Canberra Law Review
Law vs Science: Genomic Evidence, Wrongful Convictions and the Requirement for a Statutory Framework
DNA has gained a reputation as an infallible ‘gold standard’ of forensic identification. Although DNA is a powerful forensic tool for identifying the guilty and excluding the innocent, this perception has resulted in an overreliance on DNA evidence in criminal convictions. This article explores the limitations of DNA evidence and subsequently how these limitations contribute to wrongful convictions in Australia. This includes examining how technical, scientific and statistical evidence is misunderstood, miscommunicated and misinterpreted by the typically lay participants of the criminal justice system. This has been exacerbated by fallacies and phenomenon such as the CSI Effect, in which jurors enter the court with preconceived (and often incorrect) ideas about scientific evidence based on fictional portrayals of forensic processes. The article then constructs case studies which demonstrate how flawed DNA evidence has led to miscarriages of justice in Australia and provides some commentary from the High Court on the inability of DNA to conclusively convict. Following this, the article recommends several areas for reform, including the incorporation of innocence testing and post-conviction review schemes, improved training and education for expert witnesses, legal professionals and lay jurors, and increased reporting and oversight obligations. These reforms will mean that genomic evidence will have significant probative value in reliably securing the convictions of the guilty and acquittal of the innocent.
In other words, the DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert. And like the inscription on the statue’s pedestal, everything around it belied the truth of its assertion. The statue, of course, would be seen by any reasonably perceptive observer, and viewed in its surroundings, as a shattered monument to an arrogance that now mocked itself. By contrast, the DNA evidence appears to have been viewed as possessing an almost mystical infallibility that enabled its surroundings to be disregarded.
The presentation of DNA in court provides two competing authorities for legal participants to balance: the law and science. In the criminal justice system, DNA evidence is a powerful forensic tool for identifying the guilty and excluding the innocent. DNA is widely perceived as infallible and has gained significant attraction as the ‘gold standard’ of forensic identification. DNA evidence is highly probative and is associated with longer custodial sentencing. However, in reality, the presence of DNA cannot conclusively determine a suspect’s guilt. Further, the presentation of DNA evidence is associated with complex scientific concepts, technical language and statistical data which is notoriously difficult for laypeople to understand. Therefore, there is a tendency for legal practitioners, judges, and jurors to assign inaccurate levels of probative value to DNA evidence.
Australia’s existing legislative framework currently does little to address these misunderstandings or the criminal justice system’s overreliance on DNA evidence. As demonstrated by Australia’s recent history, this failure has the potential to result in serious miscarriages of justice. Australian case law reveals that DNA evidence is highly probative in the determination of wrongful convictions. For example, the conviction of Frank Button for rape was overturned only after DNA testing performed following the trial excluded him as the perpetrator. Contamination of DNA samples resulted in the wrongful conviction and imprisonment of Farah Jama despite a complete lack of corroborating evidence. The judge and jurors associated with the conviction of Thomas Keir were influenced by prosecutor’s fallacy. These cases, among others, demonstrate the potential consequences of genomic evidence being miscommunicated, misunderstood, or relied upon too heavily. The implications of these miscarriages of justice include ongoing psychiatric dysfunction, difficulties reintegrating into society and societal distrust in DNA evidence and the broader criminal justice system.
The inadequate regulation of analysis and communication of genomic evidence provides a framework which fails to adequately mitigate the likelihood of miscarriages of justice. Recommendations to address these failures have previously been provided by the Australian Law Reform Commission (ALRC), state and territory Parliaments, and various academics and subject matter experts. To date, these recommendations have not been implemented to a sufficient standard to preserve the probative value of DNA evidence and prevent wrongful convictions. To address this, this article recommends a more holistic approach for reform, including innocence testing and post-conviction review schemes, improved training and education for expert witnesses and legal professionals, and increased reporting obligations. These reforms mean that genomic evidence will have significant probative value in accurately and reliably securing convictions of the guilty and acquittal of the innocent. Failure to implement these recommendations has the potential to result in further injustices – that is, more innocent people in prisons – and increased distrust of DNA evidence.
The primary research question underpinning this article is: ‘Is there a need for a Genomic Evidence Act and what would that statutory framework look like?’
A number of sub-questions are required to provide context for the primary research question. These questions will initially provide insight into the jury’s understanding of genomic evidence, which must be addressed to identify common areas of bias from a lay perspective. Next, the article aims to determine how genomic evidence contributes to wrongful convictions. The article then examines whether legislative reforms are necessary to mitigate wrongful convictions. The sub-questions are as follows:
1. What is the jury’s understanding of genomic evidence and its application?
2. How does genomic evidence contribute to wrongful convictions?
3. What reforms, if any, are required to mitigate the risk of wrongful convictions?
This article centres on a qualitative analysis of DNA evidence in criminal litigation, focusing on its role in wrongful convictions. In doing so it adopts a mixture of doctrinal and non-doctrinal approaches to researching the use of DNA, analysing case law, statute, and secondary sources from a scientific perspective. Australian common law will be evaluated to construct case studies of wrongful convictions and compare judicial perspectives on the reliability and admissibility of DNA evidence with the scientific reality of DNA analysis. Analysis of this case law will enable empirical determination of trends and the categorisation of contributing factors of wrongful convictions.
This combination of doctrinal and non-doctrinal legal research will extend into the reform-orientated aspect of the article, with a critical analysis of existing Commonwealth and state/territory statutory frameworks. The identification of limitations in the legislation is essential for identifying areas for reform and mitigating the risk of miscarriages of justice, alongside a comparative component to this article which will provide examples of successful international law reform. Analysis of international regimes will have a twofold purpose of identifying limitations with Australian’s legislative framework and for proposing essential components of a uniform legislative scheme. Ultimately, this comparative lens allows the merits of the existing law to be analysed to determine whether legal reform is necessary from this scientific perspective.
There are severe consequences of misunderstandings, miscommunication and misuse of DNA evidence, including wrongful convictions and other miscarriages of justice. Considering this, there is inadequate existing legislation governing the use of this evidence. This research is necessary to address the inadequacies of the legal system and the uncertainty surrounding the legal profession’s understanding of genomic evidence. Currently, there is minimal relevant research in this field, and this gap in knowledge must be filled. This article offers a unique perspective into this issue by analysing the interactions between the legal and scientific frameworks of DNA evidence and offering practical and theoretical contributions to existing literature.
The following pages argue that the drafting and implementation of a comprehensive uniform statutory framework is warranted and achievable, proposing an effective structure for developing legal best-practice. The necessity of reform has been recognised internationally, as evidenced by the recent introduction of the Forensic Science Regulator Act 2021 in the United Kingdom (UK). The reform proposed here aim to standardise forensic procedures and communication with the objective of minimising wrongful convictions.
Due to length requirements and other practical limitations, this article is restricted to the application of genomic evidence in prosecuting criminal offences, such as murder and sexual assault. Offences of this nature are the primary crimes investigated using DNA evidence. Discussion surrounding ethical and privacy concerns and the application of DNA in civil litigation, such as paternity, custody or proof-of-death instances, will be excluded for the purposes of the article. Privacy concerns associated with the use of DNA are well-integrated within the literature, thus literature has been selectively chosen to ensure the article remains focused on criminal proceedings incorporating genomic evidence. Although discussion of civil DNA analysis and privacy would aid the broader contextualisation of the application of genomic evidence, the length requirements will prevent these topics from being addressed in the necessary depth.
