Fitzgerald v The Queen

[2014] HCATrans 127

[2014] HCATrans 127

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A9 of 2014

B e t w e e n -

DANIEL GLENN FITZGERALD

Appellant

and

THE QUEEN

Respondent

HAYNE J
CRENNAN J
KIEFEL J
BELL J
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 19 JUNE 2014, AT 10.06 AM

Copyright in the High Court of Australia

MR D.M.J. BENNETT, QC:   May it please the Court, I appear for the appellant with my learned friends, MR A.L. TOKLEY, SC and MR S.A. McDONALD.  (instructed by Iles Selley Lawyers)

MR J.P. PEARCE, QC:   May it please the Court, I appear for the respondent on the instructions of the South Australian Director of Public Prosecutions, and I appear with my learned junior, MR T.J. ELLISON.  (instructed by Director of Public Prosecutions (SA))

HAYNE J:   Yes, Mr Bennett.

MR BENNETT: If your Honours please. Your Honours, section 353 of the Criminal Law Consolidation Act 1935 (SA) provides that the Full Court should allow a criminal appeal:

if it thinks that the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence –

We submit that in this case, both elements are satisfied; it is unreasonable and cannot be supported on the evidence.

It is an essential link in the Crown’s case against the appellant that he was present during the attack and there transferred his DNA to the didgeridoo.  It follows from Shepherd v The Queen, which I will not take your Honours to unless your Honours wish me to, that that fact must be proved beyond reasonable doubt.  The only evidence tending to establish it is the presence of the appellant’s DNA in one small sample on the didgeridoo.

The evidence fails to establish how the DNA got to the didgeridoo.  There is no evidence about the history of the didgeridoo’s movements, nor – except by one fairly weak inference, which I will come to ‑ as to whether the appellant had been to the house or otherwise come into contact with it.  In addition, on the Crown case itself, its own expert evidence led in‑chief, there was a reasonable hypothesis consistent with innocence.

That hypothesis was that after the appellant shook hands with Sumner and other persons at the gym, the reference to the handshakes; I will not take your Honours to it but it is appeal book 2, page 600, and pages 641 to 641 – it was not at the gym, I am sorry, it was at a boxing match at a football club – and the evidence is that the appellant shook hands with Sumner, Sumner shook hands with a number of other people – handshaking seems to have been a fairly regular activity there.  The hypothesis is ‑ ‑ ‑

HAYNE J:   Go on.

MR BENNETT:   Sorry.  The hypothesis is that after that Sumner touched the didgeridoo, probably on his first visit to the house, rather than during the attack, or that one of the other persons touched it during the attack – someone who the appellant had shaken hands with, causing a secondary transfer of the DNA.  Now, we know – and this is set out in the outline – that Ziggy Sumner‑Cooper was both at the boxing match and present during the attack, I have given your Honours the reference to that, so we know there is at least one other possible transporter or carrier of the DNA than Sumner.  Another hypothesis might be that the appellant himself visited the house on an earlier occasion and that a primary transfer occurred from him to the didgeridoo, and I will deal with that at the end of my submissions.

What is important is that there was no other evidence of any kind suggesting that the appellant was present on the occasion.  Indeed, it was an agreed fact that six persons who were present were shown photographs of him and failed to identify him.  There were lots of DNA results taken from lots of objects around the house, including a metal bar and a plank and the didgeridoo itself and some shoes, and the appellant was excluded from being a contributor to any of that DNA.

The didgeridoo itself was not used as a weapon in the attack.  The evidence is that one of the women in the house held it defensively for a period until being asked to put it down, but certainly it got bits of DNA on it from various people but only the one sample from the appellant.  Now, there is no evidence of contact between the appellant and anyone else immediately prior to the attack.  Your Honours will recall that the sequence of events that evening is that three things happened.  First, there was the boxing match with all the handshaking.

Then there was Sumner’s first visit to the house where he had the fight with his father and the melee with the deceased in the kitchen and various other things happened and after that he and a group returned and the attack took place.  Now, there is no evidence, although police had access to phone records, there is evidence of that, but there is no evidence of any communication between the appellant and Sumner or anyone else relevant.

CRENNAN J:   Did the Crown challenge in any way Mr Sumner’s evidence about the two handshakes with Mr Fitzgerald at the boxing match?

MR BENNETT:   Not as I recall it, your Honour.  I say that subject to correction but as I understand it not.  We say, putting all that together, the Crown did not satisfy the onus of proving beyond reasonable doubt that the appellant was present during the attack and the jury should not have convicted.  My friend is correct in his submissions in saying that we do not challenge the summing up, it was a fair summing up.  Indeed, one rather has the impression from some of the remarks on sentence, volume 3, that the judge may have had some doubt about it.  At volume 3, page 1178, having made a number of remarks to Grant Sumner in factual terms about what he had done and what the crime was, he comes to us at line 8 and all he can say is:

You, Daniel Fitzgerald, by virtue of the verdicts of jury were one of those other people.

He does not even say, you were one of those other people, and so on further down.

HAYNE J:   Well, there is nothing unorthodox about that surely, Mr Bennett.

MR BENNETT:   No, there is not, your Honour.

HAYNE J:   Sentencing judge has to sentence according to the verdict.

MR BENNETT:   Yes, that is so, your Honour, except that he does, in relation to Sumner, spell it out, but it is a tiny straw in the wind and it does not affect the appeal, I just comment on it.  Now, there was no relevant conflict of evidence and no issue of credit, so this Court is in as good a position as the jury to determine whether the appellant’s guilt was established beyond reasonable doubt.  It is purely a matter of reading the expert evidence and looking at it  in the light of a few surrounding facts which are basically undisputed and saying does that evidence establish beyond reasonable doubt that the appellant was present?

HAYNE J:   Well, is not the critical question whether the evidence read as a whole proves beyond reasonable doubt that the appellant was present at the time of the attack?

MR BENNETT:   Yes, your Honour.  Now, there are four issues that require particular attention, and I will deal with them in turn.  The first is the longest of the four.  The others are a bit shorter.  The four are, first, the submission that the microscopic sample of the appellant’s DNA came from his blood.  The second is the submission that secondary transfer is very rare.  The third is the submission that our hypotheses depend on a highly improbable chain of events.  Then there is the question of when the transfer did take place and what other hints we have as to that.

Now, let me start then with the blood, which is the major issue.  The respondent puts a very unusual and perhaps surprising argument.  What the appellant says is this:  the sample of DNA that was obtained contained the DNA of at least two, and possibly three, people, but that the larger part of it was the appellant’s DNA.  That is undisputed; the larger part of a small sample but the larger part.

