Reference to the Court of Appeal of the Question of the Conviction of David Brian Dougherty for Abduction and Sexual Violation by Rape MICHAEL HARDIE BOYS, Governor-General ORDER IN COUNCIL At Wellington this 1st day of July 1996 Present: His Excellency the Governor-General in Council Whereas on the 21st day of May 1993, David Brian Dougherty was convicted in the High Court at Auckland on charges of abduction and sexual violation by rape and was sentenced to concurrent terms of imprisonment of four years and seven years and nine months, respectively: And whereas no conclusive DNA evidence was obtained by the application of conventional DNA analysis in relation to the identity of the offender for the purposes of the High Court trial: And whereas subsequent to the High Court trial of David Brian Dougherty a new technique known as DNA amplification by polymerase chain reaction (PCR) became available in New Zealand for the analysis of genetic material that may have previously been considered as being too small in quantity for conventional DNA profiling: And whereas, following instructions from defence and prosecution counsel, this new technique was applied by Dr Peta Stringer of the Institute of Environmental Science and Research Limited to certain forensic samples obtained during the investigations into the charges against David Brian Dougherty: And whereas the results obtained by the use of the PCR technique indicated that genetic material found on the complainant's underpants and from swabs taken from her body (being evident as signals at the location of allele 4 which were weaker than the test control dots) was derived from a person with the same genotype as David Brian Dougherty and that there was genetic material extracted from the complainant's underpants (identified as allele 3) which could not be attributed to either David Brian Dougherty or the complainant: And whereas an application for leave to call new evidence and an appeal against the conviction of David Brian Dougherty were made to the Court of Appeal on the basis that the presence of the genetic material extracted from the complainant's underpants (identified as allele 3) pointed to the involvement of another person in the commission of the crimes for which David Brian Dougherty had been convicted: And whereas the only scientific evidence considered by the Court of Appeal in relation to the results obtained by the use of the PCR technique was produced by Dr Peta Stringer: And whereas on the 2nd day of November 1994, the Court of Appeal declined the application for leave to call new evidence and dismissed David Brian Dougherty's appeal against conviction in the High Court: And whereas an application, dated the 27th day of March 1996, has been made by David Brian Dougherty for the exercise of the mercy of the Crown in respect of his conviction based upon the review of Dr Peta Stringer's DNA evidence presented to the Court of Appeal conducted by three independent scientists namely: Dr Stephen Jan Gutowski, Manager, Research and Development at the Victoria State Forensic Science Centre, Victoria, Australia; Dr Rebecca Reynolds, Manager, Human Identity Group, Roche Molecular Systems Incorporated, California, United States of America; and Dr Arie Geursen, Director of Resources, Genesis Research and Development Corporation, Auckland, New Zealand: And whereas the application submits that the independent scientific review of the above-mentioned evidence establishes, among other things, that: (a) The DNA readings indicating David Brian Dougherty as the possible contributor to genetic material found on the complainant's underpants and on swabs taken from her body should not have been reported to the Court of Appeal because it is contrary to recognised scientific practice to report PCR test readings of such low intensity and it is likely that these readings arose as a result of factors other than the presence of human genetic material; and (b) The results of a number of tests which were conducted on samples taken from the complainant and her clothing and which disclosed certain DNA readings, being results that would have excluded David Brian Dougherty as the source of the DNA material found on those samples, were not reported to the Court of Appeal; and (c) There is no reliable genetic evidence in any of the tests conducted on the samples originating from the swabs taken from the complainant that would link David Brian Dougherty to the commission of the crimes for which he has been convicted; and (d) David Brian Dougherty is unequivocally excluded from having contributed the stains (identified as seminal fluid) extracted from the complainant's underpants: And whereas Dr Peta Stringer has reassessed her original interpretation of the DNA evidence presented to the Court of Appeal and has acknowledged that any signals that were of low intensity (i.e., weaker than the control dot) should not have been considered: And whereas Dr Peta Stringer and the three independent scientists referred to above have reached the same view that both David Brian Dougherty and the complainant are unequivocally excluded from having contributed to the DNA material (identified as allele 3) that was extracted from the complainant's underpants: And whereas it appears that evidence is available that could lead the Court of Appeal to the conclusion that the scientific evidence presented at the appeal was unsatisfactory and that a miscarriage of justice might have occurred: Now therefore, pursuant to section 406 (a) of the Crimes Act 1961, His Excellency the Governor-General, acting by and with the advice and consent of the Executive Council, hereby refers to the Court of Appeal for hearing and determination the question of the conviction of David Brian Dougherty for abduction and sexual violation by rape. MARIE SHROFF, Clerk of the Executive Council.