DNA - An Overview of Testing and the Crimes (Forensic Procedures) Act 2000

This paper was written by Andrew Haesler
Public Defender
Revised June 2003

INTRODUCTION

The Crimes (Forensic Procedures) Act 2000 commenced on 1 January 2001. The Act introduces a regime for carrying out forensic procedures on suspects, those convicted of serious indictable offences and volunteers. The Volunteer Provisions in Part 8 commenced on the 1 June 2003. Similarly amendments to police procedures in the Crimes (Forensic Procedures) Amendment Act 2002 also commenced on that date. It provides for the use and destruction of material obtained by those procedures and sets out rules for placing and matching profiles derived from forensic material on a national DNA database. The Commonwealth government has established Crim Trac a National Criminal Investigation Data Base (NCIDB). Crim Trac aim to establish systems for accessing operational police information across the country. The NSW police have their own database, as do the Australian Federal Police.

The Act draws substantially on the work of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys General (MCCOC). Chaired by Justice Howie NSW Supreme Court.

A discussion paper titled Model Forensic Procedures Bill and the Proposed National DNA Database was released in May 1999. In February 2000, after further submissions were received in response to the discussion paper, a final report and Model Bill were released.

A regime for forensic testing was introduced as Part 1D of the Commonwealth Crimes Act by the Crimes (Forensic Procedures) Act 2000 (Cth). Like its NSW counterpart, it substantially accords with the MCCOC model.

In this paper, I seek to briefly outline some of the key provisions of the NSW Act and some of the problems with it. Since its introduction the Act and the use of DNA DNA - Deoxyribo Nucleic Acid is a molecule found in the nucleus of every cell (except red blood cells). It contains the genetic blue print for an individual. With the exception of identical twins it is now accepted that no two individuals have the same DNA. The standard jury direction in NSW however is phased still in terms of probabilities: 'The significance of a match ... establishes no more than that the accused could be the offender' R v Pantoja (1996) 88 A.Crim.R. 554 at 564. as an investigative and evidentiary tool has had a significant impact on law enforcement methods and court procedures across the whole criminal justice system.

KEY PROVISIONS

Testing Suspects

The Act provides for the testing of suspects. A suspect is defined in section 3(1) as:
(a) a person whom a police officer suspects on reasonable grounds has committed an offence;
(b) a person charged with an offence;
(c) a person who has been summoned to appear before a court in relation to an offence alleged to have been committed by the person; or
(d) a person who has been served with an attendance notice issued under section 100AB of the Justices Act 1902 in relation to an offence.

Significant is the inclusion of suspects who have not necessarily been arrested or charged. This takes the provisions beyond S.353A Crimes Act 1900 (NSW), which limited the taking of blood, saliva and hair samples to persons in lawful custody. Introduced 1995 following the decisions of Fernando v Commissioner of Police 1995 36 NSWLR 567. There are a few distinctions made in the Act between suspects under arrest and suspects not under arrest, which I will address in this paper. Table A charts the procedures that must be followed before a suspect is tested.

Types of procedure

The Act sets out the forensic procedures that may be carried out on suspects. There are three types of procedure:
1. a non-intimate forensic procedure (such as the taking of finger or palm prints, a sample of non-pubic hair or the taking of a sample from under a nail);
2. an intimate forensic procedure (such as a blood sample or dental impression); or
3. a buccal swab. A buccal swab looks like an elongated cotton bud, it is scraped gently inside the mouth to collect samples of the mouth lining. The head detaches into a sealable container. If administered consensually it is relatively benign. If administered by force...?

In the Model Bill and Commonwealth Crimes Act, a buccal swab is classified as an 'intimate' forensic procedure. There was considerable debate leading up to the introduction of the legislation in New South Wales regarding the classification of buccal swabs as either intimate or non-intimate procedures. A typical and not particularly sensible NSW compromise means that in the Act the taking of a buccal swab is now categorised as a separate procedure. Although for all intents and purposes it is treated in the same way as an intimate forensic procedure!