Then the Crown says correctly from the expert evidence that blood is a very good carrier of DNA, and that the other possibilities – sweat, saliva and the epithelial layer of shedding the skin – are also carriers of DNA, but not as good carriers as blood.  Then the Crown puts those two together in what we respectfully submit is a totally inappropriate way.  They say because blood is a better carrier than other things and there is a larger and smaller component here, the larger one must be blood.  The logic of that is this; A is greater than B, C is greater than D, therefore A equals C.  With the greatest of respect to our learned friends, it is as silly as that.  The proposition just does not stand up to any logical analysis.  There are a number of possible reasons why one part of the sample is larger than the other.  Let me list some of them for your Honours ‑ ‑ ‑

HAYNE J:   Are these matters that represent arguments advanced at trial, or are they arguments devised by reference to evidence given at trial but not advanced at trial?

MR BENNETT:   I do not know, your Honour.  Their argument ‑ ‑ ‑

HAYNE J:   Your argument, Mr Bennett.

MR BENNETT:   Well, your Honour, the ‑ ‑ ‑

HAYNE J:   I am asking where your argument comes from.

MR BENNETT:   Well, your Honour, it comes from the preparation of the case, but whether it was put below in this form, I just do not know.  They are not really arguments, they are simply four possible explanations of what the Crown now puts as its major point – this point about it being blood.  The first possibility, as to why one is larger, is that the transferor was Sumner, he shook hands at the boxing match with someone as well as the appellant, and he carried the two samples and ours was the larger quantity.  That is a simple, possible explanation.  A second one is that the transferor was another person whose own DNA contributed to the sample in a smaller quantity.

Now, Dr Henry said – and your Honours need not go to it, it is appeal book 3, page 526 – that it was possible for a secondary transfer to take place without any of the intermediaries’ DNA being found in the result.  Now, if that is possible, a fortiori, it is possible that the transferor transfers less of his or her own DNA than that being carried.  So that is a second possibility as to why one is larger than the other.  The third is that the other person who was the unknown transferor, possibly Ziggy Sumner‑Cooper, possibly someone else, shook hands with more than one person and the same things.  The fourth is that in one of those scenarios, the appellant’s DNA was DNA which tends to survive transfer more readily than that of the unknown other person who contributed to the sample.

Now, again your Honours need not go to this, but your Honours can note that at volume 2 of the appeal book, page 523, lines 4 to 15, there is a discussion of some people being what she calls better shedders than others.  In other words, they shed DNA more readily than others.  So another possibility is that in one of the scenarios I have put, we were simply a better shedder than the unknown other person.

Other hypotheses are possible.  Now, I do concede that one possible reason why the sample is – why the appellant’s contribution was larger than the other, is that the appellant’s contribution came from blood and the other one came from epithelial cells or something else.  That is one possibility, I suppose, but it is certainly no more likely than any of the ones I have just referred to – certainly one cannot say that beyond reasonable doubt it is established, and certainly the logic of A is greater than B et cetera is flawed logic in reaching that conclusion.

Now, I will take your Honour to some passages in a moment but may I point this out?  The proximity to what is called a “reddy‑brown stain” on the didgeridoo is fairly irrelevant.  The evidence does not establish that the DNA sample was part of that stain or even that that stain was blood and may I just take your Honours to that?  It is in appeal book volume 2, page 482.  This is very early in Dr Henry’s evidence‑in‑chief.

At the top of page 482 – I am using, of course, appeal book pages, not transcript pages ‑ that creates a little confusion because my learned friend’s submissions tend to refer to transcript pages.  Now, at the top of the page:

Q.Are you able to say whether the reddy‑brown stains you described are in fact blood. 

A.I can’t say for certain that they are blood but there is every indication that they are ‑

now, this is the stains, not the DNA at this point –

both from the visual appearance, have the visual appearance of blood, they are the colour of blood and they have also given the positive test to our screening test for blood.

Q.Is the fact that you got a DNA profile from the sample taken from that reddy‑brown substance on the didgeridoo does that itself tell you it’s blood or not ‑

a little bit of leading there –

A.It can’t tell us for sure that the DNA may not have come from the blood, it may have come from some DNA on the object under the stain but there is a level of inference as well that if we obtain a DNA profile from a bloodlike stain sample that the DNA has come from there ‑

“a level of inference”, whatever that means ‑

Q.In that context is a scenario to explain the major profile and the minor profile from the areas samples, is an explanation for that that there may have been some contact DNA left on the didgeridoo before the blood is deposited on top of it.

A.       That is one possibility, yes ‑

reasonable hypothesis, consistent with not being blood ‑

Q.And that the contact DNA that was on the didgeridoo came from person A and then person B their blood is deposited on top of the contact DNA from person A.

A.       That would be one explanation, yes.

Q.In that scenario would that, assuming it’s the reddy‑brown stain is in fact blood, would that explain why you get a major profile and a minor profile.

A.       It’s possible –

and this is where the Crown seems to get its submission from ‑

because we know that blood is going to be a richer source of DNA than contact or trace DNA so the fact that we have a major and a minor component to that profile it is quite possible that the person that’s contributed the most DNA to that sample was the person who would have left the blood there ‑

well, that was my concession a moment ago, that is possible ‑

Q.If we try to look at it the other way, is it possible that the major component of the DNA profile could have come from some trace material, skin, epithelial cells left before the blood, assume it’s blood, was deposited over the top ‑

very fair question by the prosecutor ‑

A.It’s possible but we rely on the fact that we didn’t obtain DNA from that bloodstain, the reasons for that might be that it’s not blood, the second reason might be that it’s not human blood.  We use systems that are specific for human DNA so if the blood was from an animal like a dog or a cat we wouldn’t generate a DNA profile from that.  Another explanation why we might not obtain a DNA profile from the blood is that the DNA in that sample is degraded, broken down into small pieces, which means we can’t use it for profiling.  So in that scenario there is a possibility that both of the sources of the DNA in that sample came from trace DNA.

Q.And that the reddy‑brown stuff we see in the photo contributed nothing.

A.That’s right.

It contributed nothing to the DNA sample, of course.  So the evidence of the expert is certainly that there is a significant possibility there.  It is also of importance to remember that in all the accounts of the attack given by the various prosecution witnesses, no one suggests that any of the attackers shed blood.  Indeed, one would not expect them to, the defenders were not armed, and so that is an additional reason why it is unlikely that any DNA on the didgeridoo came from the blood of an attacker, which is another reason why it is probable that the sample that came from the appellant was not blood.  So, for all those reasons, we submit that the suggestion that our sample was a sample of our blood is one which cannot be made out on the evidence, certainly not beyond reasonable doubt.

So, that of course increases the possibility that it is an indirect transfer.  I accept that an indirect transfer of blood would be unlikely although not impossible, because if it is a microscopic sample the transferor may not have realised that there was a microscopic amount of blood on his hand after shaking hands but that is, I accept, a less likely scenario but, again, the Crown has to exclude it.

BELL J:   Just before you leave Dr Henry’s evidence, it might also be noted at appeal book 520, line 31 and following, as I understand the evidence, Dr Henry accepted that the amount of DNA recovered from the sample, 3.B, was a moderate amount, and given the richness of blood as a source of DNA, the yield of DNA from at that site made it difficult to conclude that it had come from blood.

