA evidence.

[71] The judge did explain how the jury was to treat inconsistencies and discrepancies (page 581 to 583). The judge did discuss examples of the inconsistencies and discrepancies which the appellant alleged so irreparably compromised the chain of custody as to render the DNA evidence unreliable (page 640 to 642). First, S/Sgt. Walcott stated that he delivered to the FBI blood samples from four suspects, SP1 to SP4 (page 190). SP1 was that of the appellant. However, Ms. Luttman stated that the FBI received blood samples from six suspects, SP1 to SP6 (pages 354 and 355) and she named them. The important point is that the samples bore the names of the suspects and the date on which the blood sample was taken (pages 211 and 373). Although S/Sgt. Walcott's evidence of the number of samples delivered was at variance with Ms. Luttman's evidence of the number of samples received, we are satisfied that this difference did not affect the integrity of the appellant's sample, which had been properly labelled and dated.

[72] Secondly, S/Sgt. Walcott gave evidence that he took two phials of the appellant's blood to the FBI, but Ms. Luttman gave evidence of receiving only one. This discrepancy has already been dealt with above at paragraphs [26] to [28] and [62] above and the evidence of Dr. Murray was quite unequivocal that he placed the appellant's blood sample in one phial. The evidence does not suggest that we can draw an inference, which the appellant invites us to draw, that there was some "sample switch" of the appellant's blood. Moreover, the judge drew the discrepancy in the evidence to the attention of the jury for its consideration. Further, the judge also drew to the attention of the jury the differences in the evidence of the police as to the collection and storage of the samples, though these were not important differences to affect the safety of the conviction (as stated, for example, in paragraph [29] above). We therefore also reject ground 9 of the appeal, which alleged that the judge erred in law by seeking to place the evidence of PC Rouse and S/Sgt. Walcott "into a special category of witness".

[73] The judge properly drew to the attention of the members of the jury the inconsistencies and discrepancies and invited them to consider whether they affected "the larger issue in the case", by this she obviously meant the integrity of the chain of custody and the reliability of the DNA evidence. It follows that contrary to ground 8 of the appeal which stated that the judge "erred in law by not explaining to the jury what the larger issue was", no further explanation was required from the judge as "the larger issue" was self-explanatory from the context in which it was used. After a careful review of this ground, it is clear that the inconsistencies and discrepancies were neither important nor central to any issue in the case. They certainly did not render the conviction unsafe.

(d) Expert evidence and hearsay

[74] Apart from questioning the reliability of the DNA evidence, the appellant in ground 1 of the appeal challenged the admissibility of Ms. Luttman's report. This ground stated that the judge failed to address in the absence of the jury "the issue of hearsay raised by the defence". The judge thereby "erred in law by allowing the contents in relation to the report to be led in evidence and by allowing Ms. Luttman to refresh her memory from the report" when "the evidence of Ms. Luttman in relation to her report was inadmissible".

[75] This ground of appeal had its genesis at the trial when prosecuting counsel sought permission for Ms. Luttman to refresh her memory from her report and notes. Ms. Luttman's evidence was that she had access to all the testing that was done and to the notes. She managed the case by reviewing the notes and interpreting the results; she drew all the conclusions and wrote a report (page 350). Defence counsel objected "on the basis that she was not the original examiner…she was just a cog in the wheel and that anything she refers to as having been done by someone else is only hearsay" (page 350). The judge allowed her to refresh her memory. We may add that the Evidence Act, Cap 121 specifically provides for a witness with the leave of the court to use a document to refresh her memory about a fact (section 30) and for an expert report to be admitted as evidence in criminal proceedings, whether or not the person making it attends to give oral evidence (section 59).

[76] The submission on appeal is that the judge should have heard legal argument in the absence of the jury as to the admissibility of Ms. Luttman's evidence in view of the alleged hearsay. We should not tarry on this ground for the reasons we explain below. Ms. Luttman was treated as an expert witness without objection by defence counsel.

[77] The objection to Ms. Luttman's evidence on the basis that it offended the hearsay rule reflected a less than clear understanding of the nature of expert evidence. A clear exposition of the acceptance of expert testimony in relation to hearsay is to be found in the text, Australian Principles of Evidence by Gans & Palmer, Second Edition (2004) at pages 246 and 247 as follows:

"The purpose of expert testimony is to give the court the benefit of the expert's acquired knowledge. While the expert may have directly perceived some of this knowledge (for example, in laboratory experiments personally performed by that expert), much of it will typically have been relayed by others, either through acquaintances of the expert or through articles or documents compiled by others. The adducing of expert testimony carries a clear invitation to the tribunal of fact to accept that other people's out-of-court statements implicitly relied upon by the expert are accurate assertions of what those other people witnessed. Accordingly, much expert testimony involves a clear, albeit implicit, breach of the hearsay rule.

A strict application of the hearsay rule to expert testimony would limit experts to relying only on facts that they have personally perceived or to evidence that falls within an exception to the hearsay rule. This would be problematic in several respects. First, it would effectively deny the fact-finder the benefit of knowledge acquired through the efforts of a global community of past and present researchers. Secondly, it may also lead to inaccurate expert evidence, because the expert's limited personal observations may be a misleading view of the wider picture. Thirdly, the exception to the opinion rule for expert witnesses exists precisely to allow such witnesses to act as a conduit for others' knowledge and the qualification requirement is intended to ensure that the witness is capable of assessing the veracity of sources of that knowledge."

It follows that there is no merit in the submissions on this topic advanced on behalf of the appellant.

