Earlier this month, we reported on the High Court of Australia decision in(13 August 2014), a decision of an appeal from the Supreme Court of South Australia, where the appellant was convicted and sentenced to a term of life imprisonment with a non-parole period of 20 years. The case has raised much comment, being a criminal case which involved the reversal by the High Court of a conviction based on DNA evidence.
The case came about as a result of a group of men forcing their way into a house in Elizabeth South in South Australia on 19 June 2011 and attacking two of the occupants with weapons including a gardening fork and a pole. One victim died four days after the attack and another sustained serious brain injuries. At trial, the prosecution argued that the appellant was a member of the group that had forced entry into the house and, while there was no direct evidence that the appellant inflicted harm on the deceased or the other victim, the prosecution relied on DNA evidence obtained from a sample taken from a didgeridoo found at the crime scene to establish the appellant's involvement in the attack.
Following an unsuccessful appeal to the South Australian Court of Criminal Appeal the case came before the High Court where it was held by unanimous decision that the prosecution's main contention, that the appellant's DNA in the sample obtained from the didgeridoo derived from his blood, was not made out beyond reasonable doubt, and further, that the recovery of the appellant's DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there.
As the Professor Jeremy Gans of the Melbourne University Law School writes:
"Fitzgerald’s misfortune is that the High Court has previously criticised an Australian court for being too ready to accept a murder defendant’s claim that his DNA was innocently transferred".
The case to which Professor Gans refers is R v Hillier  HCA 13; (2007) 233 ALR 634; 81 ALJR 886 (22 March 2007) where the High Court held that two ACT appeal court judges had erred in taking the position that the possibility that the defendant’s DNA on his estranged wife’s pyjamas was transferred by their children was enough reason to overturn a jury’s guilty verdict at his murder trial. The High Court took the view that, the ACT appeal court judges should have:
"factored in the accused’s motive and opportunity to kill his wife, as well as the unlikelihood of the alternative theory that she was killed by a mystery lover. . ."
In Fitzgerald’s initial appeal, the South Australia’s Supreme Court appears to have dismissed Fitzgerald’s innocent transfer scenario, no doubt taking its lead from R v Hillier – discarding the initial transfer by handshake, the remnants of Fitzgerald’s DNA on Sumner’s hands despite many intervening events, and the further transfer to the didgeridoo during a fight without transferring Sumner’s own DNA - as a "a succession of unlikely events. . ." The High Court however, took a different view of Fitzgerald's case because where the South Australian court had dismissed the transfer scenario the High Court, as Professor Gans points out:
". . . noticed that one of the survivors had testified that Sumner had briefly sat on the kitchen freezer during the party, the same freezer that the didgeridoo had rested against. The Court accordingly ruled that Fitzgerald’s alternative theory was ‘not unreasonable’ and the prosecution had 'not successfully excluded. it".
Professor Gans refers to a report by England's Forensic Science Regulator relating to a laboratory DNA contamination incident as "matter-of- factly" observing that all DNA-only convictions are dangerous and recommending that "charges should simply not be laid at all in such cases" and references Victoria’s public prosecutor change to its policy which now requires that the Director of Public Prosecutions "personally sign off on all prosecutions that depend wholly or mainly on DNA evidence" a policy he says:
". . . no other Australian prosecutor has followed suit and evidently South Australia’s prosecutor has very different standards".
Writing for the SMH Barrister Charles Waterstreet says:
"In Fitzgerald v Regina, the High Court overturned the South Australia Court of Criminal Appeals decision, on a very important legal, logical and jurisprudential approach to the significance of DNA evidence and its real place in the courtroom".
Going on to say that the legal system is over-relying on DNA evidence in criminal trials:
"Fitzgerald v Regina not only found the lower courts including the Supreme Court but also the jury and the judge got it wrong, in understanding the place of DNA in the trial. They immediately acquitted Fitzgerald of murder and another charge. The High Court reminded lawyers and prosecutors of Australia not to be overwhelmed by the science of DNA. All too often, juries, judges and prosecutors have used DNA and scientific evidence to seduce juries, bewitched by CSI shows, and the false certainty it seemingly brings".
There is a need for caution and the matter-of- fact way that a system such as the law can come to rely on techniques and technology like DNA evidence must never be allowed to subsume good sense and the need to question what it actually doe show or prove, as Mr Waterstreet says:
"Fitzgerald reminds us that you don't leave reason, rationality, common sense and fairness outside the court, in the hallway or in the foyer".
It is interesting to take a look at some of the data on DNA convictions from places like the USA just to see how many wrongful convictions can flow from the misuse of or over-reliance on DNA evidence. One site "The Innocence Project" provides the following fact sheet of data:
In the USA, if the above is any guide, there is more than ample evidence that DNA evidence has failed more than once or twice and needs to be treated more cautiously.
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