Richardson v R

THE COURT: The applicant was convicted after a trial by a jury of two counts of having sexual intercourse without consent contrary to the Crimes Act 1900 (NSW), s 61I. The applicant at all times denied the assaults and also denied that he touched the complainant, other than to give her a hug, mistaking her for a friend. At that time, the complainant was covered with a doona and the applicant denied any direct contact with her.

Evidence was adduced at trial which showed the presence of the applicant’s DNA on a low vaginal swab taken from the complainant shortly after the sexual assault. It was always the applicant’s case that the presence of his DNA on the vaginal swab could be explained as having been the result of secondary transfer.

The Crown placed considerable emphasis on the presence of the applicant’s DNA in both the opening and closing addresses to the jury. The Crown also rejected as risible any possibility of secondary transfer in the circumstances.

Subsequent to the trial, the applicant obtained DNA testing of the vaginal swab which was more discriminating than the test used by the New South Wales Forensic and Analytical Science Service, which carried out the initial testing and was the subject of the evidence at trial. The later testing revealed that the DNA present on the low vaginal swab was a mixed profile of two contributors, one of whom was the applicant.

The Crown obtained a further report from its expert, Ms Trabuio, who agreed that the more discriminating Y-Filer Plus test carried out appears to have detected a secondary contributor that the Y-Filer test used initially had been unable to pick up.

The Crown accepts that the later testing was not actually or constructively available at the time of trial, and that the evidence is credible and plausible: see the principles discussed in DV v R [2017] NSWCCA 276 at [169].

The Crown also accepts that had the evidence been available at trial, there were a number of defence arguments that the applicant could have raised. The Crown also accepts that the submissions made by the Crown in the closing address could not have been made had the new evidence been available.

The Crown concedes that, given the compelling nature of the new DNA evidence, it is open for this Court to conclude that the applicant has lost a chance of acquittal reasonably open to him. We consider that the Crown concession is properly made and the conviction should be quashed.

Accordingly, the Court makes the following orders: