R v Drummond (No 2) - [2015] SASCFC 82

SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v DRUMMOND (NO 2)
[2015] SASCFC 82
Judgment of The Court of Criminal Appeal
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Blue)
5 June 2015
CRIMINAL LAW - APPEAL AND NEW TRIAL - MISCARRIAGE OF JUSTICE - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - FRESH EVIDENCE - AVAILABILITY AT TRIAL, MATERIALITY AND COGENCY - GENERALLY
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL
Second appeal against conviction.
The applicant was convicted by a jury of attempted kidnapping. The complainant was walking on the footpath of Prospect Road when she noticed a white station wagon drive slowly past her. She recorded its registration number because she considered that the driver was acting suspiciously. She saw a man alight from a white station wagon which she believed was the same vehicle. A stranger approached her from behind, grabbed the top of her arm and told her to get in the car. There was a tussle, in the course of which the stranger pulled the complainant backwards, the complainant pushed him backwards by the chest and arm and punched him two or three times. The man returned to his car.
The major issue at trial was the identity of the assailant but it was not conceded that the alleged events had occurred. The complainant was unable to identify the applicant as her assailant, choosing a different person in a photopak identification procedure. She described the clothes that her assailant was wearing, which did not match the clothes that the defendant was wearing. The defendant gave evidence at trial that he was driving along Prospect Road at about the time of the incident but he did not stop, and he was not the assailant.
The police recovered the tops that the complainant and defendant were wearing at the relevant time and they were tested for DNA. The prosecution called a forensic scientist, Ms Mitchell, to give evidence concerning the DNA results. She gave evidence that sample swabs from the applicant’s clothing indicated that two persons had contributed to the DNA result with the complainant being positively excluded as being one of those contributors; she also gave evidence that sample swabs from the complainant’s clothing indicated that at least three persons had contributed to the DNA result with the applicant being positively excluded as being one of those contributors.
Ms Mitchell gave evidence that DNA was not always found after contact had occurred. She said that studies at Forensic Science SA had shown that only 10 per cent of samples provided any useful information or usable DNA. This evidence was the subject of cross-examination.
The defendant was found guilty by a jury and his first appeal to the Full Court was dismissed. An application for special leave was refused.
At the hearing of the application for permission to appeal a second time, Ms Mitchell produced to the Court two studies by Forensic Science SA. The more recent study concerning samples using the extraction method used on the clothing of the complainant and applicant showed that in the case of clothing approximately 90 per cent of samples yielded a DNA profile. The applicant adduced evidence from Dr Harding, a forensic scientist, that the statistic of 10 per cent referred to by Ms Mitchell in her evidence before the jury was wrong and misleading and that it was not unreasonable to use the 90 per cent figure from the second study as a general guide to the effectiveness of clothing yielding contact DNA.
Held by Blue J (Peek J agreeing in separate reasons) granting permission and allowing the appeal:
1. The evidence of the Forensic Science SA studies and Dr Harding concerning them constituted fresh evidence within the meaning of section 353A of the Criminal Law Consolidation Act 1935 because it could not with the exercise of reasonable diligence have been adduced at the trial (per Blue J at [309]-[319], per Peek J at [165]-[175]).
2.       Observations on duties of the prosecution and of expert witness (Blue J at [305]-[308], Peek J at [172]-[174).
3.       The new evidence was compelling because it was reliable, substantial and highly probative in the context of the issues in dispute at the trial of the offence (Blue J at [345]-[358], Peek J at [160]-[164]).
4.       It was in the interest of justice that the new evidence be considered on an appeal (Blue J at [363], Peek J at [176]).
5.       The inaccurate evidence given by Ms Mitchell resulted in a substantial miscarriage of justice (Blue J at [372]-[374], Peek J at [176]).
6.       Permission to appeal granted, appeal allowed, conviction quashed and new trial ordered (Blue J at [384], Peek J at [177]).
Held by Peek J:
1.       While substantially agreeing with Blue J, three cautionary comments are made. First, while the substitution in 2012 of the superior extraction system is highly likely to account for some, and probably much, of the difference in results between the two FSSA studies, one cannot assume that it accounts for the whole of the difference. (at [135]) Second, the figures given for the testing of clothing relate to both DNA transferred to the clothing by the person wearing the clothing and DNA transferred to the clothing by a person other than the wearer of the clothing; since it is the latter situation which is dealt with here, it may be that the applicable percentage figure might be less than that applicable to an average over all testing of clothing. (at [139]) Third, the new evidence may not be able to give figures quite as precise as about 90 per cent. If evidence as to a percentage of occasions of testing of items of clothing when DNA usable for direct comparison is recovered were to be given, the new evidence establishes the true percentage as substantially in excess of 50 per cent, and therefore vastly and materially different from the evidence given by Ms Mitchell at trial. It is both difficult (and unnecessary) to be more specific than that. (at [150])
2. The effect of authorities such as Grey v The Queen (2001) 75 ALJR 1708, Mallard v The Queen (2005) 224 CLR 125 and Wood v The Queen (2012) 84 NSWLR 581 is that where the evidence sought to be adduced on a common form appeal is evidence that should have been disclosed by the prosecution at trial, miscarriage of justice may be demonstrated directly by reference to the failure to disclose rather than by the route of satisfaction of a “fresh evidence” test. These authorities are relevant to the question of whether the evidence is fresh under the “second appeal” legislation. When assessing whether defence counsel used reasonable diligence, one must take into account that counsel is entitled to assume that the prosecution will disclose to the defence relevant evidence and material and, a fortiori, that the prosecution will not lead false or misleading evidence as part of its case. The court will extend to an accused person great latitude when making that assessment. (at [172]-[174])
Held by Gray J who would refuse permission:
1.       The new evidence was not fresh because defence counsel made a forensic decision at trial to challenge the cogency of the evidence on the ground that it was unknown whether human contact had occurred in the samples the subject of the study and the new evidence could with the exercise of reasonable diligence have been adduced at trial.
2.       The new evidence is not compelling. The evidence is not substantial or highly probative in the context of the issues in dispute at trial as it does not undermine Ms Mitchell's ultimate opinion expressed at trial that, for a number of reasons, the absence of DNA evidence does not preclude contact having taken place. The errors in Ms Mitchell’s evidence at trial concerning the 10 per cent figure were addressed at trial.
3.       It is not in the interests of justice to consider the evidence on an appeal. It was open to the jury to accept the complainant’s evidence and convict the applicant on that basis. The defendant raised his concerns with the DNA evidence on the hearing of his first appeal against conviction. He had multiple opportunities to adduce further evidence after trial but did not do so.
Criminal Law Consolidation Act 1935 (SA), s 39(1), 270A, 353A(1),(2),(3), 353A(6)(a), (6)(b), 353, 357(3); Criminal Procedure Act 2009 (Vic); Statutes Amendment (Appeals) Act 2013 Schedule 1; Supreme Court Act 1935 (SA) s 5(1), 48(3), referred to.
R v Keogh (No 2) (2014) 121 SASR 307, applied.
Craig v The King (1933) 49 CLR 429; Davies and Cody v The Queen (1937) 57 CLR 170; Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627; Gallagher v The Queen (1986) 160 CLR 392; Grey v The Queen (2001) 75 ALJR 1708; James v Keogh [2008] SASC 156; Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; Mallard v The Queen (2005) 224 CLR 125; R v Drummond [2012] SASCFC 87; R v Taufahema (2007) 228 CLR 232; Ratten v The Queen (1974) 131 CLR 510; Re Knowles [1984] VR 751; Wood v The Queen (2012) 84 NSWLR 581, discussed.
Baini v The Queen (2012) 246 CLR 469; Burrell v The Queen (2008) 238 CLR 218; Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588; Dyers v The Queen (2002) 210 CLR 285; Gerakiteys v The Queen (1984) 153 CLR 317; Grierson v The King (1938) 60 CLR 431; King v The Queen (1986) 161 CLR 423; Parker v The Queen (1997) 186 CLR 494; R v Edwards [No 2] (1931) SASR 376; R v Drummond (2013) 118 SASR 244; R v Keogh (2007) 175 A Crim R 153; R v Keogh [2014] SASCFC 136; R v Maiolo (No 2) (2013) 117 SASR 1; R v Milton [2009] SASC 44; R v Parenzee (2007) 101 SASR 456, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"Compelling", "in the interest of justice", "substantial miscarriage of justice"

R v DRUMMOND (NO 2)
[2015] SASCFC 82
Court of Criminal Appeal: Gray, Peek and Blue JJ
GRAY J.

This is an application for permission to appeal against conviction for a second time, pursuant to section 353A of the Criminal Law Consolidation Act 1935 (SA). The Court directed at the outset of the hearing of the application that, in the event of a grant of permission, the substantive appeal would be treated as having been heard instanter.
Following an initial hearing of the application, a differently constituted Court published its decision in Keogh (No 2).[1]That Court addressed in detail the interpretation of section 353A, a matter which had been canvassed at the hearing of the present application. Following the publication of Keogh (No 2), this Court invited further submissions from the parties. Those submission have now been received and, as a consequence, it is appropriate for the within proceeding to be finalised.
[1] R v Keogh (No 2) (2014) 121 SASR 307.
Introduction
On 16 March 2012, following a trial before Judge and jury in the District Court, the defendant and applicant, Adrian Shane Drummond, was convicted of the offence of attempted kidnapping.[2] On 24 July 2012, an appeal against that conviction was dismissed by the Court of Criminal Appeal.[3] An application for special leave to appeal was refused by the High Court. On 12 December 2013, a Judge of this Court refused the defendant permission for a second appeal against conviction pursuant to section 353A of the Criminal Law Consolidation Act.[4] The defendant has now sought permission for a second appeal from this Court.
[2]    Criminal Law Consolidation Act 1935 (SA) sections 39(1), 270A.
[3]    R v Drummond [2012] SASCFC 87.
[4]    R v Drummond (2013) 118 SASR 244.
The Prosecution Case
The prosecution case at trial was that, on the afternoon of 24 November 2010, a man alighted from a white car and attempted to force the complainant into his car while the complainant was walking home from school on Prospect Road. The complainant did not identify the defendant as her assailant and the prosecution case on the issue of identity was circumstantial — heavily reliant upon the complainant’s evidence that she had observed and accurately recorded the registration number of the car from which her assailant alighted. The registration number she recorded, VMB 134, was the registration number of the defendant’s car. The prosecution led evidence from a forensic scientist, Natasha Pamela Toop Mitchell, for the purpose of explaining why the absence of the defendant’s DNA on the complainant’s clothing and the absence of the complainant’s DNA on the defendant’s clothing did not exculpate the defendant and, on the prosecution case, was not a circumstantial fact tending to suggest that the defendant may not have been the assailant.
The Defence Case
The defendant gave evidence at trial and called good character evidence from his spouse. He also elicited good character evidence from a prosecution witness through cross-examination. The defendant denied any involvement in the alleged incident involving the complainant. He acknowledged that he had driven on Prospect Road that afternoon, but gave evidence that he knew nothing of any incident that in any way related to the charge before the Court.
The Incident
On 24 November 2010 at about 4.30 pm, the complainant, a secondary school student, was walking north on the eastern footpath of Prospect Road. She had been with friends and was going home. She was not in school uniform. Prospect Road is a major road running north and south. She noticed a slow moving white car drive toward her, travelling south. She saw the driver looking directly at her and took her mobile phone from her pocket and saved the registration number, VMB 134, into her drafts. In cross-examination, when asked why she did this, she responded, “because... I thought if I was murdered and people found my phone they would find the rego plate and they would find them”.