MR BENNETT:   Yes.  I am grateful to your Honour, I was going to go to that passage in a slightly different context, but in relation to blood it certainly assists my argument and I am grateful for your Honour pointing that out.  There is an answer on the top of the next page which rather suggests that Dr Henry does not understand the word “consistent” more than anything else, but the question is:

Q.That means it’s consistent with the DNA source being something other than blood or equally consistent. 

She seems to misunderstand the word, because she says:

A.I wouldn’t say it’s consistent with the DNA coming from something other than blood but it’s one of the possibilities, yes.

As I say, that is just a quibble showing that she misunderstands the word “consistent” and thinks it has some technical legal meaning different to its real meaning.  But, she makes it quite clear:

Q.So is it possible that the source of DNA was not blood but some other source of DNA.

A.It could have been blood, it could have been something other than blood.

Q.       By ‘something else’ it could be saliva for example.
A.       That’s possible, yes.

Q.       It could be the transference of cells.

I assume that means epithelial skin cells.

A.       That’s possible, yes.

Q.       And we will come back to the question of transfer ‑

et cetera.  Now, that is the first of the specific issues, the issue of blood.  The second is that it is submitted against the appellant that Dr Henry’s evidence establishes that secondary transfer is very rare.  I will take your Honours to the passages, but before I go to the passages, may I make these general comments about them as to what they establish, and then show your Honours the passages.

The first is none of them suggest what would have been the relevant suggestion that if there is a handshake followed by physical contact with an object, secondary transfer of DNA is unlikely to occur.  That is not what she says.  What she says is that the event of a handshake or some other contact followed by physical contact with an object which is subsequently tested for DNA forensically is a rare event.  That is a very unremarkable and non‑scientific, non‑expert type observation.  One would expect that is right.  Obviously, in most cases of crime investigation, one has an object at the crime scene with DNA on it, and then at the trial one says “that is the DNA of the accused, and the evidence suggests direct transfer”.  But none of that goes to suggest that indirect transfer cannot occur if the conditions for it are there.  Here, we know that the conditions were there.

There is a real question whether the comment that it does not appear much in the literature and so on, is really a relevant part of a field of expertise or an aspect of expertise claimed by her.  She is a chemist with expertise in analysis and so on, but to say “I have not seen many cases of indirect transfer” or “the literature does not have many cases of indirect transfer”, as I say, is totally unremarkable.

It is perhaps of more importance that in a number of places, Dr Henry described the field of secondary transfer as being relatively new with a lot more work that needs to be done.  I will just show your Honours a couple of those references.  In appeal book 2, page 522 at line 30:

Q.Coming to the question of transfer of DNA, transfer or the science of transfer in DNA is a relatively new aspect of DNA science; is that correct.

A.Yes, contact DNA has really only been around for the last 10 or 15 months.

By that, she means obviously that that is the time people have been looking at it.  It must have been around for millions of years.  Then at the top of 523, there is the passage I referred your Honours to earlier.  She says –

A.Yes, in relation to the contact DNA or trace DNA the amount of literature is very limited so there is a lot more work that needs to be done, yes.

Q.There are a number of factors which affect the transfer of DNA such as the individual from which the DNA may come.

A.        Yes, we have what we call good shedders and poor shedders –

and she defines those terms and says that on some days some people can be good shedders and some cannot, and so on.  While I am in that part of the appeal book, the passage at page 526 – it is the passage where she refers to the transfer where the transferor did not contribute any DNA to the resulting sample.  In the middle of the page at line 15:

Q.Is one of the reasons you can’t exclude that because at this current time the science in relation to transfer primary and secondary transfer of DNA is simply in its infancy.

Now, that question is asked in the context of a question that you cannot exclude it as a possibility, and she answers:

A.It’s in its infancy and also the literature demonstrates examples of secondary transfer occurring under certain experimental conditions so as scientists we are aware that the phenomenon can happen.

Then there is the example of the one where it did not itself get transferred.  Now, at 484, if your Honours go back a few pages, she starts at the top of the page saying:

A.There is a concept we call secondary transfer so this is where trace DNA or contact DNA is transferred onto an item through an intermediary person or an intermediary object so for example if I was to shake your hand some of my DNA might transfer onto your hand and then you might go and touch another object so there is the potential there for my DNA to end up on the object that you have touched, I haven’t directly touched that item but you have acted as that intermediary person and you put my DNA on that item.

Then she talks about the constant shedding of epithelial cells, “they are always coming off your hands”:

Q.       Even though we can’t see them.

A.       Yes.

Q.If I shake someone’s hand and they walk away is it possible some of those epithelial cells have been transferred to the other person’s hands.

A.       Yes, it is possible.

She does not know the mechanism.  She talks about the possibility of it being lost if you wash your hands, and so on.  She also says on the next page at line 21 – sorry, she is asked:

Q.Is it still possible though after some hours they might still have some epithelial cells on their hand from the handshake many hours earlier.

A.Yes, it is possible.  There has been a little research on the literature about how long cells might last in a secondary transfer kind of environment so there is not a lot of information on that but certainly they can persist for a few hours.

Q.       Possible but is it likely.

This is again what the Crown relies on:

A.The chance of secondary transfer in a general sense are very unlikely, the most likely way that you would get transfer of contact DNA or trace DNA onto an item is through what we call primary transfer, so that person directly contacts with that particular item, but secondary transfer has certainly been observed and produced experimentally but it is obviously –

and we stress that word –

less likely and the studies have shown it is much less likely –

Now, again, she is not saying it is less likely to occur if you have the – it is unlikely to occur if you have the conditions for it.  What she is really saying is, the conditions for that type of transfer only occur rarely.  As I say, that is an unremarkable and not very important piece of evidence. 

HAYNE J:   Or is that answer to be understood as saying no more than that primary transfer is very much more likely to be the source of DNA than secondary transfer but secondary transfer is possible?

MR BENNETT:   Yes, your Honour, but when it is less likely to be, that is not because of anything in the expertise.  That is because it requires two events.  So, going on to page 486:

Q.Staying with the handshake between A and B, assume person B retains epithelial cells after many hours, is it theoretically possible –

that is in the question, theoretically –

that person B on handling the didgeridoo could have left some of their epithelial cells on the didgeridoo.

A.       Their own?

Q.       Yes.

A.       Yes, it is possible.

She does not in her answer include the word “theoretically”.  That is a primary transfer.  The questioner still trying to get the “theoretically” there says:

Q.Is it also theoretically possible that the person who handles the didgeridoo could have left person A’s DNA the person they shook hands with hours earlier leave that person’s DNA on the didgeridoo?

A.       It is possible.

She does not adopt the word “theoretically” which is put to her, and so on.  Now, I am reminded that the reference to 10 or 15 months seems to have been a reference to 10 or 15 years – it was corrected later.  If your Honours go to page 538, yes, the last question on 538:

Q.If I can ask you some questions about the papers that have since been delivered on this topic.  You indicated earlier that transfer DNA is a relatively new area of DNA science.