The significance of the difference between the categories of procedure is, an intimate forensic procedure or a buccal swab may only be carried out on a person suspected of a 'prescribed offence', whereas a non-intimate forensic procedure Other than the taking of a hair root sample, which may also only be taken from a person suspected of a prescribed offence. may be carried out on a person suspected of an indictable or summary offence.

A 'prescribed offence' is defined in section 3(1) as an indictable offence or any other offence prescribed by the regulations. The Government has given an undertaking not to prescribe any offences in the regulations before the legislation is reviewed as required under the Act. Hansard, The Hon P Whelan, 31 May 2000. See section 122.

A second distinction between the different categories of procedure relates to the procedure for authorising the carrying out of forensic procedures without consent.

Who may order tests?

The Act allows for a forensic procedure to be carried out either with the suspect's informed consent, by order of a senior police officer or by court order. Before asking a suspect to consent to a forensic procedure, a police officer must be satisfied that:

(a) the person is a suspect;
(b) the person is not a child or an incapable person; A forensic procedure may only be carried out on a child or an incapable person with the court's authorisation. An incapable person is defined in section 3(1) as an adult who is incapable of understanding the general nature and effect of a forensic procedure or who is incapable of indicating whether or not he/she consents to the carrying out of a forensic procedure.
(c) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed a relevant offence; and
(d) the request for consent is justified in all the circumstances. Section 12.

All suspects asked to consent to a forensic procedure must be given information about the procedure, including its purpose, the offence to which it relates, their right to refuse consent and the consequences of any refusal. This includes the use to which any DNA profile derived from forensic material may be put. Section 13. Suspects are also to be given a reasonable opportunity to communicate or attempt to communicate with a legal practitioner. Section 9(2)(d) and 10(6).

If a suspect under arrest does not consent, a senior police officer may authorise a non-intimate procedure or the police can seek a court order.

When may tests be ordered?

Before authorising a non-intimate procedure, the senior police officer must be satisfied that:

(a) the suspect is under arrest;
(b) the suspect is not a child or incapable person;
(c) there are reasonable grounds to believe that the suspect committed an offence;
(d) there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed an offence; and
(e) the carrying out of the forensic procedure without consent is justified in all the circumstances. Section 20.

Some orders can only be made by court order no matter what the procedure. See Sections 8 and 23. These include applications for:

* any forensic procedure on a child or incapable person
* any forensic procedure on an suspect not under arrest who does not consent to a procedure;
* an intimate forensic procedure or buccal swab on a suspect under arrest who does not consent to such a procedure.

Court ordered tests
The criteria for a magistrate making a court order are similar to that for a senior police officer's order (See Table B). The magistrate must be satisfied that the person is a suspect, there are reasonable grounds to believe that the forensic procedure might produce evidence tending to confirm or disprove that the suspect committed a relevant offence, and that the carrying out of the procedure is justified in all the circumstances. Section 25.

Challenging Court Orders
Appeal provisions are presently set out in s104 of the Justices Act 1902. As of July 2003 and the repeal of Justices Act they can be found in Part 5 of the Crimes (Local Courts Appeal and Review) Act 2002. The right of appeal for both parties can be found in section 115A of the Act. Some general comments on Appealing orders can be found in Kerr v Commissioner of Police [2001] NSWSC 637.

Testing convicted offenders
Part 7 of the Act provides for the testing of convicted serious indictable offenders (offenders) serving sentences in New South Wales correctional centres, whether convicted before or after the legislation comes into force. A serious indictable offender is defined as a person convicted of an offence carrying a maximum penalty of five or more years imprisonment. Section 3(1). To date a significant number of prison inmates have been tested. Very few refused or contested their testing. About 1 in 20 don't consent and require the intervention and order of a senior officer. Only a very few have required a court order 2 out of 2553 in March 2002. N Dugandzic Inmate testing, Institute of Criminology Seminar Papers April 2001

The types of procedures available in relation to offenders are limited to the taking of hair root samples, prints, blood samples and buccal swabs. Section 61. A forensic procedure may be carried out on a serious indictable offender either with the offender's informed consent or in the case of hair root samples and prints, by order of a senior police officer or in the case of blood samples and buccal swabs, a magistrate. Children and incapable offenders are not capable of giving informed consent and any procedure carried out on such offenders must first be authorised by a court.

