By Professor Jeremy Gans
On 19 June 2011 at around 6 am, a group of men carrying makeshift weapons poured from two cars into an Adelaide suburban home. The resulting horror left 23 year-old Kym Drover dead and 25 year-old Daniel Fitzgerald serving a minimum twenty year term for his murder. Just two pieces of evidence linked the two: a handshake the previous evening (between Fitzgerald and the only other person convicted of the attack on Drover) and a didgeridoo found the next morning next to Drover (containing Fitzgerald’s DNA).
Two months ago, on the crime’s third anniversary, the High Court unanimously, correctly and — after his counsel noted his otherwise clean record — summarily freed and acquitted Fitzgerald, exemplifying the national court’s role as a last ditch avenue of appeal for the wrongly convicted. But the case should never have got that far. Fitzgerald should never have been charged. He should never have been found guilty. He should have easily won his appeal in South Australia. The High Court’s slight reasons in Fitzgerald v The Queen  HCA 28 do too little to address the risks arising from the criminal justice system’s overuse of DNA evidence.
A boxer’s luck
Fitzgerald’s jury knew almost nothing about how Drover died. No-one saw who killed him and prosecutors could only name two of the dozen or so attackers. But, in the eyes of Australia’s criminal law, the joint violence made all of them murderers. The prosecution could readily prove that one of them was Fitzgerald’s co-accused, Grant Sumner, a teenager who was known to the household and who was named during a terrified 000 call from the house’s owner. But none of the survivors knew Fitzgerald, a very passing acquaintance of Sumner’s.
The prosecution and the jury also knew nothing about why Fitzgerald’s DNA was on the didgeridoo. All that was known was that the didgeridoo had begun the evening leaning on a freezer, was briefly picked up by one of the occupants to defend herself amidst the violence and ended up in the living room stained with what looked like blood. The didgeridoo contained several people’s DNA: that of Drover, another man who was left with brain injuries that night, several unknown people and (in a sample mixed with yet another mystery person, recovered from two tiny reddish-brown spots) Fitzgerald. The prosecution’s entire case against Fitzgerald rested on those two tiny spots, which they argued proved beyond reasonable doubt that Fitzgerald bled onto the didgeridoo during the violence.
Fitzgerald was lucky in one respect. Even though his arrest came six months after Drover’s murder, he knew exactly where he’d been the previous evening, thanks to a DVD of a boxing match he attended at the West Adelaide Football Club. Even luckier, the video showed that Sumner attended the same match. And, better still, Sumner testified at the trial that he had shaken a dozen people’s hands that night, including Fitzgerald’s (twice). At his trial and first appeal, Fitzgerald argued that his DNA was transferred during the attack from Sumner’s hands to the didgeridoo.
Fitzgerald’s misfortune is that the High Court has previously criticised an Australian court for being too ready to accept a murder defendant’s claim that his DNA was innocently transferred. In 2007, the Court held that two ACT appeal judges were wrong to say the possibility that the defendant’s DNA on his estranged wife’s pyjamas was transferred by their children as enough reason to overturn a jury’s guilty verdict at his murder trial. Rather, they should have factored in the accused’s motive and opportunity to kill his wife, as well as the unlikelihood of the alternative theory that she was killed by a mystery lover (a scenario the dissenting judge in the ACT court had dismissed because she had died wearing Winnie the Pooh pyjamas!) At Fitzgerald’s appeal, South Australia’s Supreme Court likewise dismissed Fitzgerald’s innocent transfer scenario – the initial transfer by handshake, Fitzgerald’s DNA remaining on Sumner’s hands despite many intervening events, the further transfer to the didgeridoo during a fight without transferring Sumner’s own DNA – as a ‘a succession of unlikely events’.
Fitzgerald had better luck at his High Court appeal where he argued (‘possibly beyond what had been put below’) that Sumner may have touched the didgeridoo hours earlier. After he shook all those hands at the boxing match, Sumner went to a party at Drover’s house (during which the teenager broke Drover’s lip, had his jaw broken by his own father and left screaming revenge on the household.) The South Australian court had dismissed this transfer scenario because Fitzgerald’s counsel never asked Sumner if he touched the didgeridoo during the party. But Fitzgerald was again fortunate: the High Court noticed that one of the survivors had testified that Sumner had briefly sat on the kitchen freezer during the party, the same freezer that the didgeridoo had rested against. The Court accordingly ruled that Fitzgerald’s alternative theory was ‘not unreasonable’ and the prosecution had “not successfully excluded” it.
A scientist’s caution
The High Court’s summary of Fitzgerald’s trial and appeal took 35 paragraphs. It’s conclusion that he must be freed took just one:
On Dr Henry’s evidence, including that extracted above, the prosecution’s main contention, that the appellant’s DNA in Sample 3B derived from the appellant’s blood, was not made out beyond reasonable doubt. Secondly, Dr Henry’s evidence was not that secondary transfer of DNA was “rare”; rather, she said that a primary transfer is a much more likely source of contact or trace DNA than a secondary transfer, but that nevertheless a secondary transfer of contact or trace DNA is possible. There was no conflict in the evidence that there were at least two distinct occasions, described above, on which a secondary transfer of the appellant’s DNA to the didgeridoo may have occurred. Thirdly, the recovery of the appellant’s DNA from the didgeridoo did not raise any inference about the time when or circumstances in which the DNA was deposited there. For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack.
Dr Julianne Henry, a government scientist testifying for the prosecution, was yet another instance of Fitzgerald’s good fortune. Over and over again, she conceded that every part of Fitzgerald’s innocent scenario — the handshake transfer, the deposit on the didgeridoo, the absence of Sumner’s DNA, the red spot being someone else’s blood or not blood at all — was ‘possible’.