A.       Yes.

Q.       From the last 10 years.

A.       10‑15 years.

So it seems to have been years rather than months.  Then there is a discussion between Mr Charman, between defence counsel and the judge, at page 534, about the use of the word “statistical” and the appropriateness of using the word statistical to describe the likelihood of an indirect transfer.  Dr Henry is recalled on the voir dire, and she explains it very clearly.  The bottom of page 535, his Honour asks her:

Q.When you talk about the likelihood or unlikelihood of there being secondary transfers other than primary transfers is there a statistical basis for that or just your learning on this matter.

A.It’s just based on the number of times it’s been seen in the literature ‑

I mean, that is hardly the basis for anything –

and often it’s given a percentage in the papers, so generally in the papers it’s around 1% to 5%, it depends on the circumstances, some might be higher.

Q.       You know how you’ve got a weighting with DNA per se.

A.       Yes.

Q.       It’s not as precise as that.

A.       No.

Q.There’s no independent study or work done in relation to that, I take it.

A.No, it’s based on a variety of different papers that I have looked at different scenarios so it’s going to vary more than something like a likelihood ratio.

On the voir dire:

Q.You said it may be higher than say 5% depending on the circumstances.

A.       Yes.

Q.       Those circumstances include those unknowns, don’t they.

A.[Yes].  I think one of the papers where it was a bit higher said they started looking at how things were held and there was one paper where they applied a high degree of friction to the object and they found the transfer was higher, but some of these studies have been used and done using wet sources of DNA like blood and that sort of thing, so in some situations we are not dealing with contact DNA per se.

They are all done in controlled circumstances in laboratories:

Q.And circumstances that actually don’t deal with the variables that happen in real life.

A.They might deal with some but obviously there are a vast array of variables –

Of course a handshake in our society is normally something fairly firm, and indeed, if one holds a didgeridoo that would normally be a reasonably firm thing because of its size.  Then she is asked this:

Q.Isn’t that the current situation, that in relation to transfer DNA you simply aren’t able to say with any confidence the extent to which DNA is transferred from one person to the another.

A.That’s right and if you were trying to determine the probability in this particular exact example then you firstly have to know what happened at that time on that day and then you’d have to recreate those situations exactly in the laboratory to get a percentage probability for that.

HAYNE J:   What are we to make of all this coming out on the voir dire, Mr Bennett?

MR BENNETT:   Well, it is an explanation of her answers when she says something is improbable or less likely than something else.  She is explaining what she means by that.

HAYNE J:   Well, explaining and explaining to the jury might be two different things, Mr Bennett, I would have thought.  The evidence before the jury was, was it not, that secondary transfer is possible, the expert still – or this expert considers that experts still do not know much about it, it is possible there was a secondary transfer?

MR BENNETT:   Yes, your Honour, and the use of words like “less likely” and “unlikely” and so on, she is in effect giving a dictionary to her evidence and saying what she meant.

HAYNE J:   No, it is not, it is presenting the dental caries problem, 30 per cent fewer cavities, 30 per cent fewer than what?

MR BENNETT:   Yes, exactly, your Honour.

HAYNE J:   That is the unexpressed comparator.

MR BENNETT:   Exactly, your Honour.  Ninety per cent of dentists recommend, or at least of the 10 employed ones we asked.  Then his Honour, after the jury enters court, goes through this again with her, to repeat it, at page 538.  His Honour says at 538, line 13:

Q.Just before the break, you talked about the likelihood or unlikelihood or either primary or secondary transfer.

A.       Yes.

Q.When you talked about that that’s not based on any statistical information, is it.

A.It’s just based on observations from experimental data so I guess I was referring to the statistics as a percentage time it has been observed in a particular experimental paper.

Q.But as distinct from giving weightings and probabilities like you have with DNA you’re not doing that in relation to the likelihood or unlikelihood of primary or secondary transfer.

A.No, I’m not.

Q.It is just your observation as to papers you’ve read etc in your learning, is that right.

A.       Yes, that’s correct.

Q.In fairness to you it was me who raised the question of statistical, it’s not strictly speaking a statistical basis.

A.       No.

It is, we submit, not open to the Crown to say this is something that only happens very rarely, look at her evidence.  She has explained what she meant.  I think I have gone to all the passages I need to go to on that – yes, I have.

The third of the three matters I need to address is the suggestion in the judgment of the Full Court that our hypothesis depends on a highly improbable chain of events, and that appears also in the respondent’s submissions.  It appears in the Full Court judgment at appeal book volume 3, page 1241, paragraph 106.  Your Honours see what the majority of the Full Court there says is this; do your Honours have that, paragraph 106:

The hypothesis that Fitzgerald’s DNA was transferred by secondary transfer onto the didgeridoo depended upon the occurrence of a succession of unlikely events.  The jury had available to it Dr Henry’s evidence concerning secondary transfer and the unlikelihood of each step in that succession of events.  The transfer of DNA by a handshake is comparatively rare.

HAYNE J:   Compared with what?

MR BENNETT:   Exactly, your Honour.  The expert never said “if you shake hands with someone, it is unlikely that DNA is transferred”.  She does not say that:

It was necessary that sufficient quantities of Fitzgerald’s DNA remained on Sumner’s hand over the course of approximately eight hours during which time Sumner had contact with others at the boxing tournament, travelled to Hogarth Road, became involved in a fight with his father and the deceased, returned to his mother’s house ‑ ‑ ‑

HAYNE J:   I think we have all read this, Mr Bennett.  What is the point that is to be made about it?

MR BENNETT:   My point is this, your Honour.  If it was done through Sumner, it probably happened on the first visit, which is very soon after the handshake.

HAYNE J:   What do you say to the respondent’s submission at paragraph 27?  The respondent at paragraph 27 identifies the – or makes the submission that “secondary transfer could be excluded as reasonable possibility” and it identifies a chain of argument said to support that.  What do you say in answer to that?

MR BENNETT:   I am sorry, would your Honour just pardon me?

HAYNE J:   Par 27 of the respondent.

MR BENNETT:   Yes.  Well, your Honour, it is based on three paragraphs.  The first says:

Secondary transfer in a general sense is very unlikely or infrequent.

I have dealt with that.  Secondly:

The Appellant contributed the major component of the DNA profile . . . which would not be expected in a secondary transfer.

Well, the passage quoted does not say that you would not expect that in a secondary transfer and I have given a number of possible ways it could have occurred.  Thirdly:

Mr Sumner was excluded as a contributor to the DNA profile . . . Therefore, the reasonable possibility that he transferred [it] . . . could be excluded.

That is clearly not right.  It is not right because he may have transferred two people’s DNA and it is not right because we know that it is possible to transfer DNA without any of your own DNA being transferred.  So those three paragraphs simply do not stand up.

