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DNA Evidence, Wrongful Convictions and Wrongful Acquittals

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DNA Evidence, Wrongful Convictions and Wrongful Acquittals NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE DNA Evidence, Wrongful Convictions and Wrongful Acquittals by Gareth Griffith and Lenny Roth Briefing Paper No 11/06 RELATED PUBLICATIONS • Double Jeopardy by Rowena Johns, NSW Parliamentary Library Briefing Paper No 16/2003 • DNA Testing and Criminal Justice by Gareth Griffith, NSW Parliamentary Library Briefing Paper No 5/2000 ISSN 1325-5142 ISBN 0 7313 1806 4 August 2006 © 2006 Except to the extent of the uses permitted under the Copyright Act 1968, no part of this document may be reproduced or transmitted in any form or by any means including information storage and retrieval systems, without the prior written consent from the Librarian, New South Wales Parliamentary Library, other than by Members of the New South Wales Parliament in the course of their official duties. DNA Evidence, Wrongful Convictions and Wrongful Acquittals by Gareth Griffith and Lenny Roth NSW PARLIAMENTARY LIBRARY RESEARCH SERVICE David Clune (MA, PhD, Dip Lib), Manager..............................................(02) 9230 2484 Gareth Griffith (BSc (Econ) (Hons), LLB (Hons), PhD), Senior Research Officer, Politics and Government / Law .........................(02) 9230 2356 Talina Drabsch (BA, LLB (Hons)), Research Officer, Law ......................(02) 9230 2768 Lenny Roth (BCom, LLB), Research Officer, Law ...................................(02) 9230 3085 Stewart Smith (BSc (Hons), MELGL), Research Officer, Environment ...(02) 9230 2798 John Wilkinson (MA, PhD), Research Officer, Economics.......................(02) 9230 2006 Should Members or their staff require further information about this publication please contact the author. Information about Research Publications can be found on the Internet at: www.parliament.nsw.gov.au/WEB_FEED/PHWebContent.nsf/PHPages/LibraryPublications Advice on legislation or legal policy issues contained in this paper is provided for use in parliamentary debate and for related parliamentary purposes. This paper is not professional legal opinion. CONTENTS EXECUTIVE SUMMARY ............................................................................................ 1 1. INTRODUCTION .......................................................................................... 1 2. EQUATING WRONGFUL ACQUITTALS AND WRONGFUL CONVICTIONS.............................................................................................. 1 3. PROPOSALS AND RECOMMENDATIONS............................................. 2 3.1 Commonwealth................................................................................................. 2 3.2 New South Wales ............................................................................................. 3 4. DNA EVIDENCE ........................................................................................... 6 4.1 What is DNA? .................................................................................................. 6 4.2 How is DNA used to investigate crime? .......................................................... 7 4.3 How are DNA samples obtained? .................................................................... 7 4.4 How are DNA samples compared? .................................................................. 8 4.5 What do profiling results (eg a match) mean?.................................................. 8 4.6 Are DNA profiling results otherwise reliable?............................................... 10 4.7 Do DNA profiling results establish guilt and innocence?.............................. 11 4.8 Using DNA evidence to overturn a wrongful conviction............................... 11 4.9 Laws authorising forensic procedures and DNA matching............................ 12 4.10 Data on DNA testing and matching in NSW.................................................. 15 4.11 The national DNA database............................................................................ 15 4.12 Preservation of crime scene DNA evidence................................................... 18 5. WRONGFUL CONVICTIONS................................................................... 20 5.1 Miscarriages of justice and the wrongful conviction of the innocent ............ 20 5.2 DNA evidence and wrongful convictions ...................................................... 21 5.3 DNA evidence and wrongful convictions in the United States...................... 22 5.4 Miscarriages of justice in the United Kingdom.............................................. 25 5.5 Criminal Appeal Amendment (Review of Criminal Cases) Bill 1997 (NSW)26 5.6 Review of convictions in NSW – Part 13A of the Crimes Act 1900 (NSW). 