Neutral Citation Number: [2011] EWCA Crim 1607
Case No: 201001036B1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT IPSWICH
His Honour Judge Goodin
T20097128
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 29/06/2011
Before :

LORD JUSTICE LEVESON
MR JUSTICE KEITH
and
HIS HONOUR JUDGE PERT Q.C.
(sitting as a judge of the Court of Appeal)
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Between :

	C	Appellant	
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	THE QUEEN	Respondent	

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Mr Martyn Levett for the Appellant
Mr Stephen Spence for the Crown

Hearing date : 9 June 2011
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Judgment

Lord Justice Leveson : 
1.	On 29 January 2010 in the Crown Court at Ipswich before His Honour Judge Goodin and a jury, C was convicted of two counts of Indecent Assault contrary to s. 14(1) of the Sexual Offences Act 1956, two counts of Buggery contrary to s. 12(1) of the Sexual Offences Act 1956 and Rape.  He was sentenced to 10 years imprisonment on each count of rape and buggery and 8 years imprisonment for each count of indecent assault, the sentences to run concurrently making 10 years in all.  He now appeals against conviction by leave of the single judge: following the order of this court on a prior occasion that the appellant’s anonymity should be protected pending a further trial, that order should remain until a determination by the trial judge in the further prosecution that it is no longer necessary in the interests of justice to do so. 
2.	This prosecution arose out of a ‘cold case’ review and centred, in large part around DNA evidence supported, essentially, by proximity of the appellant’s home to the scene.  In short, at 8.57 pm on 14 January 1990, the complainant who was then 17 years old, telephoned the emergency services and reported that she had just been attacked by a stranger on a path in the Gippeswick Park and that she had been forced to perform oral sex, and that she had both been raped and buggered.  Clothing of the complainant was sent for examination and semen was found and extracted from the complainant’s singlet vest and her bra. Lesser traces of material were found on her knickers. There was no identification of a suspect or profile at that time although during the course of the investigation, along with a number of other local people, the appellant had been interviewed. His statement of 21 March 1990 recorded that he thought that he had been at home at the relevant time. He declined to provide a blood sample.
3.	The forensic evidence was reviewed in 1997, 2003, 2006 and 2008 when improved techniques and particularly the use of low copy DNA led to there being found an alleged link between a DNA profile from the material with the appellant. He was arrested in July 2009.  He declined to answer questions in interview but provided written statements denying any involvement. The prosecution alleged that the appellant was the complainant’s assailant: he lived less than a mile from where the attack had occurred and DNA found on the complainant’s bra and knickers had a single major male profile which was an exact match with the appellant such that the probability of obtaining a match if the DNA did not originate from the suspect but came from someone not related to him (known as the match probability or random occurrence ratio) was one in a billion.  The appellant served an alibi statement and maintained at the trial that he was at home, watching American football from 8.45 pm; the defence case was that the DNA evidence was flawed, unreliable and unfair. 
4.	By the end of the trial, the issues for the jury were therefore comparatively straightforward and were summarised in the questions whether the jury were sure that the appellant had been subjected to the assaults that she had described and, if so, whether they were sure that the appellant had been the assailant.  In the light of the issues that have been raised on appeal, however, we start by setting out a summary of the evidence upon which the jury were asked to consider these matters.
The Evidence
5.	The complainant, who by the time of the trial was 37 years of age, gave evidence that on 14 January 1990 she had left home at approximately 7pm. She had visited a friend who was not at home. She left the address and walked into the town centre. This would have been at approximately 7.25 pm. She had said initially that she had walked around the town but said later that she had walked in a rather direct route towards the railway station.  She explained that, as she walked parallel to the railway lines, a man came out from the shadows. She described him as of big build, wearing dark clothes and a ski mask; which later was seen to cover an unshaven jaw. He spoke to her as she passed and then grabbed her from behind and placed his hand over her mouth. He was holding a knife.
6.	The man spoke throughout in a local accent; and smelt dirty. He dragged her to behind a hut and told her to strip. He forced her to kneel and perform oral sex, before whilst she was standing but bent forwards he raped and buggered her. Before ejaculation he had asked her if she took the contraceptive pill and when informed that she did not, he ejaculated into her mouth. She spat his semen on to the ground. She confirmed that at no time had she offered physical resistance to her attacker who, having completed the attack, wiped himself, zipped up his trousers, told her to wait and left. She waited before she made her way to a telephone box and telephoned the police.
