Neutral Citation Number: [2002] EWCA Crim 2358
No: 02/331/S2 
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Thursday, 17 October 2002
 
B E F O R E:

LORD JUSTICE CLARKE 

MR JUSTICE PITCHFORD 
 
HIS HONOUR JUDGE FABYAN EVANS
(Sitting as a Judge of the Court of Appeal Criminal Division) 

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R E G I N A 

‑v‑ 

NORMAN FINNEGAN
 
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MR HUGH WALLACE appeared on behalf of the APPLICANT

MR JW MASON appeared on behalf of the CROWN
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J U D G M E N T
1.	LORD JUSTICE CLARKE:  This is the judgment of the court.  The applicant is Norman Finnegan, 45 years of age, who was a staff sergeant in the Army.  On 2nd November 2001, at a General Court‑Martial held at Bulford, with District Judge Ormerod sitting as a Judge Advocate, the applicant was found guilty of one charge of indecent assault, which was the only charge against him.  On 12_th_ November 2001 he was sentenced to be imprisoned for fifteen months, to be dismissed from the Service with disgrace and to be reduced to the ranks.  He was also required to comply with the provisions of section 2 of the Sex Offenders Act 1997, namely that he give appropriate notification to the police for ten years.  On 4th December 2001 he presented a petition against the finding and sentence to the reviewing authority, and on 21_st_ December 2001 he was notified that it was denied.  
2.	The applicant now renews his application for leave to appeal against conviction after refusal by the single judge, McCombe J.  He has now been released from custody.
3.	The facts can be shortly stated.  We take them from a helpful advice written by Mr Wallace, who has appeared for the applicant today.  During the evening of Thursday 8th February 2001 the complainant retired to bed in a single room in Block 438 at Cawdor Barracks.  She had remained in her room most of the evening and had been visited by various female friends, who later testified to the court‑martial.  She said that she had consumed about half a glass of red wine.  
4.	At about 10.30 pm she went to bed wearing a pair of burgundy red silk pyjamas without anything underneath.  She believes that she was asleep before 11 o'clock.  Her room was in darkness, with the curtains drawn, when she become aware of hands stroking her body underneath her pyjamas, and, as she became awake, she became aware of fingers being forced into her vagina.  She was lying on her stomach.  She said in evidence that it felt as though more than one finger, perhaps up to four fingers, were being forced into her vagina.  She grabbed the person's wrist and a struggle developed.  She demanded to know who the person was, and a voice whispered, 'It's Twiz, it's Twiz".  She said, "It's not" and the person desisted.  The person then left the room, opened the door and stepped out into the corridor.  At that point the complainant noted the Army mess dress uniform and that the culprit was tall and thin, although she could not estimate his height.  
5.	A few seconds later she looked out of her window and recognised the applicant dressed in mess dress uniform walking away.  She also said that as soon as she saw the applicant she recognised his voice and realised that he was the person who had indecently assaulted her.  
6.	She went outside and walked in the general direction that the applicant had taken.  She noticed a bus parked nearby and spoke with the driver, enquiring as to whether Staff Sergeant Finnegan had just got on the bus.  A conversation took place between the driver of the bus, a Lance Corporal Brennan, and Staff Sergeant Smith, as a result of which the applicant was woken and told that a girl was looking for him.  He then left the bus and walked in the general direction of the blocks.
7.	The complainant gave evidence that the applicant followed her after she left the bus, and, on the landing between the two flights of stairs leading up to her room, touched her on her right shoulder and said, "I am sorry.  Don't cry.  I didn't mean it."   
8.	Mr Wallace has told us this morning that the distance the applicant walked to the bus was about 100 metres.  He sat on the bus in a slumped position.  He then subsequently went by bus to his home.  The bus journey lasted, we are told, about 25 minutes.  He walked to his house and took off his dress uniform and hung it up in the ordinary way. 
9.	The complainant subsequently reported this incident to Lance Corporal Shauna McClaine.  Later that night she repeated the complaint to Lieutenant Rodger, who was the lieutenant on duty that evening.  Lieutenant Rodger took a detailed note of the complaint.  Subsequently, Warrant Officer Gelder began police enquiries and interviewed the complainant at length.  She made a statement.  She told the police that at the time of the incident she was having her period and that she had a tampon in her vagina.  The police took possession of her pyjamas, duvet and sheets.
10.	The applicant was arrested during that same afternoon when he came back to the barracks.  He willingly went with the police officers to his own house, where his mess kit, shoes and underwear were taken for analysis.  
