In a circumstantial DNA case, the theoretical possibility of secondary transfer of DNA conceded by a forensic expert does not necessarily give rise to a reasonable hypothesis consistent with innocence; the jury is entitled to assess the plausibility of the transfer mechanism in light of all the evidence, including the location and number of DNA deposits and the medical evidence of injury. Fitzgerald v The Queen is distinguishable where DNA is found in multiple deposits internal to a victim's body rather than on a portable inanimate object, and where no specific mechanism or occasion for secondary transfer is identified. Evidence of an accused's statement that he cannot say for sure he did not commit an offence because he cannot remember, where it is neither an admission nor consciousness of guilt evidence, may have such slight probative value that it should be excluded under s 137 of the Evidence Act 1995 (NSW) notwithstanding limiting directions.
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