7.	The police evidence was comparatively brief.  The first officer who attended in response to the emergency call stated that the complainant seemed shaken and upset; red eyed but not crying; a female officer said that, when she arrived at the scene, the complainant presented as relatively composed.  A medical examination at approximately 10.30 pm that night revealed no injuries to the complainant but there were fissures to her anus which could be consistent with recent penetration or several other events which he confirmed. She had dirt on one knee.  A police search of the area revealed a knife that had been carried by the complainant which she said she had dropped and, of particular significance, a number of leaves which were covered with a clear fluid (which he took into his possession).
8.	As for the evidence from the scene, the clothing of the complainant was sent to the laboratories of the Forensic Science Service and, on 19 January 1990, was examined. Material identified as semen had been found on her singlet vest and her bra. There were lesser traces of semen on her knickers most likely caused by secondary transfer.  The liquid which had been identified on the leaves was also examined and was found to be semen.
9.	The initial investigation had led to enquiries over a wide compass covering “hundreds of local men” and the appellant was himself seen and, on 21 March 1990, made a statement as a witness.  He was asked to provide a blood sample so that he might be eliminated from the enquiry but he declined to do so on the basis (subsequently admitted) that he had done so for an earlier enquiry from which he was eliminated but that, in doing so, he had suffered such bruising that he had been off work for a week.  When he was arrested after the DNA evidence pointed towards him, he provided written statements denying involvement and making it clear that he had a poor memory which had deteriorated since he had commenced to take medication for his heart.  He confirmed that the was “an avid fan of American football  … ever since it was introduced into British TV”.  A written statement after the alleged confirmation of his DNA was to the effect that he did not know who the victim was, could not say whether he had had sexual contact with her but had no recollection of ever having had sex in the park.  He had no knowledge of the incident and could not account for his movements on any of the dates with which he had been provided. 
10.	We turn to the critical scientific evidence which came from no fewer than five forensic scientists.  Initially, Frank Gore was concerned with the investigation and Dr Jonathan Whittaker spoke of the extraction and further examination in 1997 of the DNA material from the complainant’s bra.  The material had been contained and had been confirmed as being semen although the examination failed to extract a sufficient STR/DNA profile for database inclusion or comparison.	 In 2003, a further review was undertaken and a partial profile from material forming part of the bra was obtained which contained five of the designated ten sites. Three of those matched the complainant’s profile.  Two could not be compared for lack of a clearer profile from her.
11.	In 2006, Isobel Setford examined the slides of the material from the vest and knickers and sent them for low copy number (“LCN”) analysis and profiling. Whilst it was found that there had been contamination on a blank or control slide caused by a member of staff within the laboratory, when cross-examined, she made it clear that the samples themselves were contained on hermetically sealed slides and that thus were not themselves subject to risk of contamination.  There was a third run on the vest in an attempt to confirm the alleles or gene pairs in the analysis. There was no such third run on the knickers following the lack of any significant data on the first or second runs.  She was aware of, but, along with the generally held scientific opinion, unconcerned by what were described as ‘stutters’ on some of the readings; these stutters did not interfere with the interpretation of a larger, major profile and were within acceptable scientific limits.  
12.	Miss Setford also received an envelope containing two small pieces of fabric, one cut from the bra, one from the knickers.  They were also sent for profiling. It was on the fabric as distinct from the slide, that the analysts found two full DNA profiles; which were identical.  The DNA profile was sent to the national database where a similarity was noticed in the DNA of a close member of the appellant's family.  The appellant was arrested and his DNA profile taken which proved to be a complete match.
13.	Miss Setford did not accept that there were difficulties with the results or conclusions.  She explained the methodology of testing and retesting and the reasons why some results were not agreed and placed in the consensus box.  Where they had not received a satisfactory level on the test it would be indicated by a blank marking in the relevant window. She was satisfied that there were two full and useable profiles; one on the bra, one on the knickers. It was to them that the probability ratio of someone else in the population having the identical DNA was assessed.  In this case, there was also a partial male profile found on the semen and swab from the singlet which was a partial match to the appellant; this component was estimated to be found in a ratio of one in eight and one in 37 males respectively. 
14.	In short, Miss Setford’s conclusions were that the results showed a strong, single major profile, evenly balanced X and Y on the swatches; the minor components simply did not affect it.  The swatches had not been susceptible to contamination; they had been stored in self sealed polythene bags within the envelopes.  She accepted that they were not sealed as the slide had been.