In Part One this article contextualises the forensic relevance of biological evidence and how this evidence is collected, stored, managed and subsequently used in litigation. From this context, Part Two considers the factors which contribute to wrongful convictions, focusing on misconceptions, misunderstandings and fallacies. The article then constructs case studies in Part Three to profile how these factors ultimately result in wrongful convictions. Finally, Part Four compares existing Australian, United States (US) and UK statutory approaches to assess the merits of these frameworks. This Part provide recommendations for legislative reforms which govern the use of DNA in legal proceedings. The article concludes that these reforms are necessary to standardise the scope of DNA application in court and prevent further miscarriages of justice.
PART II GENOMIC EVIDENCE
This Part introduces the scientific foundations of DNA and provides background on the collection, analysis and presentation of genomic evidence for the purpose of criminal proceedings. The presentation of DNA in litigation is generally expressed using statistics and technical language. Out of necessity, the contents of this Part are scientific and technical. This technicality is inescapable; the ability to comprehend the probative value of DNA evidence is dependent on a comprehension of the mechanics and significance of DNA analysis. There is an expectation that jurors understand genomic evidence to a competent enough level to determine guilt or innocence on this evidentiary basis. However, even forensic experts commonly miscommunicate statistical data and most legal practitioners lack the necessary comprehension of this category of evidence.
B The Science of Genomic Evidence
DNA, or deoxyribonucleic acid, is a molecule composed of nucleotides connected in the shape of a double helix. DNA contains the unique genetic material of all known organisms, which can be used for general identification or specific individualisation. The genome is the complete sequence of an organism’s genetic material and is made up of coding and non-coding regions. Coding regions, known as exons, contain all the genetic regions which code for proteins. Therefore, exon analysis can reveal physical characteristics and traits of an individual (phenotypes), including hair and eye colour, height, facial features, ethnic backgrounds, and predisposed genetic medical conditions. Non-coding regions, known as introns, are not involved in gene expression. Interestingly, forensics analyses the non-functional, non-informative introns.
Although intron analysis began due to technological limitations, it has deliberately persisted as an ethical consideration. Current DNA testing does not obtain information about race, predisposal to disease or phenotypical information. Screening for personal traits, particularly physical and psychological illnesses, is arguably an invasion of privacy, and currently is not regulated under Australian legislation. Conversely, there are arguments that phenotypical analysis should be adopted into intelligence and law enforcement practices due to the invaluable assistance it could offer investigations. Further consideration of this is outside the scope of this article.
Approximately 99.9% of the human genome sequence is identical amongst individuals. Excluding identical twins, the remaining 0.1% of the genome is specific to the individual. At any particular locus, there are two alleles (alternatives of a gene) – one on each chromosome. The combination of alleles at a locus forms a genotype. The construction of DNA profiles allows for polymorphisms (variations in the genome) to be observed. These are compared with samples stored within databases or DNA collected from suspects, to determine whether the samples have originated from the same source. Therefore, DNA profiles may be used to ‘identify, confirm or eliminate a suspect in a criminal investigation’. The aim of forensic techniques is to establish links between the crime and suspect.
C Collection of Genomic Evidence
Genomic evidence is predominantly collected following offences against the person, including sexual offences, homicide and other serious criminal offences. The most relevant biological sources include blood, hair roots, skin cells, urine, bones, saliva and seminal fluid. In accordance with Locard’s Exchange Principle, ‘every contact leaves a trace’. When crimes are committed, perpetrators deposit biological trace material which is typically fragile, microscopic and transitory. The recovery of trace evidence from crime scenes is essential for reconstructing events and linking or excluding suspects. Where possible, investigators will utilise all available biological trace sources to obtain a DNA profile. DNA has previously been lawfully obtained from cigarette butts, random intoxication test instruments, and assorted items of rubbish. The collection and analysis of forensic evidence found at crime scenes is not subject to any legislative sampling regimes.
Following crime scene recovery, investigators are often required to collect reference samples for comparison. The collection of forensic samples from suspects, convicted offenders and volunteers is regulated by the Crimes Act 1914 (Cth) pt 1D, and corresponding laws in state and territory jurisdictions (see Appendix 1). In the Commonwealth, Australian Capital Territory (ACT), New South Wales (NSW) and Victoria, forensic samples may only be taken from a suspect where there are reasonable grounds to believe that the forensic procedure will likely produce evidence confirming or disproving guilt. The threshold for reasonable belief is low and is likely to be met where a biological sample has been recovered from the crime scene. Similarly, Western Australia requires ‘reasonable suspicion’ that the procedure will afford evidence of whether or not the suspect committed the offence. No other jurisdictions expressly require reasonable belief or suspicion prior to forensic procedures being undertaken.
D DNA Analysis and Identification
DNA analysis aims to detect polymorphisms to assist with identification. Forensic analysis focusses on Short Tandem Repeat (‘STR’) polymorphisms, which are repeating units of DNA. STR alleles are made of varying lengths of repeated DNA segments. The combination of STR alleles across several loci are unique for an individual. Degraded STRs can be amplified, which is a major advantage in a field where recovery of complete DNA sequences is not guaranteed.
DNA profiles are composed of genotypes from a panel of independent loci. The more STR loci used, the greater the discrimination between individuals. The likelihood of a random individual in the population possessing identical numbers of repeat units at all STR loci decreases as more loci are introduced. The number of STR loci analysed for criminal investigations vary internationally. In the US, the Federal Bureau of Investigation uses 20 core STR loci in their Combined DNA Index System (‘CODIS’) for criminal identification. Many countries worldwide, including Australia, have mirrored the CODIS system and adopted commercial kits which amplify 20 loci (see Appendix 2).
Modern DNA profiling involves four main steps: (1) extraction; (2) quantification and amplification; (3) separation, and (4) visualisation (see Appendix 2). Extraction produces pure DNA by freeing it from cellular fluids and proteins. The extraction method depends on the biological sample matrix. For example, solid samples, such as hair, must undergo lysis to be broken down prior to extraction. DNA is amplified using Polymerase Chain Reaction (‘PCR’), which creates many identical copies of the DNA fragments. Real-Time PCR simultaneously quantifies the DNA. Capillary electrophoresis is a separation technique that utilises an electric current run across a fine capillary tube. This forces the negatively-charged DNA molecules to move through the gel towards the positive electrode. Shorter DNA strands move faster than longer strands, and thus separate based on fragment size. These are detected by a sensor or are attached to fluorescent dyes. The output is a visualisable DNA profile which must be interpreted by an expert.
DNA profiles may be compared with suspects’ profiles or profiles contained in a DNA database. The use of Commonwealth and state/territory DNA databases is regulated by the Crimes Act 1914 (Cth) pt 1D div 8A. The Australian National Criminal Investigation DNA Database (‘NCIDD’) currently holds more than 1.2 million DNA profiles ‘collected by Australian police from crime scenes, convicted offenders, suspects, volunteers, items belonging to missing persons, and unknown deceased persons’. The NCIDD is accessible to law enforcement agencies and forensic scientists across all state and territory jurisdictions.
Two DNA profiles may be considered a match if the alleles are identical at all loci. This will have significant probative value due to the improbability of a random member of the population having the exact same profile as the suspect. This provides probabilistic support for inferring that that the suspect is the source of the DNA recovered from the crime scene. However, DNA matches do not necessarily establish guilt beyond reasonable doubt since coincidental matches cannot be completely discounted. Conversely, a ‘non-match’ conclusively excludes the individual from being a suspect. Excluding suspects and establishing innocence is equally as important as establishing guilt.