There are two main differences between the Act and the Model Bill, and Commonwealth Crimes Act in their treatment of offenders. First, while the NSW Act is limited to serious indictable offenders currently serving a term of imprisonment, the Commonwealth Crimes Act is not; released offenders may be asked to consent to a forensic procedure and if they do not, an application may be made to a court for it to be ordered.

Secondly, and this to some extent cancels out the first difference - the Commonwealth Crimes Act, following the model, imposes criteria for the testing of offenders. These include consideration of the seriousness of the circumstances surrounding the offence committed by the offender and whether carrying out the procedure is justified in all the circumstances. Sections 23WO and 23WT Crimes Act 1914 (Commonwealth). Again, they are not present in the NSW Act.

Volunteers
Part 8 of the Act provides for the carrying out of forensic procedures on volunteers. A forensic procedure may be carried out on a volunteer, other than a child or incapable person, with the volunteer's informed consent. This will allow for both mass testing as occurred at Wee Waa and for a convicted person to volunteer for testing so that a review can be made of their original conviction. An Innocence Panel has been established to assist deserving applicants obtain assistance to review convictions based on suspect forensic/DNA evidence. To date 6 investigations have been authorised.

A forensic procedure may be carried out on a volunteer who is a child or incapable person either with the informed consent of a parent or guardian or by court order, unless the child or incapable person objects to or resists undergoing the procedure. The provisions commenced on the 1 June 2003. Prior to their commencement they were amended. A sample from victim of a crime against the person is not to be treated a crime scene sample and matched across all indexes These changes followed recommendations of a Review by the NSW Legislative Assembly Standing Committee on Law and Justice.. Where a person provides prints for elimination purposes there cannot be general matching. See s87A

Of particular importance are provisions, which allow for a volunteer's sample to be matched against all indexes on the database. An important example is the Missing Persons Index. If a person volunteers to put their sample on the index in the hope of helping to locate or identify a missing relative they must be given information that there will be cross matching of their sample across all indexes including crime scene indexes. That match cannot be used in the prosecution of any crime. Ss77(2)(cl), 83A However, this does not preclude the police from obtaining a fresh sample if a match results and gives rise to a suspicion that the person was involved in the commission of a crime. As the Australian Law Reform Commission noted the safeguards are therefore more apparent than real. They will have no real effect. The Protection of Human Genetic Information. Report No. 96 March 2003 at 42.24. The ALRC have recommended strict separation of indexes so that victims and volunteers cannot be matched against other indexes (Recommendation 41-5).

Following recent terrorist outrages the Commonwealth amended their legislation to allow for Commonwealth and State and Territory access to data bases for a 'permitted purpose' such as the conduct of the investigation into the Bali bombing or other incidents determined by the Attorney General. Information can be matched with the unknown deceased persons index and information shared with Australian and foreign law enforcement agencies. Division 11A Part 1D Crimes Act (Comm.) 1914 A Disaster Victim Identification Database was specifically created under the auspices of Crim Trac to deal with the Bali incident. The ALRC expressed its concerns regarded what may happen to information obtained, volunteered and then shared as a result of such investigations. See Chapter 42 ALRC Report 96 The D.V.I. database does not fall within the ambit of the Crimes Act (Commonwealth)

Who may carry out a test?
The class of persons who may carry out a particular procedure is set out in the Act and varies depending on the procedure itself. Section 50. For example, an appropriately qualified person may take a buccal swab whereas a doctor, dentist or dental technician may only take a dental impression. A medical practitioner or dentist of the person's choice may be present during the carrying out of certain procedures such as the taking of blood samples. Some tests, such as buccal swabs, may be carried out by the suspect on themselves. Section 50(4).