15.	Another scientist, Karen Radford, gave evidence that the inconsistent readings within the profiles on the knickers, and on each of the two relevant items of clothing did not affect the conclusions that the scientists had reached. She answered that such artefacts were not uncommon in the science. They are not duplicated within either sample and there is such a low level as not to affect interpretation of the full profile.
16.	It was common ground that whilst the material on the slides was identified as semen, the material on the two pieces of fabric cut from the underwear was never scientifically identified as semen. It was also explained that the scientists had not tested further to confirm the nature of the cells on the fabric cut from the underwear for fear of destroying the DNA because its age was such that, although deterioration would not alter DNA, it might totally be lost.  In answer to the defence that there was no certainty that the profiles came from one person,  Mr Gore confirmed there could be a degree of transference of DNA from clothing during washing, for example in circumstances where there were houses of multiple occupancy (such as that of the appellant at the time).  The defence also contended that, in the results which showed apparently clear profiles, there were readings highlighted by the appellant's counsel in cross examination suggestive of a mixed and therefore unreliable analysis and profile:  for the reasons that we have sought to explain, the scientists did not accept the proposition.
17.	Turning to the case for the defence, the appellant gave evidence that at that time he worked in Felixstowe and that he was working from 6 am to 2 pm on the 15 January; as a result, he got up at approximately 4 am. During the course of the previous evening, he may have made a short journey to the shops (which could account for the evidence of his neighbour to which we shall refer). His partner finished work at 8.30 pm and would have returned to their flat at approximately 9.15pm. He did not like to be absent when she returned home.  On that evening, as he had told the investigation at the time, between 8.45 pm and 1.00 am (notwithstanding his work start time), he had watched American football on the television.  
18.	The appellant also confirmed his appearance in 1990. He did have designer stubble at the time but he had put on weight since 1990; he would then have weighed closer to 11 or 12 stone.  At that time he routinely wore strong after shave and also wore a watch and a ring none of which the complainant had mentioned in respect of her assailant.  Further, on the prosecution evidence, the attacker had left in a direction inconsistent with that which he would have had to take to get home that evening.  He explained that he had declined to give a blood sample during the routine investigations in 1990 because he had previously suffered a bad reaction to providing blood.	
19.	In January 1990, Mrs Katrina Clarke was a neighbour of the appellant and she also gave evidence, having made a statement to the police in June 1990 at the time of the original investigation. The 14 January was a relationship anniversary and so the date had been clear in her mind.  In her original statement, she had said that she remembered seeing the appellant disposing of something in the bins as she left to go for a walk.  When she gave evidence many years later, however, her timings were far more imprecise.  At approximately 7.30 pm to 8 pm she received a telephone call from her partner following which she set off to meet him. She may have delayed before doing so for half an hour or even an hour.  She confirmed that the appellant had designer stubble at that time and that he wore strong perfume or aftershave.
Application under s. 23 of the Criminal Appeal Act 1968
20.	Before embarking on a consideration of the grounds of appeal advanced by Mr Levett on behalf of the appellant, we must first deal with an application made by Mr Spence on behalf of the Crown to adduce fresh evidence under s. 23 of the Criminal Appeal Act 1968 (“the 1968 Act”) in support of the argument that the conviction is not unsafe.  That evidence concerns another old (and archived) investigation dating back to 1987, when a stranger broke into the home and sexually assaulted the female occupier.  It is unnecessary to identify the evidence now available alleged to implicate this appellant.  Suffice to say that Mr Spence argues that this evidence is admissible both as bad character and is supportive of the correctness and integrity of the DNA case in this case.  
21.	There is no doubt that fresh evidence can be admitted at the behest of the prosecution (see, for example, R v. Hakala [2002] EWCA Crim 730 per Judge LJ at para. 11 referred to and followed in R v. Hanratty decd [2002] 2 Cr App R 30 at paras. 101-105) but, as Judge LJ made clear, all fresh evidence cases must continue to focus on the facts before the trial jury, in order to ensure that the right question – the safety, or otherwise, of the conviction – is answered.  In Hanratty, the relevant evidence was recent DNA analysis of material available at the trial in 1963 the significance of which was entirely unknown, genetic profiling only being developed from the 1980s, with techniques (as the present case reveals) becoming more sophisticated as the years have passed.  The court concluded that “the DNA evidence standing alone is certain proof of James Hanratty’s guilt” (para. 127).  
