The interim report of the Commission of Inquiry into Forensic DNA Testing has already sparked significant reactions.
These include 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? What impact might the findings have on complainants, victims and accused persons? Can any miscarriages of justice be remedied through existing legal mechanisms and processes?
This article considers these questions and the potential implications flowing from the interim report.
A brief recap
Commissioner Walter Sofronoff KC found 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.
For a more in-depth overview of the interim report’s findings, read our earlier article, ‘How did we get here?’.
The Queensland Government has accepted the interim report’s recommendations and has appointed Professor Frank Gannon to oversee their implementation.3 As such, any witness statements issued since early 2018 on major crime cases using the phrase “Insufficient DNA for analysis” or “No DNA detected” will be withdrawn and new statements issued to state either that: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.
A full audit of all samples relating to major crime taken between 2018 and June 2022 that resulted in witness statements stating “Insufficient DNA for analysis” or “No DNA detected” has also commenced. Where useable DNA is found during the audit, the results will be provided to QPS for further consideration.
It remains to be seen how many cases have been affected. As has been submitted by the Office of the Director of Public Prosecutions, even where further testing produces a result, it does not automatically follow that such results will be “of further utility”.4
Where further testing does produce useable DNA profiles, there are five main categories of cases in which such evidence may be material. They are where:
- a person has been wrongfully convicted because an unexamined sample would have excluded the convicted person as a possible offender
- a person has been wrongfully convicted because an unexamined sample would have established some other person might have been involved in the commission of the offence “in a way that might have raised a reasonable doubt about guilt because another person’s DNA appeared in a crime scene sample”5
- proceedings may have been discontinued or not commenced because of the absence of DNA evidence when it might have been obtained
- a person may have pleaded guilty to a lesser offence because the absence of DNA evidence meant a conviction for a more serious offence could not be sustained, and
- a person may have been acquitted of an offence entirely where the presence of useable DNA evidence may have resulted in a conviction.
There is the possibility that some cases in which DNA evidence was not fully tested may have resulted in wrongful convictions. While the commissioner concedes this would be “rare”, such persons may have a right to appeal their conviction.
Section 668D of the Criminal Code 1899 (Qld) (Criminal Code) provides that a person convicted on indictment may appeal against their conviction, with the leave of the court, on any ground which involves a question of fact alone or a question of mixed law and fact.
The court, under section 668E of the Criminal Code, shall allow the appeal if it is “of the opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence … or that on any ground whatsoever there was a miscarriage of justice”.
Generally, notice of appeal must be given within one calendar month of the date of the sentence, but this may be extended at any time by the court.6 Where an appeal is allowed and the court considers the conviction should not stand, it has the power to quash the conviction and direct a judgment and verdict of acquittal to be entered.7
In instances where, for example, the DNA evidence raises doubt about the convicted person’s guilt because another person’s DNA appeared in the sample, the court may order a retrial as opposed to quashing the conviction.8
However, difficulties may arise where a convicted person has already made an unsuccessful appeal against conviction.9 In such instances, the remaining alternative options for review are an appeal to the High Court or an application for pardon to the Queensland Governor.
Proceedings that were not commenced or that were discontinued
In certain cases, the provision of an incorrect statement of DNA evidence may have resulted in the prosecution deciding to not commence proceedings at all against a person, or discontinuing proceedings against a person once they were on foot.
In sexual assault cases, the absence of evidence of an offender’s DNA evidence might “compromise the credit of a truthful complainant to such a degree that he or she is (or a child complainant’s parents are) no longer willing to pursue justice under such conditions”.10
Importantly, there are no time limits on when a person can be charged for an indictable offence in Queensland. This means that, where useable DNA is found during the current audit in cases that were discontinued or not commenced, and where such DNA evidence may substantially strengthen a case, such cases could be reopened by police and prosecutions.
Again, however, difficulties may arise in sustaining these cases even where useable DNA evidence arises. The mere fact that a retested sample might produce a new result does not mean that the evidence will be material or change the outcome in a criminal proceeding. The case may be up to 4½ years old, and the quality of evidence (that is, witness statements containing personal recollections) may be diminished.
Conviction of a lesser offence and wrongful acquittals
A person may have pleaded guilty to a lesser offence because the absence of DNA evidence meant a conviction for a more serious offence could not be sustained. This might occur, for example, where a person has been convicted (whether at trial or on a plea of guilty) of a sexual assault because the absence of any usable DNA evidence meant penetration could not be proven to sustain a charge of rape.
