Director of Public Prosecutions v TAL

This was the first application in Queensland for a retrial of a person committed of murder. In such an application, ss 678B, 678E and 678F Criminal Code 1899 require that the Court be satisfied that new evidence be fresh and compelling and that the making of the order for retrial was in the interests of justice. The deceased had been found stabbed to death in her bedroom. In support of this application, the Director of Public Prosecutions relied on fresh DNA comparisons which placed the respondent’s DNA on a pillow and underwear in the deceased’s bedroom on the night of her death and therefore, it was argued, he must have killed her. The Court rejected that contention, and held that the evidence merely reinforced admitted facts and was not probative of the fact that the respondent had committed the act that constituted the offence. Accordingly, the application was dismissed.

Sofronoff P and Fraser and Morrison JJA

3 December 2019

The respondent was acquitted of murder in 1988 and the applicant sought a retrial pursuant to 2007 amendments to the Criminal Code Act 1899 because of fresh DNA evidence. In a joint judgment the Court of Appeal refused the application.

The application heard by the Court of Appeal was the first of its kind in Queensland and the Court was concerned with the requirements in ss 678B, 678E and 678F Criminal Code 1899 that the evidence be fresh, compelling and that the making of an order for retrial was in the interests of justice. [16].

The DNA evidence that arose after the acquittal came about from samples collected from the scene found proximate to the deceased’s corpse at the time of death. Scientific advancements had in the decades following the trial increased the accuracy of DNA profiling. A course of testing up until 2015 had decreased the likelihood that the DNA sample had come from anyone except the respondent. [13]–[14].

The applicant argued that the substantial issue in dispute at the original trial was the identity of the killer. Further that from the DNA found proximate to the deceased, it followed that the respondent must have been present when the killing took place. [61]. Ultimately it was argued that the fresh evidence was reliable, substantial and highly probative of the case against the respondent having regard to the issues in dispute in the proceedings in which he was acquitted. [60].

In a joint judgment, the Court stated that there was no dispute that the DNA evidence was fresh. [20]. But in a consideration of whether it was compelling it had to be found to be reliable, substantial and highly probative in the context of the issues in dispute in the case. [21]. In respect of this, the Court opined that there was no evidence from which it could be inferred that the respondent deposited the DNA in a way associated with the act of murder. [62]. Further the inference of the DNA being deposited in an innocent manner could not be rationally excluded beyond a reasonable doubt. [63].

It was found that the presence of the DNA only reinforced what were admitted facts in the original trial, namely that the respondent had been at the deceased’s house and in the deceased’s bedroom previously. [65]. Their Honours considered that the fresh evidence was not probative of the fact that the respondent committed the act that constituted the offence of murder, in this case a stabbing. [65].

Their Honours also questioned the reliability of the DNA evidence as concerned the continuity of the dated samples [66] and the fact that other evidence was now unavailable for testing by the defence. These circumstances bore upon whether the evidence was compelling and the requirement that the order be in the interests of justice inasmuch as a fair trial could not now be achieved. [69].

J Feely of Counsel