Citation: Richardson v R [2018] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 30 July 2018
Judge(s): Beazley P; R A Hulme J; Hamill J
Background
The applicant was convicted by a jury of two counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW). Throughout the trial, the applicant denied any sexual assault, maintaining he had only briefly hugged a person he mistook for a friend while she lay covered by a doona.
A central piece of Crown evidence was the presence of the applicant's DNA on a low vaginal swab taken from the complainant shortly after the alleged assault. The applicant's case was that this could be explained by secondary transfer, meaning his DNA reached the swab indirectly rather than through direct sexual contact. The Crown rejected that explanation as implausible and placed considerable weight on the DNA evidence in both its opening and closing addresses.
After conviction, the applicant obtained more advanced DNA testing of the same swab. That testing revealed the DNA was a mixed profile from two contributors, not solely the applicant. This finding formed the basis of the appeal.
Legal Issues
- Whether post-trial DNA evidence, not available at the time of trial, was credible and plausible fresh evidence capable of supporting an appeal against conviction.
- Whether the new evidence was such that the applicant had lost a chance of acquittal reasonably open to him at trial.
Decision
The more advanced testing method used after trial, known as the Y-Filer Plus test, detected a second DNA contributor on the swab that the original Y-Filer test had failed to identify. The Crown's own expert, Ms Trabuio, agreed that the newer test appeared to have picked up a secondary contributor the initial testing had missed.
The Crown conceded that the new DNA evidence had not been actually or constructively available at the time of trial, and that it was credible and plausible, applying the principles set out in DV v R [2017] NSWCCA 276. The Crown also accepted that the new evidence would have opened up defence arguments that were unavailable at trial, and that the closing address submissions the Crown had made could not have been advanced had this evidence existed at the time.
On the basis of those concessions, the Crown accepted that it was open to the Court of Criminal Appeal to conclude the applicant had lost a chance of acquittal that was reasonably open to him. The Court agreed the concession was properly made and quashed both convictions and sentences, ordering a new trial on both counts.
Orders Made
- Leave to appeal against convictions granted.
- Appeal allowed.
- Convictions and sentences quashed.
- New trial ordered on both counts.
Key Takeaways
- The Court of Criminal Appeal confirmed that post-trial scientific evidence, not actually or constructively available at the time of trial, may qualify as fresh evidence capable of grounding a successful conviction appeal where it is credible and plausible, consistent with the principles in DV v R [2017] NSWCCA 276.
- Where new evidence would have materially altered the arguments available to both the defence and the Crown at trial, a court may find that the accused has lost a chance of acquittal reasonably open to them.
- The emergence of more discriminating DNA testing technology after an initial trial can constitute a legitimate basis for a fresh evidence appeal, particularly where the prosecution's case at trial rested heavily on DNA evidence presented as pointing to a single contributor.
- A mixed DNA profile revealing a second contributor fundamentally changes the forensic picture, and the Crown's own expert agreeing with that interpretation was a significant factor in the Court's conclusion.
- Quashing convictions in these circumstances does not result in a permanent acquittal; the Court ordered a retrial, leaving the question of guilt to be determined afresh on all available evidence.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 61I
Cases:
- DV v R [2017] NSWCCA 276