A person may also have been acquitted of an offence entirely where the presence of useable DNA evidence may have resulted in a conviction.
It is these two categories of cases which raise complex questions of law and where, arguably, the greatest potential for miscarriages of justice lie.
As the commissioner rightly points out, Queensland’s double jeopardy laws would, in most cases, preclude useful re-examination of the evidence.11
The rule against double jeopardy is a fundamental common law principle underpinning the criminal law:
“It is a golden rule, of great antiquity, that a person who has been acquitted on a criminal charge should not be tried again on the same charge.”12
The Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General stated in 2003 that the general principles underlying the double jeopardy rule include:
“the prevention of the State, with its considerable resources, from repeatedly attempting to convict an individual; the according of finality to defendants, witnesses and others involved in the original criminal proceedings; and, the safeguarding of the integrity of jury verdicts.”13
The rule against double jeopardy persists in Queensland,14 with one relevant exception, being that the court may, on the application of the Director of Public Prosecutions, order an acquitted person to be retried for the offence of murder if it is satisfied that:
- there is fresh and compelling evidence against the acquitted person in relation to the offence; and
- in all the circumstances it is in the interest of justice for the order to be made.15
Importantly, evidence is only “fresh” if it was not adduced in the proceedings in which the person was acquitted, and it could not have been adduced in those proceedings with the exercise of reasonable diligence.16
It remains open to question whether “reasonable diligence” was exercised when DNA evidence was available at the time of the proceedings but was simply not tested due to an agreement to alter testing thresholds between FSS and QPS. Each case will turn upon its individual facts.
In other cases which may have resulted in a person being convicted of a lesser offence or being wrongfully acquitted, Queensland’s double jeopardy laws would preclude the person from being re-tried.
The commissioner’s interim report does not deal with these issues. The commissioner’s final report may also not deal with these issues, given the commission’s narrow terms of reference.
On the one hand, the rule against double jeopardy is a longstanding fundamental legislative principle. It is considered a “cardinal principle of English law” and has been described as a “universal maxim of the common law … that no man ought to be twice brought in danger of his life for one and the same crime”.17
On the other hand, the commissioner rightly points out that the tendering of potentially inaccurate witness statements over the past 4½ years “is a profound issue for the administration of criminal justice, for the integrity of police investigations and for decisions made by victims of crime” where “steps should be taken promptly to retrieve the position where necessary and where rectification is still possible”.18
The interim report throws up complex questions of law and science. The question whether to amend Queensland’s double jeopardy laws, or to provide a specific legislative framework in which to deal with any wrongful acquittals arising out of the audit, will need to be given due and proper consideration.
As Queensland Law Society has stated, there is now an urgent need to implement processes and dedicate funding to investigate these findings.
In the meantime, we await the release of the commissioner’s final report.
Read our first article on the interim report, ‘How did we get here?’.
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 Yvette D’Ath, Minister for Health and Ambulance Services, ‘Professor Frank Gannon to oversee forensic DNA recommendations’ (Media statement, 20 September 2022).
4 Walter Sofronoff KC, ‘Report concerning use by Queensland Health Forensic and Scientific Services of certain evidentiary statements’(Interim report, 15 September 2022) 34 (Interim report).
5 Interim Report, 29.
6 Criminal Code 1899 (Qld) s671.
7 Criminal Code 1899 (Qld) s668E.
8 Criminal Code 1899 (Qld) s669.
9 Current legislative appeal provisions in Australia have been interpreted as allowing the appeal courts’ jurisdiction to hear one appeal only, thereby providing no right to a second or additional appeal: Grierson v R (1938) 60 CLR 431.
10 Interim report, 29.
12 Davern v Messel (1984) 155 CLR 21, 338 (Murphy J).
13 Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, ‘Issue Estoppel, Double Jeopardy and Prosecution Appeals Against Acquittals’ (discussion paper, 2003) ch.2.
14 Criminal Code 1899 (Qld) s17.
15 Criminal Code 1899 (Qld) s678B(1). A person acquitted of a 25-year offence (being an offence punishable by imprisonment for life or for a period of 25 years or more) may also be ordered to be retried if the court is satisfied that the acquittal is a “tainted acquittal” (defined under s678E of the Criminal Code 1899 (Qld)) and it is in the interests of justice for the order to be made.
16 Criminal Code 1899 (Qld) s678D(2).
17 Australian Law Reform Commission, ‘Traditional Rights and Freedoms – Encroachments by Commonwealth Laws’(Issues paper 46, 10 December 2014) [13.8].
18 Interim report, 32.