HAYNE J:   And those paragraphs all proceed from the unstated premise that the DNA was deposited at the time of the attack.

MR BENNETT:   Yes, your Honour, and there is no evidence at all of that.

BELL J:   And there was evidence at appeal book 527, about line 24, that DNA cannot be aged, as it were, so that it may be stating the obvious, but the fact that one recovers DNA on the evidence says nothing about when it was deposited.

MR BENNETT:   Exactly, your Honour, and we know this, too.  That on Sumner’s first visit to the house, the occasion when he had his fight with his father and there was also a melee in the kitchen during which, among other things, he pushed the deceased through a wall - presumably that is a fibro or gyprock wall, not a brick wall – but he pushed him through a wall.  Now, we know – and I can show your Honours the evidence in a moment – that the didgeridoo was in the kitchen at the time.  In the course of that – and we know that Sumner at one stage was sitting on a freezer and the didgeridoo was next to the freezer.

HAYNE J:   This is the point you make in support in paragraph 17 of your written outline.

MR BENNETT:   It is, your Honour.

HAYNE J:   Yes.

MR BENNETT:   Yes, I have made the point a number of times.

HAYNE J:   Yes.

MR BENNETT:   One simply does not reject the – if it was Sumner, it was probably the first visit, not the second, which is very soon after the handshakes, of course.

I will give your Honours the other references but I will not take your Honours to them unless your Honours wish.  Sumner sitting on the freezer is appeal book 2, 608 to 609.  References to where the didgeridoo was at various times are in appeal book 2, pages 400, 407, 408, 428, and 430, and the Full Court’s comment at page 1241 at the end of paragraph 104 in the judgment of the majority, we submit with the greatest of respect is unhelpful.  What their Honours say is:

According to Sumner, he then attended at Hogarth Road, where he became involved in an altercation with his father.

It is more than an altercation.  His jaw was broken:

There was no suggestion that, during his attendance at Hogarth Road, he had any contact with the didgeridoo.

Well, your Honours, why would there be?  It could easily have been the most casual contact; just moving it out of the way, or touching it while walking passed, or stopping it falling over.  Putting personal experience in, didgeridoos have a tendency when you lean them on walls to fall over if activity takes place around them.  It would be the most natural thing in the world for him and you would not expect him to remember it, or anyone else to remember it.  It would just be a trivial incident in the course of a major incident, one which, of course, has had tragic consequences for my client. But that is that aspect on that.

Now, the other point is this.  My learned friend makes much of a passage at appeal book 1, page 131, to show that my client had never been to the house.  Now, may I just take your Honours to that?  It is page 131, starting at line 34 where Ms Wanganeen is asked these questions:

Q.       Have you ever heard of anybody called Daniel Fitzgerald.

A.       No.

Q.       Has anyone called Daniel ever been introduced to you.

A.       No.

It is a big question but anyhow:

Q.       Do you have any memory of knowing any Daniels.

A.       No.

Q.Do you know of any Daniels or Danny, anything like that, ever having been to your house.

A.       No.

Q.Anyone with the nickname Fitzy or anyone like that ever come into your house.

A.       No.

Q.If people came to your house did you let them play or muck about with the didgeridoo.

A.       No.

So, that is used by the prosecution to say this:  that eliminates the possibility that there was any other occasion when there was direct contact between the appellant and the didgeridoo.  Well, of course, it does not do that.  She may not have known everyone who came to the house.  The didgeridoo may have been taken somewhere, all sorts of possibilities.  We just do not know.  The Crown has not successfully excluded those possibilities.

It is of interest in relation to that evidence that at page 407 of the volume I was just going to, almost at the end of the volume, notwithstanding the evidence about people not being allowed to touch it, she is being taken through a photograph which I will not bother to take your Honours to, but at line 12:

is there a stubby of beer . . . on top of a white thing.

A.       Yeah.

Q.The white thing which we really can’t make out from the photo, is that a small freezer.

A.Yes.

Q.So was it on what I’ll call the photographer’s side of the freezer or was the didgeridoo on the other side . . . 

A.The photographer’s side of the freezer.

Q.Do you know how the didgeridoo got there.

A.It was there.

this is in the kitchen –

Q.Had you seen anyone handling it that night before this group of men arrived.

A.My brother was playing it earlier that day . . . Probably around 5.

and she did not know where he put it after that –

Q.       It just happened to be there when you were in the kitchen.

and then there is the evidence about her grabbing it to defend herself.

So where that evidence puts a little bit of doubt on the proposition that no one is ever allowed to handle the didgeridoo, but there it is.  So, your Honours, looking at the case as a whole, I come back to the question I asked at the very beginning, has the Crown proved beyond reasonable doubt that the sample of the appellant’s DNA went onto the didgeridoo during the attack and by direct contact from the appellant, and there is simply no evidence to suggest either.  The Crown simply has not proved its case.  In addition to that, we have put up specific hypotheses consistent with innocence which, notwithstanding what the Crown says, are not unlikely and do not depend on a highly improbable chain of events, and on the evidence the jury could not have been satisfied beyond reasonable doubt that the sample was blood, it is unlikely that it was blood or the appellant’s blood, bearing in mind that there is no evidence that any of the attackers bled.  So putting it all together, the jury’s verdict is, in my respectful submission, unreasonable and cannot be supported, having regard to the evidence.

HAYNE J:   With what consequence because your notice of appeal offers alternative consequences?  What do you say is the proper consequence of your submissions?

MR BENNETT:   That the conviction should be quashed, your Honour.  A new trial would not establish anything different to this trial, the evidence is all there.

HAYNE J:   Well, a possible point of view is that the Crown should not have a second go at it.

MR BENNETT:   Well, we would certainly submit that, your Honour.  There is no reason why they should, and there is no suggestion that there would be anything different at a new trial, there might be a different decision made by defence counsel in relation to calling evidence, there might not, but there is no advantage in a new trial.  When all the evidence is there, all the evidence is uncontradicted, and as I started off saying, your Honours are in exactly the same position the jury was in.  The jury had no special advantage at all in this case, it is simply a matter of understanding and evaluating expert evidence, and they clearly – so we submit there should simply be a quashing of the conviction, and if your Honours are strongly of that view we commend to your Honours, with respect, the possible course of allowing the appeal on the spot at the end of the hearing and giving reasons later but that is, of course, entirely a matter for your Honours.

HAYNE J:   Yes, thank you, Mr Bennett.  Yes, Mr Pearce.

MR PEARCE:   Yes, may it please the Court.  The prosecution case at trial was presented, in my respectful submission, firmly on the basis that proof of presence at the scene was an indispensible link in the process of reasoning, and like my learned friend I will refrain from taking the Court through Shepherd and the line of authorities that follows.  The prosecution case was presented on that basis, as can be demonstrated in the final remarks at pages 721 and 723 of the appeal books.