The complainant in evidence in chief recounted that the car passed her and was behind her. She then heard a door slam and looked behind to see a man walking around the front of his car. She described herself as terrified and kept walking until she felt her arm being grabbed. She indicated that she was grabbed on the top of her right arm, that it was a forceful grab and that she tried to continue walking but the man held on to her. She thought that the man had mistaken her for someone else. She kept trying to walk away and heard a voice say “get in the car”. At this point, she turned to her right to face the man. He kept saying “get in the car”. She described the man as being calm. As she faced the man, he grabbed the top of her left arm and tried to pull her back toward the car. She then pushed forcefully against his arm and chest with her arm. She described the level of force she used as hard and aggressive. The man stumbled backward. She clubbed her fist and hit him around the collarbone and face two or three times. She then turned and ran north on the footpath of Prospect Road. She looked over her shoulder a few times and saw the man getting into his car. Once he was in the car, she started to walk and slow down. She did not see him drive off.
The complainant continued walking for about two or three minutes and, as she approached the junction of Prospect Road and Alpha Road, she saw the same car with the same registration number pull up next to her. She did not see the driver. She kept walking. The car did not come to a stop and travelled away. As she continued to walk north on Prospect Road, she came to its junction with Johns Road and saw the vehicle pass her again and she noted that it had the same registration number. She then turned from Prospect Road into Percy Street, where she met her mother.
The defendant denied any involvement in any incident on Prospect Road that afternoon. He acknowledged that he was driving a white station wagon with the registration number VMB 134 home from work that afternoon. On the defence case, he only drove north on Prospect Road, turning off on Grand Junction Road. He gave evidence of his good character and of having no prior convictions. He was 39 years’ old at the time of the incident.
At about 5.30 pm on that day, following a search of the vehicle registration number VMB 134, the police attended at the defendant’s home and spoke to him. They observed that there were no marks or bruises on his chest. They seized clothing that the defendant had been wearing and his mobile phone. No swabs for contact DNA and no fingernail scrapings were taken at that time from the defendant’s hands.
At about the same time, police attended at the home of the complainant and obtained her statement. The complainant removed the clothes she had been wearing at the time of the incident. The police took possession of those clothes the following day. No medical examination of the complainant was conducted. No swabs for contact DNA were taken from her arms or hands at that time. Some days later, hand swabs and fingernail scrapings were taken.
Evidence Concerning Identification
The complainant described her attacker in evidence in chief as follows:
Q. And, in terms of describing the man who grabbed you, what colour hair did he have.
A.      Brown.
Q.      What type of hair did he have.
A.      Sorry, what do you mean?
Q.      Like straight or not straight.
A.      It was sort of wavy.
Q.      How long was it.
A.      It was about collar length.
Q.      Was it parted at all.
A.      It possibly had a centre part but I don't remember.
Q.      Was it a full head of hair.
A.      Yes.
Q.      Did you notice what colour his eyes were.
A.      Brown.
Q.      Did you see him smile at all.
A.      Yes.
Q.      When.
A.      I saw him smile as he drove towards me.
Q. Is there anything that you can assist the ladies and gentlemen of the jury about his smile.
A. As he drove towards me and he got closer I noticed that he had yellow stained teeth and that - I'm not really sure how to describe it but his smile was really creepy.
Q.      What build was he.
A.      He was, like, thin to medium, not very muscly.
Q.      Did he have any accent that you noticed.
A.      No.
No evidence was given about the man’s age, height or weight.
The complainant described her assailant during evidence in chief as wearing a T-shirt, “it wasn’t like a bright white, it was more like a dim white and, with the fading in the collar, it was, like, darker – I don’t know light brown around some parts, like dirty.” In cross-examination, she was shown the T-shirt that the defendant was wearing on 24 November 2010, which was brown and carried the distinctive wording “Dulux Protective Coatings”. She agreed that this was not the T-shirt she had described. The complainant described her assailant during evidence in chief as wearing “blue track pants”. In cross-examination, she agreed that the faded black jeans the police had seized from the defendant were not the sort of pants she had described. The complaint’s evidence in chief concerning her assailant’s clothing was as follows:
Q.      What was he wearing.
A. There was a white, like, a dim white top that was really faded around the neck. It was dirty and stained, it looked like brown marks on it.
Q.      Do you know what he was - what sort of pants he was wearing.
A.      They were just blue track pants. I didn't really get a good look at them.
Q.      Did you pay any attention to what he had on his feet.
A.      No.
In cross-examination on this topic, the complainant said:
Q. This isn't the white T-shirt with the staining around the collar that you described, is it.
A.      No.
Q.      The man who attacked you didn't have that on, did he.
A.      No.
Q.      He didn't have a T-shirt which clearly said 'Dulux Protective Coatings' on it.
A.      No.
Q.      You told us that the man who attacked you had blue tracksuit pants on.
A.      Yes.
Q.      These weren't the sort of pants that he had on, were they.
A.      No.

The clothing seized by the police from the defendant exuded a strong smell of solvents used in the defendant’s workplace. The complainant gave no evidence of being aware of any such odour emanating from her assailant. On the question of odour, the complainant gave the following evidence in cross-examination:
Q.      Do you know what petrol smells like.
A.      Yes.
Q.      He didn't smell anything like petrol did he.
A.      No.
Q.      He didn't have any weird smells about him, did you notice.
A.      No.
Q.      You didn't notice any weird smells like petrol about him.
A.      No.
Q.      You were quite close to him.
A.      Yes.
The complainant agreed that false teeth worn by the defendant were too white to meet the description that she had given.
Q. And you noticed immediately that the person who was smiling at you from inside the car had yellow teeth.
A.      Yes.
Q.      So they definitely had a full mouthful of teeth.
A.      I don't know, I don't remember.
Q.      It wasn't just two teeth down the bottom, you could see a lot of teeth, could you.
A.      Yep.
Q.      You thought they were quite yellow.
A.      Yes.
Q.      That was something that you remembered.
A.      Yes.
The complainant gave no evidence of observing substantial tattoos on the defendant’s forearms.
On 13 December 2010, the complainant was shown a photographic identification pack by the police containing photographs of a number of men, including the defendant. The complainant did not select the photograph of the defendant. Instead, the complainant selected the photograph of another man.
There was no dispute at trial that the registration number recorded by the complainant was the registration number of the defendant’s white station wagon. There were two allegedly distinctive features about the defendant’s vehicle that were not observed by the complainant: yellow fog lights at the front of the vehicle and red LPG stickers on both registration plates on the vehicle.
DNA Evidence
During his opening address, the prosecutor said:
Ladies and gentlemen, her top was tested for his DNA, his top was tested for her DNA. There is no contact DNA that matches. You will hear from a forensic scientist that this is not like the TV shows, the absence of DNA could be caused by a number of factors. You don't always get contact DNA just from touching something. That is you don't necessarily leave enough DNA to be tested for a positive result by touching something.
[Emphasis added]
Counsel for the defendant addressed the absence of incriminating DNA evidence during his opening as follows:
There is no forensic support for the allegations; that is an issue in this trial.
As noted above, Ms Mitchell was called by the prosecution to give expert evidence. Ms Mitchell gave evidence of attempts to recover traces of DNA from the clothing of each of the complainant and the defendant. Ms Mitchell is a forensic scientist with Forensic Science SA, which provides forensic services to government departments, including the police, and private citizens alike. Traces of DNA were found on the clothing of each of the defendant and the complainant. However, no trace of the defendant’s DNA was found on the complainant’s clothing, nor was any trace of the complainant’s DNA found on the defendant’s clothing. Ms Mitchell’s opinion was that the fact that no DNA material was located did not mean that there was no contact between the defendant and the complainant. She explained why DNA material might not be found on an object even when a person has come in contact with the surface of that object.
Ms Mitchell said that at least three persons contributed to the DNA found on the complainant’s singlet. That DNA was consistent with the DNA contained in reference samples provided to the police by the complainant and a friend of hers, Mr Johns. The defendant was excluded as a contributor.
Ms Mitchell said that at least two persons contributed to the DNA found on the defendant’s T-shirt. That DNA was consistent with the DNA contained in a reference sample provided to the police by the defendant. The DNA contributed by the second person, and any further persons, was not identified, however, the complainant was excluded as a contributor.
In her evidence, Ms Mitchell addressed the significance of the absence of the defendant’s DNA on the complainant’s clothing and the absence of the complainant’s DNA on the defendant’s clothing:
Q. Can you tell the ladies and gentlemen of the jury what was found or what your results were in respect of the Drummond T-shirt.
A. So, with respect to the T-shirt relating to Drummond we obtained a mixed DNA profile. So what that means is that we have a DNA profile and when there is more than one person that is contributing to that DNA profile we say that is mixed. We, from the DNA, by looking at the DNA profile, we can say there is at least two people that have contributed to the DNA profile that's been generated. From there, we excluded [the complainant] from being a contributor to that DNA profile so we say that [the complainant] DNA wasn't found on that sample from the T-shirt. We also say that, when we have a mixed DNA profile and the contributors contribute to it or individuals contribute to it unequally, then we can interpret a major component, so someone who is contributing to it the most, and sometimes a minor; we may be able to do that. In this case we didn't. So we can say the major contributor to that DNA profile was Drummond. So there is at least two individuals. [The complainant] is excluded as being a contributor, and the major component of the profile matched Drummond.
...
Q.      I touch the fabric on this chair; I've touched it.
A.      Yes.
Q. Everyone has seen that I've touched it. To test the chair for my DNA, would we use the same process of taking a piece of sticky tape and sticking it to the place that I've touched.
A.      Yes, typically.
Q.      If we missed the place that I've touched, would we necessarily find my DNA there.
A.      Perhaps not, no.
Q. Are there differences between people as to how much DNA they leave when they touch something.
A. Yes, definitely. So there are a number of factors that may vary or influence the ability to obtain a DNA profile from where someone has touched and item. That can be from the person itself. There are what we call good shedders and bad shedders so some people will naturally leave a lot of their cellular material behind and other people won't. There is no way of determining who is a good shedder and who is a bad shedder without undergoing specific testing but typically some people leave behind quite a lot of DNA through a small touch and other people won't. There are other factors that may influence the ability to obtain a DNA profile also and they are the surface of the item. So if it was a very smooth surface like glass that is not so good as - well, it's less of a chance that a DNA profile or DNA will be left behind from the person, where something like wood or fabric, that kind of surface, absorbs it I guess, maybe it's a rougher surface and that picks up the DNA or cellular material more readily.
Q. Building on that, is there a difference in terms of likelihood of depositing DNA between a blow and grabbing something and holding onto it.
A. Yes, so another factor that may influence depositions of cellular material is the nature of the contact, whether that be what we call passive or a friction contact. So, whether someone just simply holds it in their hand like that (INDICATES) or if they're moving it around. You can imagine, with that friction of an item against a surface, it would, you know, shed off or peel off a few - some cellular material.
Q.      Do body fluids leave more DNA than just physical touching or contact.
A. Typically that's the case... So if I can liken it to a bag of marbles, if a bag of marbles represents a drop of blood, there are thousands of marbles in that bag but the same - a small area of where contact DNA has been said to be deposited, there is maybe 100 or so marbles in that bag. Because it's a richer source of cellular material and richer source of DNA it means you are more able to get a DNA profile from bodily fluids like blood and so forth.
...
Q. In terms of the absence of Drummond DNA or on the black top and the absence of [the complainant] DNA on the T-shirt, can the absence be explained in a number of ways.
A. Yes. So when a contact has occurred, we can leave behind cellular material, we can obtain a DNA profile like I said before. But if we don't obtain a DNA profile it could be that there is just too few cells or too few marbles in the bag for our systems to detect it. So it doesn't mean necessarily that there was no contact. Of course that is absolutely one explanation for that, but it also means that our systems were just unable to detect any cellular material or DNA left behind from that contact.
...
Q. On the television we see examples of a person touching a chair and a lab immediately finds a result of someone having touched it. How does that compare to real life.
A. Certainly it can happen where a DNA profile is obtained by someone after contact has occurred but it's certainly not always the case and in fact for the contact DNA swabs that we receive at Forensic Science South Australia often you know - studies have shown in our laboratory that 10% of those swabs or samples actually only provide us with any useful information, so it's quite common for us not to be able to obtain DNA or obtain useful information from a DNA profile with respect to contact DNA samples.