If practicable, most intimate forensic procedures are to be carried out by a person of the same sex as the suspect, serious offender or volunteer. Children have the option of choosing the sex of the person carrying out the forensic procedure on them. Section 51. In addition, the act makes provision for taking samples from transsexuals.

Section 48 states that the legislation does not authorise the carrying out of a forensic procedure in a cruel, inhuman or degrading manner.

Challenging Admissibility
The significance of these various provisions and safeguards becomes evident when one considers the rules regarding the admissibility of evidence obtained from the carrying out of a forensic procedure. This evidence will generally be inadmissible in proceedings against a person if the police fail to comply with the requirements under the legislation. Part 9, section 82 - 85 See Kerr v Commissioner of Police [2002]NSWSC 637. These provisions mirror section 138 of the Evidence Act 1986 (NSW). DNA evidence originally excluded by a trial Judge using s 138 was held by the CCA to be properly admissible See Lisoff [1999] NSWCCA 364.

There are exceptions, for instance, where the court finds that the desirability of admitting the evidence outweighs the undesirability of admitting improperly obtained evidence. The Act clearly states that the probative value of the evidence in itself does not justify the admission of improperly obtained evidence. Section 82(4).

Although some of the requirements contained in the Act are qualified by the phrase 'if practicable', the burden of proof remains with the prosecution to prove on the balance of probabilities that it was not practicable to do something which was required to be done. Section 104. A table setting out a number of recent cases where challenges to DNA evidence have been made, is Annexed C.

Destruction of Samples
The Act provides for the destruction of forensic material obtained from a person who is acquitted or whose conviction is quashed. It also ensures that forensic material taken from a suspect is to be destroyed if proceedings against the suspect have not commenced within 12 months of the material being taken, unless a court is satisfied there are special reasons for extending the 12 month period or where there is an outstanding warrant against the suspect. Part 10 Sections 86-89.

Matching Profiles
Provisions regulating the recording, retention and use of information obtained from forensic procedures on the DNA database system are set out in Part 11 of the Act. The table in section 93 sets out the specific provisions for the permissible matching of DNA profiles against indexes contained in the database.

For example, DNA profiles taken from suspects and offenders may be matched against the crime scene index, which contains profiles taken from unsolved crime scenes. By contrast, DNA profiles taken from volunteers for limited purposes may only be matched against the crime scene in respect of which the volunteer has freely provided his or her DNA.

Provision is also made for matching crime scenes and other databases in order to identify unknown deceased persons or missing persons.

The volunteer provisions will enable those who wish to try to establish their innocence of crimes to be tested against crime scenes on the database.

Indigenous Suspects
The Act makes specific provision for indigenous suspects. An Aboriginal or Torres Strait Islander suspect must not be asked to consent to a forensic procedure until after a representative of an Aboriginal legal aid organisation has been notified, unless the suspect has waived this right or has engaged another legal practitioner. Section 10(4)-(5). An interview friend must be present when an Aboriginal or Torres Strait Islander is asked to consent to a forensic procedure, during the hearing of an application for a court order and, if reasonably practicable, when a forensic procedure is carried out. Sections 10(3), 30(3) and 55(2).The police however can exclude an interview friend if they take the view their presence may prejudice the investigation. Section 10(9).

Offences
Part 11 of the Act creates offences relating to the supply and use of forensic material. The offences of unlawfully supplying forensic material, improperly accessing information stored on the DNA database and improperly matching profiles attract maximum penalties of two years imprisonment or an $11,000 fine or both.

The Act specifically provides in section 121 for the Ombudsman to monitor the exercise of police powers under the legislation for a period of 18 months and to prepare a report after that period to be tabled in each House of Parliament.

In addition, the legislation is to be reviewed after 18 months following the date of assent to determine whether its policy objectives remain valid and whether its terms remain appropriate for securing those objectives. Section 122.