E Presentation of Genomic Evidence
Once two DNA profiles have been ‘matched’, the significance must be calculated. Interpretation of the match must be expressed in a manner which gives weight to the evidence. Likelihood ratios (‘LRs’) are the preferred method of communicating the strength of statistical forensic evidence due to their ability to convey the ‘subjectivity and uncertainty associated with forensic science evidence’. This calculation involves a ratio of the probability that the sample DNA and suspect’s DNA originated from the same source (the prosecution hypothesis) to the probability that the DNA originated from different sources (the defence hypothesis). LRs can be used for other forms of forensic evidence where there are two competing hypotheses, including ballistics, shattered glass, and latent fingerprints. Morrison has suggested that the LR framework is the ‘logically correct framework for the evaluation of evidence.’
LRs must be communicated in litigation in a manner which conveys the support offered for either hypothesis. Clear communication is essential for the ‘effectiveness and perceived trustworthiness of the criminal justice system’. The audience of genomic evidence includes investigators, lawyers, judges and jurors who generally lack scientific backgrounds. The presentation of DNA in court is highly probative and influential, and is associated with longer custodial sentencing. As such, these statistics must be presented in a manner that conveys the expert’s intention and is appropriate for the audience. LRs can be expressed verbally or numerically (see Appendix 2). As was communicated by an expert witness in Forbes v the Queen:
The probability estimates in a legal context are the prosecution hypothesis and the defence hypothesis. If the likelihood ratio is one million that means that one of the probabilities is favoured over the other by a factor of 1 million. The verbal equivalent of that likelihood ratio is extremely strong... The likelihood ratio does not mean that there is only one person in a million... with the particular DNA profile.
Martire et al conducted a study aimed at understanding how presentation methods were interpreted by laypeople to determine the most appropriate method to communicate LRs to judges and jurors. The study showed that numerical communication was the most effective way to produce belief-change and convey the expert’s intentions. Other methods were less effective due to the observed ‘weak evidence effect’. There was a tendency for participants to interpret evidence in the ‘weak to limited support’ category as the opposite of ‘strong support’, therefore supporting the defence. This is a significant misinterpretation, as evidence within this category still favours the prosecution.
Therefore, numerical approaches should be adopted where possible to ensure the expert’s intentions are appropriately and accurately communicated and understood. This will mitigate the potential for miscommunication and misunderstandings. The ability of DNA to produce probative and reliable results is dependent on proper and adequate communication.
F Limitations of Genomic Evidence
The application of DNA should be restricted to corroborating other forms of evidence because ‘a DNA profile match does not necessarily establish guilt beyond reasonable doubt’. Coincidental matches cannot be completely discounted, as there may have been contamination, laboratory error or tampering. There is also the possibility of ‘innocent’ contamination, in which the suspect’s DNA is located at the scene for a reason unrelated to the crime. This may occur due to primary (direct) or secondary (indirect) transfers. In the case of secondary transfer, biological specimens from a suspect may be located at a crime scene without the suspect ever having been to the location. As noted in Riley v Western Australia, courts are required to consider statistical DNA evidence in conjunction with other evidence. To achieve this, judges may instruct jurors that ‘mathematical expressions of probability must not be substituted for proof of guilt beyond reasonable doubt’.
Additionally, often only small quantities of trace evidence are recovered from crime scenes. Small quantities of starting DNA greatly increases the risk of contamination which may be amplified during the DNA profiling process. As such, experts must consider ‘the impact of background contaminating DNA to confuse the evidential significance’ of any recovered evidence. There are uncertainties around the extent to which background DNA of the victim may overwhelm DNA transferred by the offender. Therefore, the recovery of DNA – other than that of the victim – is not always an indication that it belongs to the true offender.
Moreover, the DNA of identical twins is indistinguishable. This has complicated cases such as the 2008 Atlanta twin murder case in which Donald Smith was arrested for his brother’s crime based on DNA evidence. Ultimately, DNA cannot provide truly granular individualisation. Caution must be exercised against an overreliance on DNA evidence, as this may contribute to wrongful convictions.
PART III CONTRIBUTING FACTORS OF WRONGFUL CONVICTIONS
The principle underpinning the entirety of the criminal justice system is the pursuit of justice. The public assumes that interactions with the legal system will result in fair and just outcomes; that is, people who do bad things will be punished accordingly, and people who suffer at the hands of those people will receive just compensation. The inherent complexities of the legal system prevent the execution of this perception. The adversarial system is not strictly a search for the truth. The role of the judge in Australia’s adversarial system is as a passive and impartial party ‘who holds the balance between the contending parties without himself taking party in their disputations’. Therefore any evidence presented to the court is limited to that which is brought by the parties.
Miscarriages of justice, such as wrongful convictions, occur when there is a failure to achieve a fair or just outcome in a legal proceeding. There are two categories of wrongful convictions: those relating to the ‘true’ sequence of events (factual innocence) and those relating to the principles of natural justice (legal innocence). This article primarily explores the former category – the conviction of individuals for offences they did not commit – in the context of DNA evidence. This Part will investigate factors which contribute to wrongful convictions of this nature, including the perceived infallibility of forensic evidence, miscommunication and misunderstanding, common fallacies and biases, and the CSI Effect.
B “Infallibility” of Forensic Evidence
Firstly, there is a common misconception amongst legal practitioners and the general public (from which jurors are selected) that forensic evidence, particularly DNA, can conclusively determine a suspect’s identity. Overreliance on forensic evidence has contributed to many criminal convictions which are later overturned. In arguably Australia’s most controversial and high-profile criminal case, Lindy Chamberlain was convicted and imprisoned for murdering her daughter at Uluru in 1980, despite claims that baby Azaria had been taken by a dingo. Her husband, Michael Chamberlain, was convicted as an accessory after the fact. At trial, the prosecution primarily relied on the expert statement of a forensic biologist, who testified that foetal haemoglobin had been found in the Chamberlain’s car. This ‘blood’ was later found to be a fluid used in car manufacturing, known as a ‘sound deadening compound’. In September 1988, the Northern Territory Court of Criminal Appeal unanimously quashed both convictions and Lindy Chamberlain was released after serving three years. In 2012, the fourth inquest into this case officially concluded that a dingo had caused Azaria’s death.
The legal system both reflects and shapes the public’s understanding of science. With the public perception of forensic evidence as infallible, it is unsurprising that the legal system shares and further perpetuates this view. In a critique of Chamberlain, Bourke states that the publicity to an international audience ‘has only served to distinguish it from other cases, so that it is now commonly thought of as an aberration, a ‘one-off’ legal mistake’. In reality, wrongful convictions due to flawed forensic evidence have occurred on numerous occasions, and there are likely many more which have not been discovered. The conviction of Edward Splatt for murder was associated with poor reporting methods, an inability to retest hypotheses, and a narrow analysis of the trace evidence ‘without the benefit of a broader context’. David Eastman’s conviction for the murder of an Australian Federal Police (‘AFP’) officer was founded on gunshot residue evidence by an ‘expert’ lacking relevant tertiary qualifications. The expert’s flawed methodology relied on a database of ammunition profiles constructed using insufficient quantities of reference material.
These cases demonstrate a tendency to accept the opinions of scientific experts with absolute trust in their methods. However, the interpretation of forensic results is a human process, and thus there is the possibility of human error. As noted by Moles:
When Australia used a truth-seeking method (a Royal Commission) in the case of Lindy Chamberlain it found out that virtually all of the scientific evidence which has been given at the trial was wrong. When it used the same method (a Royal Commission) in the case of Edward Splatt, it found out again that of the numerous pieces of scientific evidence given at the trial, not one of them was without error.
