Neutral Citation Number: [2009] EWCA Crim 1670
 
Case No: 200804666/B3
IN THE COURT OF APPEAL
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2A 2LL 

Date: Thursday, 16 July 2009
 
B e f o r e:

LORD JUSTICE RICHARDS 

MR JUSTICE JACK 
 
HIS HONOUR JUDGE BAKER QC
(Sitting as a Judge of the Court of Appeal Criminal Division) 
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R E G I N A 

v 

PETER WELLER 
 
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Mr G Cooke appeared on behalf of the Applicant 
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J U D G M E N T 

1.	MR JUSTICE JACK:  On 3 November 2006 in the Kingston upon Thames Crown Court the applicant, Peter Weller, was convicted of sexual assault on a female by penetration contrary to section 2 of the Sexual Offences Act 2003.  He was later sentenced to three years' imprisonment.  He was released on licence on 6 June last year.  
2.	His present solicitors were instructed in May 2007.  The application for leave to appeal against conviction was lodged on 22 August 2008.  It was refused by the single judge.
3.	The facts giving rise to the conviction can be stated quite shortly.  The complainant, E aged 16, went with a friend on 3 March 2006 to the applicant's house where a party was in progress.  Her friend left about 10 o'clock.  E had too much to drink and was at this point vomiting in the bathroom.  She was too ill to go home and so the applicant agreed she could stay the night.  He took her up to bed.  He returned several times, once with a bowl in case she vomited again.  E said that when she got into bed the applicant was stroking her body, arms and leg and then put his fingers into her vagina.  That was painful.  She was shocked and tried to tell him not to.  He left.  Later she fell out of bed.  Eventually she went downstairs with the intention of leaving but so as not to cause an upset she decided to stay and pretend all was well.  Later she left, met up with a friend, went to the police and made her complaint at about 4 o'clock in the morning.  She was medically examined and some small injuries in the form of scratches were found at the entrance to her vagina.
4.	Nail clippings were taken from the applicant.  Those from his left hand, the hand that E said he had used to penetrate her, contained her DNA.  The issue at the trial in relation to that was as to the chances of it having come from sexual contact, in particular from her vagina, or from other contact such as touching her in the course of putting her to bed and comforting her.
5.	There are four proposed grounds of appeal.  One relates to an alleged inadequate disclosure of documents relating to E's first complaint at the police station, in particular that she said that the applicant had touched her breasts.  In the evidence at trial she said that he had stroked her body.  We do not think there is anything of substance in this point.  
6.	The second and fourth grounds relate to the DNA issue.  
7.	The third ground criticises the summing‑up, in particular a reference at page 17E and F where the judge referred to having a "little romp" through the expert evidence.  The use of that phrase may be look bad today, though it is difficult to judge what impression it may have made on the jury.  In fact the judge then dealt with the expert evidence in a way that is perfectly adequate.  There is nothing in the complaint about the summing‑up.
8.	As we have said grounds 2 and 4 relate to the DNA issue, that is the DNA found on the nail clippings from the applicant's left hand.  The prosecution called expert evidence by Miss Susan Jones to deal with that and the defence called an expert, Mr Mark Webster.  Both had served reports.  They were agreed as to the DNA analysis.  The chances of the DNA not being the applicant's were miniscule.  
9.	The point at issue was as to the likelihood that the DNA material had come from E's genital area, in particular the vagina, or from some other contact.  That depended on what other contact there had been.  To put it in broad terms, the outcome of the expert evidence was that Miss Jones's opinion was that there was strong support for the DNA having come from the vagina, and Mr Webster took a more even view of the chances.
10.	On 4 June 2009 an application was made to this court for funding of a further expert report as to the likely provenance of this DNA.  It was granted.  There is now a report from Dr Scott Bader DPhil.  He is a consultant scientist at The Forensic Institute, Baltic Chambers, Glasgow.  His conclusions are set out at paragraph 23 and they are to the effect that there is no scientific support for the opinion voiced by Miss Jones.
11.	Today Mr Cooke making the application has suggested to us that both Miss Jones and Mr Webster were stepping beyond the proper bounds of their expertise in giving views on this question.  It is a fact that they did give their views and no one thought to question their expertise, nor did Mr Webster for the defendant suggest that perhaps Miss Jones was stepping beyond her expertise.  However, Miss Jones's view was put before the jury as a matter of expertise, and Dr Bader's report is to the effect that there was no foundation for what she was saying and so the jury were misled.
12.	We bear in mind that the jury did not only have to consider this part of the evidence in deciding the case.  They had to bear in mind also the injuries, which were not disputed.  Further, the central issue for them was whether they considered that the applicant was telling the truth or whether in these circumstances they were sure that E was telling the truth.
13.	Nonetheless, we think that Mr Cooke's submissions have laid a sufficient ground for leave to be granted on this one issue, that is the issue raised by Dr Bader's report.  We will grant leave to appeal against conviction on that ground.
14.	MR COOKE:  My Lord, may I make an application for legal aid to date back ‑‑ to go back to my previous visit here, which was 4 June?  So to date from that date.
15.	LORD JUSTICE RICHARDS:  We will give you a representation order to cover today's hearing, the adjourned hearing on 4 June and the appeal itself.
16.	MR COOKE:  My Lord, I am grateful.
17.	LORD JUSTICE RICHARDS:  Representation order for junior counsel only.
18.	We make clear that in granting leave for this issue to be pursued we are leaving to the Full Court the important question as to whether to receive Dr Bader's evidence under section 23 of the Criminal Appeal Act.  There will be real issues as to the application of that section.
19.	MR COOKE:  My Lord, are there any other directions that we need at the moment? 
20.	LORD JUSTICE RICHARDS:  In may well be in due course that directions will be required to deal with the prosecution's position, they may wish to get further evidence, but in their absence it is a little difficult to lay down any time table for directions.  Any further directions will have to be applied for in writing and dealt with in that way if possible.  Thank you very much.