DNA testing as evidence

Nicholas Cowerdy QC, DPP

“the most important advance in forensic science as

evidence since fingerprinting”

Was pioneered in Australia by state Forensic Science Laboratory and introduced into casework in July 1989

As a result the following Acts were established:

Crimes (Blood Samples) Act 1989Crimes Legislation (miscellaneous

amendment) Act 1991

History

1. offender leaves a DNA sample at the crime scene e.g. skin, hair, blood or bodily fluids

2. Forensic analyst will compare samples with either a sample from a suspect or a DNA database, to find a match

3. If there's a match the Forensic analyst will consider the statistic likelihood that the sample found at the crime scene could have come from someone other than the suspect or the victim

How is DNA used??

It will help provide the evidence to help prove the guilt of the guilty and set the innocent free

Powerful identification tool where there is no reliable eyewitness identification

Eliminate potential suspects

How does DNA help provide justice?

DNA mass population screening occurs where an entire class of individuals in an area undertakes voluntary DNA sampling to identify the offender in a criminal investigation.

“Norfolk Island Undergoes DNA testing” – ABC news

1250 individuals gave their DNA in order to eliminate themselves as suspects

It rose concerns of possible undermining of the right to silence and the privilege against self incrimination

Mass population screening

Prove an element of the crimeIndicate how a crime of violence has occurred

How does DNA help provide justice?

There were fewer unsolved cases after the advent of DNA profiling (26% pre DNA and 21% post DNA)

Statistics

Benefits of DNA as evidence

Old cases that were previously thought unsolved may contain DNA evidence capable of identifying the perpetrator

More solved cases when DNA profiling is utilized

Saving in police investigative resources

Fewer trials because of a confession obtained based on DNA evidence

Victims of the community are brought to peace of mind

DNA has been rushed into the courts without agreement in the scientific community

Reliability and accuracy of DNA and whether its admissible in the proceedings

Crimes (Forensic Procedures) Act 2000 : evidence derived from forensic samples that are not taken into accordance with this Act is not admissible

Issues with DNA as evidence

Facts: Frank Button for the rape a 13 year-old girl was quashed when the court unanimously accepted that a DNA test conducted after the trial indicated that someone other than the appellant had committed the offence

The same DNA test could have been carried out prior to trial, but the prosecutor’s explanation to the court was that this was not done as ‘it would not [have been] of material assistance in identifying the appellant as the perpetrator of the crime

Outcome: it was only after the defense lawyer insisted DNA samples be analyzed that it was shown the convicted man should have been excluded as a suspect

R v Button (2001)

Many argue DNA profiling has been used as a lever for more police powers and eroding of civil liberties

E.g: Crimes (Blood Samples) Act 1989 which enables the taking of blood samples from a suspect without consent

Inappropriate use of DNA databases could lead to discrimination

Under Section 4642FC of the Victorian Crimes Act 1958 if a member of the police force does not formally make an application for retention of a DNA sample the chief commissioner “must without delay destroy any sample taken and any related material and information”

Social and ethical issues with DNA

Crimes (Forensic procedures) Act 2000 attempts to strike a balance between the protection of individual rights and societies law enforcement rights

DNA evidence entails citizens having to prove their innocence as opposed to the state having to prove guilt beyond reasonable doubt

Social and ethical issues with DNA

DNA rapidly solves crimesSaves time and effortSaves costsImmediately prove a suspects innocenceMethod of post-conviction exoneration of the

innocentStatistics show there were more suspects

discharged post-DNA profiling for all cases (14% pre-DNA and 21% post-DNA)

Justice?

Standardization of probesStandardization of protocolsDevelopment of standards for accreditation,

quality control and personnel

Changes needed to take place