22.	In circumstances such as existed in Hanratty, it is clear that the interests of justice legitimately required that the DNA be admitted; there was a direct relationship between the fresh evidence and guilt. In the application made by the Crown in this case, there is no such direct relationship.  The evidence (which is challenged) is undeniably collateral to the issues in this case and, if admitted at the trial, would have to have been the subject of a warning that, even if true, did not mean that he had committed these offences or had been untruthful in relation to the issues which the jury had to determine; they were but one relevant factor, the significance of which would have to be assessed in the light of all the other evidence (see R v. Hanson et al [2005] 2 Cr App R 21).
23.	We are fortified in that conclusion by a consideration of R v. Fitzgerald [2006] EWCA Crim 1655, in which this court refused to admit new evidence in relation to causation which, in a manslaughter conviction, was directly relevant to the link between the unlawful act and death albeit that the link had not previously been formulated in the way which the Crown then wished to advance.  Keene LJ put the matter in this way (at para. 35):
“It was clear to us … that the prosecution was now seeking to advance a wholly new basis for the causation element in the manslaughter charge, a basis which had never been put before the jury.  While this court can receive fresh evidence from the Crown not only in rebuttal of the appellant’s fresh evidence but also to demonstrate the safety of the conviction generally (see Hanratty [2002] EWCA Crim 1141; [2002] 3 All ER 534), it is not open to the Crown to seek to put in fresh evidence so as to enable it to advance an entirely new basis for a conviction which was never put before the jury.  That would require this court to act as if it were a jury and would run counter to the House of Lords decision in Pendleton [2001] UKHL 66; [2002] 1 WLR 72 …”
24.	We do not read that observation as impacting on Hanratty itself (where the court relied on DNA evidence which most certainly had not been advanced at trial as a basis on which the jury could convict) but rather where the evidence is intended to stand in place of a mechanism for causation discredited on appeal but which had been advanced at trial. Quite apart from the general proposition, we do not consider that the type of evidence upon which the Crown now seeks to rely has any place in the re-examination of the safety of a conviction, the challenge to which depends essentially (albeit not entirely) on the way in which the judge directed the jury in relation to the all important DNA evidence.  In whatever way the test for the safety of a conviction is to be approached, if the judge failed properly to direct the jury as to that evidence, a decision adverse to the complainant on disputed bad character evidence could not save it.  In the circumstances, we refused to admit the evidence.
The Cross Examination of the Appellant
25.	At the commencement of the cross examination of the appellant, Mr Spence embarked upon a series of questions designed, as he explained, to ascertain what the appellant’s case was.  The tenor comes from the first question:
Q.	From what you have heard and doubtless what you have read, do you accept that [the complainant] was raped on 14 January?
A.	I can’t answer that. That is – would be speculation. 
Q.	You can with respect.  From what you have read and what you have heard, do you think, do you accept that she was raped and buggered in Gippeswick Park on 14 January 1990?  
A.	From the evidence I’ve heard, I would have to say no.
26.	Mr Levett then objected to the questions on the basis that the appellant was being asked for his opinion and that the opinion was of no more value than that of the police officer or anyone else.  The judge observed that although the complainant had never been challenged as to the truth of what she had said, Mr Levett thereafter had embarked on questions of other witnesses about the knife which was in her possession, about distances, telephone calls etc which seemed to suggest that something else had happened.  In those circumstances, he ruled the questions admissible.  
27.	Mr Spence pressed and the appellant explained his view on the basis that the complainant had lied about the circumstances in which she came to be  carrying a knife and her reason for choosing the route that she had taken that evening.  He said that he was not asking the jury to discount the suggestion that she had been raped but was answering the question put to him.  He was also asked whether he accepted that his DNA profile matched that removed from the bra and knickers: he said he was not accepting anything because “the evidence doesn’t seem to be there”.  He later said that he did not understand DNA or how it worked.  He was then asked a series of questions as to whether there might be an innocent explanation for his DNA being found: he did not have one and accepted that he had never met the complainant, been to her flat or, effectively, been in a situation where his DNA might innocently have been transferred.
28.	In this court, Mr Levett challenges this line of cross examination on the basis that the appellant was a witness of fact only and that to invite him to comment or express an opinion was wrong.  The impact, he argues, of permitting this line of questions was to reflect adversely on the appellant’s credibility which was highly relevant when the jury came to consider his evidence of fact, touching both upon his appearance at the time (which it was contended did not correspond with the description of the complainant’s attacker) and his alibi namely that he had been at his flat, intending to watch and then watching American football on the television.  Mr Spence, on the other hand, maintains that, given the approach that had been adopted by Mr Levett in cross-examining witnesses other than the complainant (with the prospect of a possible submission to the jury that the basic elements of the offence had not been established) he was entitled to clarify what the defence was.
