McMurdo P, Keane and Holmes JJA Separate reasons for judgment of each member of the Court, each concurring as to the order made
ORDER:
Appeal dismissed
CATCHWORDS:
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARDON, COMMUTATION OF PENALTY, REFERENCE ON PETITION FOR PARDON AND INQUIRY AFTER CONVICTION – REFERENCE TO COURT – where petitioner convicted of murder in February 2001 – where petitioner unsuccessfully appealed against conviction in September 2001 – where Attorney-General referred whole case to Court of Appeal in April 2005 – where petitioner challenges inculpatory DNA testing in light of further expert evidence – whether totality of evidence gives rise to reasonable doubt as to petitioner's guilt
CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – POWERS OF COURT ON APPEAL – TO CONSIDER FRESH EVIDENCE – where petitioner purported to adduce further evidence at reference hearing – where further evidence included expert testimony reasonably available at trial – whether further evidence properly considered fresh evidence or new evidence
EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – BLOOD TESTS – where semen found on towel located on deceased – where expert witness for petitioner performed blood type testing on semen – where blood type testing exonerated petitioner – where expert witness for petitioner preferred blood type testing to DNA testing – where balance of expert witnesses denounce blood type testing as unreliable – whether evidence of blood type testing should be preferred over evidence of DNA testing
EVIDENCE – ADMISSIBILITY AND RELEVANCY – OPINION EVIDENCE – EXPERT OPINION – OTHER CASES – where semen found on towel located on deceased – where expert witnesses for prosecution performed DNA testing on semen – where DNA testing inculpated petitioner – where expert witness for petitioner challenged evidence of expert witnesses for prosecution – where expert witness for petitioner asserted procedures applied in DNA testing process rendered evidence unreliable – where further DNA testing conducted by different expert witness for prosecution confirmed original DNA testing results – whether DNA testing and results obtained thereto reliable
EVIDENCE – BURDEN OF PROOF, PRESUMPTIONS, AND WEIGHT AND SUFFICIENCY OF EVIDENCE – CREDIBILITY AND WEIGHT – OTHER PARTICULAR CASES – where petitioner challenged chain of custody of physical evidence utilised for blood and DNA testing – where petitioner challenged expert testimony based on that blood and DNA testing – where petitioner averted to possible breaks in chain but offered no evidence thereto – where prosecution sufficiently but not perfectly evidenced chain of custody – where break in chain of custody goes to weight not admissibility – whether break in chain…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
R v Butler [2009] QCA 111
Case
[2009] QCA 111
Decision Date
CaseChat Overview and Summary
The case of R v Butler involves a petitioner who was convicted of murder in February 2001. The petitioner's appeal against the conviction was unsuccessful in September 2001. The Attorney-General referred the entire case to the Court of Appeal in April 2005, where the petitioner sought to challenge the reliability of the DNA evidence against them by presenting further expert evidence. The central issue was whether the totality of the evidence raised a reasonable doubt about the petitioner's guilt, considering the new evidence and the admissibility and reliability of the DNA and blood type tests.
The court had to determine whether the fresh expert evidence presented by the petitioner could be considered in the appeal. The petitioner attempted to introduce evidence that was reasonably available at the time of the trial, raising the question of whether such evidence should be classified as fresh evidence or new evidence. Additionally, the court had to decide whether the blood type testing, which exonerated the petitioner, should be preferred over the DNA testing that inculpated them, despite the latter being confirmed by further tests. The petitioner also argued that the chain of custody of the physical evidence was broken, affecting the reliability of the test results, and that the prosecution's expert witnesses were biased or unscientific.
The Court of Appeal dismissed the petitioner's appeal. The court found that the fresh evidence did not meet the criteria for being considered fresh evidence and was therefore not admissible. The court also concluded that the DNA evidence was reliable, and the break in the chain of custody did not sufficiently undermine the evidence. The court further held that the petitioner's expert evidence did not successfully impeach the credibility of the prosecution's experts. Consequently, the appeal was dismissed, and the conviction and sentence remained unchanged.