Q. From the statistic you've given, does that mean in nine cases out of 10 usable DNA is not recovered.
A.      Yes.
[Emphasis added.]
At the commencement of cross-examination, Ms Mitchell was asked to clarify her comments about the statistics on the usability of DNA:
Q.I didn't really follow that last piece of your evidence about the 10% of samples. Can you go through that again please.
A.... At Forensic Science South Australia we sort of did a small study into the success of our samples or success of the contact samples that have been submitted to our laboratory and what we found was that in only about 10% of the cases where - 10% of the samples that were submitted that were contact DNA samples, so they are maybe a swab of an item, a tape lift off an item, the most typical, that only in 10% of those cases would we obtain a useful DNA profile. What we mean by that is that a DNA profile that is suitable for upload onto our database. It doesn't mean that we don't get DNA. It just means it's not suitable for upload onto our database which we have fairly stringent criteria for.
Q.To assess that figure of 10%, for it to be useful for evidence, wouldn't the Forensic Science Centre need to know empirical data about whether DNA was actually left on those samples.
A.Yes, I see your point. It's really just for us, sort of an indication of how useful contact DNA samples are for uploading on the database, so yes.
Q. Can it be expressed this way: how many samples would you get in a year for contact DNA, roughly.
A. I couldn't tell you that figure offhand. I'm sorry - many, many.
Q. Let's say it's one thousand; you might expect 100 results to show you something good enough to get on the system.
A. Yes, to upload on the database but certainly there are many more cases where we have DNA information and we can make comparisons to them. We just can't upload them on the database.
Q.One explanation for nothing being on the other 900 was there was no biological material left on those samples.
A. Absolutely.
[Emphasis added.]
Ms Mitchell’s evidence allowed, inter alia, the following conclusions:
-The DNA samples from the clothing of the defendant excluded the complainant as a contributor.
-The DNA samples from the clothing of the complainant excluded the defendant as a contributor.
-The likelihood of DNA being left on a surface is dependant in part on the nature of the surface, the nature of the contact with that surface and a person’s propensity to shed DNA.
-DNA is more likely to be left on a surface such as wood or fabric than a surface such as glass.
-DNA is more likely to be left on a surface where there has been prolonged or vigorous contact.
-A failure to obtain DNA from an item does not preclude the possibility that contact with that item occurred.
-The DNA testing conducted on the clothing of the complainant and the defendant did not preclude contact having taken place between the complainant and the defendant.
-A small study into the success of sampling at Forensic Science SA disclosed that DNA that may be uploaded on to the database is recovered in about 10 per cent of cases. This study related to samples where it was unknown whether DNA had in fact been left on each sample and, as a result, was only a “sort of indication” of how useful DNA samples are for uploading onto the database.
The prosecutor referred in the following terms to Ms Mitchell’s evidence during his closing address:
You've heard the expert evidence. It's not unusual to not get DNA. That depends on the nature of the contact, whether you are a shedder or not a shedder, and it depends on the scuffle; she's been grabbed on the arm, she's hit him. That's a matter for you but on the forensic evidence there is nothing unusual about the fact that there is no discernible DNA that the Forensic Science SA were able to get from her clothes or his clothes; nothing unusual about that.
[Emphasis added.]
This submission was open on the evidence of Ms Mitchell.
In his closing address, counsel for the defendant addressed the DNA evidence in the following terms:
I want to talk to you about DNA because, in my submission, the DNA evidence is quite interesting and, can I suggest you shouldn't be sucked into a situation where you think that the accused might still have touched her clothes but it wasn't recovered. My learned friend may have slipped when he said that there was 'no discernible DNA found on [the complainant’s] top'. That is wrong. There was no DNA found at all. You heard the evidence. For goodness sake, a boy hugged her in that top and left DNA on her. This bloke is supposed to have dragged her, scuffled with her from behind and then from the front, and there is not a skerrick. Excluded.
[Emphasis added]
The suggestion by defence counsel, as emboldened above, that the absence of the defendant’s DNA on the complainant’s clothing excluded contact between the defendant and the complainant was in conflict with the evidence of Ms Mitchell. It was open to the defence, however, to submit to the jury that there was no DNA evidence to connect the defendant with the complainant.
The Judge directed the jury on Ms Mitchell’s evidence in the following terms:
The evidence of Ms Mitchell, whose qualifications in the area of recovery and analysis of DNA material was not challenged, told you that the clothing of both [the complainant] and the accused Mr Drummond was tested for contact DNA material and that no samples were found. She also told you that it is not unusual for there to be an absence of DNA material where the testing is for contact DNA. Bear in mind her evidence about the study that had been undertaken, within her laboratory at least, and, although it might be difficult to ascertain from that what proportion of the sample contained contact DNA, because she said that they only uploaded material or evidence relating to material of certain quality, she said that they were only able to do that in about 10% of cases.
You will bear in mind in assessing this issue of the absence of contact DNA material the evidence of [the complainant] that she was wearing a singlet top and the man who grabbed her grabbed her on her upper arms. You will also bear in mind however that there was no DNA material recovered from the T-shirt that it is an agreed fact the accused was wearing when he was in the vicinity of Prospect Road. In deciding whether you accept or reject Ms Mitchell’s evidence you look to the qualifications and expertise of the witness and, as I said, that is not really challenged; the manner in which she gave her evidence; your understanding of the evidence; the circumstances which formed the basis of her opinion and all the material evidence in the case. The evidence of experts is ultimately like any other evidence, that is you must assess it, analyse and decide whether you accept it and, in doing so, apply your common sense.
[Emphasis added.]
Although it might be described as being loosely expressed, the Judge’s summing up on this topic accorded with the evidence of Ms Mitchell. Importantly, the Judge emphasised that no relevant contact DNA material was found on the clothing of either the complainant or the defendant which could establish contact between them. The Judge further reminded the jury that there could be contact without leaving contact DNA.
When addressing the study undertaken by Forensic Science SA, the Judge pointed out that there was a difficulty in ascertaining the proportion of the samples that could be uploaded onto the database. This reflected the telling point made by defence counsel in cross-examination that it was unknown whether the samples used in the tests contained any contact DNA at all. This was the point that Ms Mitchell acknowledged, prompting her to explain that the Forensic Science SA testing only gave quote “sort of an indication of how useful contact DNA samples are for uploading on the database”.
After the Judge summed up to the jury, counsel for the defendant made a complaint concerning the Judge’s treatment of the DNA evidence:
MR STEWART:   I have a gripe, but I don’t think that it should be corrected, and that’s in relation to the evidence of Ms Mitchell about the 10% of results only returning positive contact DNA.
In my submission that evidence is faulty because there is no data about whether or not contact DNA has been placed on any of those examples. In my submission it shouldn’t have been led by the Crown and your Honour has confirmed it, but to change it now would just draw more attention to it.
In my submission that evidence is absolutely worthless and could cause great difficulty with getting to the nub of the DNA issue.
HIS HONOUR:    I had hoped I had qualified it by saying that it was only evidence of a certain quality that they were prepared to upload which falls into that 10% category.
I perhaps should have said that some of the broad category of material may not contain any DNA in any event. But the effect of her evidence is that sometimes you can’t get DNA.
MR STEWART:    Yes.
HIS HONOUR:    I noticed when you raised the matter you said you may need it. You don’t seek to have me correct it; is that the position?
MR STEWART:    No, I think that’s just going to draw more attention to it.
[Emphasis added.]
It is apparent that counsel made a forensic decision not to pursue his “gripe” any further.
It is reasonable to infer that, during the evidence of Ms Mitchell, defence counsel was alert to the problem with the Forensic Science SA tests. As noted above, at the outset of cross-examination, he obtained the concession from Ms Mitchell that the testing was no more than “sort of an indication of how useful contact DNA samples are for uploading on the database” as Forensic Science SA did not have empirical data about whether DNA was actually left on the samples.
Defence counsel, for reasons to be discussed later, was aware that the prosecution would lead evidence of testing conducted by Forensic Science SA as this was made known to him shortly before trial. The prosecutor, had defence counsel requested the notes and tests relevant to this topic, would have been obliged to disclose this material. As a consequence of the late disclosure, the defendant would have been entitled to an adjournment to consider the material and, if necessary, obtain independent expert advice. Counsel made the forensic decision not to do so.

During cross-examination, when defence counsel raised with Ms Mitchell the problem associated with the fact that it was unknown whether the relevant samples contained DNA, he had the opportunity to request material relating to the test, had he wished to further undermine Ms Mitchell’s evidence. It is evident that he made a forensic decision not to do so. The effect of his cross-examination was to substantially reduce the weight of this aspect of Ms Mitchell’s evidence. As a consequence of this cross-examination, the testing was only “a sort of indicator”. In these circumstances, it is understandable why counsel would make a forensic decision not to pursue the topic any further. The test results were of little weight as a consequence of the absence of any empirical data.
Following the summing up, defence counsel had a concern that the Judge had left Ms Mitchell’s evidence on the topic of the testing to be of some relevance. Counsel appeared to have taken the view that the Judge had given the evidence more weight than it deserved. Counsel expressed the view that the evidence was “absolutely worthless”. His point was that there was no data demonstrating that contact DNA was present on any of the relevant samples. The Judge offered to consider a correction. Counsel specifically declined that invitation. This, again, was a forensic decision by counsel. It is a common occurrence for Judges to make corrections at the request of counsel at the end of the summing up. The Judge was offering to consider doing so in this case. The position is that defence counsel did nothing but raise a “gripe” at the end of the summing up and seek no redirection or any other relief. This is understandable given the earlier extracted and emphasised portion of defence counsel’s closing submission. He had invited the jury to find that because there was no contact DNA, there had been no contact. This submission did not have any support in the evidence.
The First Appeal Against Conviction
One ground of appeal addressed the evidence of Ms Mitchell as follows:
The Learned Trial Judge erred in not directing the jury to disregard the evidence of the forensic scientist Mitchell on the internal Forensic Science Centre statistics on the percentage of reportable findings as against cases assessed...
(a)    The evidence related to reportable findings i.e. those which could be uploaded onto the Forensic Science database; and no sufficient distinction was drawn on any difference between no result and a result that could not be reported. The risk was leaving the jury with an inaccurate assessment of and therefore weight to be given to the absence of DNA from the accused on the complainant or her clothing.
(b)    The evidence was not assessed against the finding of DNA from a male other than the accused on the complainant’s clothing.
(c)    This evidence was not categorised in any way that might taken into account the age, source, or other material factors that might have affected the testing of the items or samples.
In the written outline of argument relied on by the defendant in his first appeal against conviction, this ground of appeal was repeated verbatim. A review of the transcript of submissions before the Court reveals that nothing was said on this topic by counsel appearing for the defendant on the first appeal.
The Director, in his oral submissions, addressed this ground as follows:
[THE DIRECTOR]:    In terms of ground two, [counsel] hasn't dealt with that. Can I just make these following brief points. This relates to the evidence given by Mitchell of a study down at the Forensic Science Centre as to how often, if an item is submitted for DNA testing, supposedly then having been touched, did they, in their very limited study, discover DNA which was appropriate to go onto the database.
The ground of appeal, with respect, is completely misguided. It says that that evidence should have been withdrawn from the jury. There was nothing inadmissible about the evidence that Mitchell gave on that topic. It might be criticised for its weight, but that is a different matter.
But far more importantly are the following two things. The first is that in his summing up at appeal book 70 the learned trial judge accurately described that aspect of the evidence. So there's no risk of a miscarriage through misdescription of the evidence or it being elevated beyond what it meant.
And the final point I make is that the fundamental importance of Mitchell's evidence was her opinion that you could touch an item of clothing and either not leave DNA behind or that DNA not be picked up in sampling and testing, the study that she gave evidence about, and there's no reason to think that that would have changed her opinion as to that fundamental issue and that was what the evidence was really about. There was no male DNA matching the appellant found on her tank top but, of course, one wouldn't expect there to be because she had been grabbed by the upper arm on her bare skin. And in terms of her DNA on his clothing, there was very limited evidence that she had touched his clothing. There was evidence of a punch or push to his chest but there is evidence that you can touch an item and not leave any DNA behind. There was also no evidence at all that every aspect of his T-shirt had been tested for the presence of DNA.
