IN THE COURT OF APPEAL

TURKS AND CAICOS ISLANDS

CRIMINAL CR-AP 15/2016

BETWEEN

SAMUEL AUGUSTINE        APPELLANT

AND

REGINA                               RESPONDENT

BEFORE:

The Honourable Mr. Justice Mottley, President

The Honourable Mr. Justice Adderley, Justice of Appeal

The Honourable Mr. Justice Hamel-Smith, Justice of Appeal (Ag.)

APPEARANCES:

Mrs. Lara Maroof-Misick for the Applicant

Mr. Leonard C. Franklyn for the Respondent

HEARD ON:

9 April, 31 August 2018

JUDGMENT

Mottley P.

1.             On 14 May 2015, shortly after 8p.m. Calvert Lightbourne, a security officer employed by Caribbean Security Services, was in the process of depositing cash and cheques the property IGA supermarket which had been collected from the supermarket to be deposited at Scotiabank which is situated at the Leeward Highway. Mr. Lightbourne was ambushed and shot repeatedly; he received injury to his abdomen, right leg and foot. He was able to return fire, about two to three shots, He got into his vehicle and drove himself to the hospital where he had to undergo surgery for his injuries. The deposit bags contained cash and cheques amounting to $80,999.65. The bags were never recovered.

2.             Assistant Superintendent of Police (ASP) Baptiste, who was not on duty, was at a service station located on the Leeward Highway not far from Scotiabank when he heard several loud explosions. He looked in the direction of the bank and saw a short man with a ‘big head' wearing dark clothing shooting in the direction of Lightbourne. ASP Baptise saw the “big head” man pick up something which Lightbourne had dropped near the bank. ASP Baptiste left the gas station and drove down Leeward Highway where he saw two men including the “big head man” running behind the bank. Baptiste recognized Lightbourne. The money had been placed by the staff in packets of $2000.00 with purple and white paper band around each packet.

3.             About 9:30pm, police officers who had been placed at the junction of Leeward Highway and Blue Mountain Road, observed a male person walking out of Blue Mountain Road. The man was dressed in a white singlet, dark coloured pants and was wearing dark coloured shoes, He had one leg of the pants rolled up all the way while the other leg was cutoff; the pants had a split in the inner thigh. The man flagged down a vehicle but the driver did not stop. He then sat down at the side of the road. The officers approached the man where he was sitting and told him that they were police officers in plain clothes. The man attempted to run but was apprehended by the police. At the time of his apprehension, the police observed that he was sweating profusely and his white singlet was damp. The man, who gave his name as Samuel Augustine, told the police that he lived in Kew Town. The police noticed he had pieces of sticks and leaves in his hair. He was asked where he was coming from and he replied that he went to look for his friend whose name he gave as Nardo Cote. The police cautioned the appellant who was detained and taken to the police station.

4.             At the police station, the appellant was searched and $2000.00 was found in his right pants pocket; a quantity of cash was found in his left back pants' pocket. The money in his back pocket was wrapped in a purple and white paper band marked 2000. He was asked where he got the money and he responded that it was his savings and that he worked at the Palms. He said that the money was about $1600.00.

5.             The appellant spoke to ASP Baptiste who had known the appellant since he had played cricket and football with him. The appellant told ASP Baptiste that he wanted to speak with Sgt. Wilson. The appellant later told Sgt. Wilson that “Jon and I the big head dude committed the robbery.” After being cautioned by Sgt. Wilson, the appellant said that he and Jon had been watching the security guard. He explained that Jon had picked him up in a car which was driven by a Haitian guy. The appellant said that he had been given dark clothing, a gun and a face mask. He explained that on arrival at the bank, he and Jon hid in the bushes in front of the ATM machine until the security guard pulled into the ATM at which time he and Jon jumped out of the bushes and starting shooting at the security guard. The appellant said Jon picked up the money bag and they both ran into the bushes at the back of the bank and ended up by Chinson restaurant. The appellant said that Jon gave him “a pile of money”. The clothing and firearm were returned to Jon. The appellant indicated that he walked to the main road in order to catch a jitney to go to his home. While on the main road, the appellant said he was approached by the police. The appellant who declined the invitation by Sgt. Wilson to sign the notes which Wilson had taken indicated that he would give a statement on the following day.