29.	Whereas the questions directed to excluding the possibility of innocent contamination of the complainant’s clothing with the appellant’s DNA were clearly admissible and appropriate, we agree with Mr Levett that questions directed to facts which (on his account) were not within his knowledge invited impermissible speculation.  That was so both in relation to the issue of rape and buggery and the validity of the DNA evidence (upon which it is clear that the appellant simply had no expertise to bring to bear).  They should not have been allowed.  
30.	The entirely appropriate issue of the nature of the case to be advanced on behalf of the appellant should have been directed to Mr Levett.  If, as the judge was clearly concerned was the case, questions had been asked of witnesses aimed at providing a platform to attack the credibility of the complainant as to the fact of rape and buggery, Mr Spence was entitled to ask the judge to require Mr Levett to make that clear so that, if it was so, the complainant could be recalled so that it might be put to her fairly and squarely.  The judge could equally have taken that course of his own motion.  In that regard, there is a difference between the factual evidence of a defendant and the case being mounted on his behalf.
31.	Although the questions were not permissible, we do not, however, consider that their admission in themselves impacts on the safety of the conviction.  Mr Levett argues that, as a result of what the appellant said, he was constrained to raise the concerns as to the credibility of the complainant with the jury so as not to be seen to undermine his own client’s credibility but it is difficult to see to what end the questions which concerned the judge were directed if it was not to raise the point.  Further, nobody who fairly evaluated what the appellant actually said in answer to the questions could conclude that these answers (which were clearly based on his opinion) undermined his credibility in relation to his own defence whatever justification might have been advanced by the prosecution: in any event, the judge made it clear that it was the answers to question that constituted evidence, not the questions themselves.  We shall return to this issue when reviewing the overall safety of the conviction in the light of all the complaints which Mr Levett advances.
The DNA Evidence
32.	Mr Levett argues that the learned judge failed properly to put the defence case in relation to the LCN DNA evidence which it was accepted was fundamental to the case against the appellant and which emanated from unknown cellular material extracted from a small swatch of fabric cut from a bra and knickers worn by the complainant.  The context was that semen with fresh spermatozoa had been found on the bra, knickers, a slip and leaves (on which she had spat) in the area of the attack. 
33.	The prosecution case was that LCN DNA was recovered from samples of the bra, knickers and slip which provided a full profile in the case of the knickers, an almost full profile in relation to the bra and a partial profile in the case of the slip.  These profiles were male (X, Y) and came from items on which semen had been previously identified; it was the clear and unshaken evidence of Isobel Setford that this was a single male profile.
34.	Mr Levett refers to the previous attempts in 1997, 2003 and 2006 by scientists to obtain a sufficiently informative DNA profile from matter identified as spermatozoa recovered from the complainant’s clothing. The random chance of repeated occurrence of the identified alleles in each of the profiles in relation to these samples was 1:4, 1:8, 1:37 and 1:220.  In relation to the further work undertaken without any preferential extraction of the spermatozoa (so that the complainant’s DNA could be anticipated as present because the stain was on her clothing), results were achieved which he contends, on analysis, revealed an allele at D19 (11.2) which was not part of the appellant’s DNA and thus revealed a mixed profile (involving someone other than the complainant and the appellant), thereby undermining the conclusions that could be reached about the analysis.   
35.	Mr Spence responds by submitting that this contention is simply not borne out by the evidence.  The document prepared by the defence showed the presence of alleles additional to those of the appellant without indicating amount or how this finding fitted with the other alleles.  As to 11.2 at locus 19, he argues that the un-contradicted evidence was to be found in the Genemapper charts and logs referred to by Miss Setford who examined the profiles and peak heights; she reported on the proper interpretation of the results.  
36.	As to this particular result, when cross-examining, Mr Levett pointed to the 11.2 peaks but the witness explained:
“Well the thing is with the profile from the knickers there is a distinct major profile that is, the presence of these really low level peaks that actually you have highlighted in green there don’t affect the interpretation of the major profile which stands alone as a full male profile.  So the fact that you have got these very small, even if they were duplicated, it wouldn’t affect the interpretation of the major profile that I was to put on the database.”
