ON 13 AUGUST 2014, the High Court of Australia delivered Fitzgerald v The Queen [2014] HCA 28 (13 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/28.html

The High Court quashed convictions for murder and aggravated causing serious harm with the intent to cause serious harm contrary to ss11 and 23 of the Criminal Law Consolidation Act 1935 SA).

A group of men group forcibly entered a house in Elizabeth South, South Australia and attacked the occupants, causing one to die and the other to suffer serious brain injuries. The accused’s DNA was recovered from a didgeridoo found at the crime scene. There was no direct evidence of the accused’s presence.

The prosecution asserted that accused was a member of the group that forcibly entered the house with the common intention of inflicting grievous bodily harm to persons inside. It was asserted that the DNA was from the accused’s blood that came to be on the didgeridoo during the attack.

The defence argued that on the evidence there were alternative hypotheses consistent with the accused’s innocence, including that the accused’s DNA may have been transferred to the didgeridoo when he shook the hand of one of the group members the night before.

The High Court held that a jury acting reasonably should have entertained a reasonable doubt as to the accused’s guilt because the prosecution’s contention that the DNA was from the accused’s blood was not made out beyond a reasonable doubt and the recovery of the DNA did not give rise to any inference as to when and how the DNA came to be on the didgeridoo.

Sydney, Australia

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ON 13 AUGUST 2014, the High Court of Australia delivered Honeysett v The Queen [2014] HCA 29 (13 August 2014).

http://www.austlii.edu.au/au/cases/cth/HCA/2014/29.html

The High Court quashed a conviction for armed robbery, ordering a retrial.

The trial judge had admitted into evidence an anatomy professor’s opinion as to the common anatomical characteristics of the accused and a person recorded on CCT footage. The High Court held that the opinion was not based solely or substantially upon the professor’s specialised knowledge of anatomy but also included his subjective impression of the CCT images and therefore was not an exception under s79(1) of the Evidence Act 1995 (NSW) to the rule against the admission of opinion evidence.

Sydney, Australia

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ON 13 AUGUST 1916, the Court of Criminal Appeal delivered R v Smith (1915) 11 Cr App R 229.

The defendant was accused of murdering his wife, Bessie Munday, who was found dead at home in her bath. Evidence of the death of two subsequent wives in similar circumstances was held to be admissible as it was improbable that three different women would have accidentally drowned in the bath given that their deaths occurred not long after entering marriage and financial arrangements under which which the accused would stand to benefit if they died.

Smith’s appeal was unsuccessful. He was convicted and hanged on 13 August 1916.

Sydney, Australia

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ON 13 AUGUST 1998, the High Court of Australia delivered Farrell v R [1998] HCA 50; 194 CLR 286; 155 ALR 652; 72 ALJR 1292 (13 August 1998).

http://www.austlii.edu.au/au/cases/cth/high_ct/1998/50.html

Expert evidence is admissible to assist the court with the provision of specialized information likely to “outside the experience and knowledge of the judge or jury” and “beyond the experience of ordinary persons” (at 292-293).

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ON 10 AUGUST 1977, the High Court of Australia delivered Driscoll v R [1977] HCA 43; (1977) 137 CLR 517 (10 August 1977).

http://www.austlii.edu.au/au/cases/cth/HCA/1977/43.html

The court allowed an appeal of a murder conviction and ordered a retrial, holding that the irregularities in the admission of certain technically admissible evidence caused a miscarriage of justice.

Evidence of the discovery at the accused’s residence of a number of firearms and photographs which were not related to the alleged murder was held to be not probative and therefore inadmissible. The court held that the admission of such evidence could not be defended on “the principle of completeness” (at [533]).

Likewise, evidence of an unrelated incident concerning the use of a firearm was held to be inadmissible for the same reasons (at [535]).

An unsigned written record of interview that was not adopted by the accused (otherwise know as a “police verbal”) was held to be inadmissible, though it could be used to refresh the memories of the police officers who performed the interview(at [541]). The court acknowledged that unsigned records might be fabricated.

A court has a discretion to refuse to receive evidence that would otherwise be admissible on the grounds of unfairness, that is, when the evidence is highly prejudicial but of little value or weight (at [541]). This discretion is general and not limited to evidence of confessions.

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