R v Weller – ([2010] EWCA Crim 1085)
Information from: Forensicdna.com. (2018). Available at:
http://www.forensicdna.com/assets/weller_decision.pdf [Accessed 14
Jan. 2018].
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Defence and Prosecution Propositions – Hd, Hp
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Hd – Peter Weller helped her into bed. He had checker her on more
than one occasion, and at one point he put her into the recovery
position. He had to pick up her clothes, which included her kickers.
He strongly denies any claims of sexual assault.
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Hp – Peter Weller began to stroke the girls body, her legs and
breasts. Then he painfully inserted his finger into her vagina.
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Medical Evidence
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Emma, 16 violently vomiting (too much drink)
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She was dizzy and unwell in bed
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She fell out of bed
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She had injuries (abrasions), to her fourchette, it was red. These
were not accidental, and the redness was not caused by an infection.
Something blunt had penetrated her vagina, possibly fingers.
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The toxicology report showed nothing
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DNA Evidence
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Nail clippings from the appellants right and left hand were taken.
However, the top and underside of the clippings were not
distinguished.
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Right Hand – Only appellants DNA was found
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Left hand – A full mixed profile was obtained. The major
contributor was the appellants DNA and the minor contributor was
Emma’s DNA.
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4 Possibilities of Primary Transfer
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The appellant moving Emma’s hair or when putting her into bed.
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When touching her body, putting her into the recovery position.
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Contact with the vomit.
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Inserting his fingers into her vagina.
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Possible Secondary Transfer
Would be when the defendant said he had come into contact with her
clothes, specifically her knickers, he admitted to picking these up.
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The disputed Issues
The issue at the original trial was with the evaluation of the
possibilities of transfer and the strength of this evaluation. This
was not dealt with at the trial. There was a difference between the
expert statements at the trial and their ways to evaluate
possibilities of transfer. At the appeal, the issue was no longer with
the strength of the evaluation but with whether or not there was
sufficient scientific certainty and reliability for an expert to
express an opinion on the evaluation of the possibilities.
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The outcome of the Appeal
The appeal was eventually dismissed. The appeal was based on there
being new DNA related evidence, yet it was made out of time. The
evidence submitted related to the possibilities of transfer of DNA
material. The appellant suggested that the original evidence was not
sufficiently reliable for experts to have been able to evaluate all
possibilities accurately. New experts could not decide on the weight
of the original evidence concerning matters that had not been
published as they, (especially Dr Bader) did not have the expertise in
this exact field. However, it was found in one scientific paper used
that a significant amount of DNA would be transferred from the vagina
after contact and could be present for a long time thereafter. So,
there was sufficiently reliable scientific basis for the forensic
scientist to give evidence originally on the possibilities of
transfer.
The appeal was ultimately denied on the basis that if you try to
question science purely by reference to published papers and without
practical expertise that originally allowed experts to reach their
judgement, the attack will fail. After this, it was determined that
this “fresh evidence” showed no reliable scientific basis on which a
scientist could have differently evaluated the possibilities, so the
evidence that the appeal was based on could not have been admitted. It
was also mentioned that the lack of labelling on the nail clippings
will not have made an impact on the verdict.
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What did the ruling say about whether the experience of expert
witnesses could be taken into account when a court is determining
whether there is a sufficiently reliable scientific basis for expert
evidence to be given and a jury is evaluating evidence
The appellant did not originally question the expertise of the expert
witnesses. Just their lack of resources, so a scholar (Dr Bader) with
limited expertise in the field was called to give an opinion. As he
had no experience in the field he drew his conclusion from others
work, some of which was unpublished. This led to there being a ruling
that you cannot question science that you have no scientific knowledge
about and that you cannot solely form your opinion on references from
published papers. The outcome was that the jury have to take into
account the evidence of the experts and if their experience in
challenged this should be cross-examined.
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What do you think the significance of this ruling is?
I think that the significance of the ruling is that you cannot
undermine people that are experts in their field, not matter how long
they have been in that field for. If its been quarter of a century,
they may have seen many different items of evidence and have a vast
knowledge; if they have only been in the field for a short amount of
time, they may understand new technologies better and have more of an
open mind when it comes to new ideas and techniques. Whereas, bringing
in an expert in a different field to evaluate their work when they
have no prior practical knowledge and have only read papers would not
give a fair assessment of the work and the evaluation of that expert
would probably conclude with a biased inaccurate account of their
work.
www.sipr.ac.uk/conference2010/Champod.pps
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