(e) Conclusion

[78] Lord Steyn in R(S) v. Chief Constable of the South Yorkshire Police [2004] UKHL 39; [2004] 1 WLR 2196 HL stated atpage 2198:

"1 [I]t is of paramount importance that law enforcement agencies should take full advantage of the available techniques of modern technology and forensic science. Such real evidence has the inestimable value of cogency and objectivity. It is in large measure not affected by the subjective defects of other testimony. It enables the guilty to be detected and the innocent to be rapidly eliminated from inquiries…

2 [T]he dramatic breakthrough was the use of DNA techniques since the 1980s. The benefits to the criminal justice system are enormous…It is, of course, true that such evidence is capable of being misused and that courts must be ever watchful to eliminate risks of human error creeping in. But as a matter of policy it is a high priority that police forces should expand the use of such evidence where possible and practicable."

[79] DNA profiling will no doubt play an increasingly significant part in the detection and successful prosecution of the perpetrators of crime. InAttorney-General's Reference (No. 3 of 1999) [2001] 2 AC 91, a case in which the House of Lords ruled that a DNA sample unlawfully retained could be used in evidence, Lord Steyn also said at page 118E:

"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted."

In this jurisdiction the increased use of DNA evidence will make a significant contribution to the maintenance of an orderly society.

[80] In the process of considering the DNA evidence we have been ever watchful for any errors that might have occurred. However, as pointed out in paragraph [57] above, the DNA evidence does not stand alone. The DNA tests ruled out the other suspects and from the other evidence in relation to the appellant, it was not disputed that he was in the St. Stephen's Hill area at the material time. So the probative effect of the DNA evidence was enhanced by the other evidence. The jury obviously accepted the DNA evidence and in doing so we find that the verdict was not thereby rendered unsafe or unsatisfactory.

VI. OTHER ISSUES

(a) Statement of appellant and of Ron Freeman

[81] We can find no merit in ground 3 of the appeal which complained that the judge erred by not explaining to the jury "what was a witness statement" and misdirected the jury in relation to the written statement of the appellant. It was not specified in what manner the judge misdirected or should have directed the jury especially in the circumstances in which the written statement was admitted as evidence without objection by the defence (pages 292 and 589). We would add that in any event the written statement was in similar terms to the unsworn statement given by the appellant at the trial, referred to at paragraph [42] above.

[82] Similarly, we can find no merit in ground 15 of the appeal which complained that "the judge erred in law when she failed to adequately instruct the jury how to treat the self-serving statement of Ron Freeman". Ron Freeman lived at Phillips Road, St. Stephen's Hill and was in the habit of "hanging out" with the appellant in the Black Rock area. He also knew Rosanna. During "the night time" of 19 May 2001, he was at a house in St. Stephen's Hill when the appellant came there and they spent some time together. He said under cross-examination that he gave a sample of blood on 25 May 2001 (page 444); but this was not tested at the FBI lab as he appears not to have been a suspect (pages 354 and 355). On 27 May 2001, he gave a statement to the police in relation to his movements on 19 May 2001.

(b) Intention

[83] The defence was that the appellant had no connection with Rosanna's death. It follows that there was no defence evidence as to the circumstances of her death. However, the prosecution evidence had to satisfy the jury not only that it was the appellant who was connected with the crime, but that he had the necessary intention to kill or to cause serious bodily harm. If he lacked the necessary intention for murder, a properly directed jury might still have found him guilty of manslaughter. It was in this context that the judge directed the jury at page 648 as follows:

"[I]f you come to the conclusion that the accused did not intend to kill her or to cause her serious bodily harm when he inflicted the injury which caused her death, but that he intended some harm, which all sober and reasonable people would inevitably recognise would have subjected the deceased to at least some harm resulting, albeit not serious harm, in those circumstances your verdict would be guilty of manslaughter."

[84] Although manslaughter was inconsistent with the appellant's defence, the judge's direction was appropriate. No elaborate direction on manslaughter was required. R. v. Coutts [2004] EWHC 1805; [2007] 1 Cr. App. R. 6 (page 60) was a case of death by strangulation and because the defence was accident no direction was given on manslaughter. The House of Lords held that the alternative verdict of manslaughter should have been left to the jury. Lord Hutton said in the course of his judgment at para. 36:

"[O]rdinary common sense indicates that putting tights round a woman's neck and pulling them tight is a dangerous act which creates a realistic risk of serious harm."

[85] The facts in the instant case required the jury to determine whether what had happened amounted to an intention to kill or to cause serious bodily harm, either of which constitutes the required mens rea for murder. These are the established "two alternative fault requirements for murder": Andrew Ashworth in Principles of Criminal Law, Fifth Edition (2006) at page 256. They were stated by this Court in Cadogan v. R., Criminal Appeal No. 16 of 2005 (31 May 2006) at para. [18] and more recently by the House of Lords in R. v. Rahman [2008] UKHL 45 (2 July 2008) at paras. 8, 31, 35, 51, 73, 100 and 103. The members of the jury no doubt determined the question of intention by bringing to bear on that determination their own general experience of life relevant to the nature of the case. The jury would also have considered whether what had happened amounted merely to the commission of an unlawful and dangerous act, which constitutes the requirement for manslaughter. The members of the jury were properly directed and by their verdict obviously concluded that the appellant was the perpetrator of the crime and that he had the necessary intention for murder.

(c) Verdict safe and satisfactory

[86] There is no merit in grounds 12 and 13 of the grounds of appeal, which alleged that the verdict was against the weight of evidence and that it was unsafe and unsatisfactory. The DNA evidence convincingly identified the appellant's samples with the crime, and together with the other evidence, rendered the verdict neither unsafe nor unsatisfactory. The jury after less than an hour of deliberation returned a verdict of guilty of murder. There is also no merit in ground 14, which sought to have the conviction quashed and the sentence set aside.

VII. DISPOSAL

[87] In the result, we dismiss the appeal and confirm the conviction.

Justice of Appeal

Justice of Appeal Justice of Appeal