KOURAKIS J:            Mr Stewart actually cross-examined at length on this evidence.
[THE DIRECTOR]:    That's right. It was led at the very end of her evidence-in-chief and this was evidence that Mr Stewart adduced and so it was evidence, as your Honour perhaps is putting, that he wanted to help him.
KOURAKIS J:  These things happen out of context. I expect both the prosecutor and Mr Stewart well knew that this was going to be an issue, defence were going to make the CSI point: if this had happened, you'd expect DNA, his DNA wasn't there. So this evidence was led from Ms Mitchell in anticipation of that and sure enough Mr Stewart gets right into it when he starts cross-examining.
[THE DIRECTOR]:    That's right, and that is why the prosecutor would have led it. I mean, I haven't spoken to the prosecutor but he anticipated, as your Honour says: they know about these exhibits, they know about the absence of his DNA, I should lead some expert evidence about the significance or otherwise of the absence of DNA.
The Chief Justice in his reasons observed:[5]
[5]    R v Drummond [2012] SASCFC 87, [20]-[23].
The failure to find any of the appellant’s DNA on [the complainant’s] clothing is insignificant.…A forensic scientist gave evidence as to why contact DNA cannot always be found. …
The forensic scientist gave evidence of the attempts to discover traces of DNA on the clothing of the [defendant] and [the complainant’s] clothing. As I earlier observed, no trace was found of the [defendant’s] DNA on [the complainant’s] clothing. Nor was any trace of [the complainant’s] DNA found on the [defendant’s] clothing. After describing the nature of DNA testing, the following evidence was adduced from [Ms Mitchell]:
Q.      On the television we see examples of person touching a chair and a lab immediately finds a result of someone having touched it. How does that compare to real life?
A.      Certainly it can happen where a DNA profile is obtained by someone after contact has occurred but certainly not always the case and in fact for the contact DNA swabs that we receive at Forensic Science South Australia often you know – studies have shown in our laboratory that 10 per cent of these swabs or samples actually only provide us with any useful information, so it’s quite common for us not to be able to obtain DNA or obtain useful information from a DNA profile with respect to contact DNA samples.
The [defendant’s] counsel cross-examined [Ms Mitchell] on that evidence. [Ms Mitchell] explained that in those 10 per cent of cases insufficient DNA was extracted for the purposes of analysis and placement into the Forensic Science Centre’s data.
In my view [Ms Mitchell’s] evidence was admissible. … the evidence of [Ms Mitchell] had some evidential significance in supporting her opinion that a DNA profile might not be obtained from an item despite human contact because it left “just too few cells or too few marbles in the bag for our systems to detect it”. [Ms Mitchell] went on to explain that the failure to obtain and locate traces of DNA:
Doesn’t mean necessarily that there was no contact. Of course that is absolutely one explanation for that, but it also means that our systems were just unable to detect any cellular material or DNA left behind from that contact.
[Emphasis added]
At no time before or during the first appeal was there any request for the production of any documents relating to the tests. There was no application to pursue any further forensic investigation, notwithstanding the matter being raised explicitly by way of appeal and addressed in the course of the appeal.
The Application for Special Leave to Appeal
The topic of DNA arose during the course of submissions to the High Court when complaints were made about the Court of Criminal Appeal’s treatment of the topic. The same contentions were advanced by the defendant as appeared in the outline of argument before the Court of Criminal Appeal. As noted earlier in these reasons, special leave was refused.
The Present Application
On the present application, the defendant sought to examine the studies undertaken by Forensic Science SA in much greater detail than at trial or on the first appeal. The studies were called for, as well as the supporting raw data. The effect of the evidence on this application was that the raw data had not been correctly assessed in at least one of the studies. Further, it was said that general conclusions were difficult to draw from the studies because of the nature of the contact surfaces involved. In a very real sense, however, these matters do not have any substantive effect on the relevant issues at trial.
Both defence experts giving evidence before this Court considered that the absence of contact DNA did not exclude there having been contact between the defendant and the complainant. Both experts endorsed the evidence on that topic given by Ms Mitchell at trial and the reasons for why that is so. These opinions demonstrate why the submission made by defence counsel at trial, as extracted and emboldened above, was incorrect. It did not follow that the absence of contact DNA established an absence of contact between the defendant and the complainant.
As the DNA samples found on the clothing of the defendant and the complainant provided no evidence of contact between the defendant and the complainant, the forensic tests took the matter no further. The defendant and complainant had been excluded as being contributors to the DNA samples. As discussed above, counsel for the defendant made forensic decisions at trial as to how the topic of DNA was to be investigated and addressed. For reasons earlier expressed, those decisions cannot be said to have been inappropriate or unreasonable. To the contrary, defence counsel recognised the flaw in the tests and Ms Mitchell acknowledged that flaw immediately.
Counsel for the defendant had the opportunity to seek further material before or during the first appeal against conviction. The opportunity to seek material about the testing existed. That opportunity remained at the time of the High Court application.
It is against this background that the present application comes to be considered.
Section 353A of the Criminal Law Consolidation Act
A question arises as to whether the evidence put before this Court satisfies the requirements of section 353A of the Criminal Law Consolidation Act. Before addressing this question, it is convenient to consider the construction of the section. Section 353A provides:
Second or subsequent appeals
(1) The Full Court may hear a second or subsequent appeal against conviction by a person convicted on information if the Court is satisfied that there is fresh and compelling evidence that should, in the interests of justice, be considered on an appeal.
(2) A convicted person may only appeal under this section with the permission of the Full Court.
(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
(4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
(5) If the Full Court orders a new trial under subsection (4), the Court—
(a)     may make such other orders as the Court thinks fit for the safe custody of the person who is to be retried or for admitting the person to bail; but
(b)     may not make any order directing the court that is to retry the person on the charge to convict or sentence the person.
(6) For the purposes of subsection (1), evidence relating to an offence is—
(a)     fresh if—
(i) it was not adduced at the trial of the offence; and
(ii) it could not, even with the exercise of reasonable diligence, have been adduced at the trial; and
(b)     compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
(7) Evidence is not precluded from being admissible on an appeal referred to in subsection (1) just because it would not have been admissible in the earlier trial of the offence resulting in the relevant conviction.
Section 353A of the Criminal Law Consolidation Act was enacted by the Statutes Amendment (Appeals) Act 2013 (SA) and commenced operation on 5 May 2013. It permits second or subsequent appeals in relation to offences committed before or after that date.
Section 353A of the Criminal Law Consolidation Act may be contrasted with section 353, which reflects the position that, once an appeal against conviction or sentence has been heard and the orders of the Court perfected, the right of appeal is exhausted and the power to determine the right is spent – under section 353, there is no power to re-open the hearing of a dismissed appeal or to hear a further appeal.[6]
[6] R v Edwards [No 2] (1931) SASR 376, 378; Grierson v The King (1938) 60 CLR 431, 434-7; Burrell v The Queen (2008) 238 CLR 218, [24]; R v Keogh (2007) 175 A Crim R 153, [81].
Section 353A(1) confers jurisdiction on the court to hear second or subsequent appeals. As earlier noted, submissions on the present application concluded prior to the hearing and delivery of the judgment of this Court in Keogh (No 2).[7]That decision comprehensively addressed the construction of section 353A. The parties in the present application were invited to provide such further submissions as they wished having regard to the decision in Keogh (No 2). That invitation was also extended to the Attorney-General. All accepted this invitation.
[7] R v Keogh (No 2) (2014) 121 SASR 307.
On the question of construction, the decision in Keogh (No 2)[8] binds this Court and it is convenient to extract the relevant conclusions of the Court. The Court commenced its consideration by addressing the test for a grant of permission:[9]
Section 353A(1) of the Criminal Law Consolidation Act provides that three essential conditions be established before the Full Court will have jurisdiction to hear a second appeal. There must be before the Court evidence that: is fresh within the meaning of section 353A(6)(a); is compelling within the meaning of section 353A(6)(b); and should, in the interests of justice, be considered on an appeal. Any one piece of evidence relied on to found jurisdiction must satisfy all three requirements. It may be that there is only the one essential condition comprised of these three elements. We will refer to this one essential condition under section 353A(1) as the “jurisdictional fact”. The jurisdictional fact must be satisfied by an applicant, who bears the onus of proof in this respect, on the balance of probabilities.
...
The only available ground of appeal pursuant to section 353A is that there was a substantial miscarriage of justice. The Court hearing a permission application must, at least, ask whether this ground is reasonably arguable. However, it is to be remembered that the permission process is a means by which the Full Court is able to manage its workload with a view, inter alia, to avoiding a full hearing of plainly unmeritorious appeals.
Unlike with respect to sections 352 and 353, an applicant for permission under section 353A(2) must do more than simply show that the single available ground of appeal – that there was a substantial miscarriage of justice – is reasonably arguable. An applicant will also, ultimately, need to establish to the Full Court’s satisfaction that it has jurisdiction to hear the appeal. Even if the permission court is satisfied that the single available ground of appeal is reasonably arguable, it would make no sense to have the Full Court conduct the appeal with a view to determining its merits if the case is one where the existence of the necessary jurisdictional fact is not reasonably arguable.
Section 353A(2) is mandatory. There can be no appeal on the merits without permission first being granted. It is a matter for this Court as to how it organises its business, including by making use of the permission filter. The longstanding practice of the Court of Criminal Appeal has been to consider only the grounds of appeal at the permission stage. However, it does not follow that this practice should be continued with respect to the very different appeal process envisaged by section 353A.
Leaving aside for the moment the question of whether a permission hearing pursuant to section 353A(2) can be conducted by a single Judge, it makes practical sense for the permission filter to embrace both the jurisdictional fact and the single ground of appeal on a reasonably arguable basis. It may be that the Court hearing the permission application can form a clear view that one or more elements of the jurisdictional fact cannot be made out. In such a case permission can be refused at an early stage. In cases such as the present, the Court determining permission will not be able to do so without receiving all evidence relied on by the applicant, at least de bene esse, and without hearing full argument on both the permission question and the merits of the appeal itself.
[8] R v Keogh (No 2) (2014) 121 SASR 307.
[9] R v Keogh (No 2) (2014) 121 SASR 307, [80]-[88].
The Court construed the requirement that evidence be fresh in the following terms:[10]
[10] R v Keogh (No 2) (2014) 121 SASR 307, [98]-[102].
The concept of fresh evidence is well known to the common law, as is the distinction between fresh evidence and new evidence, in the context of a first appeal pursuant to section 353 of the Criminal Law Consolidation Act. The common law definition of fresh evidence for this purpose is not dissimilar, in a practical sense, to the definition provided for by section 353A(6)(a). In Ratten, Barwick CJ, with whom McTiernan, Stephens and Jacobs JJ agreed, observed:
... The rule in relation to civil trials is that evidence, on the production of which a new trial may be ordered, must be fresh evidence; that is to say, evidence which was not actually available to the appellant at the time of the trial, or which could not then have been available to the appellant by the exercise on his part of reasonable diligence in the preparation of his case. However, the rules appropriate in this respect to civil trials cannot be transplanted without qualification into the area of the criminal law. But the underlying concepts of the adversary nature of the trial, be it civil or criminal, and of the desirable finality of its outcome are valid in relation to trial of a criminal offence.
By way of contrast, new evidence includes evidence of which an appellant was not actually aware but could, with reasonable diligence, have been discovered by the time of the original trial.
