The Queensland Government made public an interim report of the Commission of Inquiry into Forensic DNA Testing on 20 September.
In the report, Commissioner Walter Sofronoff KC states that witness statements issued since early 2018 by the Queensland Health Forensic and Scientific Services (FSS) using the phrase “Insufficient DNA for analysis” or “No DNA detected” may be misleading because the levels of DNA used to inform these statements might contain sufficient DNA to obtain a partial or full DNA profile.
Already, the interim report has sparked calls for reform to Queensland’s double jeopardy laws1 and warnings of an “impending landslide of criminal appeals”.2
There is no doubt the interim report’s findings are significant and have caused broad and serious concern in the community. There are potentially significant implications for complainants, victims and accused persons.
But what, exactly, do the interim report’s findings mean? How did we get here? This article considers these questions.
What is the DNA testing process that is under scrutiny?
DNA samples are collected by police officers or, in sexual assault cases, by medical practitioners, and submitted by the Queensland Police Service (QPS) to FSS for testing (known as the collection phase). In the extraction phase, DNA is separated from all other materials in the sample so the DNA can be analysed.
The quantitation phase involves testing the extracted DNA sample to determine whether it contains any detectable DNA and, if so, the amount of DNA contained within the extracted sample.
The concentration of DNA contained in a sample is expressed in nanograms per microlitre of liquid, ng/µL; commonly referred to as a ‘quant’. Once a quant is obtained, FSS scientists make a decision as to whether there is a sufficient amount of DNA to produce a result that can be further tested and analysed. Where a decision is made to continue the analysis, the sample then goes through additional testing and the results are interpreted and reported.
It is the quantitation phase that is central to the interim report’s findings. Since early 2018, samples with quantitation within the range of 0.001 ng/µL and 0.0088 ng/µL have been reported in witness statements as having “Insufficient DNA for analysis” or words to similar effect.
However, the interim report highlights that samples in this range can contain sufficient DNA to obtain a partial DNA profile or a full DNA profile. As such, the interim report finds the use of the words “Insufficient DNA for analysis” in witness statements to be “untrue”.3
Similarly, when a quantitation result is below 0.001 ng/µL, a witness statement reports the result as “No DNA detected”. The interim report finds this statement to be “misleading” because, although the likelihood is low, such samples can be capable of generating usable DNA profiles.4
Issues arise where the statements “Insufficient DNA for analysis” or “No DNA detected” are made in expert opinion forensic evidence provided to courts in cases of major crime.5
Why did the process change?
The interim report does not focus on the question of how the incorrect witness statements came about, or who was responsible. However, it does highlight that before early 2018, all samples were fully processed by FSS unless they returned a quant lower than 0.001 ng/µL. Samples with quants between 0.001 ng/µL and 0.0088 ng/µL automatically underwent further concentration to maximise the potential of returning a usable profile.6
Interestingly, it appears that FSS and QPS met in early 2018 to discuss whether to abandon processing samples with quants between 0.001 ng/µL and 0.0088 ng/µL unless QPS made a specific request or a scientist at FSS made a decision to do so.7 The processing of such samples was determined by FSS to be an inefficient use of FSS resources, where staff time would be better allocated to processing, interpreting and reporting samples with higher DNA yield.
It is reported that “QPS agreed that these samples were no longer to be processed unless QPS asked for that to be done”.8
What happens in other jurisdictions?
The interim report reveals the process adopted in early 2018 by FSS and QPS is inconsistent with the general practice in other jurisdictions.9
For example, Western Australia fully tests samples from all cases of serious crime irrespective of the quantitation result. The Northern Territory laboratory processes all samples, even those that yield a quant of 0.000 ng/µL. In Tasmania, all samples containing (or suspected of containing) good sources of DNA, such as blood, saliva or semen, are fully processed if any DNA is detected at the quantitation stage.
In other jurisdictions, alternative wording is used in witness statements where a decision has been made to discontinue testing of a DNA sample. For instance, in South Australia, samples not processed because of a low quant will result in the description: “The DNA concentration is below the threshold set by FSSA for further analysis. These samples contain DNA concentrations that are least likely to yield informative results. This includes samples where DNA was not detected.”
Importantly, the Commissioner observes that “no jurisdiction uses a description for untested samples that have not been individually considered that might mislead somebody into thinking that an actual judgment has been made that there was no DNA in the sample or that it was not possible to obtain a useable result”.10
What has the commission found?
In other words, the interim report finds that statements issued in Queensland using the phrase “Insufficient DNA for analysis” or “No DNA detected” may be misleading because they represent that “it was the expert opinion of the witness that the sample in question was unsuitable for any further analysis or processing”.11
In fact, it appears such samples were simply not tested any further because an agreement was reached between FSS and QPS not to test such samples because of resourcing constraints.12
The interim report suggests that up to 10.6% of these samples “were capable of generating a useable profile”.13
Accordingly, the commissioner has determined these witness statements to be untrue and has recommended that any such statement issued by FSS since February 2018 be identified, along with the quant levels that informed such statements. It is recommended that a further statement be prepared stating either that:
- the sample contains a low level of measurable DNA which, if fully processed, might produce an interpretable profile, or
- the sample returned a quantitation result below the level of detection but that further work might result in a useable profile, but that that is unlikely.
The Queensland Government has accepted the interim report’s recommendations.
But what do these recommendations mean in practice, and what are the potential implications that flow from the recommendations? Read our second article on the interim report, ‘What does it all mean?’.
Dr Brooke Thompson is a Queensland Law Society Policy Solicitor.
1 Taylah Fellows, ‘Call to reform double jeopardy laws for DNA justice’, The Courier-Mail (online, 23 September 2022).
2 Vanessa Marsh, Taylah Fellows, ‘DNA lab bombshell: Sex assault support services fear fallout’, The Courier-Mail, (online, 21 September 2022).
3 Walter Sofronoff KC, ‘Report concerning use by Queensland Health Forensic and Scientific Services of certain evidentiary statements’(Interim report, 15 September 2022) 4 (Interim report).
4 Interim report, 5.
5 Major crime includes the most serious offences, such as sexual assault and homicide. It excludes property offences.
6 Interim report, 14.
9 Interim report, 24-25.
10 Interim report, 25.
11 Interim report, 27.
12 Accepting that QPS could make a specific request for further testing and scientists at FSS could also make a decision to conduct further testing.
13 Interim report, 35.