While the flaws of other forensic disciplines have been increasingly criticised, DNA has gained significant attraction as ‘a silver bullet’ and the ‘gold standard’ of forensic identification. DNA has been praised as the source of ultimate truth; able to undisputedly answer the questions of the criminal justice system. In some cases, such as R v Jama, convictions have been made where DNA is the prosecution’s only supporting evidence. Precedence is created as DNA evidence is utilised more regularly in criminal investigations and judgments. This in turn builds a body of knowledge and becomes more normative. However, although legal professionals may encounter DNA more frequently, it ‘does not follow that increased familiarity equates to understanding’.
Moreover, jurors expect DNA evidence to be present in almost all criminal cases. Where DNA has not been recovered because it is not relevant or is not able to be interpreted due to degradation or mixed-DNA samples, prosecutors must find ways to explain the lack of relevance or scientific limitations to jurors. They must anticipate and address the (often fallacious) expectations jurors possess about the nature and availability of genomic evidence. DNA is a powerful forensic tool which may provide credible evidence only if used appropriately and contextualised in the courtroom.
C Miscommunication and Misunderstanding
Secondly, as DNA evidence progresses to court, technical, scientific and statistical processes and findings must be conveyed to lay jurors and judges. The challenge for expert witnesses is to present their opinions, findings and interpretations in a manner which can be understood by these non-scientists. The complexities of DNA evidence are notoriously difficult for laypeople to understand. This is further complicated by inconsistent communication between forensic scientists and legal professionals. Consequently, jurors and judges are required to make decisions based on DNA evidence which they cannot be expected to fully understand, or which has been miscommunicated to them. As acknowledged by the High Court in the conviction of Colin Ross (who was pardoned posthumously):
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... It is of the highest importance that the grave responsibility which rests on jurors in this respect should be thoroughly understood and always maintained.
An understanding of forensic science is required to interpret the associated language. The readability of forensic reports has been criticised due to styles of writing and technical or scientific language used. These reports are often misinterpreted by the police, lawyers and judges who use them. Howes et al conducted a study to assess readability of forensic DNA reports across six Australian jurisdictions. Their results indicated that reports were generally written in an objective and scientific style, but tended to assume knowledge of specialist technical terms. Of note, the study identified a disparity between Australian jurisdictions in communicating the uncertainty and probative value of genomic evidence in police and court reports. This demonstrates the lack of harmony across jurisdictions in relation to appropriate forms of communication for non-scientists to understand.
Additionally, criminal juries are made up of laypeople who are presented with complex scientific findings to support the competing claims of the prosecution and defence. Jurors are typically unable to consider evidence holistically, accurately evaluate the probative value of the evidence, or make necessarily informed decisions. Scientific, statistical and technical evidence is challenging for jurors to comprehend, and their reasoning and decisions in relation to statistical arguments are often influenced by fallacies and biases. Jurors consistently misinterpret the contexts in which DNA may be present, leading to jurors both undervaluing and overvaluing genomic evidence. The demographic characteristics, educational backgrounds and attitudes of jurors are important predictors of their likely level of comprehension. Individuals with minimal formal education tend to devalue DNA evidence, while those with higher levels of education generally make more knowledgeable assessments.
D Common Fallacies and Biases
Thirdly, fallacies and biases may be introduced into the forensic process at any stage involving interpretation or subjective judgment. Investigators and analysts may ignore or reject exculpatory evidence based on prior expectations. For example, analysts often interpret faint bands in DNA autoradiographs as factual to produce a match with a suspect’s profile. At trial, jurors must interpret genomic evidence during which they may be affected by fallacies. There is minimal current research about the effect of fallacies on the outcomes of criminal trials. The National Academy of Sciences (‘NAS’) has criticised forensic disciplines that rely on subjective assessments of matching characteristics. The NAS report advised that these disciplines would benefit from the development of research programs which considered ‘findings of cognitive psychology on the potential for bias and error in human observers’.
Confirmation bias is the ‘unconscious tendency to seek out, select, and interpret new information in ways that validate one’s pre-existing beliefs, hopes, or expectations’. In a forensic context, this may influence the collection and interpretation of evidence. Investigators and analysts may approach cases narrow-mindedly, ignore broader evidence and produce erroneous judgments. This bias may extend to the legal system as ‘beliefs concerning the likelihood of... the guilt of a defendant’ and subsequently impact judicial decision-making. This is closely associated with contextual bias; the tendency for judgements by investigators and analysts to be influenced by their knowledge of extraneous information. This may include knowledge of previous criminal histories, alibis, or gender and racial assumptions. These biases may influence subjective interpretation of DNA analysis, particularly where partial or mixed DNA profiles are involved.
‘Prosecutor’s fallacy’ is a statistical fallacy which misapplies Bayes’ Theorem. It incorrectly assumes that the probability of A given B is equal to the probability of B given A. This fallacy reasons that (1) if the defendant is guilty, the probability of a DNA match would be high, therefore (2) given the DNA match, there is a high probability that the defendant is guilty. This fallacy arises where the prosecution incorrectly asks what the probability is that the DNA would be present if the defendant were innocent. The correct question to ask is: what is the probability that the defendant is innocent given the presence of the DNA? The former question will produce a much smaller statistical probability. This fallacy incorrectly assumes that a LR of 1,000 equates to a 1,000:1 chance of the suspect contributing the DNA. This was contemplated in R v Doheny:
It is easy, if one eschews rigorous analysis, to draw the following conclusion:
(1) Only one person in a million will have a DNA profile which matches that of the crime stain.
(2) The defendant has a DNA profile which matches the crime stain.
(3) Ergo there is a million to one probability that the defendant left the crime stain and is guilty of the crime.
Conversely, ‘defendant’s fallacy’ assumes that in any given population, any individual with a DNA profile ‘matching’ that collected from the crime scene is equally as likely to have left the sample as the suspect. However, suspects are often identified using additional evidence, such as eyewitness and expert testimonies, forensic analysis, and conflicting alibis. This evidence is unlikely to exist for other individuals in the population.
There are further fallacies affecting the genomic evidence process. The ‘naïve investigator effect’ is the tendency for DNA evidence to override neutral or exculpatory evidence. The ‘jury observation fallacy’ relates to doubt of a jury’s non-guilty verdict following subsequent evidence of the defendant’s previous similar convictions. The ‘interrogator’s fallacy’ has a counterintuitive effect in which guilty confessions obtained by police may offer weight to the view that the suspect is innocent, unless corroborated by other evidence. The effect of these errors on jurors’ legal reasoning significantly increases the likelihood of wrongful convictions. Understanding the role of human subjectivity in forensic processes is essential for correctly conceptualising DNA analysis and recognising limitations which must be addressed.
E The CSI Effect
Finally, fictional television shows depicting forensic procedures have gained significant popularity amongst Australian audiences. These shows, such as CSI, portray investigators single-handedly solving crimes with modern forensic techniques. Although some techniques are factual, most are inaccurate or hyperbolic demonstrations of forensic processes. Wyer and Adaval conducted a study on how verbal and nonverbal information obtained from the media affects attitudes, beliefs, and judgment. They suggest that:
[C]oncepts and knowledge that become easily accessible in memory as a resolute of exposure to movies and television can affect the interpretation of new information and the implications that can be drawn from it. To this extent, the concepts can influence the impact of the information on judgments and decisions to which it is relevant.
There is a tendency, known as the CSI Effect, for jurors to be influenced by the portrayal of ‘infallible’ forensic procedures in crime shows. Jurors are under the impression that they are being ‘educated as well as entertained’ when watching these shows, effectively ‘polluting jury pools’. From a quantitative survey of jurors, Shelton noted that ‘although CSI viewers had higher expectations for scientific evidence than non-CSI viewers, these expectations had little, if any, bearing on respondents’ propensity to convict’. Regardless, it is difficult to dispute that fictional portrayals of crime influence the public’s views regarding the nature of crime and the infallibility of DNA, and subsequently may shape opinions relevant to making legal judgments.