11.	He was subsequently interviewed.  In the course of his interview he said that during the early part of the evening he had been feeling unwell, although he nonetheless attended the sergeants mess and consumed alcohol, but not, in his opinion, an excessive amount.  He left the mess at about 1 am and walked in the general direction of where the bus would be parked, but began to feel unwell and decided to wash his face.  He knew that Block 437 was empty and went to that block.  Having washed his face he felt no better but decided to lie down.  He walked up the stairway into the first room that he came to.  The room was in darkness.  He saw a flat surface ahead of him like a bed and lay on it.  He had laid there for approximately two minutes when a voice said, "Who the fuck are you?"  He then apologised and left the room.  He went to the bus, sat on it and then was woken by Staff Sergeant Smith, who informed him that a girl was looking for him.  He assumed that that was the girl whose room he had inadvertently visited, and he went off to apologise to her.  He found her on the stairway of a block smoking a cigarette but not in any way distressed.  He apologised to her, and she told him that it did not matter and he should go home.  He then returned to the bus and remembers little until he woke at his destination.  He subsequently gave evidence at the court‑martial hearing.
12.	A number of witnesses, indeed, gave evidence at the court‑martial, but since this application depends on one sole ground of appeal or proposed appeal, it is not necessary to say anything about the vast majority of the evidence.
13.	The sole ground upon which this application is made is based upon a report of a forensic expert, namely Mr Steven Green.  As we understand it, during the summer and early autumn before the court‑martial the defence solicitors wrote to the prosecuting authority asking why there was no forensic evidence in relation to the clothing worn by the applicant which had been removed from him.  The prosecuting authority ultimately said that they would be sent for forensic analysis, as indeed they were.  The defence was told a week before the trial that a report would be sent and that it was negative.  In short, there was no blood or semen or other fluid on the mess kit.
14.	On the morning of the trial, Mr Wallace was handed the report of that forensic expert, namely Miss Anna Marie O'Connor.  The report described the examination of the applicant's mess dress jacket, dress trousers and dress waistcoat and concluded that no blood was found on any of those items.  The report, however, added the following:
"Technical note 
The absence of blood on clothing does not necessarily mean that the wearer was not involved in the alleged assault.  There may have been no blood transferred from [the complainant's] vagina on to [the applicant's] fingers and consequently his clothing.  Similarly, any blood which may have been transferred on to his hands may have been washed off prior to his touching his clothing or prior to his examination.  
Conclusion 
In my opinion the laboratory findings do not assist in addressing the allegation that Norman Finnegan inserted his fingers into [the complainant's] vagina."
15.	Mr Wallace read the report and agreed that it could be put before the court‑martial.  He says to us that, with the benefit of hindsight, he should not perhaps have done that.  However, it is right to say that it was of assistance to the applicant to this extent, because it stated that no blood was found on the items of clothing.  It appears to us that that is really the only statement of expert opinion in the report.  The remaining opinions expressed by Miss O'Connor are not to our mind really expert opinion at all.  Her statement that "the absence of blood on clothing does not necessarily mean that the wearer was not involved in the alleged assault" is plainly correct.  There obviously are various possibilities which explain the absence of blood on the applicant's clothing.  One is that it was not the applicant who indecently assaulted the complainant at all.  Another is that he did assault her and that there was blood on his clothing, but that it was washed off or he never touched his clothing with his hands.  It was a matter for the jury to say what the true position was.  It does not, however, appear to us that Miss O'Connor's evidence was really expert evidence on that question.  We have no doubt that when Mr Wallace addressed the court (which was in effect the jury) he stressed to them the points that he has stressed to us, namely that there was no opportunity for the applicant to wash his hands; that, given the fact that he was slumped on the bus for so long, it was inconceivable that he would not have touched his clothing with his hands and that therefore the court should conclude that he was not the culprit.
16.	However that may be, Mr Wallace did not object to the admissibility of that part of Miss O'Connor's report; nor did he seek to cross‑examine Miss O'Connor on the technical note or the conclusion; nor did he apply for an adjournment so that he could instruct an expert on behalf of the defence.  He says that if he had applied for an adjournment it would have been refused because he applied for an adjournment on an entirely different ground and the application was refused by the Judge Advocate.
