R v Drummond

This matter concerned an application for permission to appeal by the applicant, Mr Drummond, against his conviction. The application was brought under s 353A of the Criminal Law Consolidation Act (CLCA), which allows a convicted person to appeal if there exists fresh and compelling evidence that should, in the interests of justice, be considered on appeal. The Full Court, exercising the power to grant permission to appeal, considered whether the evidence presented by the applicant met the criteria for fresh and compelling evidence.

The central legal issue before the court was whether the evidence sought to be introduced by the applicant was "fresh and compelling" within the meaning of s 353A of the CLCA. This required the court to determine if the evidence was new, if it was reasonably arguable that it was compelling, and if it was highly probative in the context of the issues in dispute at trial, specifically the issue of identification. The applicant sought to rely on new expert opinions from Dr Rothwell and Dr Harding, which challenged the interpretation of DNA evidence presented at trial by a forensic scientist, Ms Mitchell.

The court reasoned that the evidence of Dr Rothwell and Dr Harding was not reasonably arguable as "fresh" because the opinions expressed in their affidavits were largely inadmissible. The court found that whether evidence was confusing or misleading was a question of fact for the jury, not a matter for expert opinion. Furthermore, the court noted that the experts did not contest Ms Mitchell's ultimate opinion that the absence of DNA material did not necessarily exclude contact between the applicant and the complainant. Crucially, the court found that the evidence was not "compelling" because it was not highly probative in the context of the identification issue at trial. The court concluded that the new evidence did not meet the threshold required by s 353A.

Permission to appeal was refused.