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 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 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 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 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. We say that is an entirely unsatisfactory situation.

We submit that the protection that exists in the legislation now requiring applications before the court could be improved, but that protection is the thing that, if you like, prevents at this stage DNA evidence becoming the new system of verballing, because there is a public record of an application being made before the court. There is a public record of when it is made. There is a public record of the reasons given for it being made and of the justification for it. So the ability for somebody to, if you like, corrupt an investigation in that way is minimised because of the outside scrutiny. For those reasons we oppose the routine sampling of all persons. We think that is simply opening up the situation to too much risk of corruption and fraud. For the same reason we oppose the transfer of the power to a police officer to decide whether or not or when a sample should be taken. It simply is just letting down the guard in terms of proper accountability.

We note in the guidelines of the committee that reference is made to the safeguards that should be put in place when requesting or taking samples from vulnerable persons. We submit to you that all accused persons are vulnerable. Some are more vulnerable than others, but all accused persons are vulnerable. They do not have the resources of the state. They do not necessarily know at the point of time at which they are being investigated what evidence is being marshalled against them. They are vulnerable, and so we submit that the safeguards that are in the current legislation should remain. We would submit that the legislation as it currently stands is inadequate because the person who is the subject of the application is not a party to the proceedings and therefore cannot cross-examine witnesses and can only make submissions on some limited matters set out in the act — important matters, but nevertheless limited. We would submit that in a transparent system where the presumption of innocence is in place, where the police are conducting their investigations properly and thoroughly, there is nothing to be feared at all from allowing accused persons to be able to test the material being relied on by the police to justify the taking of a sample — nothing at all.

In terms of the specific question the committee raises about the use of DNA sampling by convicted offenders, we say the first step in that is establishing a proper institute of scientists dedicated to looking at it from the accused person’s perspective. We also submit there may be a need to review the limitations that are currently in place that prevent accused persons from adducing fresh evidence at appeal court stages. There may be a need to reconsider that because it is very difficult for accused persons to convince appeal courts that they should be allowed the

23 July 2002 Law Reform Committee 144 adduce fresh evidence before the appeal court. We would also submit that any process in relation to a review of cases again requires proper provision of legal aid so that that can be done properly.

In terms of the question that the committee raises in relation to the limitations that ought to be put on any conclusions to be drawn in a criminal trial from the matching DNA, we would submit again that that is a staged process. The first step in the process is to ensure that accused persons can instruct their lawyers to properly test the evidence. The nature of the criminal justice system, like our entire justice system, is an adversarial process. The person who makes the decision about what evidence they want to test and what evidence they do not want to test is ultimately the accused person, through those acting on their instructions. The best way to draw appropriate limitations on the use that might be made of that evidence by a jury is to ensure it is properly tested. We would say there is a need again in those circumstances for a proper, independent forensic science institute dedicated to looking at it from the perspective of the accused person.

The second step is to ensure that the prosecution’s scientific evidence is properly tested before the court. Again, we would say the scientific institute for accused persons assists and will make that possible, and, of course, appropriate representation for accused persons. The other benefit of that is that over time a body of expertise builds up amongst scientists who work for accused persons rather than for the prosecution. That will mean that there will be rigorous and ongoing testing of the methodology used by the forensic scientists for the prosecution and we submit that is the best form of accountability of those institutions — expose them to proper testing in the courts and you will get proper accountability.

The final step we would say is that there is a need for, in appropriate cases, judges to give appropriate warnings to . What we submit though is that in general the development of those warnings is probably best left to the courts rather than asking Parliament to try to create guidelines for judges. In the normal course of events, appeal courts regularly make comments about the sorts of directions that judges give to juries. There are some statutory provisions about those, particularly in relation to sexual offences, but we would submit that generally the best way of going about that is to allow the courts to look at the particular cases and the particular cautions given by judges and to test it against the evidence. In the long term — it might take some time — you will get the best protection in the form of appropriate warnings in that way. So we would not submit that it is appropriate or necessary for Parliament to go down that path.