17.	In our view it does not follow from the fact that an application on a different ground was refused that an application would have been refused on this ground.  It seems to us that if there had been a good reason for the defence producing an expert's opinion of its own to meet what was truly expert evidence of Miss O'Connor then there is no reason to think that such an application would not have succeeded.  We can well understand, however, that the Judge Advocate might have refused such an application on the basis that we have indicated, namely that the parts of Miss O'Connor's opinion which were objected to, or potentially objected to, were not really expert opinion at all.
18.	What then occurred was that after the conviction the defence solicitors wrote to the Forensic Science Service on 23_rd_ April 2002 asking them to prepare a further report in relation to the incident.  In that letter they identified a whole series of questions.  Subsequently, on 13_th_ May 2002, Mr Steven Green wrote a report in which he answered the various questions and expressed his conclusions in this way:
"5.  Discussion 
As you seem to be aware from your letter, the crux of this case lies in one's expectation that detectable levels of blood/vaginal fluid would be transferred to the defendant's clothing.  
The Forensic Scientist was perfectly correct to search the clothing of the defendant for blood.  The test used is extremely sensitive and can detect traces of blood that are not even visible by eye.  As this testing was performed under controlled laboratory conditions one could assume that no traces of blood were present on the clothing.  
Given the somewhat 'messy' nature of digitally penetrating a menstruating woman one must ask oneself the following question 'How likely is it that a man (who was by his own admission, the worse for drink) could have avoided contaminating his own clothing with his blooded fingers?'  This question is as relevant to any lay person as it is to me as an expert.  However, for the record, I would consider it much more likely than not that he would contaminate his own uniform under such circumstances.  
There is also the uncertainty over the extent to which the complainant was menstruating.  Obviously the more she was menstruating the greater would be the expectation of finding material from her. Perhaps the complainant could clarify this point. 
One obvious way in which the defendant could have avoided contaminating his clothing was if he had consciously wiped his fingers on something, such as on his pyjamas and bedding.  By washing these items the ability to test this theory has been denied.
Conclusion 
I would tend to disagree with the conclusion of the Forensic Scientist, Anna‑Marie O'Connor. 
In my opinion the absence of blood (and hence the absence of vaginal material) on the defendant's uniform provides some support for the assertion that he did not digitally penetrate the complainant as alleged.  The level of his support depends totally on one's expectations of what one might expect to find on the defendant's uniform if the allegations are true."
19.	It is true that the absence of blood did provide support for the assertion that the applicant was not the culprit; and we have no doubt that Mr Wallace strongly submitted to the court that it gave strong support for that assertion.  It was a matter for the court to assess it in the light of all the other evidence, including the evidence of the complainant and indeed the applicant's evidence that he admitted going to a person's room even though he thought it was in a different block.
20.	It seems to us that the crucial point is this.  In reaching the conclusions upon which the applicant wishes to rely, Mr Green recognised that those conclusions were not really expert conclusions at all.  He makes that quite clear where he says that "the question is as relevant to any lay person as it is to me as an expert".  He simply says:
"For the record I would consider it much more likely than not that he would contaminate his own uniform under such circumstances.  Whether he would or not depended upon where he put his hands at the relevant time."  
Where the applicant put his hands was a matter of fact for the court to assess in the light of all the circumstances of the case.
21.	When this matter was specifically considered by the single judge, he said this:
"The initial report was agreed at trial.  The second report may disagree with the conclusions drawn in the report that was adduced before the court below, but that is not a reason for giving leave to adduce the second report in the proposed appeal."
22.	We agree, both for that reason and for the reasons that we have indicated, namely that the opinion sought to be relied upon was not really expert opinion at all and that the relevant facts were fully ventilated before the court, which, unfortunately for the applicant, held that the allegations were true.  For all those reasons we do not think that it would be right to grant leave to appeal against conviction and the application is refused.