TAKING BLOOD AND PROVING IDENTITY

At present the Crimes Act allows blood, saliva and hair samples to be taken from persons in lawful custody. Section 353A(3A) Crimes Act 1900 NSW. Only a medical practitioner can take such samples. Before the development of modern DNA techniques, forensic scientists used genetic markers found primarily in blood to identify suspects. These 'serological markers' included blood groups, proteins and enzymes. Their use, however, was limited for although they could be identified in such things as semen, their utility depended on the nature of the material and whether or not it was degraded. Carracedo A - DNA profiling' paper delivered - First International DNA Users conference. Nov 1999, Lyon France. Similarly, the database against which samples could be compared was limited.

In relation to the taking of blood and saliva samples, the new Act will make section 353A of the Crimes Act redundant. The Section will still have its uses as the new Act is specifically not to be used as a means of identifying individuals. This is spelt out in the definition of 'forensic procedure' in section 3(1);
' forensic procedure ...does not include:...(e) the taking of any sample for the sole purpose of establishing the identity of the person from whom the sample was taken'.

This important civil liberty protection ensures (for the moment) that the new Act cannot be used merely to prove the identity of individuals. It can only be used in relation to the forensic investigation of a particular crime. It is important that the new Act not be extended from linking suspects with specific offences, to being used more generally to identify individuals. The exception is the provision for establishment of a missing person's index on the data base - sections 90 & 93.

As section 353A of the Crimes Act also allows Police to take photographs or prints in order to establish a person in custody's identity Section 353A (3) Crimes Act 1900 NSW. something not covered by the new Act, it was not repealed.

DETERRENCE

Should forensic testing and in particular DNA testing lead to more convictions and more certainty of conviction for the commission of offences, it could be argued that the present trend to longer sentences should be reversed.

A function of the criminal justice system is the punishment of offenders in order to deter both the offender and others. Veen v R (No2) (1988) 164 CLR 465 at 467. Issues of deterrence, it is often said by both the legislature and the courts, justify increased penalties (in the main without empirical support). R v Henry & Ors (1999) 46 NSWLR 346 and R v Ponfield & Ors [1999] NSWCCA 435.

However it is rare indeed for your average criminal to say; 'I will desist from committing this crime because of what was said by the Chief Justice in R v Henry'. Rather, a person may be deterred because if they know that if they commit the crime they will be caught. Once a sizeable database of offenders and suspects is built up this is the promise of DNA testing, at least for those crimes where forensic samples, no matter how minuscule, are left.

In 1977, a prescient judgment Jacobs J in Griffith v R (1977) 137 CLR 293 at 327. noted :
'The deterrent to an increased volume of serious crime is not so much heavier sentences as the impression in the minds of those who are persisting in a course of serious crime that detection is likely and punishment will be certain'.

If the promises made for DNA testing are borne out then detection will become easier for certain types of crime. However to date, despite claims made in the NSW Parliament Premier Bob Carr: Question Time Legislative Assembly NSW 6 April 2000. A cold hit rate of 18% is claimed as is a clear up rate of 333 crimes per month but no conviction figures are given. Report MCCOC Model Forensic Procedure Bill (1999) p.1. One should be wary of exaggerated claims. At present there is a clear up rate of 5% for break and enter offences the potential for a 60% increase in clear up rates attributed to DNA matching will only increase the actual rate of clear ups to 8% overall, hardly earth shattering. and in the UK about detection rates MCCOC Report, p.1. no hard data has been produced to indicate that crime itself has gone down or that the much heralded matches have resulted in similar rates of conviction. NSW Legislative Council Standing Committee on Law and Justice Report, 19 February 2002. Substantial amendments to the Act were recommended. Nevertheless if they do, then a significant argument can be made for reduction of penalties and a revaluation of the theory of deterrence.

THE LAW AND ORDER HYPE

DNA testing has been touted as the 'fingerprinting technology of the twenty-first century'. Hansard, The Hon M J Gallagher, 21 June 2000, p.69. The former NSW Police Minister was particularly effusive stating at one point that 'the innocent have nothing to fear' Sunday Telegraph 23/1/2000. A sentiment echoed by his successor Mr Costa during the recent election.