It is generally accepted that the CSI Effect causes jurors to underestimate the probative value of genomic evidence, altering standards of reasonable doubt and resulting in higher rates of acquittal. Jurors expect that techniques such as DNA profiling are widely available for all forms of crime. Unless DNA is available to support the prosecution, jurors believe a conviction cannot be made. This was evidenced by Wheate in her survey of jurors’ perceptions of DNA during a sexual assault trial. The study indicated that DNA evidence was more important to jurors than other forms of evidence, including alibis, medical expert evidence, and police and witness testimonies. Shelton’s quantitative analysis determined that 22% of respondents expected to see DNA evidence in every criminal case, without which jurors were reluctant to convict. The limitations of DNA analysis should be clearly and concisely contextualised to juries to ensure that they do not acquit offenders exclusively based on a lack of DNA evidence.
An alternative hypothesis is that the CSI Effect works in reverse; jurors instead overestimate the probative value of genomic evidence. Crime shows portray forensic techniques as fast, effective and accurate, with the ability to conclusively identify offenders. This leads jurors to readily accept any evidence presented to them by forensic experts. Tyler suggests that the exaggerated infallibility of forensic processes in crime shows allows jurors to justify their motivation to convict, thus lowering juror standards and increasing conviction rates. In response to studies supporting the primary hypothesis, Tyler criticises their experimental approach, claiming that they ‘may not reflect the complexity or richness of real trials’. However, these alternate hypotheses do not necessarily compete with one another, nor are they mutually exclusive. Rather, the consequence of the CSI Effect is as a benefit to the prosecution where any DNA evidence is presented to the court, while the benefit lies with the defence where there is a complete lack of DNA evidence.
PART IV WRONGFUL CONVICTIONS IN AUSTRALIA
The factors discussed in the previous Part have contributed to numerous wrongful convictions worldwide. In the US, 2,857 exonerations have been recorded since 1989. Of these, DNA contributed to 543 convictions. This number is high relative to other countries due to extensive innocence testing in the US. In comparison, the UK Criminal Cases Review Commission (‘CCRC’) has referred 763 cases for appeal since 1997, of which 527 appeals have been allowed. The Scottish CCRC has referred 134 cases to the High Court since 1999, of which 88 have been successful. Innocence Canada has helped exonerate 24 people since 1993. Although there are no conclusive statistics of Australian miscarriages of justice, a study conducted by Dioso-Villa revealed at least 71 wrongful convictions between 1922 and 2015.
Although there is no way of knowing the true number of innocent Australians currently in prison, estimates may be made by extrapolating data from other countries. Whilst Australia’s legal system reflects the emergence of discrete national and state/territory law, it continues to share many characteristics with the UK, therefore allowing a comparison of conviction statistics (see Appendix 3). There are 78,324 incarcerated individuals in the UK. The 527 convictions the CCRC has helped overturn averages to approximately 22 convictions overturned per year. This means 2.8% of convictions each year are wrongful. According to the Australian Bureau of Statistics, there are currently 43,073 prisoners in custody. Assuming the wrongful conviction and imprisonment rate is equivalent to the UK, this equates to approximately 12 wrongful convictions in Australia per year. In total, this indicates that roughly 289 innocent individuals have been convicted in Australia in the same 24-year timeframe.
It should be stressed that the CCRC does not categorise these wrongful convictions. The available information does not allow an authoritative assessment of how many UK wrongful convictions cases can be attributed to DNA evidence. Similarly, there is little information available in Australia and care must be taken with inferences from the data. The case studies presented in this Part highlight the legal issues associated with using DNA and provide insight into the courts’ engagement with this evidence. Analysis of recent case studies potentially enables empirical determination of trends and categorisation of common errors during DNA analysis and presentation, particularly those resulting in miscarriages of justice.
Flawed DNA Evidence from Collection and Analysis
1. R v Jama
In July 2008, Farah Jama, a 19-year-old Somalian man, was convicted of raping a 48-year-old woman, referred to as M during trial, in a Melbourne nightclub. Vaginal swabs were taken from M by a medical officer in a Crisis Care Unit (‘CCU’) and analysed for spermatozoa. Twenty-eight hours prior, the same medical officer took forensic samples in the same CCU from a woman who had engaged in sexual activity with Jama. Upon analysis, one of the swabs was found to contain one intact sperm and fifteen heads. This is a comparatively insignificant amount of genomic material in relation to typical penile/vaginal rape but was not flagged by experts at the time. It was established that the DNA was attributable to Jama.
The prosecution’s case was exclusively founded on the presence of Jama’s DNA on the swab. This DNA evidence was perceived as ‘possessing an almost mystical infallibility that enabled its surroundings to be disregarded’. There was no other evidence to support the prosecution; there were no witnesses, no camera surveillance, no fingerprint evidence and, following investigation, no indication that Jama had ever been in the area. It was later speculated that it was likely no sexual assault had occurred. Jama was exonerated once reasonable doubt was introduced regarding contamination of the DNA swab. Jama served 15 months of his six-year sentence prior to the Victorian Court of Appeal setting aside the conviction and delivering a verdict of acquittal. During appeal, the prosecutor admitted that a ‘substantial miscarriage of justice’ had occurred.
In response to Jama, Vincent conducted an official inquiry into the use of DNA evidence within the criminal justice system. His report was highly critical. It observed that:
It became clear that the DNA evidence was perceived as so powerful by all involved in the case that none of the filters upon which our system of criminal justice depends to minimise the risk of a miscarriage of justice, operated effectively at any stage until a matter of weeks, before Mr Jama’s appeal was expected to be heard.
The perception of DNA evidence as infallible is concerning in any case where DNA is the only inculpatory evidence; that is, the only evidence available which identifies a suspect or indicates guilt. As described by Robertson, whether or not DNA ‘can be seen to be reliable and probative in the determination of disputed issues of fact involves consideration of a range of factors’. The perceived probative value is dependent on ‘extreme care [being] taken at every stage from the collection, handling, testing of the materials and the interpretation of the results’.
In Jama, the DNA evidence provided the ‘only foundation for concluding that a crime had been committed at all, and then constituted the only means of identifying the perpetrator’. The DNA evidence was not collected, handled, tested or interpreted with appropriate care. It was not considered in conjunction with the lack of corroborating evidence, and further, it caused all exculpatory material to be disregarded. Subsequently, it lacked the probative value required for a conviction based solely on this type of evidence. Vincent was accordingly highly critical of the prosecution’s decision to proceed with the case.
Contamination and error are inherent in human systems, particularly those involving collection and analysis of biological samples. As noted by Kirby, ‘contamination would rarely be occasioned by scientists and technicians with a deliberate purpose of convicted the wrong person’ in Australia. Despite this, some extent of contamination is inevitable, and thus laboratory errors rates should be measured and revealed. Although the exact source is uncertain, Vincent speculates that the DNA match was the result of contamination which likely occurred due to poor collection standards and inadequate cleaning in the CCU. Laboratory contamination disregarded as unlikely or remote. Analysts and prosecutors exclusively considered the risk of contamination at the laboratory, without considering other locations at which the samples were present.  The need for holistic consideration of the entire process from collection to interpretation is essential to prevent overlooking sources of contamination and avoiding miscarriages of justice.