Ordinarily, an appellant will not have acted with reasonable diligence if they could reasonably be expected to have become aware of the evidence and adduced it at trial. However, at least insofar as the criminal law is concerned, there has always been scope for latitude when considering whether or not the evidence relied on could, with reasonable diligence, have been adduced at trial, given that the overriding consideration before a Court of Criminal Appeal is whether there has been a miscarriage of justice. At common law, the requirement that the evidence be fresh has to this extent been flexible. In Ratten, Barwick CJ continued:
... It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his decision as to the calling and treatment of the evidence at the trial.
Thus, there will be no miscarriage because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict of the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.
The Chief Justice returned to this proposition later in his judgment:
To sum up, if the new material whether or not it is fresh evidence, convinces the court upon its own view of that material that there has been a miscarriage in the sense that a verdict of guilty could not be allowed to stand, the verdict will be quashed without more. But if the new material does not convince the court, and the only basis put forward for a new trial is the production of new material, no miscarriage will be found if that new material is not fresh evidence. But if there is fresh evidence which in the court’s view is properly capable of acceptance and likely to be accepted by a jury and which is so cogent in the opinion of the court that, being believed, it is likely to produce a different verdict, a new trial will be ordered as a remedy for the miscarriage which has occurred because of the absence at the trial of the fresh evidence.
When considering the question of fresh evidence at common law, it would appear that there are two areas of “flexibility” or where “latitude” might be extended to an appellant. First, the court will have regard to the circumstances of the accused when deciding whether the evidence could have been adduced with reasonable diligence. Secondly, the court may receive evidence that is not strictly fresh if the evidence establishes that there has been a miscarriage of justice, namely that the verdict of guilty should not stand.
...
An applicant bears the onus of establishing that evidence relied upon for this purpose is fresh. The question of whether evidence was adduced at trial for the purpose of 353A(6)(a)(i) may be determined by having regard to the transcript of evidence at trial. The requirement in section 353A(6)(a)(ii), that the evidence could not, even with the exercise of reasonable diligence, have been adduced at trial, requires an objective assessment of what the applicant could reasonably be expected to have done in all of the circumstances leading up to and including the trial.
[Footnotes omitted.]

The Court addressed the meaning of compelling as follows:[11]
The requirement of reliability directs attention to the quality of the evidence itself and the person or means, documentary or otherwise, through or by which the evidence is adduced. It calls for a judgment of the type that judicial officers confront on an almost daily basis, that is, whether the evidence is sufficiently trustworthy or accurate such that it provides the Court with a sound basis, when considered together with other evidence as necessary, for drawing conclusions...
The word “substantial” should be given its ordinary meaning. It denotes being of sufficient importance, worth or value. Substantial is a qualitative, not quantitative, notion for the purpose of section 353A(6)(b). Evidence will be substantial, that is, of substance, if it merits being accorded weight as part of the consideration of the issue to which it relates. It may be that, in many cases, the requirement of substantial will add little. If evidence is seen to be reliable and highly probative in the context of the issues in dispute at trial, it is unlikely that it would be characterised as not substantial.
The requirement for the evidence to be highly probative in the context of the issues in dispute at trial directs attention to the relationship between the evidence adduced on the application for permission and the issues in dispute at trial. Whether evidence is probative will depend on what is to be proved and whether the evidence in question has the ability to affect rational persuasion about what is to be proved.
...
... Whether evidence can be said to be probative, highly probative or to have significant probative value will call for judgments to be made which will blend into one another. One judge may be prepared to describe a particular piece of evidence as highly probative, but another as only probative. Ultimately, there can be no precision to any definition. We are content to observe that evidence will be highly probative within the meaning of section 353A(6)(b)(iii) if it has a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate result in a case.
...
Subsection (6)(b)(iii) is intended, like other aspects of section 353A, to impose constraints on the availability of a second appeal. It is trite but appropriate to observe that an identification of the issues in dispute at trial will turn on the facts and circumstances of the particular case as prosecuted and defended. It would not be helpful to attempt an all embracing definition or description of this notion in a vacuum. Furthermore, paragraph (iii) does not require the evidence in question to be highly probative of, or with respect to, the issues in dispute at trial but, rather, to be highly probative “in the context of” those issues. This allows for a more expansive understanding of the qualification, but one which can only be applied having regard to the facts and circumstances of a particular case as it has been prosecuted and defended.
[Footnotes omitted.]
[11] R v Keogh (No 2) (2014) 121 SASR 307, [105]-[112].
The Court then turned to consider the requirement that it be in the interests of justice to consider the fresh and compelling evidence on an appeal:[12]
The phrase “in the interests of justice” is of wide import. It is not possible to set out an exhaustive list of circumstances in which the requirement will be satisfied. Once a court is satisfied that there is fresh and compelling evidence, as defined, it will then, by reference to that evidence, have regard to the applicant’s prospects of establishing that there has been a substantial miscarriage of justice under section 353A(3).
Section 353A creates the possibility of not just a second appeal but further or subsequent appeals. It is conceivable that an applicant might bring multiple applications based primarily on the same fresh and compelling evidence. In circumstances where an appeal has failed, notwithstanding such fresh and compelling evidence, a court may not be satisfied that it is in the interests of justice to consider that same evidence again on a subsequent appeal. The requirement of the Court to be satisfied that any fresh and compelling evidence relied upon is such that it is in the interests of justice to consider it on appeal will enable such apparently futile applications to be cut short either at the permission stage or on appeal without the need for a full hearing on the merits.
[12] R v Keogh (No 2) (2014) 121 SASR 307, [116]-[117].
Following detailed consideration of the meaning of substantial miscarriage of justice, the Court said:[13]
In summary, it is not possible to succinctly define a substantial miscarriage of justice. However, before a court will conclude that a substantial miscarriage of justice has occurred, it will consider whether, despite the irregularity, be it procedural or substantive, the conviction was inevitable. If a conviction is inevitable, then it is likely that a substantial miscarriage of justice has not been established. The categories of when and how a miscarriage of justice can occur are too numerous to attempt to define. However, they include wrongful admission of evidence, evidence which is flawed in some respect, comments by counsel or the judge which are prejudicial, and statements made which cannot be supported by the evidence.
[13] R v Keogh (No 2) (2014) 121 SASR 307, [128].
Expert Evidence Adduced on the Present Application
Before this Court, the defendant submitted that Ms Mitchell’s evidence was incorrect and misled the jury.
The Court received three affidavits of Ms Mitchell as well as a Forensic Biology Report dated 14 June 2011. Ms Mitchell gave oral evidence before this Court. The defendant relied principally upon documents produced by, and the evidence of, Ms Mitchell and the evidence of its two experts as comprising the “fresh evidence” for the purpose of the application for permission to appeal.
The Court received three affidavits of Harry Harding and two affidavits of Trevor Rothwell. Each is a forensic science expert engaged by the defendant to provide expert evidence to this Court on the present application. Dr Harding and Dr Rothwell each expressed the opinion that Ms Mitchell’s evidence at trial concerning 10 per cent of samples yielding a useful DNA profile was misleading.
It was common ground on the application for permission to appeal that the absence of evidence of incriminating DNA was a relevant consideration at trial.
Different methods of extraction, amplification and analysis of scene samples have been used by Forensic Science SA over time. In her evidence in this Court, Ms Mitchell identified the source of her belief when she gave evidence at the trial in March 2012 concerning only 10 per cent of samples yielding a useful DNA profile. She said that the source was a generic statement contained on page 3 of the standard form appendix to the forensic biology report used by Forensic Science SA. Forensic scientists employed by Forensic Science SA use a standard form to report the results of DNA analyses. The report itself comprises two standard form tables, one containing details of the reference samples and the other containing details of the evidence samples. The latter shows: whether a single or mixed DNA profile was found and, if the latter, the minimum number of individuals contributing to the profile; an interpretation of whether the DNA profiles match or are excluded as matching the reference samples; and, in some cases, a likelihood ratio.
There is attached to forensic biology reports used by forensic scientists employed by Forensic Science SA a standard form appendix comprising four pages. The appendix contains a terminology section followed by a standard form explanation of the methodology used generally. On page 3 of the appendix, the following paragraph appears:
Contact DNA refers to biological material left on an object through a contact transfer (such as touching, handling or wearing) and not by the deposition of a biological fluid (such as blood, semen or saliva). Contact DNA samples contain only small quantities of DNA and therefore analyses often do not give a usable profile. FSSA studies have found that of the majority of commonly submitted contact DNA sample types, only about 10% yield a usable DNA profile.
Ms Mitchell said in evidence before this Court that, when giving her evidence in March 2012, she relied upon this statement in the appendix and did not advert to or rely upon any specific studies that had been undertaken by Forensic Science SA.
After the defendant filed his application for permission to appeal, Ms Mitchell made enquiries within Forensic Science SA to ascertain the studies to which the appendix refers. She ascertained that there were two studies, the results of which were subsequently presented at International ANZFSS Symposia in 2008 and 2012.
In his affidavit of 6 September 2013, Dr Rothwell expressed the view that the studies referred to by Ms Mitchell had “no relevance” to the interpretation of the results in this proceeding. In Dr Rothwell’s opinion:
... no conclusions about contact or the lack of it may be drawn from the absence of a DNA result, i.e. a “negative” DNA result. The “negative” results obtained from the garments in this case provide absolutely no evidence to prove that contact between victim and accused had or had not taken place.
[Emphasis added.]
These observations accorded with the trial evidence of Ms Mitchell. They also accorded with the prosecution’s opening and closing addresses and the Judge’s summing up. Defence counsel’s closing submissions as extracted above misstated the position.
In his affidavit of 28 April 2014, Dr Harding explained that Ms Mitchell’s evidence primarily related to single source DNA profiles, whereas the evidence in this proceeding relates to mixed profiles – a limitation not expressly identified in Ms Mitchell’s evidence at trial. However, in Dr Harding’s view, Ms Mitchell’s evidence concerning the uploading of DNA profiles to a database was irrelevant as the issue of the use of the database did not arise in the proceeding.
In her affidavit of 29 April 2014, following further consideration of the studies, Ms Mitchell accepted that, contrary to her evidence at trial, the results of the studies show that the chance of obtaining a usable single source DNA profile from clothing may be substantially higher than 10 per cent. In his third affidavit, Dr Harding accepted Ms Mitchell’s revised calculations. Dr Harding, however, concluded that the calculations remained of “no relevance” because the studies relied on by Ms Mitchell were based on casework samples. The difficulty with casework samples, Dr Harding explained, is that they are samples taken of items that are only alleged to have been touched. This was the point made at trial by defence counsel. It is not known whether the items in the study had in fact been touched. In his second affidavit, Dr Rothwell reaffirmed his view that the studies relied on at trial by Ms Mitchell had no relevance to the DNA findings in the proceeding.
Dr Harding identified a further difficulty with the studies, namely that different testing techniques and different samples were used, making it difficult to undertake a meaningful comparison. He pointed out that DNA evidence can be useful, in the ordinary sense of the word, despite not meeting the criteria to be uploaded onto a database. DNA profiles are only considered suitable to be uploaded to the database if the tests identify a DNA profile sufficiently accurate to identify an individual. However, even if a DNA profile does not meet the criteria for uploading to the database, it may nevertheless be useful, as explained by Dr Harding:
Q. But as I understand it [sic] your evidence, even the weak category where you have, say, four loci, that may be of some use, particularly at least for exclusion purposes, because while perhaps four is not enough to provide a high degree of certainty or probability, if in fact there’s an inconsistency in the alleles, you could at least exclude some of them.
A. Yes, ... intra-case comparison to a suspect is possible. In other words, if you’ve got a known reference DNA sample you can compare them directly, as opposed to putting them up against the database.
[Emphasis added.]
Accordingly, the DNA profiles obtained in the present case were useful to the extent that they could positively exclude the defendant as being a contributor to the DNA profile found on the complainant’s clothing and vice versa. This point was common ground at trial.
Dr Harding re-affirmed his view that, on the basis of the studies before the court, one could not derive an accurate percentage figure for obtaining DNA from an object that has been touched. He accepted the following formulation as being appropriate to be put to the jury:
There is [sometimes] a failure to detect DNA cross-transference material, even though contact had occurred in cases of the class in which the present is.