David Oldfield MLC added the One Nation view when he told the Legislative Council:

I have one minor concern about this Bill. I will not dwell on it but it needs to be mentioned. Sadly, the Bill provides special arrangements for people of Aboriginal decent. As a result of DNA testing in Wee Waa, the accused has turned out to be a person of Aboriginal descent. Therefore, there does not seem to be any impediment to catching people of that persuasion. I will not dwell on that matter, but it needed to be mentioned from the point of view of One Nation's consideration of all things being equal in the way people are treated. Hansard, 21 June 2000, p.90.

MCCOC considered the argument that the Act should just 'give the police the basic powers and let them get on with it': MCCOC Report p.2. Their May 1999 Report Model Forensic Procedures and the proposed DNA Database, put forward a number of reasons for the safeguards contained in the Model Bill, most of which are to be found in the Act. These include;
* the importance of protecting privacy given that DNA contains much more detail about a person than for example - a fingerprint;
* evidence relying on scientific expertise can be so apparently convincing that safeguards which work against both error and tampering are essential;
* as the success of any data base will depend on the cooperation of volunteers, public confidence that samples given will only be used in accordance with their consent the scheme must be maintained;
* harassment of convicted offenders of itself does not solve crime; and
* it would be naive to assume that all those involved in DNA testing will perform their tasks properly. Accountability mechanisms must be put in place. MCCOC Report p.3.

To a significant degree those principles informed the drafting process of the NSW Act, the Model Bill and the Commonwealth Bill. That is not to say however that there are no problems with the Act.


CIVIL LIBERTY IMPLICATIONS

Justice Michael Kirby of the High Court has stated:

To the extent that you enhance the capacity of the State, without reasonable cause, to take body samples, you at least raise a number of questions. First, the issue of self-incrimination. Second, the enhanced power of the State to intervene in the life of the individual. Third, the problem of the risk of tampering with samples, which must be carefully secured if the system is to have integrity. And finally, the risk of error. Quoted in Ray Moynihan, 'DNA testing threatens freedoms: Kirby', The Australian Financial Review, 14 April 2000, p.30.

In relation to the testing of offenders in Victoria, it has been said that this process undermines the presumption of innocence and 'constitutes a serious interference with the respondent's personal liberty and privacy by compelling that person to undergo a forensic procedure when the State has no reasonable suspicion or proof of that person's involvement in any crime' Dan Meagher, 'The Quiet Revolution - A Brief History and Analysis of the Growth of Forensic Police Powers in Victoria'(2000) 24 Criminal Law Journal 76, p. 84. Considerable success has been claimed for the testing of prisoners in Victoria: '..with links to 116 unsolved crimes and clues provided to 150 others'. The Australian 15/11/2000. No figures have yet been given for convictions based on DNA matches.

However many of our legislators think such interference is a good thing. The Honourable M I Jones has said:

Some have suggested that the Bill will enable police to go on so-called fishing expeditions. Well, I think fishing expeditions are wonderful if they net a catch of criminals who can be put away thereby protecting our society. Hansard, 21 June 2000, p.95.

The NSW Police Service mounted a concerted campaign to significantly water down the NSW Act, preferring in its stead provisions based on the UK Police and Criminal Evidence Act 1984. Their submissions to a recent Legislative Council Review of the Act continued the themes - more testing - less restriction.

A popular viewpoint among politicians and police seems to be that that forensic evidence is infallible and that if a DNA match has been made, then the culprit has been found and a conviction will follow. This is a gross simplification.

All that a DNA test does is show that there is a link between a crime scene and a suspect. How that link came about is still a matter for evidence at trial. Obviously the nature of the item tested for DNA may influence the weight to be given to that evidence; a cigarette butt may have less probative value than a semen sample obtained from an internal swab. For a treatise on how to plant a semen sample see Scot Trurow's novel 'Presumed Innocent'.