37.	Mr Levett returned to the topic later in the cross examination.  Referring to 11.2, the evidence proceeded in this way:
“Q.  So there is no doubt that this is an allele that has been identified.  So the reason why you have not placed this as part of the profile which had been loaded onto the database is because what you are trying to do is to obtain the best profile that might produce a result on the database?  
A.  No.  I am identifying a profile that I think is a complete male profile.   
Q.  Right.  So you ignore the 11.2? 
 A.  Because when you look at the results that is a much lower level and what you have actually got is a complete full major profile with ... lower level unconfirmed peaks.”  
38.	It is, of course, critical to examine what the evidence actually was, rather than the assertions or contentions of counsel during the course of questions: it is then for the jury to assess the extent to which they rely on the expert evidence (or, to put it another way, the extent to which they are not prepared to base any conclusion on the opinion of the scientists because of the effectiveness of cross examination).  In that regard, it is important to underline that Mr Levitt did not call any scientific evidence to contradict that which had been given by the Crown: he simply relied on the argument that he had developed based on his analysis of the forensic results.
39.	With that introduction, we turn to the summing up.  Judge Goodin provided the standard direction about experts and made it clear that the jury did not have to act upon the expert evidence of any expert whose evidence and opinions they did not accept.  He later embarked on a detailed examination of the evidence occupying about one third of the transcript of his summing up.  He made it clear that the reliability of the evidence was for the jury and that its reliability had been called into question.  He reminded the jury of the evidence of Isobel Setford and the defence point that although the material on the slides had been identified as semen, the material on the two pieces of fabric had not been (explaining that no test to identify the nature of the cells was undertaken for fear of destroying the DNA which might be lost entirely).  The judge went on:
“The defence case is you cannot be sure these profiles came from one person but Mr Gore confirmed there can be a degree of transference of DNA in the sharing of towels, perhaps in other cases in houses of multiple occupancy, like 9 Waterloo Road and supporting that and independently of it, look at the defence case fully, these apparently clear profiles contain other readings highlighted as green on Defence 3 and Defence 4 suggestive, say the defence, of a mixed and therefore unreliable analysis and profile.  
Well, you have been told by Jane [sic] Setford that this is what you are looking at on these tables is a strong, single, major profile, evenly balanced X and Y and minor components as the scientists say these are, simply will not affect it.  That is the science and that is the expert evidence but, you must ask yourselves, were the swatches of material themselves ... susceptible to contamination?  They were contained, she told you, in self sealed polythene bags within the envelopes.  They were not sealed as a slide is.  If you think that this is or may be a strong point, then, of course, you will bear it in mind.  It was put directly and unambiguously to Miss Setford, but her evidence remained unaltered as it did on the very natural question put to her, of course, that [the complainant] had spat out her attacker’s semen, so there would have been at least an element of her own DNA present from inside her mouth, the saliva, as well as already on her clothing from dead cells or elsewhere.  Well, again, Miss Setford put forward and accepted as an expert told you, that this does not resemble a female profile.  It is evenly balanced.  It is, she told you, a male profile. 
The inconsistent readings within these profiles on Defence 3 and Defence 4, bra and knickers, you have got what the defence naturally point to – if you look at Defence 3, you have got an 11.2 highlighted in green at D19 which also appears, the defence rightly point out, at D19 over the page at the foot on the knickers, so in other words, you have got an inconsistent reading at D19 on each of these two items of clothing; each of these two analyses.   Miss [Radford’s] answer was that such artefacts, as she called them, are in the science not uncommon ... not least because even if an allege rather than an artefact, even if a pair of genes within the chromosome, they are not repeated within either sample.  They are not duplicated on the run within either sample and there is such a low level as not to affect interpretation of the full profile.  That is the science.  That is the expert evidence.” 
40.	The judge also dealt with 14.4 at D8, 16.4 on the knickers at D3 and VWA.  As to 12.2 at D.19, he went on:
“It is a raised baseline.  It hardly comes of the baseline and creates a spike, so there it is recorded, but it is at such a low level that it cannot possibly, you were told, affect the analysis or the readings or the conclusions therefrom.”  
41.	He then concluded this part of his summing up in this way:
“The defence have rightly probed the prosecution case.  It is true, as Mr Spence has reminded you, that they have called no expert evidence to contradict or undermine the Crown’s DNA evidence in this case, but you must not speculate, please, about why that might be, or about anything else indeed. As I said at the outset, you try the case on the evidence you have.