Other Evidence
The Court received an affidavit of the solicitor in the office of the Director of Public Prosecutions who had conduct of the prosecution. A copy of Ms Mitchell’s June 2011 report was sent to the defendant’s solicitor in June 2011. The defendant’s legal representatives were not apparently informed of an intention by the prosecution to lead evidence from Ms Mitchell concerning the likelihood of recovery of DNA sufficient to upload into the database.
The Court received an affidavit of the prosecutor at trial, in which he stated that when he received the brief he considered that the absence of evidence of the complainant’s DNA on the defendant’s clothing and absence of the defendant’s DNA on the complainant’s clothing was a matter warranting explanation and requiring evidence to be led on the topic. He was concerned to negate any assumption on the part of the jury that forensic scientists will always recover DNA.
The Court received an affidavit of counsel for the defendant at trial. He said that he did not receive any specific notice until the morning break shortly before Ms Mitchell was called to give evidence that the prosecution intended to adduce evidence concerning the likelihood of usable DNA being recovered from the clothing if there had been contact between the defendant and complainant. He was introduced by the prosecutor to Ms Mitchell and informed that there would be evidence concerning usable DNA. In response to his enquiry, the prosecutor referred him to the relevant paragraph from the appendix to Ms Mitchell’s report.
The Significance of DNA Testing
Since preparing my draft reasons, I have had the benefit of reading the draft reasons of Blue J. I respectfully disagree with the conclusions his Honour draws from his analysis of the Forensic Science SA studies. My reasons follow.
I agree with Blue J that the evidence before this Court establishes that the figure of about 10 per cent given by Ms Mitchell at trial was incorrect. The figure of 24 per cent more precisely reflects the results of the studies concerning uploadable results. Further, the figure of about 90 per cent is, on the basis of the two Forensic Science SA studies referred to by Ms Mitchell at trial, an accurate indicator of the percentage of samples from which a DNA profile was identified. However, Dr Harding, having accepted the foregoing conclusions, provided the following opinion:
In my opinion the actual figures of 62% and 90-91% can have no relevance because they are the product of casework samples, that is, samples for which it is alleged there has been contact but for which it is not known if they had in fact been touched and contained any contact DNA.
[Emphasis added.]
Dr Rothwell gave the opinion that:
The laboratory study referred to by Mitchell in her evidence indicates the probability of securing a useable DNA result in a range of different sample types tested by the laboratory. In my opinion this study has no relevance to the interpretation of results obtained in this or any other specific case...
[Emphasis added.]
It is to be recalled that this criticism of the studies was advanced by defence counsel at trial and was accepted by Ms Mitchell in cross-examination. In my view, the results of the studies have no weight. Accordingly, the issue is not whether Ms Mitchell told the jury an incorrect percentage figure at trial. The issue whether it was appropriate for the jury to be told a percentage figure for the probability of recovering DNA evidence in circumstances where the evidence before this court establishes that such figures are unreliable and, if not, the significance of the evidence being put before the jury.
The Disposition of the Application for Permission
Is the Evidence Fresh?
It is relevant to recall the definition of fresh in section 353A(6) of the Criminal Law Consolidation Act:
For the purposes of subsection (1), evidence relating to an offence is—
(a)     fresh if—
(i)      it was not adduced at the trial of the offence; and
(ii)     it could not, even with the exercise of reasonable diligence, have been adduced at the trial; ...
The evidence adduced before this Court was not before the Court at trial. Aspects of this evidence only became known after Ms Mitchell had examined raw data lying behind one of the studies. This had not occurred at the time of the trial. The studies themselves were available at trial and, had they been requested, would have been provided to the defence. The raw data could also have been requested. Further expert evidence could have been adduced.
A review of the cross-examination of Ms Mitchell at trial, and of the closing submissions, summing up and the grounds of the defendant’s first appeal against conviction disclose that the defence were aware about the problem of the lack of empirical data to support the Forensic Science SA tests. In my view, reasonable diligence would have resulted in all or, at the very least, substantially all of the evidence now before this Court being available to tender at trial. Counsel could have objected to the receipt of the evidence on the basis that it had not been properly disclosed, but did not do so. Counsel could have called for the studies, but did not do so. It may be inferred that this course was not followed because the cross-examination had fundamentally undermined the weight of the evidence. An examination of the tests and the raw data would not have materially affected the position. Ms Mitchell had agreed that the test was no more than an indicator. The evidence is not fresh within the meaning of section 353A.
Is the Evidence Compelling?
It is to be recalled that compelling is defined as follows:
(6) For the purposes of subsection (1), evidence relating to an offence is—
...
(b) compelling if—
(i) it is reliable; and
(ii) it is substantial; and
(iii) it is highly probative in the context of the issues in dispute at the trial of the offence.
As earlier noted, I do not consider that the evidence adduced before this Court is fresh. However, even if it were to be considered fresh, for the reasons that follow, I do not consider it compelling.
The further evidence of Ms Mitchell put before this Court and other evidence relevant to that further evidence provide greater specificity in relation to Ms Mitchell’s evidence at trial. When considering whether the evidence is compelling, it may be accepted that the evidence is reliable – it is evidence of experienced and qualified experts.
In the present case, a consideration of whether the evidence can be viewed as substantial can be best considered at the same time as a consideration as to whether the evidence is highly probative of the issues in dispute at the trial.
Dr Harding and Dr Rothwell both agreed that DNA “might and it might not” be transferred when contact occurs. As Dr Rothwell opined, “the negative results obtained from garments in this case provide absolutely no evidence to prove that contact between the victim and the accused had or had not taken place”.

The first suggested qualification is that in cross-examination it was put to Ms Mitchell that one possible explanation for no DNA being detected in some of the samples received by Forensic Science SA was that there was no biological material or DNA actually left on the samples and Ms Mitchell agreed. Assuming in favour of the Director that this was tantamount to its being put to Ms Mitchell that there had been no contact, the jury is likely to have inferred that it would be very unlikely that SA Police would submit samples for testing when there had been no contact with the sample. This is confirmed by this Court’s own reasoning on the first appeal in the passage from the Chief Justice’s reasons for judgment[90] quoted at [227] above in which it was said:
[A]s a matter of common human experience there could be very few items collected in the course of a police examination which would not have been subjected to at least some human contact, even if that contact might have been with someone other than the suspect or complainant as the case may be. It is difficult to imagine that many of the substances seized by police for the purposes of a criminal investigation would be in a pristine state untouched by human hands.[91]
[90] R v Drummond [2012] SASCFC 87.
[91] At [23].
As it transpired, the inference likely to have been drawn by the jury and that was drawn by this Court on the first appeal was quite accurate: the Promega study shows that in only a small minority of cases involving clothing (9 percent) was insufficient DNA recovered for profiling using the Quantifier^Rtest. In most of that small minority of cases, there was probably contact but insufficient DNA recovered by Forensic Science SA.
The second suggested qualification upon which the Director relies is that in cross-examination Ms Mitchell said:
... only in 10% of those cases would we obtain a useful DNA profile. What we mean by that is that a DNA profile that is suitable for upload onto our database. It doesn't mean that we don't get DNA. It just means it's not suitable for upload onto our database which we have fairly stringent criteria for.
and later in answer to a question asking, if Forensic Science SA received 1,000 samples in a year, would it be expected that 100 would show something good enough to get on the system, Ms Mitchell answered:
Yes, to upload on the database but certainly there are many more cases where we have DNA information and we can make comparisons to them. We just can't upload them on the database.
This evidence by Ms Mitchell in cross-examination was too vague and general and did not go far enough to negate the misleading aspects of her evidence in chief. First, in her evidence in chief, Ms Mitchell said that in only 10 per cent of cases was useful information or usable DNA recovered. This was consistent with either no DNA being detected or DNA being detected but being of insufficient quality to be useful or usable. In cross-examination, Ms Mitchell merely expanded upon this by saying that in more than 10 per cent of cases DNA was detected but it was not of sufficient quality to be uploaded into the database.
Secondly, while Ms Mitchell referred to the possibility that Forensic Science SA could make comparisons to DNA detected in more than 10 per cent of cases, given that she had in evidence in chief put forward the 10 per cent figure as being the relevant figure for the purpose of the Drummond case in which there was a specific suspect, the clear implication of her answers in cross-examination was that the 10 per cent figure remained the relevant figure in the Drummond case.
Thirdly, this Court has the advantage of the transcript of Ms Mitchell’s evidence coupled with details of the FSSA studies and detailed explanations by Ms Mitchell and Dr Harding concerning DNA, its extraction and analysis. The jury heard Ms Mitchell’s evidence only in real time without the benefit of a transcript or an explanation of the background understanding. Given the categorical nature of Ms Mitchell’s evidence in chief that the 10 per cent figure was the relevant figure, it is quite unlikely that the jury would have understood the qualification now articulated by the Director from the cross-examination.
Fourthly, in evidence in chief Ms Mitchell gave a specific concrete figure of 10 per cent, whereas in cross-examination she gave no percentage of cases in which DNA was detected but could not be uploaded into the database. The jury was likely to fasten onto the concrete figure of 10 per cent.
In relation to both of the qualifications relied upon by the Director, if the jury had been told by Ms Mitchell in the first place that the relevant figure was 90 percent, that would have produced an entirely different impression to that produced by the evidence she in fact gave.
The Director’s second contention is that the New Evidence does not undermine Ms Mitchell’s evidence that contact DNA might not be detected if an item has been touched by a person. This contention is uncontroversial in itself. Dr Harding and Dr Rothwell both accepted that contact DNA is not always detected when an item has been touched. However, the applicant does not suggest that Ms Mitchell’s evidence was misleading because she said this was possible but rather because she grossly understated the percentage of cases analysed by Forensic Science SA in which usable DNA was not located. The reason Dr Salu introduced Ms Mitchell’s studies evidence was to rebut a belief by the jury that the lack of contact DNA detected in the Drummond case tended to be exculpatory. For this purpose, there was a vast difference between 10 per cent and 90 per cent.
The Director’s third contention is that the New Evidence does not undermine Ms Mitchell’s qualitative evidence that there are several factors that impact whether DNA will be detected if an item has been touched by a person, namely variability between good and bad shedders, as to the nature of the surface touched and as to the nature and length of contact. Therefore the absence of contact DNA detected on the tops does not undermine the prosecution’s circumstantial case.
Ms Mitchell did give generic evidence identifying the first two factors referred to by the Director as impacting whether DNA will be detected but the third factor she identified was whether the contact was passive or frissive and not length of contact. However, Ms Mitchell did not give the jury any indication of the range of variability between good and bad shedders, smooth and rough surfaces or passive and frissive contact. Nor did she relate the figure of 10 per cent that she quoted to these variables. The jury was likely to have understood the figure of 10 per cent to be a middle of the range figure and in the absence of any information about the size of the range or where in the range the putative contact between the applicant and the complainant fell the jury was likely simply to have used the figure of 10 per cent. In the absence of any other quantification, it is likely that the jury fastened onto the quoted figure of 10 per cent. Quantitative references to a concrete figure such as 10 per cent are much more readily understood and given prominence than vague and general qualitative statements, especially if they do not point in one particular direction or the other.
The Director’s contentions, individually and holistically, should be rejected.
The ultimate question to be determined is whether the New Evidence has a real or material bearing on the determination of a fact in issue which, in turn, may rationally affect the ultimate result in the case.[92] At trial both the prosecutor and defence counsel treated the absence of incriminating DNA evidence as relevant. The existence or nonexistence of the complainant’s DNA on the applicant’s top and vice versa was one of the circumstantial facts to be weighed by the jury together with the other circumstantial facts in what was a circumstantial case on the critical issue of identity. Just as DNA evidence can be used as evidence of alleged contact taking place, the absence of DNA evidence, while not precluding contact, can be used as one circumstantial fact pointing away from alleged contact having taken place. The significance of the absence of DNA depended on the likelihood that DNA would be recovered on the items in question if contact had taken place.