2. R v Button
In what was described as ‘a black day in the history of the administration of criminal justice in Queensland’, Frank Button was convicted for the rape of a minor. The conviction was based on vaginal swabs taken from the victim, which revealed the presence of spermatozoa but failed to yield a conclusive DNA profile. DNA testing of seminal fluid stains on bedsheets from the crime scene was only conducted after the conviction. On appeal, the swabs were retested and a DNA profile was obtained which matched the profile obtained from the bedsheets. This excluded Button as the source of the seminal fluid, and thus as the perpetrator. The profile was then matched to the DNA of a convicted rapist. Considering this new evidence, there was a unanimous decision by the Queensland Court of Appeal to quash the conviction. Button was released after serving ten months. This was the first Australian post-conviction exoneration relying on DNA evidence that had not been considered at trial.
Kirby identified several principles that must be adopted to ensure reliability and accuracy of forensic evidence. These include: (1) avoiding human error, (2) avoiding fraudulent error, (3) maintaining rigour of analysis, (4) upholding supervisory regulation, and (5) securing transparency. Kirby acknowledges, by reference to Button, that wrongful convictions occur when these characteristics are not given the required attention. The original DNA testing on the vaginal swab had been performed imperfectly. After the initial inconclusive result, the swab was not thoroughly re-tested or subjected to rigorous (or any) confirmation testing. It should be noted that the further tests conducted on appeal did not incorporate any developments in technology. Rather, the DNA profile was the result of ‘the persistent application and reapplication of tests on various areas of the swab sample’.
Button’s conviction could have been prevented had adequate DNA testing been performed initially. This case highlights the potential consequences of ‘selective testing’ – that is, a failure to completely analyse material recovered from the crime scene. The prosecution chose not to conduct the testing because ‘it would not [have been] of material assistance in identifying the appellant as the perpetrator of the crime’. The focus of the Button investigation had been on guilt-testing, rather than innocence-testing. This emphasises the importance of using DNA evidence for its twofold purpose: identifying offenders and excluding the innocent.
C Flawed DNA Evidence from Presentation at Trial
1. R v Keir
Thomas Keir was convicted of murdering his wife after bone fragments of a woman were discovered under her house.  A DNA profile was obtained and compared with her parents’ DNA for identification. Goetz, a forensic biologist, gave evidence that the DNA profile was 660,000 times more likely to have originated from a child of Mrs Keir’s parents, rather than a random couple in the Australian population. He concluded that this ‘very strongly’ supported the hypothesis that the bones belonged to an offspring of the parents. Since Mrs Keir was their only child, the prosecution argued that there was very strong support that the bones belonged to her.
While directing the jury, the trial judge incorrectly expressed that the LR equated to a ‘660,000 to one’ chance that the bones belonged to Mrs Keir. In this case, there is more accurately a ‘30 to one’ chance of the bones belonging to her. At appeal, the NSW Court of Criminal Appeal held that the prosecution and trail judge had committed prosecutor’s fallacy. The conviction was quashed and new trial ordered. In doing so, Giles JA reasoned:
The jury was likely to be very much influenced by this in deciding whether Mrs Keir was dead and had been killed by the appellant, and to find the identification evidence unreliable or incredible.
The Court considered previous instances of prosecutor’s fallacy in NSW to explain that ‘the statistical probability within the relevant population does not translate to the same statistical probability for a given member of the population’. The first instance court overlooked that there could statistically be other matings within the Australian population capable of producing an identical DNA profile. In Australia’s population, there are approximately 30 random matings which could produce the DNA profile recovered from the bones (hence the ‘30 to one’ chance of the bones belonging to her). Courts are reluctant to express statistical probabilities in this manner, due to the potential for other evidence to be disregarded. Regardless, in contrast to the figure presented to the jury, this illustrates how the real figure is likely to be much less probative in the jury’s assessment of guilt. Subsequently, the ‘660,000 to one’ figure used to direct the jury was ‘a misleading and prejudicial criterion’.
Statistical interpretations of database matches have not been fully addressed. As such, care must be taken to explain the ‘basis on which the calculation is made, including relevant characteristics of the population database used’ and avoid misrepresenting probabilities. None of the professionals recognised the fallacious reasoning at trial. Giles JA caveated his reasoning in Keir by noting that ‘even if the Crown had not introduced the prosecutor’s fallacy into the trial, there was a danger that the jury would reason for themselves in the way the Crown put to them at the trial’. Therefore, despite attempts to instruct the jury correctly, the complexities of technical and statistical DNA evidence may cause all legal participants to enter into fallacious conclusions.
2. Aytugrul v The Queen
Yusuf Aytugrul was convicted of the murder of his ex-girlfriend after mitochondrial DNA analysis of a hair sample found under her nail linked him to the crime. The DNA profile recovered from the hair was consistent with the profile obtained from his saliva sample. At trial, the DNA specialist testified that approximately 1600 people in the community had a DNA profile identical to that obtained from the hair sample. This was expressed as an exclusion percentage of 99.9% – that is, 99.9% of the population would not be expected to have this DNA profile.
On appeal to the Court of Criminal Appeal, Aytugrul claimed that ‘a miscarriage of justice occurred because of the prejudicial way in which DNA evidence was expressed to the jury’. The primary concern was that presenting the exclusion percentage directed the jury to subconsciously round this figure to one, thus implying mathematical certainty of Aytugrul’s guilt. Although Simpson and Fullerton JJ agreed that ‘some formulations [of equivalent statistical statements] have a greater educative force or persuasive appeal than others’, they did not agree that this amounted to unfair prejudice. McClellan CJ, in a dissenting judgment, agreed with Aytugrul’s contention that this expression was unfairly prejudicial due to juror comprehension of statistical evidence. The appeal was dismissed by a two to one majority.
In the High Court, French CJ, Hayne, Crennan and Bell JJ stated that ‘no sufficient foundation was laid, at trial or on appeal... for the creation or application of a general rule’ that would prevent DNA results being expressed as an exclusion percentage in every circumstance. It would be an improper exercise of judicial notice to consider general psychological studies, rather than the parties’ specific submissions. If the probative value of evidence is outweighed by the danger that it is unfairly prejudicial, misleading or confusing, the court’s general discretion to exclude evidence is enlivened under s 135 of the Evidence Act 1995 (NSW). The High Court held:
It was evidence adverse to the appellant but it was in no sense unfairly prejudicial, or misleading or confusing... As the trial judge pointed out to the jury, the evidence that was given did not, and was not said to, establish that the mitochondrial DNA profile found in the hair definitely came from the appellant. There was no risk of rounding the figure of 99.9 per cent to the certainty of 100 per cent.
Unlike ‘exclusion’ results, ‘inclusion’ results are not definitive. There may be alternative explanations for DNA matches, since there is a ‘non-zero probability’ that the DNA profile is identical to that of a random source. Urbas stresses that this should be carefully conveyed to jurors and legal practitioners, by ‘correctly stating and explaining the relevant probabilities, how they are calculated, and what they signify’. Although it was held that the presentation of DNA evidence in Aytugrul was sufficient, care must be taken to ensure jurors are accurately presented with explanations of statistical results. This will ensure positive steps are taken to prevent the probative value of evidence being outweighed by unfair prejudice.
D Commentary from the High Court
1. Fitzgerald v The Queen
Daniel Fitzgerald was convicted for murder and aggravated assault following a 2011 Adelaide home invasion after DNA recovered from a didgeridoo linked him to the crime scene.  There was no other evidence indicating his involvement. A mixed DNA profile was recovered, made up of DNA from the two victims, several unknown people, and Fitzgerald. At trial, the prosecution successfully argued beyond reasonable doubt that this DNA profile was the result of Fitzgerald being struck with, and subsequently bleeding onto, the didgeridoo. He was sentenced to 20 years’ imprisonment.