Remember the prosecution must prove its case and while questions asked by a barrister of any witness can never be evidence, a question can never be evidence, it is the answer, if there is any, that is evidence.  Where questions are raised, as they have been here, it is right that you consider those questions.  Although the opinions of the experts remain unaltered by the questions for the reasons they severally gave, you decide what evidence you accept without, of course, very importantly, trying to turn yourselves into experts.  Please do not do that.  You decide, nevertheless, what evidence you accept.” 
42.	We have cited extensively from the summing up in order to address the appellant’s complaint.  Mr Levett argues that the Judge only reminded the jury of the features which supported the prosecution and failed to summarise the point made by the defence regarding the importance of the bra supernatant consensus profile and its implication upon the prosecution’s case. He relied on the observations of the Thomas LJ in R v. Reed and Reed [2010] 1 Cr App R 23, page 310 at para. 55 in these terms:
“[W]here it is not accepted that the DNA is that of the defendant, then if evidence as to match probability is to be placed before the jury so they can evaluate the probabilities in the context of all the other evidence in the case, then the judge must explain its relevance, the other evidence which provides the context which gives the match probability its significance and must draw attention to any evidence which might exculpate the defendant.” 
43.	In our judgment, that is exactly what the judge did.  As we have said in the context of the complaint about the cross examination of the appellant, the evidence does not come from the questions but the answers.  There was no evidence (as opposed to assertion by Mr Levett) that the 11.2 allele at D19 was, in fact, part of a profile or was not to be discounted as Isobel Setford said on several occasions.  In our judgment, with an exception to which we shall now turn, the summing up reflected the DNA evidence in a way that does not afford any ground of complaint. 
44.	Before leaving the issue of DNA, Mr Levett sought to advance a new ground of appeal which had not been foreshadowed in the notice of appeal or any of the skeleton arguments.  It is based on the judge’s direction in relation to the DNA and his enunciation of the well known ‘prosecutor’s fallacy’ identified in R v. Doheny and Adams [1997] 1 Cr App R 369.  The judge said this:
“The significance of DNA evidence is essentially this, that if it was … the defendant who left the material at the scene from which the DNA was extracted, then the scientists and you, indeed, of course, would expect it to match his DNA.  That is to state, really, the blindingly obvious.  Of course you will and as you know in this case, the evidence is of an exact match of a single male profile say the prosecution on the bra and knickers worn by [the complainant].
The expert hypothesis goes on if it was not the defendant who left it, if it was not him, if it came from someone else, then the profiles, his and the crime scene profile can only match by chance.  There is no other explanation for it and in this case, the prosecution evidence is that those two profiles on bra and knickers are such that the chance of obtaining a match from someone other than the defendant is in the order of one in a billion, a billion being a thousand million and, to put that in context, the population of the world, spread over its five or six continents, depending on how you were educated is about six … and a half billion it is said.
If that is the position, if you accept the Crown’s evidence on that ratio, the decision you have to reach on all of the evidence is whether you are sure it was one man, the defendant, who left that material, or whether it is possible that it was someone else, one of the small group of people in the world who share the same DNA and you have that probability ratio says the Crown the prospect of it being someone other than him by chance, about one in a billion.”
45.	There is no doubt that the judge had accurately described the approach to the statistics throughout this direction until the words “the prospect of it being someone other than him by chance, about one in a billion” which do constitute the prosecutor’s fallacy:  if he had said “the prospect of it being a random match being about one in a billion”, the direction would have been accurate. Mr Levett points to the fact that, at this moment, the judge adjourned for lunch so that the incorrect ruling would be the perception with which the jury would have been left.  That may be so but Mr Levett also makes the point that, although he had addressed the jury about the fallacy, neither he nor Mr Spence noticed the error, either then or subsequently: indeed, until the morning of the hearing of the appeal, this point was not taken as a ground of appeal.  
46.	It is important to understand the effect of the fallacy on the safety of any verdict.  In R v. Doheny and Adams [supra], the case of Doheny concerned a random occurrence ratio of the DNA profile shared by him and the crime stain of 1 in 40 million; in Adams, the random occurrence ratio was 1 in 27 million.  Phillips LJ observed (at 379A):
“The more remote the random occurrence ratio, the less significant will be the adoption of the ‘prosecutor’s fallacy’, until the point is reached where that fallacy does not significantly misrepresent the import of the DNA evidence.  Such was the position on the figures advanced by Mr Davie [the forensic scientist in the case].”