[92] Quoted from R v Keogh (No 2) (2014) 121 SASR 307 at [109] per Gray, Sulan and Nicholson JJ contained in the passage quoted at [327] above.
At trial the prosecutor and defence counsel treated the percentage of contact DNA items submitted to the Forensic Science SA laboratory found to produce usable DNA or useful information as documented in the FSSA studies as indicating the likelihood that DNA would be recovered on the items in question in the Drummond case if contact had taken place. The evidence of Ms Mitchell as to those studies and the percentage showed by those studies was the only quantitative evidence adduced at trial relevant to the likelihood that cross-transferred DNA would be recovered on the items in question in the Drummond case if the applicant had been the assailant.
Accordingly, a fact in issue at trial was the likelihood that if the applicant had been the assailant contact DNA would have been found on his or the complainant’s clothing, which in a circumstantial case was relevant to and probative of the critical issue of identity. In turn, a fact in issue at trial probative of this likelihood was the percentage of contact DNA items submitted to the Forensic Science SA laboratory found to produce usable or useful DNA as documented in the FSSA studies.
As explained above, the DNA evidence was inadvertently misrepresented at trial and was relied on by the prosecutor to bolster his case. The jury was misled. There is a dramatic difference between the jury being told that studies showed only 10 per cent of samples provide any useful information and that studies showed 90 per cent of samples provide useful information.
The effect of Ms Mitchell’s evidence was that the absence of contact DNA evidence was insignificant and a matter the jury could disregard when evaluating the evidence whether contact between the complainant and the applicant took place. The New Evidence demonstrates that the absence of contact DNA evidence was significant. The Promega study showed that 90 per cent of clothing samples tested produced DNA profiles. In only 10 per cent of samples was there insufficient DNA to produce a usable profile.
It follows that the New Evidence has a real or material bearing on the determination of facts in issue at trial and is highly probative of those facts. I turn to consider whether, in turn, this may rationally affect the ultimate result in the case.
It is axiomatic that the strength of a circumstantial case depends, not only on the weight and direction of each individual circumstantial fact, but also on the overall effect of the individual circumstantial facts considered collectively. If the other circumstantial facts point decisively towards guilt, an individual circumstantial fact pointing the other way might need to be stronger in itself to result in a reasonable doubt. Conversely, if the other circumstantial facts point in differing directions, an additional circumstantial fact pointing against guilt might be very important even though by itself it would have relatively little weight or would be incapable of giving rise to a reasonable doubt in the face of other circumstantial facts pointing strongly towards guilt.
In the present case, leaving aside the absence of contact DNA being found on the clothing, the circumstantial facts pointed in differing directions. The circumstantial facts pointing toward guilt were the observation and recording by the complainant of the registration number of a white station wagon as VMB 134 being the registration number of the applicant’s vehicle and the fact that the applicant was driving his vehicle along Prospect Road at about the time of the incident.
The circumstantial facts pointing away from guilt were that the complainant’s description of the assailant’s clothing was inconsistent with the clothing worn by the applicant at the time; the complainant identified a different person as the assailant and did not identify the applicant in the photo pack procedure; the applicant had distinctive tattoos and distinctive fog lights on his car that the complainant did not observe; and the applicant gave sworn evidence denying that he was the assailant and his evidence was not shaken in cross-examination.
The question of proof beyond reasonable doubt in those circumstances might have been regarded as finely balanced. Ms Mitchell’s evidence was likely to have led to an expectation by the jury that there was only a small probability that DNA implicating the applicant would have been found if he were the assailant and the absence of such DNA was therefore unlikely to affect the balancing exercise undertaken by the jury. However, if the jury had been told that the FSSA studies showed that 90 per cent of samples produced a DNA profile, that may well have tipped the balance.
The New Evidence changes the way in which a finder of fact perceives the significance of the absence of contact DNA evidence. The FSSA studies and their explanation by the expert forensic scientists who gave evidence before this Court demonstrate that the DNA evidence, if properly led, would have been more supportive of a hypothesis consistent with innocence than Ms Mitchell’s evidence at trial. Had Ms Mitchell’s evidence not been inaccurate and misleading, the jury may have weighed the issue differently and come to a different verdict. Had the evidence as to the FSSA studies been presented accurately, the jury would have been less likely to treat the absence of DNA as insignificant.
Ultimately, Ms Mitchell greatly understated the probability of obtaining DNA evidence that would support the hypothesis that the applicant came into contact with the complainant on the premise adopted by the prosecution at trial that the best guide to that probability was the statistics generated by the FSSA studies. The jury was encouraged to have regard to this evidence by both Dr Salu and the trial Judge and this had the effect of strengthening the prosecution case and weakening the defence case in a manner unwarranted on the evidence.
Further, the applicant’s trial was unfair in the sense that the jury was labouring under a misapprehension in the assessment of evidence that was important and was treated as important by the prosecution and the defence.
The New Evidence was highly probative in the context of the issues in dispute at trial.
In the interests of justice
The third requirement arising from subsection 353A(1) is that the Court be satisfied that the New Evidence should in the interests of justice be considered on an appeal.
As to this requirement:
The phrase “in the interests of justice” is of wide import. It is not possible to set out an exhaustive list of circumstances in which the requirement will be satisfied. Once a court is satisfied that there is fresh and compelling evidence, as defined, it will then, by reference to that evidence, have regard to the applicant’s prospects of establishing that there has been a substantial miscarriage of justice under section 353A(3).[93]
[93] R v Keogh (No 2) (2014) 121 SASR 307 at [116] per Gray, Sulan and Nicholson JJ.
In most cases, given that this third requirement only applies once the Court is satisfied that there is fresh and compelling evidence, the requirement that the Court be satisfied that it is in the interests of justice to consider the evidence on appeal will operate in a negative or disqualifying fashion to permit the Court to apply a filter to decline to consider the evidence in special circumstances such as when the application is vexatious or repetitive of a previous application under section 353A.[94]
Is it in the interests of justice to consider the evidence?
[94] R v Keogh (No 2) (2014) 121 SASR 307 at [117] per Gray, Sulan and Nicholson JJ.
The Director does not suggest that there are any negative or disqualifying reasons why it is not in the interests of justice to consider the New Evidence or ultimately make any submission on this requirement independently of the submissions already made on whether the New Evidence is fresh and compelling.
In this case, the very reasons why the New Evidence is fresh and compelling summarised at [310] to [318] and [345] to [357] above render it in the interests of justice to consider it.
Conclusion in respect of the subsection threshold
The criteria specified in subsection 353A(1) are satisfied. It is appropriate to proceed to the next stage of considering whether it is reasonably arguable that there has been a substantial miscarriage of justice (justifying the grant of permission to appeal) and that there has been a substantial miscarriage of justice (justifying allowing the appeal).
Substantial miscarriage of justice
Subsections 353A(3) and (4) provide:
(3) The Full Court may allow an appeal under this section if it thinks that there was a substantial miscarriage of justice.
(4) If an appeal against conviction is allowed under this section, the Court may quash the conviction and either direct a judgment and verdict of acquittal to be entered or direct a new trial.
A substantial miscarriage of justice may be found when there has been an irregularity in or in connection with the trial.[95] Irregularities include but are not limited to wrongful admission of evidence,[96] wrongful rejection of evidence[97] and misleading evidence.[98]
[95] R v Keogh (No 2) (2014) 121 SASR 307 at [128] per Gray, Sulan and Nicholson JJ.
[96] R v Keogh (No 2) (2014) 121 SASR 307 at [121], [127] and [128] per Gray, Sulan and Nicholson JJ.
[97] Baini v The Queen[2012] HCA 59, (2012) 246 CLR 469 at [32] per French CJ, Hayne, Crennan, Kiefel and Bell JJ cited in connection with section 353A in R v Keogh (No 2) (2014) 121 SASR 307 at [127] per Gray, Sulan and Nicholson JJ.
[98] R v Keogh (No 2) (2014) 121 SASR 307 at [128] per Gray, Sulan and Nicholson JJ; Davies & Cody v The King (1937) 57 CLR 170 at 180 per Latham CJ, Rich, Dixon, Evatt and McTiernan JJ cited in connection with section 353A in R v Keogh (No 2) at [121] per Gray, Sulan and Nicholson JJ.
When there has been wrongful admission or rejection of evidence or misleading evidence such that the state of the evidence given by a prosecution witness before the jury would have been different, there will ordinarily be a substantial miscarriage of justice unless the Court thinks that a conviction was inevitable regardless of the error concerning the evidence.[99]
[99] Baini v The Queen[2012] HCA 59 (2012) 246 CLR 469 at [32]-[33] per French CJ, Hayne, Crennan, Kiefel and Bell JJ cited in connection with section 353A in R v Keogh (No 2) (2014) 121 SASR 307 at [127] per Gray, Sulan and Nicholson JJ.
In Davies and Cody v The Queen,[100] in the context of a first appeal in which the ultimate criterion was a miscarriage of justice, Latham CJ, Rich, Dixon, Evatt and McTiernan JJ said:
From the beginning, [the English Court of Appeal] has acted upon no narrow view of the cases covered by its duty to quash a conviction when it thinks that on any ground there was a miscarriage of justice, a duty also imposed upon the Supreme Court of Victoria. It has consistently regarded that duty as covering not only cases where there is affirmative reason to suppose that the appellant is innocent, but also cases of quite another description. For it will set aside a conviction whenever it appears unjust or unsafe to allow the verdict to stand because some failure has occurred in observing the conditions which, in the court’s view, are essential to a satisfactory trial, or because there is some feature of the case raising a substantial possibility that, either in the conclusion itself, or in the manner in which it has been reached, the jury may have been mistaken or misled.[101]
[100] (1937) 57 CLR 170.
[101] At 180. (Legislative reference omitted)

In R v Keogh (No 2),[102] this Court held that the approach identified by the High Court in Baini v The Queen[103] to the requirement imposed by section 276(1)(b) and (c) of the Criminal Procedure Act 2009 (Vic) that there has been a “substantial miscarriage of justice” is apposite to the requirement expressed in identical terms as the criterion for the Court allowing a second appeal under section 353A.[104]
[102] (2014) 121 SASR 307 at [127].
[103] (2012) 246 CLR 469.
[104] R v Keogh (No 2) (2014) 121 SASR 307 at [124]-[127] per Gray, Sulan and Nicholson JJ.
In Baini,[105] French CJ, Hayne, Crennan, Kiefel and Bell JJ said:
No single universally applicable description can be given for what is a “substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c). The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial. This is not an exhaustive list. Whether there has been a “substantial miscarriage of justice” ultimately requires a judgment to be made.
...
An appellant’s demonstration that there has been “a substantial miscarriage of justice” for the purposes of s 276(1)(b) and (c) may be affected by the strength of the prosecution case at trial. In some cases, it may be possible for an appellate court to conclude that there has not been “a substantial miscarriage of justice” because, despite the error, irregularity or other cause of complaint, the evidence properly admissible at trial required the conclusion that the appellant was guilty of the crime alleged. But several points must be made about this possibility.
First, in many cases of the kinds contemplated by s 276(1)(b) and (c), an appellate court will not be in a position to decide whether the appellant must have been convicted if the error had not been made. The nature of the error, irregularity or cause of complaint contemplated by those paragraphs will often prevent that conclusion from being reached by an appellate court on the record of the trial given the “natural limitations” that attend the appellate task.
Secondly, and contrary to what the appellant’s submissions sometimes suggested, the possibility that the Court of Appeal may conclude that no “substantial miscarriage of justice” occurred because a verdict of guilty, on the evidence properly admissible at trial, was inevitable neither reintroduces the proviso to the common form criminal appeal provision nor imposes on an appellant some onus of proving his or her innocence. To recognise that possibility does no more than acknowledge that the Court of Appeal’s satisfaction that a finding of guilt was inevitable is relevant to determining whether there has been “a substantial miscarriage of justice”. The Court’s satisfaction that a guilty verdict was inevitable will not in every case conclude the issue about whether there has been a substantial miscarriage of justice but it is a matter to be taken into account in answering the question posed by s 276(1)(b) and (c).