Further, DNA testing does not produce 'fingerprint-like' results positively linking a suspect with a crime scene; instead, it only produces a statistical probability of that link.

Care must be taken, not only in handling and analysing samples, but also in presenting statistical evidence to a jury. For example, UK Court of Appeal in R v Doheny; R v Adams [1997] 1 Cr App R 369 held that it is wrong to confuse the match probability, say, one in a million, with the likelihood ratio, such as that the chances of a person other than the defendant leaving the crime stain are one in a million. It was shown in the recent case of Keir [2002] NSWCCA 80 how easy it is to get the figures wrong and inadvertently exaggerate the efficacy of a DNA 'match'.

Terry O'Gorman, President of the Australian Council for Civil Liberties noted:

Royal Commissions and ongoing controversies over police fabrication of evidence have dotted the criminal justice landscape in every state and territory as well as the Australian Federal Police and the National Crime Authority for the past two decades.

Are we seriously expected to believe that the sometimes-significant minority of police who fabricate evidence won't do so with DNA samples? Only the blinkered, the foolish and those who are myopically pro police would discount the possibility of fabrication of DNA evidence. Terry O'Gorman, 'Genetic databases not always benign' The Australian, 12 April 2000, p.15.

DNA profiling evidence has been subject to severe criticism. Some courts have ruled DNA evidence inadmissible; for example, R v Hammond, unrep., 7/12/92, CCA NSW R v Lucas (1992) 2 VR 109). It has been argued in a number of cases, sometimes successfully (for example, R v Borham, unrep, 3/11/92, CCA NSW) that the forensic scientist who produces DNA evidence in court lacks the necessary expertise to give the frequency calculation as they often lack formal qualifications in statistics. However, the trend is now strongly in favour of the general admissibility of such evidence unless firm challenge can be made to the rigour of testing procedures or analysis. See for example R v Pantoja (1996) 88 A Crim R 554, R v Milat (1996) 87 A Crim R 44; and R v Lisoff [1999] NSW CCA 364 . See attached Table C.

DNA profiling has been presented as the forensic breakthrough of the century. Consequently, there may be a feeling among defence lawyers that DNA evidence is overwhelmingly probative and therefore not worth contesting. However, questions have been raised in criminal cases in relation to the technique of DNA profiling and the interpretation of results, illustrating the importance for the defence of an independent analysis.

It has been stated that 'matching is not a straightforward mechanical process' Mike Redmayne, 'Doubts and Burdens: DNA Evidence, Probability and the Courts' (1995) Criminal Law Review 464, p.466. and that 'forensic science evidence, like any other, must be thoroughly probed and tested in order to expose weaknesses or room for reasonable doubt' Russell Stockdale and Clive Walker, 'Forensic Evidence' in Justice in Error, Clive Walker and Keir Starmer (eds), London, 1993, p.77.

Concerns commonly raised about DNA profiling include:

* that the technology was not generally accepted in the scientific community;
* that the interpretation of the profiles in the case in question was incorrect;
* that the forensic scientist was not qualified to give the evidence; and
* that the laboratory's procedures were dubious or had not been complied with. Henry Roberts, 'Interpretation of DNA Evidence in Courts of Law: A Survey of Issues'(1998) Australian Journal of Forensic Sciences 30 (1) 29 - 40.

The present Act will make such arguments significantly more difficult to put however caution must still be exercised. Errors can still be made both in the laboratory and statistically.