He repeated the point in relation to Adams observing (at 384F) that the fallacy did not significantly alter the picture.   
47.	In this case, where the random occurrence ratio is no less than 25 times that of 1 in 40 million, the lack of significance is all the more potent.  Given the explanations by the many scientists who gave evidence at the trial, the care taken by Mr Levett in his closing remarks and the substantially correct direction and the proportions of the ratio involved, we do not accept that the direction or its timing starts to create a viable argument that the verdict is unsafe on these grounds.
The Alibi and the Defence case
48.	On 23 June 1990, Katrina Clark made a very short statement to the police recalling 14 January on the basis that she was intending to go out with her boyfriend to celebrate their anniversary but had an argument which led to her going out to cool down.  She said that just before 8.00 pm she saw the appellant “outside his door putting something in his dustbin”.  When she was seen by a police officer in July 2009, she went through her short statement and said that she could not say with 100% certainty that 8.00 pm was the correct time because she cannot say if she looked at a clock. She went on to say that she did not believe it would have been earlier than 8.00 pm but how soon after leaving the flat and seeing the appellant at the bins, she could not say with 100% accuracy.  We are told by Mr Levett that he put these statements to Mrs Clark without objection by the Crown.
49.	The reason for the significance of the statements is that, at trial, Mrs Clark’s evidence was more vague.  She spoke of seeing the appellant coming down the steps and dispose of something in the bin as she went for a walk but her estimate of timing was different.  The telephone call from the boyfriend was likely to have been 7.30 pm to 8.00 pm; she probably paced the floor for a while but might have left the house immediately on receipt of the call, after half an hour or after an hour.  The timing was significant for the appellant because the one certain time (the 999 call) was fixed at 8.57 pm and the judge commented that the assault must have been over by 8.37 at the latest.
50.	When the judge came to sum up the case, he directed the jury to be careful with times save only for the timing of the 999 call and he later recounted the evidence of Katrina Clark and observed:
“In terms, if her times are right, that means that she may have left soon after 7.30 pm and seeing the defendant coming back from a walk and putting something in his bin, if 7.30 is indeed when ~Duke called her or indeed at any time between then and 9.00 pm if you accept those timings.  So you have got a window on her evidence to you of 7.30 pm to 9.00 pm, if you accept her timings and they are hers.  They did not come from anywhere else.
It is right to say that in June of 1990, she told the police it had been just before 8.00.  Well, that is what she said then.  You decide whether or not her evidence is capable of providing any alibi for the defendant or whether in fact it is just too imprecise with the best will in the world, too imprecise to be capable of doing that.”
51.	Mr Levett complains that this direction was neither balanced nor fair.  The witness had accepted that her memory in 1990 was better or likely to have been better than nearly 20 years later and the judge should have placed far greater emphasis on her contemporaneous account.  In argument (but not in his grounds of appeal or skeleton argument), Mr Levett expanded the criticism and submitted that the judge did not advance the defence case in a coherent way.  He provided examples by reference to other evidence from Katrina Clark concerning the appellant’s use of heavily scented aftershave (to be contrasted with the complainant’s evidence that her attacker smelt dirty) and the fact he wore a watch and rings (not noticed by the complainant on her attacker).  
52.	During the course of his summing up, the judge made each of the points upon which Mr Levett relies and there is no suggestion that he misrepresented the evidence.  Essentially, he argues that he should have provided a more coherent analysis of the case from the defence standpoint.  The judge could, indeed, have said a little more about the significance of Katrina Clarke’s 1990 statement but that is a long way from saying that his summing up was either unfair or unbalanced because he did not.  The jury had heard the witnesses, they had heard powerful statements of the rival contentions from Mr Spence and Mr Levett.  The judge then properly identified the issues and focussed the attention of the jury on the task they had to perform: he provided proper directions about the way in which his summary should be treated and how to treat matters that he might have omitted, correctly warned the jury about the effect of delay and provided proper directions on the alibi.  We do not read the summing up as making rhetorical prosecution points: the judge posed the questions that the jury had to answer.  There is nothing in this ground of appeal either specifically in relation to the evidence of Katrina Clark or generally. 
Conclusion
53.	The only ground of appeal with which we find established concerns the cross examination of the appellant in relation to his opinion but we repeat that, on its own, it is insufficient to cause us to conclude that this verdict is unsafe.  There being no other basis to undermine the safety of the conviction based, as it is, on the jury’s acceptance of the scientific evidence as to which there was no contrary evidence, this appeal is dismissed.