There is one reason why DNA evidence in criminal matters in this state is under attack – and that is because of a complete lack of transparency.
In 2001 when the Griffith University Innocence Project was first established and its pro bono defence lawyers began reviewing cases involving DNA expert reports prepared by laboratories across the country, including the then Queensland forensic laboratory called the John Tonge Centre, they attracted severe opposition to their cause from forensic scientists across Queensland and interstate.
The general opposition from the scientists was that their work should not be scrutinised post the securing of a conviction against an accused. They were scientists and their opinions were the objective truth and thus were immune from later criticism.
The position taken was that, if the lawyers at the time of the convicted person’s trial did not agitate any issues about the DNA, why should they be subjected to any scrutiny years later? Furthermore, there were no laws requiring the police or scientific laboratories to retain forensic evidence post the convicted person’s trial or appeal.
By 2009 when a public DNA forum was staged at Griffith University’s Gold Coast campus – which was attended by the Office of the Director of Public Prosecutions, then Police Commissioner Bob Atkinson and Canadian wrongful conviction campaigner Dr Rubin ‘Hurricane’ Carter – there was numerous outstanding requests to the John Tonge Centre seeking confirmation on whether DNA provided to the forensic laboratory by police and associated documents were still in existence, so that retesting could be considered for a person claiming ‘wrongful conviction’.
These requests by the pro bono lawyers to the state-run John Tonge Centre were simply ignored.
If the Queensland forensic laboratory was an objective player in the justice system providing expert evidence, why did they not want to answer the pro bono defence lawyers’ legitimate requests as to the existence of DNA product and the documents associated with that DNA?
As a result of the wall of silence from the John Tonge Centre, former Griffith University Innocence Project Director Lynne Weathered and the writers of this article commenced discussions with then Attorney-General Cameron Dick about the lack of transparency within the laboratory.
Unlike the succession of Attorneys-General who received submissions from the Innocence Project prior, it was Mr Dick who saw the importance of transparency in relation to DNA evidence and it was his courage which resulted in the establishment of Australia’s first post-conviction DNA testing regime, called the ‘Guidelines for applications to the Attorney-General to request post-conviction DNA testing’ (the Guidelines).
The Guidelines came into force on 10 August 2010 and remain the relevant procedure to be followed in Queensland today for post-conviction DNA re-testing.
When the Guidelines were settled, the current calamity facing the use of DNA in criminal matters in Queensland today was never anticipated. Indeed, the Guidelines themselves were fashioned at a time when the program ‘ProfilerPlus’ was being hailed as the new news in DNA testing. We have clearly moved on from then.
The current Guidelines require an applicant to demonstrate:
a) He or she has been convicted of an offence carrying (at the time of sentencing) a maximum or mandatory penalty of life imprisonment.
b) At the time of the application, the applicant is subject to the sentence imposed on conviction (whether the applicant is in custody or has been released on parole).
c) The applicant’s appeal avenues have been exhausted in relation to the conviction. And
i) No biological material relevant to the applicant’s case was previously tested, or the particular exhibit now sought to be tested was not previously subject to DNA testing. Or
ii) The biological material sought to be tested was previously subjected to DNA testing, but not using the Profiler Plus System of DNA testing. In Queensland, the Profiler Plus System has been used by the John Tonge Centre, now the Queensland Health Forensic and Scientific Services, since 1999.
As has finally been acknowledged, whilst the current DNA inquiry concerns the existence of possible failed prosecutions arising from suspect practices, it also has the potential to uncover wrongful convictions.
There is only one logical conclusion that, if suspect practices were used resulting in failed prosecutions or cases not being advanced, those same suspect practices were also used in matters which have potentially resulted in wrongful convictions.
As William Blackstone said in 1769: “The law holds that it is better that 10 guilty persons escape, than that 1 innocent suffer (innocent person be convicted).”
It was refreshing to see last month’s Proctor article by Dr Brooke Thompson, ‘DNA inquiry interim report: What does it all mean?’, acknowledging the other side of the coin of the argument – that this DNA debacle is also about wrongful convictions.
Queensland Law Society has now called for comments from criminal law practitioners as to whether, during the period 2018 to 2022, results reported as “insufficient DNA for further processing”, practitioners understood:
- that samples with a result reported as “DNA insufficient for further processing” or words to that effect could, within the capabilities of the FSS laboratory, be tested further, and
- that if such samples were tested further, partial or full DNA profiles could be obtained in some cases.
Further, criminal lawyers are being asked if, during the period 2018 to 2022, for results reported as “No DNA detected”, they understood:
- that samples with a result reported as “No DNA detected” or words to that effect could, within the capabilities of the FSS laboratory, be tested further, and
- that if such samples were tested further, partial or full DNA profiles could be obtained in a small percentage of cases.
Whatever the DNA inquiry commissioner’s ultimate finding and recommendations, a legislative requirement for the retention of DNA evidence and an update to the Guidelines for post-conviction DNA testing has to be seriously considered.
Ron Behlau is a Partner at Behlau Murakami Grant and a former Co-Director of the Griffith University Innocence Project. Jason Murakami is a Partner at Behlau Murakami Grant and Founder of the Griffith University Innocence Project. The opinions expressed are those of the authors.
More articles on the DNA inquiry.