6.             The appellant later spoke to acting Sgt. Mars. He told Mars that he had been set up by Boogey, who had told him that the man did not have a gun. He told Sgt. Mars that Boogey had told him that if anything went wrong, he would take care of his family. He indicated that Boogey did not even visit him or even get a lawyer for him.

7.             The clothing which the appellant was wearing at the time of his arrest was taken from him and was subsequently submitted for a forensic analysis. Michael Gorsky a forensic expert in gunshot residue having examined the clothing gave evidence as to his findings. He spoke about the component of gunshot residue (GSR) on the white singlet. The significance of this finding was that the person who was wearing the singlet fired a firearm or was in close proximity to a firearm when it was fired or the GSR came from some surface or object onto the white singlet. He conceded that GSR could come onto the clothing from a source other than directly from a firearm such as if you touch a person who had discharged a firearm or who was close to it when it was discharged it may be unwittingly or unknowingly transferred to you from another person or thing. Such transfer would last for about four to five hours. In cross examination, the witness conceded that a single particle could come from touching a person or an object on which had GSR had been deposited. In these circumstances, the person would not have to discharge the firearm himself or be in close proximity to the firearm when it was discharged The Court will return to the evidence of the expert later in the judgment.

8.             The defendant did not give evidence. Nonetheless, his defence which may be from his interview by the police amounted to a denial. It should be noted that suggestions put to a witness in the course of cross-examination which are not accepted do not amount to evidence upon which a jury may properly act.

9.             The appellant was convicted on both counts in the indictment. On count 1, robbery, he sentenced to 11 years while on count 2,wounding with intent, he was sentenced to 8 years to run concurrently with the sentence on count 1.

10.          In his Amended Grounds of Appeal, the appellant filed three grounds, two relating to convictions and one relating to sentence. Ground 1 alleged that the judge erred in refusing the application of the appellant to exclude the evidence of the expert witness Gorsky relating to the finding of a single particle of gunshot residue on the white singlet and the finding of one and two component particles of GSR on the appellant's clothing (other than the white singlet) and swabs from his hand. In respect to Ground 2, it is alleged that the judge failed to adequately direct the jury as to the weight to be attached to the evidence of Gorsky in relation to GRS. Further, it was alleged that the judge failed to adequately direct the jury as to how they should approach the evidence. On Count 3, it was alleged that the judge misdirected the jury as to the significance of Erica Lawton relating to shoe prints.

11.          Ground 1 deals with the admissibility of the evidence of GSR, while ground 2 deals with weight to be attached to the evidence and the failure of the judge to adequately direct the jury. In these circumstances, it is necessary to refer to the evidence in detail.

12.          In Ground 1, it was submitted that the judge erred in admitting evidence relating to the finding of component particles on the swabs taken from the appellant's hand and his black pants as it had no probative value .Counsel for the appellant contended that the expert stated that while such particles (components) are found in GSR they could also come from other sources. Counsel argued that in the circumstances the jury could not draw any inferences adverse to the appellant and therefore counsel stated the prejudicial value outweighed the probative value. Counsel relied on Barry George v Regina [2007] EWCA Crim 2722

13.          Objection had been taken at the trial. Following submissions on behalf of the defence and the prosecution the judge, in allowing the evidence to be admitted, stated:

“It is for the jury to assess the evidence after examination in chief and cross examination. This court cannot prevent admissible evidence from being heard when the prejudicial effect does not outweigh the probative value as the court finds here. The qualifier per se in the second paragraph ensures that this evidence can be viewed in the proper light and the cross examination is there to further address the issue of GSR or non GSR from the firing of a gun or in proximity of a gun or otherwise.”

14.          As stated earlier the prosecution called as its forensic expert Gorsky who said that he had been involved in forensic science for about six years and had been the lead analyst in approximately 200 cases. On 22 June 2015, he had received “evidence samples taken from the hands, as well as clothing, to be analysed for gunshot residue”. The samples were from the back of the appellant's right and left hands and also the palms of both hands.

