Jeremy Gans, ‘The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen‘ (18 August 2014).

The High Court has unanimously allowed an appeal against the decision of the Full Court of the Supreme Court of South Australia in R v Fitzgerald and acquitted the appellant of murder. Fitzgerald was convicted of murder and causing serious injury as part of a group of six people involved in a home invasion. He denied involvement and claimed that the DNA evidence found on a didgeridoo linking him to the offence was transferred to his co-accused during a handshake earlier that evening. The SASCFC agreed that it was open to the jury to conclude beyond reasonable doubt that the DNA was deposited directly by Fitzgerald, and unanimously dismissed the appeal. (The High Court refused to hear an appeal from Fitzgerald’s co-accused, Sumner, on the basis that there were insufficient prospects of success.)

The Court allowed the appeal after the hearing ended on 19 June, quashing the appellant’s conviction and entering a verdict of acquittal, and published its reasons for judgment on 13 August. The Court held that the evidence was not not sufficient to establish the prosecution case, and that alternative hypotheses consistent with the appellant’s innocence had not been ruled out: the central argument that the appellant’s DNA found on a didgeridoo came from his blood was not supported by the evidence; a secondary transfer of that DNA may have occurred; and the presence of that DNA did not raise any inference about the time or circumstances in which it was deposited there: [36]. Because the evidence could not support a conviction for either offence, no question of ordering a new trial arose.