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Hall of Justice

The Court of Appeal will hear a landmark appeal, over the use of deoxyribonucleic acid (DNA) evidence in criminal trials, in June.

Appellate Judges Alice Yorke-Soo Hon, Mark Mohammed, and Maria Wilson were expected to hear the appeal, brought by a man convicted of rape, yesterday, but agreed to defer it after holding discussions with his defence attorney and prosecutors.

During the brief virtual hearing, State prosecutor Sabrina Dougdeen-Jaglal indicated that she would like more time to consult with Director of Public Prosecutions (DPP) Roger Gaspard, SC, over having a more senior attorney lead her in the appeal, based on the issues that are set to be determined.

Senior Counsel Sophia Chote, who is leading Emerson “Roger” Richardson’s legal team, agreed with Dougdeen-Jaglal’s analysis over the potential impact of the appeal and consented to the adjournment.

Addressing the parties before adjourning the hearing to June 15, Yorke-Soo Hon indicated that while DNA evidence has already been used in a handful of criminal cases before the High Court, Richardson’s case would be the first considered by the Court of Appeal.

She also noted that the court’s eventual decision would help provide guidance to prosecutors and judges on the use of such scientific evidence going forward.

In his address, Mohammed sought to summarise some of the legal issues that the appeal panel wanted to be considered by the parties in their submissions.

Mohammed called on the parties to consider whether a forensic scientist, who tests samples in a case for DNA, should be required to explain the DNA analysis process and his/her qualifications when they begin to testify in criminal trials.

He also called for submissions on the use of random occurrence ratios by DNA experts.

Such statistics, which use a genetic database of a cross-section of the country’s population, seek to link samples collected by crime scene investigators to individuals by estimating the probability of an unrelated person, randomly picked from the general population, matching the genetic material derived from the sample.

Mohammed stated that the parties would have to consider if this country has established a valid database for use in such statistical analysis.

Mohammed also noted that the parties would have to provide submissions on the role of judges in explaining the “innocent explanation” defence to a jury, which deals with the unintended transfer of DNA samples.

According to Mohammed, in Richardson’s case, he (Richardson) claimed that the semen linked to him was transferred to the victim’s clothing after he had consensual sex with her mother on the same bed, the night before.

Richardson is also being represented by Allan Anderson.