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.

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