27 5.7 Four cases under Part 13A of the Crimes Act 1900 (NSW)........................... 29 5.8 Innocence Projects in Australia...................................................................... 31 5.9 DNA and post-conviction review in Victoria................................................. 31 5.10 The NSW Innocence Panel............................................................................. 32 5.11 The Findlay Review of the Crimes (Forensic Procedures) Act 2000............. 33 5.12 UTS Innocence Project – critique of NSW Innocence Panel......................... 35 5.13 The Finlay Review of the NSW Innocence Panel .......................................... 35 5.14 The NSW Bar Association and the Innocence Panel ..................................... 37 5.15 Comment ........................................................................................................ 38 6. WRONGFUL ACQUITTALS..................................................................... 39 6.1 What is a wrongful acquittal?......................................................................... 39 6.2 DNA evidence, wrongful acquittals and double jeopardy.............................. 39 6.3 Wrongful acquittals and the principle of finality ........................................... 41 6.4 Conflicting interests........................................................................................ 42 6.5 Finality and prosecution appeals .................................................................... 43 6.6 Finality and double jeopardy – a question of principle or re-definition?....... 45 6.7 Double jeopardy - the plea of autrefois acquit............................................... 46 6.8 Double jeopardy – abuse of process and the Carroll case ............................. 47 6.9 Double jeopardy and tainted acquittals .......................................................... 48 6.10 New Zealand Law Commission Report and the Criminal Procedure Bill ..... 49 6.11 Criminal Justice Act 2003 (UK)..................................................................... 50 6.12 Draft Criminal Appeal Amendment (Double Jeopardy) Bill 2003 (NSW).... 52 6.13 Legislation Review Committee Draft Report................................................. 55 6.14 Submission of UNSWCCL............................................................................. 56 6.15 Advice of Acting Justice Jane Mathews......................................................... 57 6.16 The MCCOC Discussion Paper...................................................................... 59 6.17 The MCCOC Report....................................................................................... 62 6.18 Comment ........................................................................................................ 63 7. CONCLUSION ............................................................................................. 65 DNA Evidence, Wrongful Convictions and Wrongful Acquittals EXECUTIVE SUMMARY The retention of DNA and other forensic evidence following the completion of the trial process raises many issues for the criminal law. On one side, is ‘fresh’ DNA or other evidence to be used by the prosecution to mount an appeal against what is perceived to be a wrongful acquittal, thereby transgressing the rule against double jeopardy? Conversely, is such evidence to be used to prove the innocence of a wrongfully convicted person? The problems involved in equating wrongful acquittals and wrongful convictions are discussed. The paper’s main findings are as follows: • Both sides to the DNA evidence equation are live issues in the contemporary debate, federally and for the States. At the Commonwealth level, Attorney General Ruddock is reported to favour the abolition of the double jeopardy rule by the adoption of legislation making it mandatory for Crown law officers to preserve DNA evidence ‘in serious cases even after the appeals process has been exhausted’. In 2003 the Australian Law Reform Commission recommended the ‘long-term retention of forensic material found at the scene of serious crimes to facilitate post- conviction analysis’. Mr Ruddock is reported to be ‘keen to have the recommendations implemented’. (p 2-3) • At the State level, the NSW Attorney General Bob Debus has indicated that legislation is to be introduced affecting both sides of the DNA evidence equation, with a spokesman saying that ‘the Government supports retention of DNA evidence after the appeals process has been exhausted, and the Government is also drafting legislation for the retrial of someone after a DNA review’. On 15 July 2006 it was confirmed that legislation would be introduced to re-establish the NSW Innocence Panel, which is to be called the ‘DNA Review Panel’. (p 3-5) • In the last 20 years, DNA evidence has increasingly been used in criminal investigations and trials in Australia and overseas. DNA profiling
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