Challenges to the admissibility of expert evidence based on probabilistic DNA analysis software (such as TrueAllele) that are founded on alleged lack of validation of the software do not raise issues under s 79 of the Evidence Act 1995 (NSW). The power to receive further evidence on appeal under s 12(1) of the Criminal Appeal Act 1912 must be exercised having regard to the particular ground of appeal; evidence that seeks to contradict the jury's verdict must satisfy the fresh or new evidence rules. In consciousness of guilt directions, hypothetical explanations for post-offence conduct should only be specified where they reasonably arise from the facts and should not diminish the force of any actual explanation provided by the accused.
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