The final point I would like to make is about the standards that should be appropriately required of forensic laboratories. I would simply repeat what I have said earlier: we would submit that the most certain way of achieving proper levels of accountability is to expose those institutions, their scientific work and processes, to examination in the courts by ensuring that accused persons can properly test the evidence.

I have not specifically addressed you in relation to liberties issues or civil liberties in issues in relation to the taking of samples. You are probably aware that the Victorian Council for Civil Liberties is involved in a number of court cases over time about those sorts of issues, either as individuals or sometimes on behalf of the council directly. What we submit there is that again because of the intrusive nature of the taking of the samples — even if it is only taking a swab from the mouth, it is still an intrusive procedure — because of the dangers that we would submit exist for the use of contaminated evidence for corruption in the system, and because fundamentally every individual in this community, whether they are accused of a crime or not, whether they have been convicted of a crime or not, their most single fundamental human right is the integrity of their own body. We would submit that samples should be taken only in the most strict circumstances, as the legislation now requires; in some circumstances for videoing, we would say that is appropriate; and we submit that the role of the court is generally most important again as part of that accountability mechanism. We would not want to see a change in the current protection that exists under the legislation in terms of trying to protect or maximise the protection of the civil liberties of individuals in that regard.

The CHAIRMAN — Thank you for the time you have spent on your submission and your insight into the number of points; they are interesting.

Mr KATSAMBANIS — I take up your point about an institute of forensic science dedicated specifically for defence purposes. As radical as this may sound in adversarial process, would there be any value in rather than having a prosecutorial forensic science laboratory and a defence science laboratory, to have a forensic science laboratory that is independent of investigators and prosecutors, they being the police and the DPP, and also independent of the defence?

23 July 2002 Law Reform Committee 145 Mr CONNELLAN — I do not believe so. Firstly, the existing institute is meant to be independent of the prosecution, although it is almost exclusively used by the prosecution.

Mr KATSAMBANIS — It is an arm of the police.

Mr CONNELLAN — Yes, it is meant to be independent but it is closely associated with it, even if you step outside to things that are. Firstly, in any given case you cannot have two sides of the one argument going to the one independent expert, asking them to assess the value of that particular evidence and the circumstances in which it was found. It may be that you want to challenge the way they are going about it, the assumptions they are making, and the only way they can be properly done, in my submission, is by having totally independent scientists.

Secondly, we submit that what is required is to ensure that the scientific methodology and the processes of prosecution forensic scientists are made properly accountable. In our submission the only way that can be done is if there is somebody looking over the shoulder, in effect, through the court process. We submit that the only way to do that is to have a separate independent institution.

Whilst it may appear that for efficiency reasons and so forth that there is a shortcut to be taken by just having the one institute, and everybody can go to the one institute, in our submission that is not adequate. I could easily give you an example of that. I am not sure how much people have followed the O. J. Simpson case in America, but everybody assumes that he was a guilty man who got off. However, when you actually look at the case against him one of the things, it turns out, is that the socks found in the bedroom were contaminated with a preservative that was found in the blood and the only way that could get into the blood was if the blood was coming from a laboratory. If you deal with that you have somebody who was, for some reason, taking blood from a laboratory or whatever and you are then asking them to check on their own work — you will get nowhere. It is fraught with danger.

The Lindy Chamberlain case is another example. What was found in the bottom of the car had been found by the scientists to be blood — that is, foetal haemoglobin. You cannot then asked that scientist or the person working at the table next to them to undermine their work. We say it is fundamental, that when you think about the adversarial nature of the process you should think about the fact that accused persons are instructing their lawyers to act on their interests according to their instructions, and you must have separate institutions.

Ms HADDEN — What do you think about a provision for a review of forensic procedure provisions being conducted by an ombudsman as is presently available under the New South Wales legislation? I think they are waiting for the Ombudsman there to bring down his first report.

Mr CONNELLAN — I do not have a problem with the Ombudsman investigating and looking at things, but in my submission the best way of testing it is in courts on behalf of accused persons. That is the first thing.

