Fitzgerald v The Queen

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.

High Court Judgment [2014] HCA 28 13 August 2014
Result Appeal allowed
High Court Documents Fitzgerald v The Queen
Full Court Hearing [2014] HCA 127  19 June 2014
Special Leave Hearing [2014] HCATrans 48 14 March 2014
Appeal from SASCFC [2013] SASCFC 82 16 August 2013
Trial Judgment, SASC
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About Martin Clark

Martin Clark is a PhD Candidate and Judge Dame Rosalyn Higgins Scholar at the London School of Economics and Political Science and Research Fellow at Melbourne Law School. He holds honours degrees in law, history and philosophy from the University of Melbourne, and an MPhil in Law from MLS. While at MLS, he worked as a researcher for several senior faculty members, was a 2012 Editor of the Melbourne Journal of International Law, tutor at MLS and various colleges, a Jessie Legatt Scholar, and attended the Center for Transnational Legal Studies Program.