Alternative Law Journal
Deborah L. Kellie[*]
Courts and the legal profession must inform themselves of developments in forensic science.
The last years of the 20th century were labelled the ‘age of anxiety’. During times of anxiety we fallible humans look for support from ‘expert others’: witness the rise of the consulting industry; and the rise of scientific support. At the turn of a new century this anxiety tends to be heightened, at least according to some sociologists. The domain of criminal law is no different in its search for certainty. As Davies has argued, jurisprudence based on natural law and positivism has a tendency to look for and locate an ‘absolute’ ground or foundation. In the criminal trial that expert support comes from forensic science and the presumed certainty of the scientific method.
In the first half of the first year of the 21st century forensic science is again upsetting the apple cart of criminal justice, just as it did in the first year of the 20th century when fingerprint evidence first surfaced in the justice system. Some illustrations might help support this assertion. In the space of a week in early April 2001 there were several high profile media illustrations of forensic science’s potential for upset in the courtroom. My first illustration comes from Virginia, USA where they still have the death penalty. Governor Gilmore is presently faced with a trial of the justice system itself. In April the State was appealing a court order allowing the retesting of the original seminal fluid sample in the case of Brian Cherrix, convicted by jury of the rape and murder of a young woman. DNA testing was inconclusive and the jury convicted Cherrix. Cherrix is sitting on death row while his lawyers argue that retesting with contemporary DNA techniques will vindicate him. The Governor suggested that ‘to now try and pretend that some “scientific litmus test” can overpower the justice system and be superior to the system of justice of a civilised people is naïve’.
Moving closer to home, ABC Radio reported that ‘almost 80 years after he was executed in the Old Melbourne Jail, Colin Ross may be about to get the appeal hearing he was never granted — thanks to a few strands of hair, a Bible and a worn pencil’. Ross was convicted after a six-day trial before Schott J in 1922 of the murder of a 12-year-old girl. Ross conducted a business as the proprietor of a wine café in an arcade adjacent to the laneway in which the girl’s naked body was found. The principal evidence against him was conflicting confessional evidence, made to three of the Crown witnesses. Other circumstantial evidence included the girl’s hair found on a blanket in the café, and pieces of cloth said to be the same as the girl’s dress found in pristine condition a month after the incident on a major road. The High Court rejected his application for special leave to appeal the verdict by a majority of 4:1 and Ross was executed by hanging at Melbourne’s gaol. This April, two Melbourne QCs were preparing an appeal to have the verdict quashed posthumously on the basis of exculpatory DNA analysis of the hair.
This 1922 case is said to be the first where forensic analysis of hair was used in Australia to support the Crown’s prosecution. The High Court judgment shows that the presiding judge rightly ‘left it to the jury to attach to it such weight as they might think proper’. The majority judgment went on to say that:
If there be evidence on which reasonable men could find a verdict of guilty, the determination of the guilt or innocence of the prisoner is a matter for the jury and for them alone, and with their decision, based on such evidence, no Court or Judge has any right or power to interfere. It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroughly understood and always maintained.
It may come as no surprise to learn that Isaacs J was the sole dissentient. He expressed his concern for the general administration of the criminal law, particularly in capital cases, arguing that a prisoner should have ‘substantially the fullest chance for his life before the jury’, as required by law.
Justice Isaacs’ sentiment was to be echoed by Justice Williams in April 2001 in Queensland’s Court of Appeal. Williams JA suggested that it ‘was a black day in the history of the administration of criminal justice’ when available DNA samples were not tested, just because the prosecution believed they would not help convict their proffered accused. Frank Button became a free man on April 10 — free from the taunts of fellow prisoners in Arthur Gorrie Correctional Centre that he was a child rapist and free to return to his Cherbourg community. He had served 10 months of a six-year gaol term for the rape of a 13-year-old girl in January 1999. Inconclusive DNA evidence was presented at his trial in Kingaroy. The Court of Appeal quashed his verdict on the basis of exculpatory DNA evidence from seminal fluid stains on the bed sheets. This was evidence that, although available, remained untested and so was not presented at his trial in Kingaroy. One of the rationales provided by the Director of Public Prosecutions was that the State’s major forensic laboratory was under-resourced. To coin Isaacs J, the prosecution of the case deliberately denied Button the fullest chance for justice before the jury in our civilised system of justice.
