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Forensic Sampling and Dna Databases in Criminal Investigations

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Forensic Sampling and Dna Databases in Criminal Investigations VICTORIAN PARLIAMENT LAW REFORM COMMITTEE FORENSIC SAMPLING AND DNA DATABASES IN CRIMINAL INVESTIGATIONS Ordered to be printed Melbourne Government Printer 2004 No. 58 of Session 2003-04 Forensic Sampling and DNA Databases in Criminal Investigations Level 8, 35 Spring Street Melbourne Vic 3000 Tel: (03) 9651 3644 Fax: (03) 9651 3674 Email: [email protected] Website: www.parliament.vic.gov.au/lawreform Parliament of Victoria Australia Law Reform Committee Forensic Sampling and DNA Databases in Criminal Investigations ISBN – 0-7313-5394-3 T HE L AW R EFORM C OMMITTEE Chair Mr Rob Hudson MP (55th session) Mr Murray Thompson MP (54th session) Deputy Chair Mr Noel Maughan MP (55th session) Ms Dianne Hadden MLC (54th session) Members IN THE 55TH SESSION: Hon. Andrew Brideson MLC Hon Richard Dalla-Riva MLC Ms Dianne Hadden MLC Ms Dympna Beard MP Mr Tony Lupton MP IN THE 54TH SESSION: Hon. Ron Bowden MLC ( from 26 September 2001) Hon. Peter Katsambanis MLC Mr Telmo Languiller MP Ms Andrea McCall MP Mr Bob Stensholt MP Executive Officer Ms Merrin Mason Research Officers Ms Sue Kaufmann Inquiry into Forensic Sampling and DNA Databases in Criminal Investigations Ms Kristin Giles Inquiry into Administration of Justice Offences Office Manager Ms Jaime Cook iii Forensic Sampling and DNA Databases in Criminal Investigations T ERMS OF R EFERENCE Reference from the Legislative Council, 21 November 2001 That, pursuant to the Parliamentary Committees Act 1968 (Vic), the Law Reform Committee be required to inquire into, consider and report on the following: The collection, use and effectiveness of forensic sampling and the use of DNA databases in criminal investigations, with particular emphasis on identifying areas and procedures which would more effectively utilise forensic sampling and improve investigation and detection of crime. Reference reinstated by Order in Council, 17 April 2003 F UNCTIONS OF THE C OMMITTEE Under section 12 of the Parliamentary Committees Act 2003 (Vic): (1) The functions of the Law Reform Committee are, if so required or permitted under this Act, to inquire into, consider and report to the Parliament on any proposal, matter or thing concerned with– (a) legal, constitutional or parliamentary reform; (b) the administration of justice; (c) law reform. v Forensic Sampling and DNA Databases in Criminal Investigations vi C HAIRMAN’ S F OREWORD This is the first report I have presented as Chairman of the Law Reform Committee of the Fifty-fifth session of the Victorian Parliament. This Inquiry, which was referred to the Law Reform Committee of the previous parliamentary session, has been a truly collaborative effort. Current members of the Law Reform Committee are indebted to our predecessors, and in particular the Chair, Mr Murray Thompson MP, for initiating an extensive program of public hearings and consultative meetings, for establishing the framework for the report, and for generating much of the original data and research collected for this Inquiry. This Committee has written the final version of the Report, incorporating the latest research presented in other recent reviews, as well as the evidence that it has obtained directly from the 2003 program of public hearings. I would like to express my personal appreciation to all past and present Committee members for their individual and collective contributions to this Inquiry. I am also particularly pleased to be able to table a report that takes a constructive, open and bipartisan approach to the complex and fascinating issues raised by the use of DNA sampling in criminal investigations. This subject is a matter of lively and ongoing public interest. The quality of the report owes much to the skill and commitment of the support staff. I would particularly like to thank the Executive Officer, Merrin Mason for her able management of a complex task and her capacity to assist the Committee members to work through difficult issues. Legal Research Officer, Sue Kaufmann has had the prime responsibility for researching and writing the report and has done an outstanding job in moulding this work into an extensive report which not only reflects the current thinking of interested stakeholders but also the consolidated views of the current Committee on this complex area. Jaime Cook has also provided valuable service to the Committee as the Office Manager. The collection, analysis and use of DNA in criminal investigations have rapidly expanded in recent years. The Committee hopes that this report will make a valuable contribution to further developments in the law and the protocols and procedures used in this area. I commend the Report and its recommendations to all those who have a continuing commitment to developments