15.          In response to a question relating to whether GSR was found on the “right back of his hand” the witness said:

“The right back of his hand had what's known as two component particles of gunshot residue. Gunshot residue is classified as being consistent or highly specific to the discharge of a firearm if it contains two unique characteristics for which I look performing this analysis. These characteristics are containing the proper shape or morphology and having the proper chemistry. The shape must be round or molten appearing because this is a high heat, high pressure reaction so these particles they form when the gas is condensed so it appears that the particles are molten. The chemistry is such that it must contain three elements. The elements are lead, barium and antimony. So if I see these three elements along with the proper shape and morphology I can say this is consistent with gunshot residue. Other types of particulates are also created when a firearm is discharged. These types of particulates are also known as two component particles. These two component particles do come from the discharge of a firearm however there are a limited number of other sources. You also get one component particles or simply particles of just lead, just barium and just antimony as well and there are sources of those particles as well.

The witness went on to indicate that in relation to the swab taken from the right hand he found “three of the two component particles.” In respect to the palm of his hand he found “zero particles of gunshot residue and zero two component particles.” In relation to the back of the left hand, the witness found “zero particles of gunshot residue particles and six of the two component particles”. In so far as the left palm was concerned, there were “zero gunshot residue particles and zero of the two components.

16.          In relation to the black pants, “zero of the gunshot residue particles and four of the two component particles” were found on the right leg while on the left, no gunshot residue was found and “zero of the two component particles.”

17           The expert explained:

“GSR or gunshot 1 residue can be deposited by circumstances such as discharging a firearm, being in the proximity of a discharging firearm or coming into contact with a surface or an object that has gunshot residue on it. The two component particles are found in gunshot residue but they also may originate from other sources and the absence of gunshot residue does not eliminate the possibility that a subject handled or discharged a firearm.”

18           The witness explained that “gunshot residue persists on clothing much longer than the skin genetically because it gets caught in the weave of the fabric so they remain there until something removes them”.

19           In cross-examination, Gorsky explained the components of GSR. He said:

“A particle of gun shot residue has two characteristics for which I look. The proper shape or morphology and the property chemistry consisting of the elements of lead, barium and antimony along with possibly some other trace elements in the particle”.

He agreed that in order to make a finding of GSR each of the elements would have to be present.

20           He said that gunshot residue can be deposited either by discharging a firearm or being in close proximity, when the firearm was discharged. Gunshot residue may also be transferred by coming into contact with a surface or object that has gunshot residue on it. The expert indicated that in respect of the single particle of gunshot residue, he was unable to place a time when the gunshot residue was deposited. The witness agreed with a suggestion from counsel for the defence that once gunshot residue is deposited on clothing, something has to be physically done to the clothing to have it removes, such as washing. The witness also agreed that he could not say that gunshot residue was found on the right back hand.

21           Gorsky accepted that with a single particle he cannot place a time when the particle was deposited. He also accepted that once gunshot residue is deposited on clothing, something physically had to be done to the clothing for it to be removed e.g. washing or general movement. He indicated that no particles characteristic of gunshot residue were found on the samples taken from the right and left hands.

22           The evidence of the findings of the expert in relation to his examination of the swabs taken from the hands of the appellant ought not to have been admitted into evidence as the evidence was not probative of the guilt of the appellant. Also, the evidence of his findings in relation to his examination of the black pants ought not to have been admitted as it was not probative of the guilt of the appellant. However, having admitted the evidence, the judge ought to have pointed out to the jury that this evidence had no weight and ought not to be considered by them when deciding whether the prosecution had established the guilt of the appellant.

For the reasons set out later in this judgment, the wrongful admission of the evidence is not depositive of the appeal.

23           In respect of the second part of the first ground of appeal, counsel for the appellant submitted that the evidence of the finding of a single particle of GSR on the white singlet belonging to the appellant ought to have been excluded

24           The appellant stated that the judge failed to adequately direct the jury as to the weight to be attached to the evidence of the forensic expert in relation to the GSR. In addition, the judge failed to adequately direct the jury as to how they should approach the evidence relating to the GSR. In support of this ground, counsel stated that the judge did not address the evidence relating to the finding of component particles on the swabs taken from the appellant's hands or on his pants at all during her summing up. There is substance in this submission but as stated above, the failure is not dispositive of the appeal.

25           In relation to Ground 2, the complaint relates not to the admissibility but as to the weight to the attached to the evidence. The appellant complained that the judge failed to adequately direct the jury as to the weight to be attached to the evidence of the forensic expert in relation to the gunshot residue. It was also alleged that the judge failed to adequately direct the jury as to how they should approach the evidence relating to the gunshot residue. Counsel submitted that the judge had a duty to assist the jury not only in how to approach the evidence but to approach the evidence with caution and circumspection. It was also contended that the judge did not direct the jury on the evidence relating to the finding of component particles on the swab taken from the appellant's hands or on his pants.