The state reacted with almost unprecedented haste following the Queensland Court of Appeal decision. Premier Beattie announced on 14 April that from 26 April legislation would be changed requiring compulsory DNA testing of all people charged with an indictable offence, while those on lesser charges would be asked to provide a sample by consent. This was in addition to the DNA testing of all prisoners, introduced in February 2000. How was this announcement to be construed? It could hardly be argued to be a genuine reaction to Mr Button’s plight. Nor does it seem that the Premier was following the New South Wales lead from a week earlier when Premier Bob Carr had announced that all prisoners were entitled to a review of DNA evidence and retesting. Was it, in fact, just an opportune time to take another step towards the CrimTrac database and the pursuit of scientific certainty to support law enforcement — an area where votes can so easily be won and lost? Whatever your view, DNA profiling has reached the forensic status of accepted scientific evidence, with generally little concern over whether a judge will allow such evidence before the jury. The legal landscape is now such that almost without exception juries are allowed to hear the results of DNA testing.
As the States move closer to Prime Minister Howard’s goal of a National CrimTrac DNA database, at the very least illustrations such as these show that technological advances mean that we have to rethink some aspects of criminal justice. Despite the 1997 assertion by Hocking and others that a ‘wholesale “scientific appropriation” of the criminal justice process’ has not yet been realised, in 2001 the sentiment expressed by Governor Gilmore, and noted in the introduction, appears to be finding strong form here in Australia. The ‘scientific litmus test’ of DNA is overpowering the justice system and proving superior to the tried and tested system of justice of a civilised people. It could be argued that the criminal justice system as we know it is being appropriated by the very technologies designed to assist its pursuit.
The rise and rise of DNA databanks — in the USA, Britain, Canada and Australia — epitomises the advances in science and the concomitant advantages that such genetic information can provide. In April 2000 the Tenth United Nations Congress on the Prevention of Crime and the Treatment of Offenders heard from member nations about progress. The UK advised that their key goal was to expedite the detection of criminals through the increased use of DNA profiling. From Australia they heard that the government was placing ‘great emphasis on the use of technology as a tool of law enforcement … [including] a national DNA database’. Overarching, and, some would argue, supporting these developments is the Universal Declaration on Human Rights and the Human Genome. Article 6 is directed to discrimination and states that: ‘no one shall be subjected to discrimination based on genetic characteristics that is intended to infringe or has the effect of infringing human rights, fundamental freedoms and human dignity’. Article 7 is directed to information privacy: ‘genetic data associated with an identifiable person and stored or processed for the purposes of research or any other purpose must be held confidential in the conditions set by law’.
While the declaration is intended to ensure the appropriate usage of DNA, including forensic profiling, there is potential for the abrogation of this intent. Illustrations are not hard to find. In Queensland, the Premier is on record saying that his Cabinet’s decision to sample prisoners was ‘based on the fact that 90% of all crime is committed by 10% of the population, and targeting known offenders will greatly help police clear up crime’. In Victoria, we have witnessed the use of physical force to secure DNA samples from prisoners. What do such illustrations say for the State’s implementation of Article 6? Similarly, the ease of breaching Article 7’s protection of confidentiality was recently demonstrated by none other than the Law Lords.
Attorney General’s Reference No 3 of 1999 was concerned with the admissibility of DNA evidence. A 66-year-old woman had been raped and her home burgled. The offender had been ‘picked up’ through an extraordinary coincidence of events. ‘In Britain, anyone arrested or suspected of a crime can be asked to provide a saliva sample to compile their DNA identity card’. The accused was charged on a totally unrelated burglary offence. While awaiting that trial a lawful DNA sample was taken, which was added to the DNA database. At trial he was acquitted of the burglary offence, and although the statute required the destruction of any DNA sample after an acquittal, his DNA sample was not destroyed, and remained in the database.