On appeal, Fitzgerald contended that his DNA could have been transferred to the digeridoo via secondary transfer. One of the identified offenders testified that he had shaken Fitzgerald’s hand earlier that evening. Although Henry, the forensic expert, was unable to exclude the possibility of secondary transfer, she indicated that primary transfer was the most likely reason for the DNA profile. On this basis, Gray and Sulan JJ determined that a secondary transfer was ‘extremely unlikely’. The appeal was dismissed.
In the High Court, Hayne, Crennan, Kiefel, Bell and Gageler JJ noted that the Court of Criminal Appeal failed to consider the expert evidence relating to secondary transfers and the impossibility of DNA ‘dating’. The High Court identified three primary faults: (1) it had not been made out beyond reasonable doubt that Fitzgerald’s DNA was derived from his blood, (2) the expert testified that primary transfer was the most likely scenario, but nevertheless that a secondary transfer was possible (which was misinterpreted by the Court of Appeal), and (3) the time and circumstances in which the DNA was deposited could not be determined. The High Court unanimously and summarily freed and acquitted Fitzgerald. It was concluded:
For those reasons, it could not be accepted that the evidence relied on by the prosecution was sufficient to establish beyond reasonable doubt that the appellant was present at, and participated in, the attack. The jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt.
Gans criticises both that this case progressed so far and the High Court’s reasons, stating that they ‘do too little to address the risks arising from the criminal justice system’s overuse of DNA evidence’. He opines that ‘but for a succession of unlikely events’, Fitzgerald would ‘almost certainly have remained in prison until at least 2032’, based on ‘flimsy’ evidence. Via comparison with the English Court of Appeal, Gans infers that the Australian criminal justice system is too comfortable with convicting individuals on DNA alone.
Further, Weathered et al highlight that Fitzgerald raises concerns as to whether the assumptions and limitations associated with DNA evidence are properly understood by legal professionals, particularly from the perspective of transfer scenarios. They suggest that experts should ‘more clearly articulate the assumptions, limitations and sources of error associated with activity level DNA evidence – or alternatively, not provide an expert opinion of this form of evidence’. As such, reforms targeted at improved training and communication are required to mitigate variations in reporting and standardise the presentation of DNA evidence.
2. Forbes v The Queen
Forbes was convicted of sexually assaulting a Canberra woman in 2005, with DNA providing the ‘central evidentiary link between the applicant and the crime’. The victim provided a vague description of her attacker, including reference to a circumcision. Despite having an alibi and being uncircumcised, Forbes was convicted based on mixed DNA profiles recovered from seminal deposits on the victim’s clothing. The prosecution’s experts declared that the DNA was 20 billion times more likely to have originated from Forbes than a randomly selected member of the population. This probability was calculated using a ‘small cross-section’ of the ACT population consisting of 620 people. At trial, experts qualitatively testified that there was ‘strong’ and ‘extremely strong’ evidence that the DNA belonged to Forbes. The quantitative calculations were not expressed until appeal to the High Court.
This matter was appealed to the Court of Appeal of the ACT and later to the High Court. On appeal, Forbes argued that excessive reliance had been placed on the DNA evidence. He claimed that convictions should not be allowed where DNA is the only inculpatory evidence because this does not allow for the requisite standard of proof to be met. Forbes’ proposition, as phrased by Hayne J, was that:
there is a particular class of evidence, DNA evidence, which regardless of its particular content, should be held legally insufficient to support a conclusion that a disputed proposition of fact is established beyond reasonable doubt.
Courts have typically been reluctant to define ‘beyond reasonable doubt’ as this is ultimately a matter for the jury. Therefore, it was up to the jury to find that Forbes was guilty beyond reasonable doubt considering the experts’ description of the DNA evidence as ‘strong’ and ‘extremely strong’. In doing so, the jury was entitled to reject Forbes’ alibi, regard his wife’s testimony as unreliable, and ignore the inconsistencies in the victim’s testimony. The Court of Criminal Appeal rejected the proposition that convictions cannot be made exclusively on DNA. This implies that DNA evidence alone is adequate to achieve a guilty verdict.
The application for special leave was refused by the Full Bench of the High Court based on French CJ’s reasoning that it was open to the jury to convict the defendant on the evidence before them. This matter was found unsuitable for the High Court to consider the broader questions Forbes was seeking to have answered: whether DNA evidence is admissible where it is the only evidence against an accused and how the jury should be instructed in such a case.
In a study addressing the shortcomings of Forbes, Ligertwood suggests that DNA evidence alone may conclusively constitute proof beyond reasonable doubt where there is a complete absence of ‘any evidence raising the reasonable possibility of an innocent explanation’. However, this conclusion assumes that DNA is completely reliable. As addressed in previous Parts, the reliability of DNA evidence is largely uncertain and not immune from human error and contamination. French CJ’s reasons fail to comprehensively identify how the High Court would deal with this broader question. Until this is addressed, there is no legal rule preventing individuals from being convicted where a DNA match is the central element connecting them to the crime.
PART V RECOMMENDATIONS FOR REFORM
The overarching purpose of the criminal justice system is the administration of justice. The system should strive for nothing less than perfection to ensure this purpose is achieved. The previous case studies highlighted that Australia’s current legislative framework fails to adequately mitigate the likelihood of miscarriages of justice where DNA is involved. Additionally, the lack of investigative and legal avenues makes it difficult to correct wrongful convictions for individuals who have exhausted their avenues for appeal. Recognition of limitations is essential to identify areas requiring reform. In his analysis of forensic evidence used in the High Court, Kirby stated:
Unattended and unrepaired, such injustices will be bound to cast doubt on modern forensic evidence. Properly safeguarded, such evidence will be a vital weapon in the endeavour of our society to secure the conviction of those guilty of crimes and to ensure the acquittal of those who cannot be proved guilty by admissible and reliable evidence.
To address these limitations, this Part provides several recommendations for reform including the incorporation of innocence testing and post-conviction review schemes, improved training and education, and increased reporting obligations. Many similar reforms have previously been recommended by various academics, inquiries, and law reform commissions, including the ALRC in 2003. The failure of the legal system to adopt these recommendations is disquieting, but not surprising given that substantial legislative change may take several years. Without actively embracing these changes, more innocent people will be imprisoned. This is more important than ever due to the increased use of DNA evidence. The recommendations proposed in this Part will ensure that genomic evidence has significant probative value in reliably securing convictions of the guilty and acquittal of the innocent. Failure to implement these recommendations has the potential to result in further injustices and increased distrust of DNA evidence.
B Australia’s Legislative Framework
1. Existing Framework
The Crimes Act 1914 (Cth) pt 1D provides the primary statutory framework regulating forensic procedures. These provisions primarily regulate forensic procedures on convicted offenders, suspects, and volunteers, including collection and destruction of ‘intimate’ and ‘non-intimate’ samples. Part 1D, and corresponding laws in state and territory jurisdictions (see Appendix 1), also regulate the operation of DNA databases. Under s 23XX, any evidence obtained through forensic procedures or databases is inadmissible if there has been a breach of any obligations or processes regulated by pt 1D. However, the court may exercise discretion to admit evidence if satisfied that the admission is justified despite lack of compliance.
Consideration must also be given to the Evidence Act 1995 (Cth) and equivalent uniform state and territory statutes. Under under s 79, opinion evidence is only admissible if it is ‘wholly or substantially’ based on a person’s specialised knowledge, which in turn is based on their ‘training, study or experience’. DNA evidence is a form of opinion evidence that falls within this exception. Therefore, DNA is admissible provided that it is relevant to the proceeding and is not excluded under another exclusionary rule or by judicial discretion.