But, contrary to the High Court’s summary, she cited ‘a level of inference’ against the claim that the spots were not blood and repeatedly testified that the handshake theory was not bloody likely:
Yes, it’s far more likely than secondary transfer. Secondary transfer occurs very infrequently.
That’s one possibility for the DNA being there, but as I said in my evidence secondary transfer is very unlikely.
All I can say is secondary transfer is unlikely to occur, but when you’re dealing with transfer of saliva, because it’s a richer source of DNA, in my opinion the transfer would be more likely to occur but in a general sense, as I said, secondary transfer is unlikely to occur.
(The High Court’s third point — that the time of the deposit of the DNA was unknowable — was accurate, but it was also neither here nor there in Fitzgerald’s case, given that both the guilty and innocent scenarios were so closely spaced.) While the Supreme Court and the prosecution in the High Court were both content to describe the transfer scenario as ‘comparatively rare’, it was Fitzgerald’s own counsel who correctly asserted that Henry’s evidence was that such events are just plain rare.
Unfortunately, the High Court did not address Fitzgerald’s further argument, also correct, that Henry’s claims about the unlikelihood of secondary transfer were unreliable. As she readily conceded, her knowledge about DNA transfer came entirely from a very sparse literature:
in relation to the contact DNA or trace DNA the amount of literature is very limited so there is a lot more work that needs to be done…
It’s in its infancy and also the literature demonstrates examples of secondary transfer occurring under certain experimental conditions so as scientists we are aware that the phenomenon can happen
In another case decided the same day it explained why it freed Fitzgerald, the Court rightly held that evidence law doesn’t permit experts in a particular field to opine about other fields of which they have only a passing knowledge. The national court flagged but deferred for another day the question of whether Australian judges should require ‘an independent means of validation before an opinion may be found to be based on ‘specialised knowledge’. But for the Court’s questionable reading of Henry’s testimony, that day should have come at Fitzgerald’s appeal.
A court’s courage
What if there had been no video of the boxing matching? Or Sumner hadn’t testified? Or had denied shaking Fitzgerald’s hand? Or sitting on the freezer? Or Fitzgerald’s DNA was found on a less memorable household item? Or one of the makeshift weapons brought to the scene? Or if Fitzgerald had touched Sumner’s hand without realising it? Or if Fitzgerald didn’t know Sumner? If he had bumped into him on a crowded bus en route to the club? Or if Henry had said that transfer was impossible? Or that Fitzgerald’s blood was on the didgeridoo? Or if Fitzgerald had never appealed to the High Court? Or the High Court hadn’t taken his case? The answer is: but for a ‘succession of unlikely events’, Daniel Fitzgerald would almost certainly have remained in prison until at least 2032, on the basis of evidence just as flimsy as that considered by the High Court.
Unless, that is, Fitzgerald had been lucky enough to be charged in England. There, the Court of Appeal, a veteran of many miscarriages of justice, has always been alert to the danger posed by DNA evidence. Four years ago, it gave close attention to what level of academic research or forensic experience can sustain claims made about the likelihood of innocent DNA transfer. But that was in a case where DNA was just part of the evidence against the accused, which also rested on the detailed account of a rape complainant. The same court has repeatedly held that no criminal conviction can be sustained on the basis of DNA evidence alone, citing the possibility of transfer in cases involving DNA on cigarettes, balaclavas and scarves found at burglaries, even though none of the defendants in those cases had any idea how their DNA might have ended up on those items.
Australia’s High Court had the opportunity to make a similar landmark ruling in a 2010 case, but instead upheld the defendant’s conviction based on DNA evidence alone, on the basis of a prosecution expert’s assertion that the evidence was ‘extremely strong’ (a relative claim — extremely strong compared to no DNA evidence at all — that the Court this time read as an absolute one). These missed opportunities are particularly disappointing given that Australia is home to the worst known miscarriage of justice to date due to DNA: Farah Jama’s 2008 conviction for a rape that almost certainly never even happened, based solely on DNA evidence that was the result of poor cleaning at a rape crisis centre. Both Frank Vincent’s report on Jama’s conviction (arguing that DNA-only cases should never be prosecuted) and Julie Szego’s excellent new book on the case (describing, amongst other things, how prosecutor Brett Sonnet recognised the risk of error and pursued it despite opposition from other prosecutors) ought to be compulsory reading for every Australian forensic expert, lawyer, prosecutor and judge.
This year, in a report on a laboratory DNA contamination incident, England’s Forensic Science Regulator (a government watchdog with no equivalent in Australian) matter-of-factly observed (citing repeated statements in that country’s courts) that all DNA-only convictions are dangerous and recommended that charges should simply not be laid at all in such cases. After the Jama case, Victoria’s prosecutor changed its policy to require that the DPP personally sign off on all prosecutions that depend wholly or mainly on DNA evidence. But no other Australian prosecutor has followed suit and evidently South Australia’s prosecutor has very different standards.
The High Court should be commended for its courageous decision to free a man facing decades of prison based on a possibility of innocence that is much more speculative than the one that eventually freed Farah Jama. But its failure to do more than that leaves other Daniel Fitzgeralds at the mercy of Australian prosecutors who seem all too willing to run the risk of sending an innocent man to jail. Hopefully, the Court will give every criminal defendant whose conviction rests solely or mainly on DNA evidence similarly close attention when he or she makes a final bid for freedom in the national court.
Jeremy Gans is Professor of Law at Melbourne Law School.
AGLC3 Citation: Jeremy Gans, ‘The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen’ on Opinions on High (18 August 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/08/18/gans-fitzgerald>.