The jury were told that the main, if not the only issue at trial, was proof beyond reasonable doubt, that the appellant was present at the house and if the prosecution could not exclude that beyond reasonable doubt then the appellant would be not guilty, and at 723 it was made clear that that was a necessary first step in proof beyond reasonable doubt of his guilt of the crime.  His Honour, the learned trial judge, summed up on that same basis and, in my respectful submission, summed up in accordance with well‑settled authority about circumstantial evidence, and made it clear that proof of presence at the scene was, in fact, an indispensible link.  The relevant passages of the summing up can be seen at pages 114 to 118 in the appeal books.

HAYNE J:   Well, is the question for us whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was present at the time of the attack?

MR PEARCE:   Yes, and that gets us back to M v The Queen ‑ ‑ ‑

HAYNE J:   Yes.  So what is the evidence that, upon which, the jury could be satisfied that the appellant was present at the time of the attack?

MR PEARCE:   I start then with the didgeridoo.  One of the propositions advanced both at trial and on appeal was that during the course of the attack a number of the attackers opportunistically seized weapons upon entering the house.  There was clear evidence that a pitchfork was used in the attack upon the victim of count 2, Leon Karpany.  The evidence was that the pitchfork had been left, or stored, in the laundry.  That evidence can be found in the evidence of Nardene Wanganeen at page 125 of the appeal books.  In a similar vein, there was evidence that some wooden bed slats that were stored in the kitchen had been picked up by the offenders and used in the course of the attack.  There was a wooden bed slat found in the lounge room where the deceased’s body was found post‑attack.  He was treated by ambulance officers and taken from the scene.

HAYNE J:   But was it part of the Crown case at trial that the didgeridoo was or may have been a weapon?

MR PEARCE:   Yes.

HAYNE J:   How is that consistent with Ms Webb’s evidence that she had taken hold of the didgeridoo as a defensive implement?

MR PEARCE:   Yes, indeed, that very proposition I will develop now.  It requires me to start with the wooden bed slat, because on the prosecution case, the wooden bed slats had been in the kitchen, one of those was found in the lounge room, it had blood from one of the victims on the wooden bed slat.  Likewise, the didgeridoo, the clear evidence was that it had been picked up by one of the witnesses when the men entered the house.  There was something of a confrontation between that witness, Leticia Webb, and one of the offenders, she put the didgeridoo down, as directed.

KIEFEL J:   The bed slats were observed to have been used as a weapon, were they not?

MR PEARCE:   Not specifically, no.  One of the offenders was observed to have something described as a plank.  The witness Kristy Oates spoke of that.  Another witness, Mr Drover ‑ and I will take the Court to the transcript references in due course – but a witness Drover also spoke of seeing Mr Sumner with what he thought was a pole, but no one was specific about didgeridoo, bed slat, but could I be quite plain, there is no evidence that anyone saw the didgeridoo being used.

HAYNE J:   So is the position that the didgeridoo, you say, may have been used as a weapon?

MR PEARCE:   There is, in my submission, a strong inference that the didgeridoo was used, and it is that point I am developing.  It was left by Leticia Webb against the wall.  Given the exigencies of the moment, she has no idea what happened to it thereafter.  It was then found by the crime scene examiner in the lounge room, and it can be seen in some of the photographs in the appeal books, photographs 16 through to 22, they are contained in appeal book 3.  The didgeridoo was found in a position adjacent to where the deceased was retrieved by ambulance officers and observed by a number of witnesses.

That didgeridoo was part of the forensic examination which founds the case against Mr Fitzgerald, the sample 3.B being the evidence that puts him at the scene on the Crown’s case, but significantly on the prosecution’s case there was evidence that blood from both victims was found elsewhere on the didgeridoo, DNA samples from which likelihood ratio profiles were obtained, producing likelihood ratios greater than a billion to one more likely to have come from either of the victims in each case than an unknown unrelated person.  There were reddy-brown stains observed from those areas where the samples were taken which had the appearance of blood, gave a positive reaction to the presumptive test for blood in less than five seconds, but of course then the DNA profile matching the DNA profile of the victims.  So there was, in my submission, strong evidence to suggest that the didgeridoo was used in the attack, even though no eyewitness saw it, based on the fact that blood from both victims was found on it.

Again, I need to be plain about something else.  It is clear from the crime scene photographs that there was blood – it was not a pristine crime scene; there was a lot of blood from Mr Karpany, in particular, throughout the house.  There was an enormous pool of blood in one of the bedrooms and samples were taken from doorframes, doors and the like, which produced DNA profiles matching Mr Karpany, so there is evidence of there being blood elsewhere in the house.  But nonetheless, the combination of blood from both victims on the didgeridoo, in my submission, makes the inference all the stronger that the didgeridoo was used in the attack.

HAYNE J:   The blood on the didgeridoo of which we speak is a couple of spots, one of one millimetre, and the other of two millimetres?

MR PEARCE:   Yes.  To deal with that, that is both a weakness and a strength on the prosecution argument.  The fact that they are, accepting for the argument – I underline “for the argument” – that they are blood spots, the size of them points very strongly against there being transfer.  If there had been some sort of transfer earlier in the night from the donor of that blood to another person and that person then travels to the house and has contact with the didgeridoo, it would be almost inconceivable, in my submission, that blood would still be in a wet form such that could then be transferred onto the didgeridoo, but more to the point is the very small size of those spots that point against them being a transfer as opposed to some airborne transfer.

BELL J:   But Dr Henry was unable to form a view, notwithstanding her expertise in bloods pattern analysis, as to whether the stains that might have been blood were as the result of airborne staining or transfer stains.  That was because she was making the analysis from a photograph and because the grain of the didgeridoo distorted the appearance of the stains, so that the indicators – whether it be airborne transfer or otherwise – were not present.

MR PEARCE:   With respect, that is correct.  That was the bottom line of her evidence.  But I still press the point that given the very small size of them, that points very strongly away from some sort of smear or contact as opposed to airborne.  I accept completely, of course, that she was unable to venture an expert opinion on it, but it is still a matter of inference for a jury.

BELL J:   But how does one get around this when one speaks in terms of reasonable possibilities?  Dr Henry accepted that the stain that might have been blood, 3.B, and from which the DNA sample, consistent with being that of the appellant was obtained, Dr Henry accepted that the DNA might have come from being deposited on the didgeridoo and then the stain, as it were, overlying the DNA.  Now, that might be unlikely but, as I understand her evidence at appeal book 482, she did not exclude that as a possibility.  One comes back to the evidence that DNA cannot be aged.  How does one infer beyond reasonable doubt to the conclusion for which you contend?

MR PEARCE:   One does that by not looking at each of these individual facts or strands in isolation.  The thing that must be proved beyond reasonable doubt is presence.  What must be looked at when coming to that conclusion is not whether each of these features of the prosecution case ‑ ‑ ‑

BELL J:   The Hillier point.

MR PEARCE:   Yes.

BELL J:   The Hillier point is about the inadvisability of looking at individual strands in a circumstantial case and discounting each, as it were, without looking at the whole.  But all we have here is sample B.3 – or 3.B.