26           Counsel for the appellant submitted that the judge had a duty to assist the jury with how to approach the evidence and ought to have directed [them] to approach the evidence with caution and circumspection. In support of this submission, counsel relied on R v George (Dwaine) [2014] EWCA Crim 2507. Counsel complained that the direction by the judge that “no evidential value should be attached to a single particle of GSR on its own” would have been of no assistance to the jury.

27           In directing the jury on the issue of the single particle of gunshot residue, the judge reminded the jury of the evidence of Michael Gorsky. The judge said:

“Then Michael Gorsky who was the forensic expert as to gunshot residue. He came and gave his qualifications. He was deemed an expert without any objection. Talked about the components of gunshot residue lead barium and antimony. One particle was found on the singlet and he says that means that the person fired or the firearm was fired in close proximity to the person or the GSR came from some surface or object onto the person. He was taken through that. Said it could come through other sources other than firearms. If you touch somebody it can come on you, it can be unwittingly or unknowingly transferred to you from another person or thing. He said the reason why they say four to five hours as the cut off for gunshot residue is that they presuppose movement in time and so with movement gunshot residue would fall off hands, anything sweating, washing of hands anything it would fall off.

On clothing though it would actually have to be removed, picked up. Because the fibres of the clothes would hold it. That was his evidence. He conceded in cross examination that one single particle can come from touching a person or touching an object. Does not have to come from firing a firearm or being in close proximity.

28           In leaving the issue of gunshot residue to the jury, Joyner J said:

“Defence is saying the circumstantial evidence that the prosecution has placed before you must leave you in a reasonable doubt and defence is asking you to find the defendant not guilty of both counts of the indictment. Now with regard to GST particle I must tell you this, no evidential significance should be attached to a single particle of GSR on its own. But the prosecution is saying that you must look at the context in which the single particle of GSR was found. Look at all the chain of evidence in this case before you assess how much weight (if any) you should give to GSR. Defence is saying that you should not give any weight to the single particle of GSR because of the risk of transfer.”

29           The effect of evidence relating to the finding of a single particle of GSR is now set out in new Guidelines issued in 2006. The Guidelines are to be found in the Forensic Science Service. In Dwaine Simeon George v The Queen [2014] EWCA Crim 2507, the Court of Appeal set out at para 39 the revised guidelines issued by the Forensic Science Service:

“[39] The 2006 Guidelines identify ammunition types, how particles are formed in the discharge of a firearm (including other possible sources of such particles such as fireworks, nail guns and brake linings) and the possibilities of secondary transfer. It classifies the number of gunshot residue primer particles into reporting levels of 'low' (1-3 particles), 'moderate' (4-12 particles); 'high' (13-50 particles) and 'very high' (greater than 50 particles) and contains the following advice in relation to reporting single particles and low levels of residue (at para. 9.5):

"Any positive finding must be declared in the statement and a comparison of the composition or type can be carried out mostly for the purposes of elimination. Other than this, very little in the way of interpretation can be applied to finding LOW levels of residue because of the lack of relevant background data on residue in the external environment. Whilst the presence of residue in the environment is considered to be extremely rare, persons who associated with firearm users might unknowingly and unwittingly pick up the odd particle of residue. This is the so called "lifestyle" issue ...

Case work experience of searching through whole wardrobes of clothes shows that single particles are occasionally detected. Single particles present a particular problem being the smallest detectable amount of residue it is possible to find. A single particle is defined as one particle found on an item or group of items from a single source, e.g. samples and clothing from a suspect all taken at the same time.

Unfortunately, it is not possible to say when or how single particles were deposited. It cannot be determined if they are the last remains of some prior association with firearms, or whether they have been deposited quite recently from some likely contaminated source.

... There is no sufficient data on the environmental occurrence of FDR to give a safe interpretation of finding a single particle of residue. Consequently the FSS has adopted a cautious approach to reporting LOW levels of residue and no evidential value can be offered.

From an investigative point of view LOW levels of residue may nonetheless have some value; for example, finding a low levels on a discarded item such as a glove may give a significant lead to a police investigation. When an officer is given information on low levels in an investigative submission he must be made aware that in most cases it is unlikely any evidential weight can be attached to the findings."

