Fitzgerald v The Queen

In *Fitzgerald v The Queen*, the High Court of Australia considered an appeal against a conviction for offences arising from a violent home invasion. The appellant, Fitzgerald, and a co-accused, Sumner, were convicted on the basis that they were part of a group that attacked the occupants of a house. There was no direct evidence that either Fitzgerald or Sumner inflicted harm on the deceased or another victim. Crucially, six individuals present during the attack failed to identify Fitzgerald from photographs.

The central legal issue before the High Court was whether the DNA evidence found on a didgeridoo at the crime scene was sufficient to establish beyond reasonable doubt Fitzgerald's presence at, and participation in, the offences. The prosecution's case relied on a mixed DNA profile found on the didgeridoo, where Fitzgerald's DNA was the major contributor. This evidence was presented as proof of Fitzgerald's presence at the scene during the attack.

The High Court reasoned that the prosecution had failed to prove beyond reasonable doubt that Fitzgerald's DNA was transferred to the didgeridoo during the commission of the offences. The expert evidence indicated that DNA could be transferred through primary contact or secondary transfer, and that secondary transfer was possible even after a significant time lapse. The expert also conceded that the presence of "reddy-brown stains" on the didgeridoo, which contained the deceased's and another victim's DNA, did not necessarily mean that Fitzgerald's DNA was also transferred at that time. Given the lack of direct evidence of Fitzgerald's involvement, the possibility of secondary transfer, and the failure of eyewitnesses to identify him, the Court concluded that the DNA evidence alone was insufficient to support a conviction.

Consequently, the High Court allowed the appeal, quashed Fitzgerald's conviction, and entered a verdict of acquittal.