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Victorian Council for Civil Liberties (Liberty Victoria) PROOF VERSION ONLY LAW REFORM COMMITTEE Inquiry into forensic sampling and use of DNA databases in criminal investigations Melbourne – 23 July 2002 Members Mr R. H. Bowden Ms A. L. McCall Ms D. G. Hadden Mr R. E. Stensholt Mr P. A. Katsambanis Mr M. H. Thompson Mr T. Languiller Chairman: Mr M. H. Thompson Deputy Chairman: Ms D. G. Hadden Staff Executive Officer: Ms M. Mason Research Officer: Ms S. Kaufmann Witness Mr G. Connellan, Vice-President, Victorian Council for Civil Liberties (Liberty Victoria). Necessary corrections to be notified to executive officer of committee 23 July 2002 Law Reform Committee 142 The CHAIRMAN — On behalf of the Victorian Parliament Law Reform Committee, I would like to welcome you to our deliberations today. You might be approaching witness no. 20 or so, or beyond that, in the last two days, so we have gained a lot of insight into the role of DNA forensic sampling and crime detection. I now invite you to speak to the points you wish to raise with you, following which we will ask questions. Mr CONNELLAN — The Victorian Council for Civil Liberties did not have time to make a written submission, but I have done an outline for myself, and I happy, if it is useful for the committee, to submit a couple of copies of that. Although it is not a proper written submission, it is some sort of guideline of what I am trying to say. I will start with an overview from the point of view of the Victorian Council for Civil Liberties, and that is that from the council’s point of view DNA evidence can be very valuable evidence. The way in which we approach our thinking about DNA evidence is to say, ‘The nature of the evidence is that it, if correctly used, produces a position where a jury can be told that there is a very, very high probability that the sample found comes from the person who is the accused, presumably’. The real issue for us is that for that statement to make any sense to a jury, or for that statement to have any value to a jury, it can only be considered valuable if the evidence is properly tested. That is the case with any evidence, but it is more so in the case of with evidence which has the tendency to be given the notion of being a magic bullet or in some way infallible. That unfortunately in one sense is the reality with DNA evidence. It is given a significance which can overweigh its importance. Because we see it in terms largely of the ability of the evidence to be tested, concerns that we do have about the way in which the samples are taken, whilst important, are secondary for the moment. What we would like to submit to the committee is that the only real way in which the value of DNA evidence can properly be assessed is by a process of testing that evidence. Primarily that will mean that accused persons need to have access to sufficient scientific and legal resources to enable them to properly test the evidence. Not every accused person is going to be confronted with DNA evidence and not every accused person confronted with DNA evidence is going to want to test it. It is often the case, for example, if acting on behalf of an accused person, you have the ability to go and test some specific scientific evidence of the prosecution. You take those results back to your client and say, ‘Hold on, you tell me that is not your handwriting, but our independent expert says, “Yes, it is your handwriting”’. In those circumstances often you find that your clients change their instructions to you. So the ability of accused persons to have access to testing of DNA evidence does not necessarily translate into more complicated trials or more expense in the conduct of trials. Of course it can do, but it does not necessarily do so. What it means is that the accountability that needs to be built into a system where the prosecution is able to rely on what is seen as very significant and powerful evidence is built in at the most appropriate point, and that is with the accused person being able to test that evidence. For the accused person to test the evidence in some circumstances they will need access to the crime scene, and that is a very difficult concept because normally the accused person is not identified until after the crime scene has been cleaned up, tidied away and it may be months, sometimes years, later. So there has been some thought in our submission to how it is that accused persons can have access in some meaningful way to the crime scene where the sample is found. I will go into that in a moment. The second important thing is that accused persons must be able to check the methodology used by the prosecution scientists. They must be able to test it in terms of the specific scientific thinking and assumptions that are made by forensic scientists and they must be able to test it for potential errors, whether they be from contamination or other things. The only way we submit that that can be done is, first of all, we would say there is a need for — I will use the word ‘national’ for the moment because I think it might be the easiest way to do it — an independent forensic science institute specifically for the use of accused persons, including those who have already been convicted and want to challenge the basis of that conviction as a result of new evidence or new science available to be applied to old evidence. What we submit is that if there were an independent equivalent forensic institute for accused persons, it would have the benefit of giving accused persons access to experienced and qualified scientists. It would also mean that those scientists would be regularly looking over the shoulders of the prosecution forensic scientists. So the flaws in the prosecution forensic science process and the methodology that they use would be able to be properly tested and the level of accountability would be at its highest. It would mean that accused persons who are pleading not guilty in front of a jury would have some prospect of realistically testing the evidence being relied upon against them. It may be that in many cases accused persons at that point having had their own independent science would change their instructions. But if they do not, it means that the accused person is properly able to present their case to the court, and it means that the jury has some prospect of examining whether or not it should act on the very high 23 July 2002 Law Reform Committee 143 probability that the prosecution seeks to rely on. The other arm of that is that accused persons need to have access to suitably qualified and experienced legal professionals who can test the prosecution evidence in court and present arguments to the jury as to how they should deal with that evidence. We say they are the fundamental requirements that need to be put in place because of the significant importance given to DNA evidence and the increasing importance given to DNA evidence. The other important area that we say needs to be given careful consideration to is that the use of DNA evidence is in a sense undermining the protections put in place through the Victorian Parliament by requiring confessions with accused persons to be tape-recorded. That legislation was introduced because there were concerns in all states in Australia about what was called verballing. The taped record of interview process has played a significant role in getting rid of verballing. The new form of verballing is DNA evidence. It is the easiest thing in the world to plant DNA evidence at a crime scene. It is only a matter of stealing somebody’s comb or picking up off the bar the glass of somebody else that you want to frame, or whatever, and leaving it at the crime scene, and you have their DNA at the crime scene. Of course proper investigation might reveal to the investigators that that piece of DNA evidence should not be properly considered part of the crime scene. It might. But the wider the net that is applied to those people that are on the DNA database — and I have heard some proposals recently that every child born in the state should be put on the database — the easier it is to frame somebody, to corrupt an investigation process by the use of planted evidence. If you have any doubt about how significant that is, go and get hold of a copy of last night’s Four Corners report where police officers in New South Wales were talking about how blandly and how routinely they were doing just that. The mechanisms for accountability in terms of investigation in our submission means that you should not be passing over to the police the power to order or require without any reference to a court the taking of samples, because the wider the database becomes, the more certain either a corrupt police officer or a person who is not a police officer but is a criminal, or whatever, who wants to set up somebody else, can be that the planting of the DNA will lead to the person that they want it to lead to. If you hand over the process to the police, then the transparency of the situation and the accountability mechanisms of the situation are shifted entirely virtually into the hands of the police force.
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