30           The Court accepts that the evidence of the finding of a single particle of (GSR) was admissible in evidence but the weight to be attached to it will depend on the circumstances of the case. The Court adopts the observation of the Court of Appeal in Dwaine George v The Queen [2014] EWCA Crim 2507 where at para 46 of its judgment:

‘[46] In our judgment, there is no basis for challenging the decision of the trial judge to admit the evidence of gunshot residue and neither does the new evidence provided by Ms Shaw justify such a view. The fact that scientists have adopted a cautious approach to reporting low levels of residue (i.e. 1-3 particles) such that for that residue, on its own, no evidential significance can be attached to it does not mean that the evidence is necessarily inadmissible or irrelevant...The jury are more than able to assimilate evidence as to potential significance or lack of significance of recovered evidence, provided that there is an appropriate explanation of that potential significance, for example, by reference to what might occur in the environment or might otherwise be the consequence of entirely innocent contamination.”

31           The evidence of a single particle of GSR did not and could not prove on its own that the appellant had discharged a firearm or was near to someone who had discharged a firearm. The judge left the evidence to the jury for its consideration.

32           In our view, the judge made the jury aware that a single particle of gunshot residue on its own could not be used to prove the guilt of the defendant. However, the finding of a single particle of gunshot residue was one of the circumstances of the which could be taken into account with the other evidence which had been adduced by the prosecution. Indeed, the judge told the jury that they had to look at the context in which the single particle was found. The judge had earlier pointed out to the jury that, when considering the guilt of the appellant, it was necessary to consider all of the circumstantial evidence. This included that around 8:00pm. the security guard who was in the process of depositing money, the property of IGA, at the Scotia Bank was ambushed and gunshots were fired, causing injury to the guard. As Gorsky said on the discharge of a firearm, gunshot residue is discharged. ASP Baptiste heard the discharge of the gun- this is not disputed. Approximately 1 1/2 hours after the discharge of the firearm, Augustine was seen at the junction of Blue Mountain Road and Leeward Highway. The distance between Scotiabank on Leeward Highway and the area where the appellant was seen and taken into custody by the police was .44 of a mile. In addition, the appellant was found to have pieces of stick and leaves in his hair. It was certainly open to the jury to conclude that the appellant had just pass through bushes. The appellant was found in possession of $2,000.00 made up of 40 $50.00 held together with a purple and white similar to the type of band which IGA uses to bind its cash for deposit at the night deposit at Scotiabank on Cherokee Road.

Also, IGA puts its cash in a pack of $2,000.00. In addition to the evidence mentioned above, the jury were entitled to take into consideration that the appellant on two separate occasions stated to the police that he had participated in the robbery.

33           We have no doubt that the jury was well aware that the single particle of GSR found on the white singlet which the appellant was wearing could not, and did not, on its own mean that the appellant participated in the robbery of and wounding of the security guard. Consequently, ground 2 is dismissed.

34           In relation to ground three, the appellant stated that the judge misdirected the jury as to the significance of the evidence of Erica Lawton, relating to shoeprints. Ms. Lawson gave evidence that a number of shoeprints found in an area between the scene of the robbery and the location where the appellant was arrested, were consistent with the features of the shoes taken from the appellant. Her evidence was that the shoeprints shown in photographs were consistent in size, outsole design and, in relation to some footprints, the submitted black shoes. She did not provide any likelihood ratio in relation to this finding.

35           The judge made reference to the evidence of Ms Lawton in her summing up. She stated that the shoeprints found in the area between Scotiabank and Blue Mountain Road were found to be an “identical match to the soles of the shoes taken from the defendant's feet on the night of 14.5.15”.

36           Counsel for the appellant submitted that the judge erred in telling the jury that the shoeprints were an identical match to the soles of the defendant's shoes. Counsel argued that the height of the evidence from Ms Lawton was that the shoeprints were consistent in various features to the shoes taken from the defendant. Counsel contended that the witness was not able to say that the shoes were “identical” or indeed to provide any likelihood ratio. It was submitted that in the circumstances the judge's comments in relation to this evidence were inaccurate and highly prejudicial to the appellant.