In New Zealand problems arose leading to a Commission of Inquiry. 'Murder DNA tests botched' The New Zealand Herald 26/5/1999. The police excused the error as 'procedural difficulties in investigative analysis.'  The matter led to the establishment of the Scott Eisbaum Inquiry, which failed to find the cause of the error. Preliminary DNA identification of a suspect was reassessed and found wanting only after the suspects alibi established that he was on a different Island at the time of the offence. Recently in the UK the first known example of a false match, said to be a one in 37 million chance, occurred. Again, only retesting after an apparently unassailable alibi was put forward lead to the dropping of charges. UK DNA Mismatch http://www.scoop.co.nz/stories

PROBLEMS WITH THE ACT

Although the Act contains some civil liberty and procedural safeguards there are a number of serious concerns with the legislation, which must be addressed. These include: Ben Saul, 'Forensic DNA testing in NSW', 13(1) Current Issues in Criminal Justice, p.74

That a sample taken from a suspect for one crime can be matched against all crime scene data on the national database.
* That samples can be taken from suspects where they 'might produce evidence' not where 'it is likely' to do so as in the Commonwealth Crimes Act.
* That there is no requirement for the immediate physical destruction of samples taken if charges are not laid;
* That as more samples are taken, the temptation will be to apply more comprehensive testing to them in order to 'unlock the secrets of criminal DNA'- so called 'function creep'. For example the UK Forensic Science Service offers a red hair identification service for crime scene samples said to detect 85% of redheads ALRC Report 96 at 41.100. ;
* That the Act allows for the retrospective testing of prisoners who are serving sentences for offences whose maximum penalty is five years or more; During the recent election expansion of the convicted person database was promised. It will soon allow for testing of ex prisoners not just those in custody.
* That no formal procedures exist for those seeking to prove their innocence by accessing the database have been established. On those that have been announced are subject to vetting by a government committee which includes representatives of the prosecution and victims groups; and
* That there is still at least in the rhetoric surrounding the Act, a confusion between finding a match on the database assessed as a probability and proof beyond reasonable doubt. A confusion that could spill over into criminal trials.

The NSW Legislative Assemblies Law and Justice Standing Committee have made many suggestions for change and improvement of the Act. Recently the ALRC have made significant recommendations for Reform. Their Report released in May 2003 is the most detailed and comprehensive review of Forensic Procedure legislation to date. It explores in detail many of the legal and ethical problems noted in this paper. The statutory Review of the Act is to be tabled in the next parliamentary sittings.

CONCLUSION

The Act has been painted both as a panacea for solving all crime and as the modern equivalent of the Spanish Inquisition. In the long run both may be proved to be true. However, at this time the Act's key factors must be understood and applied.

As the Act is silent on how it is to fit into general court procedures, it must be treated as merely facilitative of a form of evidence that is becoming increasingly common in criminal hearings - that is, expert testimony.

To that testimony one applies both the provisions of the Evidence Act and the common law For example see; Hocking v Bell (1945) 71 CLR 430, Chamberlain No2 (1984) 153 CLR 521 at 598 Duke (1979) 1 A Crim R 361, Pantoja (1996) 88 A Crim R 554 and R v Milat (1996) 87 A Crim R 446 and Table C. to determine relevance, weight and admissibility. There is no mystery to forensic evidence that cannot be solved by an understanding of the new Act and the application of basic principles.

Andrew Haesler
Barrister
Public Defender
23 June 2003



TABLE C

R v Karger - SASC 29 March 2001, Justice Mullighan
R v Kami - NSWDC 14 May 2001, Judge Shadbolt
R v Keir [2002] NSWCCA 30
Kerr v Commissioner of Police [2001] NSWSC 637
R v Gallagher - NSWSC 30 January 2001 Justice Barr
R v Gallagher - [2001] NSWSC 462
R v GK [2001] NSWCCA 40
R v Galli [2002] NSW NSWCCA 504
R v Tran (1990) 50 A.Crim.R. 233
R v Sing - [2002] NSWCCA 20
R v Galli - [2001] NSWCCA 504
R v Nicola [2002] NSWCCA 63
R v Juric [2002] VCA [20]
Makita (Australia) Pty Ltd v Sprowles - [2001] NSWCCA 305
R v Pantoja - NSWCCA 5 November 1998
R v Milat - NSWSC 30 May 5 June 1996; 12 June 1996 Hunt CJ at CL
R v To - NSWCCA [2002] NSWCCA 252
R v McIntyre [2001] NSWSC 311