Convicted killer Andrew John Cobby is appealing after DNA lab failings

Evidence found on the hammer used to kill a mother will be re-examined as her estranged husband pushes to overturn his murder conviction.

The hammer used to kill a Gold Coast woman during a vicious attack will be forensically retested as her husband tries to appeal his conviction for her murder, a court has been told.

Andrew John Cobby was convicted in 2021 of the murder of his estranged wife Kym, who was beaten with a hammer and choked to death in the driveway of her Gold Coast hinterland home in November 2017.

Cobby is in the process of appealing the conviction, having always claimed his innocence despite a jury finding him guilty of her murder.

He’s always maintained an unknown man appeared out of the bushes near the home and attacked Ms Cobby in front of him, prompting him to flee.

Kym Cobby was murdered during a vicious attack near her Gold Coast home.

In a review before the Court of Appeal on Thursday, Justice Debra Mullins granted the Crown’s application to have the hammer used during the murder to be returned for further forensic testing.

It comes after commissioner Walter Sofronoff KC found in December serious problems in how the state-run DNA lab conducted its forensic testing of evidence.

Cobby launched his appeal on the basis the DNA retesting of the hammer would show other DNA of a different person, proving his innocence.

If Cobby’s appeal is granted, it will be the first high-profile case involving DNA evidence to be retested as a result of Mr Sofronoff’s explosive review.

The court was told on Thursday that Cobby had altered his appeal application and decided to no longer pursue one of the original grounds of appeal about misdirection of the jury in relation to motive.

Justice Mullins said Cobby now intended to frame his grounds of appeal “in terms of fresh evidence pertained to forensic evidence provided by Qld Health Forensic Services” report in December 2022.

Andrew Cobby was found guilty of his wife's murder in 2021.

She told Cobby he should wait to receive the results of the latest retesting of the hammer, which is expected to be completed by early May.

“It just strikes me that now the hammer is going to undergo further forensic testing, there will be another forensic report prepared that may affect how Mr Cobby wants to proceed,” Justice Mullins said.

“The long and short of it, it’s good that your given the respondent notice to where you’re heading with amended grounds, but I’m letting you know that you may expect to wish to amend them further once you’ve got the information.”

The Crown prosecutor said the lab had confirmed it would “endeavour to accelerate (the retesting) given the priority” of the case.

“What has transpired as a result of the inquiry is that there’s been a purchase of equipment, more sensitive equipment, particularly in the software,” he said.

“The retesting and the development of the software will assist the DNA (lab) having a more refined position.”

If approved, Cobby said the results of fresh DNA testing of the hammer used to kill his wife would form part of his case for appeal.

Andrew Cobby is appealing his conviction in the Queensland Court of Appeal. Picture: NCA NewsWire / Dan Peled

Cobby, who represented himself, also raised issue with Justice Mullins on Thursday that he was still not receiving adequate time in jail to spend preparing his legal case.

He told the court the general manager had refused him extra access to computers.

Justice Mullins told him she could only make a written request to the general manager, which she had already done, and it was up to the jail to allocate extra time.

Justice Mullins adjourned the matter but did not set a next court appearance date, explaining she would allow the parties time to wait for the new forensic report and to give Cobby time to refine his appeal grounds.

It is expected the appeal will return in late 2023.

Originally published as Convicted killer Andrew John Cobby is appealing after DNA lab failings