The British database has a proud strike rate. In April 2000 it held some 700,000 DNA profiles. In the five years of its operation the database has ‘enabled thousands of matches or “cold hits” to be made that have led to the identification of more than 260 murderers, 400 rapists and 2500 burglars’. The offender’s DNA was on the database and it led to his being matched with the woman’s rape. During the investigations the police took a second sample of DNA: a hair, which gave a positive match with a probability of 1 in 17 million that it was a chance match. But at trial it was not that sample which was argued. Rather, argument was based on the original sample that gave rise to the cold hit. The trial judge directed as the statute required that, as that DNA should have been destroyed, evidence from it was inadmissible. A ‘not guilty’ verdict was directed. The Attorney referred the matter to the Court of Appeal on the basis that the judge had discretion to allow the DNA evidence, ‘tainted’ or not. The Court of Appeal held that there would be no such discretion given the statutory context, but referred the matter to the House of Lords. The House of Lords said that the DNA evidence should have been admitted, in order that it could be tested by the arbiters of fact in our civilised system of justice: the jury. Lord Steyn, in the leading judgment, supported by all the Law Lords, stated that:
[i]t must be borne in mind that respect for the privacy of defendants is not the only value at stake. The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of everyone that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family, and the public. In my view the austere interpretation which the Court of Appeal adopted is not only in conflict with the plain words of the statute but also produces results which are contrary to good sense.
One reading of these developments is that DNA evidence has indeed become the scientific litmus test of culpability, based on statistical probabilities that are perceived, and often presented as scientific certainties. Arguing from a context of environmental law, Stewart suggests that the scientific and legal notions of certainty are quite distinct. Science, Stewart argues, ‘by its very nature, may not give absolute proof’. His work opens an inference that recent media attention to DNA profiles and justice and the states’s response reflect a populist intent to provide reassurance to a public, who are perhaps losing their faith and confidence in the ability of the criminal justice system to live up to the purpose proposed by Lord Steyn of ‘protection’. So does such appropriation of science offer more than a forensic advantage?
Stewart suggests that ‘statutes and policies relying on “scientific certainty” are fundamentally misconceived’. He bases this assertion on the fact that in any search for a ‘scientific truth’ there will always be some degree of error or mistake, supported by quoting Karl Popper: ‘… since we can never know anything for sure, it is simply not worth searching for certainty; but it is well worth searching for truth; and we do this chiefly by searching for mistakes so that we can correct them’. Searching for truth is the task of the jury as they listen to the evidence: identifying mistakes is the role of counsel, particularly in respect of DNA evidence.
Lawyers for Brian Cherrix placed their hopes on searching for those mistakes. It was searching for mistakes that led to the quashing of Button’s conviction. It was searching for mistakes that led to a posthumous appeal for the Gun Alley murder: 80 years on. The appellate system of criminal justice is based on searching for mistakes made by someone somewhere: be it counsel, judge or jury. But, does the way scientific evidence of DNA is presented in the Australian courtroom at first instance allow of the concept of ‘mistake’ or ‘error’? And does our civilised system of criminal justice where 12 ordinary citizens consider such evidence really stand a chance against popular notions of science as infallible?
Although we may be a civilised society, a widespread stereotypical view is that our jurors are drawn from a ‘scientifically illiterate’ general public. In an era when even scientists are pressed to keep abreast of developments in their own field this perception may have some basis in reality. But when there is as much voodoo science as there is real science, the need for a ‘plain English’ presentation of scientific evidence comes to the fore. In reality the issue of fallibility is one that rests with the ‘experts’ — scientist and counsel.
In the USA the standard test of admissibility for expert evidence requires scientific acceptance of the theory and any analytical techniques. DNA evidence is different. The People of the State of New York v Joseph Castro added a third requirement to the standard test for expert evidence. The third limb focuses on whether the testing laboratory conformed with accepted testing procedures for the sample in question. This third limb is readily exploited to secure exclusion of DNA evidence, with the consequence that there has been much debate in the American courts over the validity of analytical techniques and the fallibility of the analyses performed. In cases where DNA is raised, admissibility is determined on voir dire, in the absence of the jury.
In Australia, as with other expert evidence, DNA evidence must be relevant to a fact in issue in order to be admissible. There has been no high authority providing an Australian test particularly for the admissibility of DNA evidence. The third limb of the American Castro test has been explicitly rejected in Australia: there is no requirement in Australian law for a voir dire on the competence of the analyst or the reliability of techniques used in the analysis, if the evidence is held admissible. In light of the variety of potential analytical techniques that are used in DNA profiling it might be argued that the Australian approach needs to be reviewed, and that something approaching a Castro style third limb is increasingly pertinent.