If it is submitted that a guilty verdict was inevitable, an appellant need not prove his or her innocence to meet the point. An appellant will meet the point by showing no more than that, had there been no error, the jury may have entertained a doubt as to his or her guilt. As a practical matter, it will then be for the respondent to the appeal to articulate the reasoning by which it is sought to show that the appellant’s conviction was inevitable.
Thirdly, the inquiry to be made is whether a guilty verdict was inevitable, not whether a guilty verdict was open. (Whether the verdict was open is the question presented by s 276(1)(a).) If it is said that a guilty verdict was inevitable (which is to say a verdict of acquittal was not open), the Court of Appeal must decide that question on the written record of the trial with “the ‘natural limitations’ that exist in the case of any appellate court proceeding wholly or substantially on the record”. That the jury returned a guilty verdict may, in appropriate cases, bear upon the question. But, at least in cases like the present where evidence has wrongly been admitted at trial and cases where evidence has wrongly been excluded, the Court of Appeal could not fail to be satisfied that there has been a substantial miscarriage of justice unless it determines that it was not open to the jury to entertain a doubt as to guilt. Otherwise, there has been a substantial miscarriage of justice because the result of the trial may have been different (because the state of the evidence before the jury would have been different) had the error not been made.
This understanding of s 276 accommodates fundamental tenets of the criminal justice system in Australia. It recognises that the prescribed mode of trial was trial by jury. It does so by encompassing, within the expression “substantial miscarriage of justice”, not only an error which possibly affected the result of the trial but also some departures from trial processes (sufficiently described for present purposes as “serious” departures), whether or not the impact of the departure in issue can be determined. It also recognises that an accused’s guilt must be established by the prosecution at trial beyond reasonable doubt. It is not to be established by speculation about what a jury, this jury, or a reasonable jury might have done but for the error. Nothing short of satisfaction beyond reasonable doubt will do, and an appellate court can only be satisfied, on the record of the trial, that an error of the kind which occurred in this case did not amount to a “substantial miscarriage of justice” if the appellate court concludes from its review of the record that conviction was inevitable. It is the inevitability of conviction which will sometimes warrant the conclusion that there has not been a substantial miscarriage of justice with the consequential obligation to allow the appeal and either order a new trial or enter a verdict of acquittal.[106]
[105] Baini v The Queen (2012) 246 CLR 469.
[106] At [26] and [28]-[33]. (Citations omitted) (Emphasis in italics in original. Emphasis in bold added) These passages were cited by this Court as being applicable to section 353A in R v Keogh (No 2) (2014) 121 SASR 307 at [127] per Gray, Sulan and Nicholson JJ.
In R v Keogh (No 2),[107] a case in which it was contended that evidence given at trial by expert witnesses called by the prosecution was misleading, this Court concluded:
In summary, it is not possible to succinctly define a substantial miscarriage of justice. However, before a court will conclude that a substantial miscarriage of justice has occurred, it will consider whether, despite the irregularity, be it procedural or substantive, the conviction was inevitable. If a conviction is inevitable, then it is likely that a substantial miscarriage of justice has not been established. The categories of when and how a miscarriage of justice can occur are too numerous to attempt to define. However, they include wrongful admission of evidence, evidence which is flawed in some respect, comments by counsel or the judge which are prejudicial, and statements made which cannot be supported by the evidence.[108]
Has there been a substantial miscarriage of justice?
[107] (2014) 121 SASR 307.
[108] At [128].
The true results of the FSSA studies show that a DNA profile was found 90 per cent of the time when samples of clothing were submitted by the police to Forensic Science SA for testing. For the reasons given above, it follows that the absence of contact DNA on the tops, while not positively exculpatory, was a circumstance tending to point against guilt.
As noted above, disregarding Ms Mitchell’s study evidence, the individual circumstances pointed both ways on the vital issue whether the applicant was the assailant and overall the position might be regarded as finely balanced. It was not inevitable that the applicant be convicted nor that he be acquitted. It was open to the jury to convict or acquit the applicant.
In the circumstances, this Court cannot be satisfied that the applicant is guilty beyond reasonable doubt or in other words a conviction was inevitable. Applying the approach articulated by the High Court in Baini and endorsed by this Court in Keogh, the New Evidence demonstrates that by reason of Ms Mitchell’s study evidence having been false and misleading there has been a substantial miscarriage of justice.
Disposition of the appeal
Permission to appeal should be granted, the appeal should be allowed and the applicant’s conviction should be set aside.
The Court has power under subsection 353A(4) to direct a judgment and verdict of acquittal to be entered or direct a new trial. The applicant contends that a verdict of acquittal should be entered. The applicant contends first that a new trial should not be granted where it will allow the prosecution to supplement on a new trial what was a defective case as originally presented. Secondly a new trial should not be granted when the applicant has served his sentence.
There are two bases on which an appellate court will enter a verdict of acquittal rather than directing a new trial. First, if the admissible evidence was not sufficiently cogent to justify a conviction at the first trial or will not be sufficiently cogent to justify a conviction at the new trial.[109] Secondly, in the exercise of the appellate court’s general discretion taking into account all relevant factors.[110] In Director of Public Prosecutions (Nauru) v Fowler,[111] Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ said:
The power to grant a new trial is a discretionary one and in deciding whether to exercise it the court which has quashed the conviction must decide whether the interests of justice require a new trial to be had. In so deciding, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not it would be wrong by making an order for a new trial to give the prosecution an opportunity to supplement a defective case. In the present case, the admissible evidence given at the trial satisfies this test. Then the court must take into account any circumstances that might render it unjust to the accused to make him stand trial again, remembering however that the public interest in the proper administration of justice must be considered as well as the interests of the individual accused.[112]
[109] Gerakiteys v The Queen (1984) 153 CLR 317 at 321 per Gibbs CJ (with whom Wilson J agreed) 322 per Murphy J and 331 per Deane J, Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; King v The Queen (1986) 161 CLR 423 at 427 per Murphy J, 429 per Deane J (Mason J agreeing) and 433 per Dawson J (Gibbs CJ, Wilson and Brennan JJ agreeing); Parker v The Queen (1997) 186 CLR 494 at 519-520 per Dawson, Toohey and McHugh JJ and 539 per Kirby J; R v Taufahema [2007] HCA 11, (2007) 228 CLR 232 at [35]-[38] per Gleeson CJ and Callinan J, [59]-[67] per Gummow, Hayne, Haydon and Crennan JJ and [158]-[162] per Kirby J
[110] Director of Public Prosecutions (Nauru) v Fowler (1984) 154 CLR 627 at 630 per Gibbs CJ, Murphy, Wilson, Deane and Dawson JJ; King v The Queen (1986) 161 CLR 423 at 427 per Murphy J and 433 per Dawson J (Gibbs CJ, Wilson and Brennan JJ agreeing); R v Taufahema (2007) 228 CLR 232 at [49]-[55] per Gummow, Hayne, Haydon and Crennan JJ.
[111] (1984) 154 CLR 627.
[112] At 630.
As to the first basis, disregarding Ms Mitchell’s study evidence, the evidence given at the original trial was sufficiently cogent to justify a conviction. While it was open for the jury to acquit the applicant, it was also open for the jury to convict him if the jury was satisfied beyond reasonable doubt that the complainant’s evidence was reliable and accurate and that the applicant’s evidence should be rejected.
If evidence had been led at the first trial or is led at a new trial that the Promega study showed that 90 per cent of clothing samples tested produced DNA profiles, that does not affirmatively prove that the applicant was not the assailant. It is only one circumstance in a circumstantial case on the issue of identity. While it contributes, together with other factors referred to above, to doubt about the accuracy of the complainant’s belief that she saw the same white car on each of the four occasions, this Court did not hear or see her give evidence nor hear or see the applicant give evidence. A conviction of the applicant on all the evidence adduced at trial and on appeal remains open. This is not a case in which the prosecution case at trial was deficient in the sense that it was not capable of supporting a conviction and a retrial would give the prosecution an opportunity to secure a conviction when it could not do so at the original trial.
The applicant tenders on appeal and seeks to rely on five witness statements provided by the complainant to the police between 24 November 2010 and 13 July 2011 and contends that they undermine her reliability because they differ as to details of the incident. These witness statements were provided to the defence before trial but Mr Stewart did not cross-examine on them. They do not comprise fresh evidence under the common law concept although that is not fatal to their reception at this stage of the appeal if their reception (coupled with the other evidence) results in satisfaction of innocence or reasonable doubt of guilt.[113] It is impossible to say that these statements together with the other evidence at the original trial and the New Evidence entail that at a new trial the evidence would not be sufficiently cogent to justify a conviction.
[113] R v Keogh (No 2) (2014) 121 SASR 307 136 at [143] per Gray, Sulan and Nicholson JJ citing Ratten v The Queen(1974) 131 CLR 510 at 517 per Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed).
As to the second basis, an appellate court has a general discretion whether to order a new trial or an acquittal. The appellate court has regard to the public interest in exercising that discretion.[114] The factors that may be taken into account are not limited but include the seriousness of the offence and nature and length of the sentence imposed, the length of time between the alleged offence and the new trial, the nature of the flaws in the original trial, the length and expense of a new trial and the extent to which the applicant has served his or her sentence.[115]
[114] R v Taufahema (2007) 228 CLR 232 at [49] per Gummow, Hayne, Haydon and Crennan JJ.
[115] R v Taufahema (2007) 228 CLR 232 at [49]-[55] per Gummow, Hayne, Haydon and Crennan JJ.
In R v Taufahema,[116] Gummow, Hayne, Haydon and Crennan JJ said:
... One of the key factors in assessing whether a new trial is an adequate remedy, is “the public interest in the due prosecution and conviction of offenders”. It is in “the interest of the public… that those persons who are guilty of serious crimes should be brought to justice and not escape it merely because of some technical blunder by the judge in the conduct of the trial or in his summing up to the jury.” …
… The question is whether an order for a new trial is a more adequate remedy for the flaws in that trial than an order for an acquittal – that is, an order terminating the possibility of an investigation by a jury, in an unflawed fashion, of the accused’s role in the circumstances leading to Senior Constable McEnally’s death. An order for acquittal conflicts with “the desirability, if possible, of having the guilt or innocence of the [accused] finally determined by a jury which, according to the constitutional arrangements applicable in [New South Wales], is the appropriate body to make such a decision. In Reid v The Queen, the Privy Council approved the following statement of the Full Court of Hong Kong:
It is in the interest of the public, the complainant, and the appellant himself that the question of guilt or otherwise be determined finally by the verdict of a Jury, and not left as something which must remain undecided by reason of a defect in the legal machinery.
… The question, then, is whether there is some good reason for not allowing a jury to decide whether the prosecution can prove its case, and for allowing the matter to remain undecided because of the defects in the first trial.[117]
[116] (2007) 228 CLR 232.
[117] At [49] and [51]. (Citations omitted)
The applicant was sentenced in November 2012 to imprisonment for five years and three months with a non-parole period of two years and three months. He has been released on parole but his head sentence will not expire until February 2018. The applicant contends that the fact that he has served the non-parole portion of his sentence is a reason for directing an acquittal rather than a new trial. This is one factor to be taken into account but is not decisive in itself.[118] It is to be weighed with all other relevant factors taking into account the public interest identified by the High Court in R v Taufahema.[119] Weighing all of those matters together, the discretion should be exercised to direct a new trial and not an acquittal.
[118] Dyers v The Queen (2002) 210 CLR 285 at [23] per Gaudron and Hayne JJ, [89]-[90] per Kirby J and [134]-[135] per Callinan J.
[119] (2007) 228 CLR 232.
Conclusion
I would grant permission to appeal. I would allow the appeal, set aside the conviction and direct that a new trial be held. It would be a matter for the Director to determine whether and how the matter should proceed.