MR PEARCE:   One circumstance but a number of features which can be looked at when considering what sample 3.B is and how it got there, because in that discourse ‑ ‑ ‑

HAYNE J:   Not only how it got there – when it got there.

MR PEARCE:   Yes, yes.  But in that – just to focus on the question of blood, and is it blood, in my submission is erroneous to look at that question in isolation.  That question can be looked at against the background of this notion of secondary transfer.  Was secondary transfer possible in the circumstances?  The DNA expert says, yes, it is.  But that answer and that piece of evidence does not then get looked at in a vacuum, so to speak.  It is looked at against the combination of all of the other circumstances.

BELL J:   Accepting that, but in terms of proof beyond reasonable doubt, one is not necessarily tied to the secondary transfer theory that was advanced as one reasonable possibility and one comes back, Mr Pearce, to the proposition when one cannot age DNA and when the expert says, yes, that sample might have been deposited on the DNA, and then the object that looks like blood and that in the context of the events of this evening one might reason very, very likely was blood, that might have been deposited after the DNA that bore the profile of the appellant was deposited on the didgeridoo.

MR PEARCE:   In a sense that picks up on the phrase used in the court below which was a “series of unlikely events”, or words to that effect.  That series of unlikely events required DNA from the appellant, some sort of transfer DNA to have been placed on the didgeridoo and effectively entombed by that two millimetre by one millimetre and one millimetre spot.  That of itself in isolation is an unlikely event.  Now, I accept, of course, that there is no evidence that this didgeridoo had been kept in secure store from the moment it was felled from the tree.

With respect, that could never be proven.  What was proven despite, with great respect to my learned friend, was that the didgeridoo was not something that was being passed around.  I do not suggest it was hermetically sealed but it was something that was treated unusually in the house, albeit played that night by the deceased.  But there was no suggestion it was being played whilst Mr Sumner was present and there is no direct evidence that Mr Sumner handled it.  There is an argument that it is possible that he did but there are a lot of things that are possible.  There is no direct evidence that he did. 

But to get back to the reasonable possibility scenario, it requires Mr Fitzgerald to have on some other occasion, either to have donated DNA to a person who then on transferred it or to have handled the didgeridoo himself.  The case was fought squarely on the basis of a secondary transfer that night.  Defence counsel’s address was quite clear about these features.

HAYNE J:   There was no doubt there was an occasion where secondary transfer may have occurred?

MR PEARCE:   There was no doubt there was contact at the boxing that night.  The evidence disclosed the contact was about 10.30 give or take a bit.  After that, Mr Sumner travelled in a car to drop someone off and then made his way up to this house – at the risk of giving evidence it is about a 40 minute drive from the location of the boxing, but he was involved in certain activities.  The evidence also disclosed when he got to the house he was drinking cans of drink, engaged in fighting at one stage, grabbed a woman by the hair and dragged her down the road.  All of these are things which, when considers the evidence of the forensic scientist, are activities that might see the mechanical process of handling something – might see one remove the cells from your hands. 

So the prosecution argument was even though there had been a handshake at the boxing, there had been a lot of activity that flowed thereafter which might render it highly improbable, not impossible, but highly improbable that DNA was retained by Mr Sumner which then enabled him to involve himself in this secondary transfer.  An example of that evidence is that Mr Sumner said at the boxing before he left he shook hands with 10 other people after shaking Mr Fitzgerald’s hands.

CRENNAN J:   He shook hands twice with Mr Fitzgerald, did he not?

MR PEARCE:   At the start of the night and at the end of the night.  There was some evidence from Dr Henry in cross‑examination about well, if my client had touched his mouth and got saliva on his hands, that is a richer source and he could have passed that onto the hand of Mr Sumner.  All of that was conceded by the forensic scientist as possible because, of course, a scientist, with respect, will probably never say anything is impossible within reason.

So it was a reasonable concession but the question then becomes whether that possibility is a reasonable possibility when layered onto all of the other circumstances of the case.  That is why, in my submission, it is erroneous, with great respect, to look at the question of the blood in isolation, divorced from all of these other circumstances, because Mr Sumner’s account was there were 10 handshakes after the final handshake with Mr Fitzgerald.  There was undisputed evidence that he was involved in all sorts of – can I put it as chaos at the house and no evidence that he actually handled the didgeridoo.

But back to the way the issue was left at trial, counsel for the appellant pressed the point to the jury that there was nothing to link Mr Fitzgerald to any of the occupants of the house, or the didgeridoo, or the house itself.  It was pressed to the jury that there some limited association between Mr Fitzgerald or Mr Sumner through a mutual interest in a gymnasium; the evidence of Mr Sumner was that they had met seven or eight times and that they were not close.  But counsel – and if I may, I will just provide the Court with the appeal book references – counsel in their address at 835 to 837, made the following propositions.  That there is no suggestion that Nardene Wanganeen, the occupant of the house, knew Fitzgerald – that was pressed home to the jury.

No evidence that the appellant knew where the Hogarth Road house was.  No evidence he knew anyone at that location.  No evidence that he was in any way related to those people, and there was nothing on the defence case at trial to show why he would go out there at 10 to six in the morning.  So, counsel at trial were expressly disavowing any association with either the house or the occupants.

BELL J:   And counsel understandably sought to rely on a reasonably possible explanation for the presence of his DNA on the didgeridoo, consistent with the transfer theory.  But, your contention is that it is possible to establish beyond reasonable doubt that Mr Fitzgerald was present at the time, on the basis of DNA which cannot be said to positively be shown to have been deposited as part of the stain, or the reddy appearance of blood.

MR PEARCE:   Yes.

BELL J:   Now, the fact that the appellant points to his lack of association with the occupants of the premises might be thought an unsurprising forensic tactic to take.  But one is left – one simply does not know what had been done with the didgeridoo in the period before the events of this evening.  If you had some other reed of evidence, Mr Crown, then one can see the strength of the reasoning that you rely on – the likelihood of the stain being deposited on that evening and it being blood.

MR PEARCE:   I may not be standing here.

BELL J:   Indeed.

MR PEARCE:   But my response to that is that the question of whether it is blood needs to be considered against the likelihood or otherwise of secondary transfer, that the two things are not looked at independently of each other; they are looked at collectively, and then at the end of that process, if one is able to conclude beyond reasonable doubt that it is blood, then, with respect, that might be the end of the matter, because there could be no innocent explanation for that.  But, the question of whether it is blood can be assessed against the unlikelihood of a secondary DNA transfer.  If I may, I will very briefly take the Court through some of those propositions.

I do not rely on any statistical analysis, as was brought to the Court’s attention, the issue arose during the course of the cross‑examination of Dr Henry, but what I do rely upon is the fact she speaks of the unlikelihood of a primary transfer in the first instance, she spoke about it happening in less than 10 per cent of cases, I will content myself with the proposition that it is unlikely.  So, we have an unlikely scenario that there would be a primary transfer of some form of epithelial cell onto an object which is then collected by a forensic examiner.  In this case the primary transfer is not onto an object, a stationary object, but onto a hand of Mr Sumner, we will use him as the example.

