Hillier v The Queen

The appeal in *Hillier v The Queen* concerned a conviction for murder in the Australian Capital Territory. The appellant sought to challenge his conviction on several grounds, including alleged failures by the prosecutor during the trial and the potential admission of new DNA evidence. The case was heard by Madgwick, Weinberg, and Dowsett JJ of the Court of Appeal.

The primary legal issues before the Court of Appeal were whether the prosecutor's conduct at trial amounted to a breach of the obligations established in *Browne v Dunn* and, if so, whether this failure constituted a miscarriage of justice. Additionally, the court had to determine whether certain DNA test results, not tendered at the original trial, should be admitted as "further evidence" under section 37N of the *Supreme Court Act 1933* (ACT). This involved considering whether the defence possessed these results at the time of trial and whether their absence would have led a defence expert to provide different evidence, thereby potentially causing a miscarriage of justice or rendering the verdict unsafe or unsatisfactory.

The Court of Appeal considered the scope of its power to receive "further evidence" under s 37N of the *Supreme Court Act 1933* (ACT), noting that this power is not strictly confined by common law rules governing "fresh" or "new" evidence. Drawing on principles from cases like *CDJ v VAJ*, the court acknowledged that while ordinarily further evidence should not be admitted if it was available at trial, exceptions exist where an irregularity in proceedings prevented a party from effectively presenting their case. The court also recognised the common law's exceptional power to set aside verdicts in the interests of justice, even with evidence that existed before judgment.

The appeal was allowed, and the conviction and sentence were set aside, with a new trial ordered.