The prosecutor's fallacy in relation to DNA evidence is not a relevant error unless the identity of the DNA source is a fact in issue at trial. Where the defence implicitly accepts that the defendant's DNA was found at the scene and instead challenges how or when it got there, the fallacy does not occasion a substantial miscarriage of justice. General expert evidence on memory and unconscious transference should not be admitted to explain a witness's description of an offender unless the witness is recalled to lay an evidentiary foundation for the application of that evidence; absent such foundation, the unfair prejudice outweighs the probative value under s 137 of the Evidence Act 2008 (Vic).
The full text is available to signed-in members, including the 4 later cases that cite this judgment.