So, that first transfer is unlikely, not impossible, but unlikely.  Then we have the further unlikely scenario of that person retaining the DNA despite the process of cells being lost, removed, et cetera, and then the DNA, having been retained, then being the subject of a further unlikely transfer onto a surface, here the didgeridoo.  So, we have unlikely built upon unlikely.  Whilst it might be impossible to say that each of those individual components of the scenario are impossible, there is a cumulative effect of them, where unlikely builds upon unlikely and then you factor in the blood issue, and, in my submission, the inference becomes overwhelming.  That there is not a secondary transfer but that it is a deposit of blood, and I have taken the Court in my written submissions to those various transcript references.

I think it was your Honour Justice Bell, I am sorry, I was not looking at the time when the question was asked of my learned friend, but your Honour asked whether the prosecution directly challenged the evidence of Mr Sumner about the handshake.  If I may just respond to that, I am just not sure which of you asked that question.

CRENNAN J:   I asked that question.

MR PEARCE:   I am sorry about that.  There was no direct challenge to the handshake, there was, dare I say it, a direct challenge to the credibility generally of Mr Sumner on a whole host of topics.  His account was that he never went back to the house, that after he had left the house post‑fight he went home and showered.  Now, of course, if he showered, that might have removed all of the DNA from him, but no reliance was placed upon his credibility as a witness.  But, the point I make about Mr Sumner’s evidence and whether there was or was not any direct challenge is that he is really the high watermark of any suggestion of transfer that night.  There are all sorts of other theories postulated that the appellant may have met someone else at the boxing who ended up out at the house, there was some suggestion that a chap called Ziggy Sumner‑Cooper who was identified on the footage at the boxing may have been at the house but that fell, in my submission, well short of any identification of him.

So, the suggestion that he has passed his DNA onto some other person at some other time is, of course, possible but there is no evidence of it.  These are just theories that are now being postulated.  The case at trial was very firmly put on the basis that there was a DNA transfer to Mr Sumner, and for the reasons I have articulated today and as are set out in my written submissions, in my submission, that is something that does not found a reasonable hypothesis consistent with innocence.

I turn then very briefly to that scenario postulated by the court below.  The Court has been taken to it already today.  It is at page 1233 of the appeal book where the court below spoke about a series of events giving rise to this notion of secondary transfer.  In my submission, they can be boiled down to these propositions – that there was, in fact, a handshake at 10.30, that despite the 10 subsequent handshakes and all of the other activity that Mr Sumner engaged in, he retained DNA on his hands despite the evidence of Dr Henry about the likelihood, or otherwise, of a primary transfer, about the likelihood, or otherwise, of retention of that transferred material and that despite an absence of evidence he then transferred that DNA onto the didgeridoo despite the evidence of Dr Henry about the likelihood, or otherwise, of that proposition.

So, in my submission, when all that is looked at in combination, the conclusion that the DNA permits a finding of guilt beyond reasonable doubt is open, that there is nothing inherently unreliable about that process of reasoning.  There are other hypotheses that can be thrown up but it does not, with respect, make them reasonable hypotheses.  When all of those – what I will now call individual strands that we have spoken about in the course of submissions – when all of those strands are looked at and looked at in combination, collectively they point away from secondary transfer, point to direct transfer and, in my submission, it is open to conclude that the material came from blood for the reasons advanced in the evidence of Dr Henry about the likelihood, or otherwise, of the primary so that the major DNA profile coming from the person who was the secondary transferor.

That, in my submission, is the inherent problem with the secondary transfer theory, that the appellant is the major profile in that DNA sample.  He is the major contributor.  True, it is – and again I am sorry to keep coming back to your Honour Justice Bell – but true, it is, that there was a moderate amount of DNA found in those two stains, but as the forensic pathologist said, they were very small samples.  She neither excludes it being blood on that basis and says well, it does not tell us it is blood, she leaves open the possibility that it is.  That is a possibility that, in my submission, is looked at against everything else.  So for those reasons, in my submission, there were no other reasonable hypotheses open on the

evidence and the evidence is able to sustain a verdict of guilty.  Unless there is anything further, they are my submissions.

HAYNE J:   Yes, thank you, Mr Pearce.  Yes, Mr Bennett.

MR BENNETT:   Just a number of very short matters, your Honour.  First, my learned friend referred to the blood and the DNA on all the other things in the room, on pitchforks and bed slats and the like.  I simply stress to your Honours that the appellant was excluded from all those.  There is only this one sample that was there.

Secondly, my friend accepts that there is no direct evidence that the didgeridoo was used as a weapon.  The evidence of Leticia Webb was that she put it down afterwards and the men went past her when they went out.  They would have had to reach around her to grab it at that point, so it is unlikely that any of the attackers picked it up at that stage.  It was, as I say, as we all know, used defensively and there is no real evidence that it was used for anything else.

My learned friend referred to the blood from the victims on the didgeridoo.  There are various ways that could have happened.  One of the victims might have picked it up and moved it, or been close to it, or it may have been a spatter; we just do not know.  But it does not establish that it was used as a weapon, although that is one possibility.

My learned friend referred to the intermediate activity engaged in by Mr Sumner, including having a shower.  I suppose people have showers in different ways; some people wash their hands with soap in the shower and some do not.

But leaving that aside, that is why my submission is important, that if the carrier was Sumner, it was probably on his first visit, not the second visit, that it was placed on the didgeridoo, and that was before almost all the intermediate activities.  My friend refers to the 10 handshakes.  That of course is, we would say, one very clear possible explanation for the rest of the sample.  Those are the submissions in reply, your Honours.

If your Honours have formed a firm view at this stage, I do respectfully commend to your Honours the possibility that I referred to earlier.  My client is serving a life sentence with a 20 year non‑parole period.  In the sentencing remarks, the trial judge pointed out that he had virtually no record, that he was a person of good character, and so on.  This is the only event and the only evidence against him and, in my respectful submission, it is desirable, if the appeal is to be allowed, that he be released as soon as possible.  May it please your Honours.

HAYNE J:   The Court will adjourn to consider the course it will take in the matter.

AT 11.34 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.38AM:

HAYNE J:   The Court is of the opinion that the appeal should be allowed and consequential orders made.  The Court will deliver its reasons for judgment at a later date.  The order of the Court is as follows:

1. appeal allowed;

1. set aside the orders of the Court of Criminal Appeal of the Supreme Court of South Australia made on 16 August 2013 and in their place:

(a)order that the appeal to that court against conviction is allowed and the appellant’s conviction is quashed, and

(b)      direct that a judgment and verdict of acquittal is entered.

Adjourn the Court to 2 pm today.

AT 11.39 AM THE MATTER WAS CONCLUDED