in this area of the law. Rob Hudson MP, Chairman vii Forensic Sampling and DNA Databases in Criminal Investigations viii A CKNOWLEDGEMENTS A parliamentary inquiry, by nature, draws on the submissions and evidence presented to it, and the Committee acknowledges the valuable contribution of those who made submissions or presented evidence at the public hearings. During the course of this Inquiry, the Committee also received a considerable amount of information and assistance from other sources. The Committee acknowledges, in particular, Professor John Scheffer, Dr Peta Stringer and the staff of the Victorian Forensic Science Centre, Dr Ian Freckelton, Barrister and Adjunct Professor of Law, Monash University, and Dr Greg Gardiner, Senior Research Officer, Victorian Parliamentary Library, who produced background papers for the Inquiry. The Committee expresses its appreciation to Samantha Adrichem, Court Services, Department of Justice; Adrian Bendeler, Librarian, Office of Public Prosecutions; Daniel Hoenig and Natalie Dugandzic, NSW Ministry of Police; Juliet Dimond, New South Wales Ombudsman's Office; Gaby Carney, Australian Law Reform Commission; Robin Napper, University of Western Australia; Dr Alaster Smith, UK Home Office; Alastair Ross and staff at the National Institute of Forensic Science; staff of the Victorian Parliamentary Library. Particular acknowledgement is due to the many members of Victoria Police who provided assistance in this Inquiry, including representatives at the 2002 and 2003 public hearings, as well as members of the Prosecutions Division and the DNA Management Unit. The Committee is also grateful to those organisations, listed in Appendix 3, which hosted fact-finding meetings with Committee members during 2002. Mignon Turpin provided invaluable editorial assistance during the preparation of this report. A BBREVIATIONS ALRC Australian Law Reform Commission ABS Australian Bureau of Statistics DNA Deoxyribonucleic Acid MCCOC Model Criminal Code Officers’ Committee of the Standing Committee of Attorneys- General NATA National Association of Testing Authorities VFSC Victoria Forensic Science Centre (Victoria Police) Acts referred to in this report are as at 30 September 2003 unless otherwise identified. ix Forensic Sampling and DNA Databases in Criminal Investigations x T ABLE OF C ONTENTS Recommendations ..............................................................................................................................xvii Executive Summary...........................................................................................................................xxix PART A: INTRODUCTION ...............................................................................................................49 1. This Inquiry ......................................................................................................................................51 Background to the Inquiry.................................................................................................................52 Outline of the Report .........................................................................................................................55 Managing Advances in Science and Technology...............................................................................58 Recent Developments in Victoria.......................................................................................................65 Emerging Issues.................................................................................................................................73 2. Victorian Forensic Sampling Laws .................................................................................................77 The Development of Forensic Sampling Laws...................................................................................77 The Scope of the Forensic Procedures Provisions ............................................................................79 The Victorian DNA Database............................................................................................................85 Reviewing the Forensic Sampling Regime.........................................................................................87 PART B: THE SCIENCE AND ETHICS OF DNA SAMPLING....................................................93 3. The Forensic Potential of DNA........................................................................................................95 The Science of Forensic Sampling: Background ...............................................................................95 Laboratory Processes ........................................................................................................................97 The Use of Population Genetics in DNA Profiling..........................................................................106
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