The ‘Australian way’ remains that these are issues for the jury to determine after hearing the evidence from the witnesses. Mistake or error by the analyst is a matter of fact for the jury, heightening the role of counsel in drawing the evidence in such a way that the lay jurors are facilitated towards an understanding of the expert evidence, such that they can evaluate its merits. The case law shows that the concern about admissibility of DNA evidence in Australia has been with the jury’s competence to assess the evidence, particularly where there are competing experts, rather than with counsels’ competence at leading evidence and cross- examination.
Forensic evidence has a certain allure, drawn from the cogency of science and can be used to inculpate and exculpate. Its lure for prosecution counsel has long been recognised. In the UK, Lord Justice Phillips, delivering the court’s judgment in Adams, R v Alan James Doheny Gary discussed what has become known as ‘the Prosecutor’s Fallacy’. It goes like this: only one person in a million will have a DNA profile that matches that of the crime stain. The defendant has a profile that matches the crime stain. Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime. As Lord Justice Phillips said:
Such reasoning has been commended to juries in a number of cases by Prosecuting Counsel, by judges and sometimes by expert witnesses. It is fallacious …The cogency of DNA evidence makes it particularly important that testing is rigorously conducted so as to obviate the risk of error in the laboratory, that the method of analysis and the basis of subsequent statistical calculation should — so far as possible — be transparent to the Defence and that the true import of the resultant conclusion is accurately and fairly explained to the jury.
The system of justice of a civilised people is based on the maxim that a person is innocent until found guilty by a jury. Throughout the history of the common law this has been paramount. A jury is as fallible as the evidence on which it deliberates. Developments in science and the retesting of materials may well usurp a jury’s verdict: however, that is not predictable and is maybe something for which legislatures will need to provide as scientific developments expand. A jury is less fallible when all the evidence is before it and it is facilitated towards a full understanding of that evidence.
The electoral roll from which our jury panels are drawn contains name and address details of all those who are over 18 who have enrolled to vote. ABS data show that Australians are a fairly well-educated group: 44% of our 15 to 65-year-old population have a post-secondary qualification. Those under 35 are likely to have a Bachelors degree, whereas those above 35 are likely to hold a skilled vocational qualification. Many of those skilled vocational qualifications actually include some form of science component, which most law degrees do not. Is the concern expressed by counsel that a jury may be overawed by DNA evidence really a subterfuge to avoid having to develop skills in ‘translating’ scientific jargon to plain English? Retaining trial by jury, rather than trial by expert, requires that counsel demonstrate the same faith in the lay juror that the founders of our legal system demonstrated. All the evidence needs is to be laid before the jury in such a way that it is user friendly so that they may indeed be the ‘constitutional judge of fact’. Perhaps the best rationale for leaving DNA evidence to the jury to assess its weight comes from the USA:
Absolute certainty of result or unanimity of scientific opinion is not required for admissibility. (Every useful new development must have its first day in court. And court records are full of the conflicting opinions of doctors, engineers, and accountants, to name just a few of the legions of expert witnesses) … Unless an exaggerated popular opinion of the accuracy of a particular technique makes its use prejudicial or likely to mislead the jury, it is better to admit relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross examination and refutation …
As His Honour Justice Kirby advised, one of the ‘big issues’ that the legal profession needs to face is ‘to keep themselves informed of rapid developments in genetic science’. Concomitant with that is the need for effective communication skills to ensure that the jury’s understanding is facilitated so that an accused does indeed get substantially the fullest chance for his liberty before the jury.
[*] Deborah Kellie is a Judge’s Associate in the District Court of Queensland.email: email@example.com© 2001 Deborah Kellie (text)© 2001 Jane Cafarella (cartoon)
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 The Galton-Henry system of fingerprint classification was officially introduced at Scotland Yard in 1901.
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 Chamberlain (No 2)  HCA 7; (1984) 153 CLR 521, per Brennan J at 598, cited in Jarrett, at 169, ref 31, above.
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