37           On the other hand, counsel for the respondent contended that in the summing of the evidence of Ms. Lawton, there was no need for any likelihood ratio. The judge reminded the jury that the witness used as her basis the outer sole/pattern/size and wear that showed consistency with the shoe recovered from and worn by the appellant on the right foot when he was arrested. Counsel for the respondent in the written submission stated that the expert had demonstrated in court how she arrived at her conclusion and opinion.

38           The judge left the evidence of the finding of the expert on the issue of the shoe print to the jury. It was a matter for them to decide having regard to other evidence in the case. The Court does not consider that there was any merit in this ground and consequently, it was rejected by the Court.

39           As earlier stated in relation to Ground 1, the evidence relating to the findings of the examination of the swabs taken from the hands and pants ought not to have been admitted into evidence as the Court indicated this error by the judge was not dispositve of the appeal.

40           The Court however, considers that it is necessary to apply the proviso to section 7(1) of the Court of Appeal Ordinance Cap. 2.01. Section 7(1) provides:

“7(1) Subject to the provisions of section 10 of this Ordinance the Court on any such appeal against conviction shall allow the appeal if the Court considers that the verdict of the jury shall be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any point of law, or that on any ground there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the Court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if the Court considers that no substantial miscarriage of justice has actually occurred.”

41           It is important to note that the proviso gives the Court a discretion which the Court may exercise where it considers that no substantial miscarriage of justice has actually occurred. In Lundy v The Queen (New Zealand) [2013] UKPC 28, the Privy Council had to consider the proviso to section 385(1)(c) of the Crimes Act 1961 of New Zealand. The proviso states:

"Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it [the Court] considers that no substantial miscarriage of justice has actually occurred."

42           Giving the opinion of the Board, Lord Kerr stated:

“160. The present position about the application of the proviso in New Zealand has now been authoritatively stated in Matenga. At para 31, Blanchard J said:

"...having identified a true miscarriage, that is, something which has gone wrong and which was capable of affecting the result of the trial, the task of the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred? The Court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonably possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused...."

161. This approach accords with that which the Board has consistently adopted in deciding whether the proviso should be applied. A summary of the governing principles is most conveniently to be found in the judgment of Lord Hope in Stafford v The State [1999] 1 WLR 2026 where he said at 2029:

"The test which must be applied to the application of the proviso is whether, if the jury had been properly directed, they would inevitably have come to the same conclusion upon a review of all the evidence: see Woolmington v. Director of Public Prosecutions [1935] AC 462, 482-83, per Viscount Sankey L.C in Stirland v. Director of Public Prosecutions [1944] A.C 315, 321 Viscount Simon L.C said that the provision assumed: "a situation where a reasonable jury, after being properly directed, would, on the evidence properly admissible, without doubt convict." As he explained later on the same page, where the verdict is criticised on the ground that the jury were permitted to consider inadmissible evidence, the question is whether no reasonable jury, after a proper summing up, could have failed to convict the appellant on the rest of the evidence to which no objection could be taken on the ground of its inadmissibility. Where the verdict is criticised on the ground of a misdirection such as that in the present case, and no question has been raised about the admission of inadmissible evidence, the application of the proviso will depend upon an examination of the whole of the facts which were before the jury in the evidence."

162. It is, of course, clear that references by Viscount Simon in Stirland must be read in light of the current understanding that it is the appellate court's own judgment on the question of the safety of the conviction that is critical. Expressed simply, before the proviso could be applied, the Board would have to feel sure of the appellant's guilt and be satisfied that a guilty verdict was inevitable...”

43           The complaint here is that the jury were allowed to hear the evidence relating to the swab taken from the appellant's hand and the clothing other than the white singlet when such evidence did show that there was any GSR. As stated earlier, that evidence ought not to have been admitted on the basis that the prejudicial value outweighed the probative value. The question which the Court is required to answer is whether “no reasonable jury after a proper summing up could have failed to convict on the rest of the evidence.”

44           We are required to look at all the evidence which was properly admitted at the trial and determine whether the guilt of the appellant has been proved beyond reasonable doubt. The Court itself must feel sure that the appellant is guilty. At para 32 above, we set out factors which we consider relevant to show that the verdict of guilty can be supported having regard to the evidence.

45           The appeal is dismissed, and the conviction and sentence are affirmed.

Mottley, P.

Adderley, JA

Hamel-Smith, JA