For the Ombudsman to do it I think they would need to at least employ scientists for the purposes of that period of their investigation or their review, but I sense that what happens often with these things is that Parliament develops a set of guidelines, they are put in place and over time we start to see how well they work. In my view the section 464 forensic sample procedures that have been put in place, from my perspective, work reasonably well. I do not see that they are fatally flawed. We have a strong reservation about the accused person or the suspect person not being at party to the proceedings, but if you put that aside, we say they work reasonably well and have been proved. As I understand it, the major criticism of them is from the point of view of the prosecution. The prosecution considers them inefficient because they have to go to court. We simply say that is the best form of accountability, it protects the whole system. That is a fundamental that should not be done away with and any tampering with that, in our submission, would be to risk introducing a new form of verballing.

Mr BOWDEN — What rights of access to personal data derived from the samples should be provided? Would you comment on the idea that the accused persons should have exactly the same data as the prosecution?

Mr CONNELLAN — In relation to the samples of the accused person, yes, I do not see why they should be anything different. I do not fully understand, although I have dealt with it a few times in court, the limitations on the data that the prosecution collects. By that, as I understand it, I mean they are only entitled to collect identifying data. That would mean the appropriate DNA identifying data. Of course it does not take long for somebody to argue that if you have a particularly significant rare disease that that might also be an identifying factor if there is some problem with the DNA. For those reasons it seems to me that the accused person should have access to exactly the same identifying material that the prosecution has, and the prosecution should have no other; it should only be identifying material.

23 July 2002 Law Reform Committee 146 The CHAIRMAN — The comment is made that sometimes evidence can be collected by way of a cigarette in a prison cell or through another means, and for that data to be analysed without the knowledge of the suspect. Should provision be made to prevent or exclude DNA being collected in this way?

Mr CONNELLAN — We would submit yes, because there is an appropriate mechanism already existing and an application can be made to the court. The requirement for an application before the court is that you must be able to show some reason why the taking of that sample would assist in the investigation or the collection of evidence or the analysis of evidence. The reason we submit that it is important is that the risk that we point to about corruption and so on really flows from this dilemma of turning the investigation process upside down. The way a proper investigation should work is that you collect the evidence from a crime scene and you analyse it in its totality and that suggests to you possible suspects.

There are some exceptional cases where clearly have not been able to be solved because they have a piece of evidence they cannot analyse, but in the normal course of investigation that is how you should go about an investigation. You should not go about an investigation on the basis of, ‘Look, I have a hunch that this person is guilty, therefore I will look for the evidence that ties them to the crime and not investigate properly’. That is the real risk of turning investigation processes upside down.

What you are pointing to there is, if you like, facilitating that very thing. It is a matter of, ‘We aren’t sure whether we have the right person or we are not convinced on the evidence that it is at the point where we can go before the court and make an application; we’re working on a hunch’. The moment you go down that path it is like corruption in drug squads and everything else. The moment you start blurring the edges, you are starting to introduce a culture that says, as the copper said on Four Corners last night, ‘It is okay to get them, they are guilty’. That is fatally damaging to our system of justice because it introduces a culture that says, ‘I know he’s guilty, I can’t prove he’s guilty, but if I go about collecting evidence in a certain way it will not matter because he’s guilty, so I’ll plant the evidence on him’.

That is when you start to open up the scenario, and there is plenty of evidence of that happening in Australia over the years, more so in other states than in Victoria, but I submit that in Victoria one of the reasons we can proudly say that our police force is better than most other forces is that we are serious about accountability. We are serious about holding them accountable. They are under scrutiny all the time.

We submit that is not the appropriate way to collect evidence. If there is a basis for assuming, suspecting or believing that it is the right person if you have enough evidence to suggest that ‘We need to exclude that person from our investigations’, what is wrong with going before the court? You should have a basis on which you can do it.

Why involve yourself in underhand techniques to do that because the moment you start doing it once, saying that it is okay, it is justified and everybody accepts it, you are opening Pandora’s box and you cannot control it? The culture develops. We submit that that is not an appropriate way.

The CHAIRMAN — Thank you for your time.

Committee adjourned.

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