Fish J.
Fish J. — The trial judge and, indeed, counsel for both sides, assumed that the complainant’s DNA on cutting 6-1 was found on the inside of the appellant’s trousers. It now appears that there is nothing in the record to support the trial judge’s finding in this regard.
Moreover, it appears from the reasons of the trial judge that, but for the presumed presence of complainant’s DNA on the inside of the appellant’s trousers, he would have been left with a reasonable doubt as to the appellant’s guilt.
Berger J.A., dissenting in the Court of Appeal, would have allowed the appeal largely on account of the trial judge’s misapprehension of the DNA evidence, and he would have ordered a new trial. We share that view of the matter.
Accordingly, the appeal is allowed; the judgment of the Court of Appeal is set aside; the appellant’s conviction is vacated; and a new trial is ordered.