NSW is the only jurisdiction with enacted legislation relating to innocence testing. Section 96 of the Crimes (Appeal and Review) Act 2001 (NSW) imposes a duty on police officers to retain certain biological material evidence. Under s 97, the Commissioner of Police may arrange for retained biological material to undergo DNA testing at the request of the convicted person. No other jurisdiction possesses statutory rights to access and re-test DNA evidence, or duties to preserve such evidence.
2. Scope of Reform
Since each state and territory administers individual criminal justice systems, the benefits of any reform to federal law will be limited. Further, ‘the great majority of criminal proceedings in which DNA evidence is of any relevance occur under State or Territory law’. As such, structured legislative reform across all Australian jurisdictions is needed to facilitate effective change. The creation of new uniform state/territory legislation which encompasses the entirety of the DNA process, such as a Genomic Evidence Act, is the most ideal solution for regulating DNA in criminal proceedings. However, amendments to existing state and territory laws will be sufficient to mitigate the risk of wrongful convictions, provided that they wholly adopt the below recommendations.
1. Innocence Testing and Post-Conviction Review Schemes
The first recommendation proposed by this article is that reforms should incorporate powers for retrospective investigations in the pursuit of innocence testing. The Commonwealth should establish a statutory process by which post-conviction review may be applied for where DNA evidence may provide reasonable doubt of a conviction’s legitimacy. Weathered and Blewer identify that no DNA-related post-appeal exonerations have been performed in Australia to date due to the lack of necessary mechanisms facilitating these exonerations. Correcting wrongful convictions is essential for ending injustice for wrongly incarcerated individuals and identifying actual perpetrators. However, it is important to recognise that DNA innocence testing is limited to aiding cases in which biological material is present.
Although NSW has statutory mechanisms for post-appeal exonerations, these are largely inadequate. NSW previously established an Innocence Panel and DNA Review Panel which aimed to review claims for innocence that could potentially be supported by DNA. These panels, criticised as being a ‘toothless tiger’, have since been abolished. The effect of these panels was greatly restricted due to inabilities to locate relevant evidence, unsatisfactory retention, destruction and storage of forensic samples, and statutory time limitations. Currently, the only remaining provisions relating to innocence testing under the Crimes (Appeal and Review) Act 2001 (NSW) are the duty to retain biological material and the ability of the convicted person to request retesting. The remaining statutory framework is ‘too restrictive to enable proper investigation and correction of DNA-based claims of wrongful conviction’. As such, adoption of this framework by other states and territories will be insufficient to address the absence of post-conviction review schemes.
Innocence Projects in overseas jurisdictions have successfully facilitated exonerations of many wrongfully convicted individuals. For example, the UK adopted a commission-orientated approach to post-conviction review. The CCRC, established under s 8 of the Criminal Appeal Act 1995 (UK), is independent from the three limbs of government. This enables the body to remain impartial while investigating alleged miscarriages of justice. The CCRC may refer convictions or sentences to the Court of Appeal if there is additional evidence which may vary the verdict. Although the UK’s approach is broadly useful, it fails to overcome issues with the retention of, and ability to retest genomic evidence. Although establishing a Review Commission may assist in developing post-conviction review processes in Australia, it ultimately fails to address the problem on a holistic scale.
The US’s approach primarily targets the preservation of, and access to genomic evidence for DNA innocence testing. All 50 US states have enacted some form of post-conviction DNA statute regulating preservation after acknowledging that traditional appeal processes were insufficient. Additionally, there is a federal scheme under the Justice for All Act of 2004 (US) permitting inmates convicted of federal offences to apply for post-conviction DNA testing if certain criteria are met.
Weathered and Blewer acknowledge the foundational principles from the Innocence Project and New York statutory framework that can be adopted into the Australian context. The most significant of these principles include: (1) developing reasonable standards to establish proof of innocence, (2) allowing access to post-conviction DNA testing wherever it can establish innocence, (3) excluding sunset provisions or statutory timeframes for expiration of access to post-conviction DNA testing, and (4) requiring proper preservation of biological evidence for a reasonable period of time. This article acknowledges that adoption of these principles is essential for an effective and holistic review scheme. The exclusion of statutory timeframes is particularly important because advances in DNA technology may establish new matches in instances where previous technology could not. This will ensure all individuals have equitable access to justice.
Following this, the second recommendation in this area relates to retention of biological material. The success of innocence testing is dependent on adequate long-term storage of the evidence. There is currently no minimum retention period for crime scene samples in the Crimes Act 1914 (Cth). Although permanent retention of genomic evidence provides logistical challenges for storage and quality preservation, long-term retention is essential to ensure samples are available for testing. Most US states require preservation of DNA evidence from serious offences. For example, in Illinois, evidence must be maintained until completion of the sentence, including the period of mandatory supervised release. There are currently more than two million incarcerated individuals in the US, in contrast to Australia’s prison population of 43,073. Consequently, storage requirements in Australia are significantly more manageable, leading to a straightforward adoption of statutory provisions relating to evidence retention.
Submissions to the ALRC from government and police agencies noted that permanent retention was unnecessary and impractical. The Institute of Actuaries of Australia submitted that samples should be retained ‘for a period long enough to cover any conceivable need for post-conviction analysis’ and ‘in practice, a fixed retention period, such as fifty or a hundred years, might suffice’. Following these submissions, the ALRC recommended that amendments should be made to the Crimes Act 1914 (Cth) to require long-term retention of forensic material for the purpose of post-conviction analysis. Weathered and Blewer have similarly recommended that all DNA samples and biological material ‘collected during investigations and/or prosecution be preserved indefinitely or for a minimum 10 years following release from incarceration’. This article recommends the adoption of a statutory requirement for retention of biological material indefinitely or for a fixed period of at least fifty years. These amendments should incorporate appropriate measures to ensure the integrity of evidence is maintained. To facilitate this, financial incentives may be provided to states who preserve evidence for fixed time periods, as has been legislated for in the US.
2. Training and Education
Training and education programs should be targeted towards individuals involved in all stages of the DNA process, including collection, analysis, interpretation and presentation. The case studies demonstrated the necessity for reforms targeted at educating those involved in the criminal justice system. Training is necessary to ensure biological material is handled appropriately to safeguard its evidentiary and probative value. Additionally, education programs are necessary to address fallacious reasoning and improve understanding of the processes, statistical conclusions and terminology associated with genomic evidence.
The first recommendation proposed in this area is the development of legal education programs to address the weaknesses of the presentation of DNA evidence in criminal proceedings and the inabilities of laypeople to comprehend this evidence. The ALRC suggested:
Judges and juries may need some form of education or training to consider properly the relevance and weight of the evidence in particular proceedings. Additionally, legal practitioners may need training to competently present DNA evidence and identify any issues regarding reliability or admissibility.
ALRC’s recommendations target the understanding of all participants in trials, suggesting continuing legal education programs for judges and legal practitioners regarding the use of genomic information in criminal proceedings. Furthermore, ALRC recommends that ongoing guidance should be provided for forensic scientists and legal practitioners regarding reliable methods of DNA analysis, statistical calculation and presentation of evidence in criminal proceedings.
Following Jama, Vincent recommended that training and education be made essential for legal participants. Vincent suggested that Victorian legal organisations should conduct courses to instruct legal practitioners and members of the judiciary involved in cases incorporating DNA evidence. This article argues that national legal and forensic agencies should collaboratively develop and conduct continuing legal education programs to assist presentation and comprehension of DNA evidence in an appropriate and reliable manner.
The second recommendation specifically targets the limited scientific understanding of jurors involved in criminal trials. The Victorian Parliament Law Reform Committee has recommended legal education programs to assist judicial officers with giving jury directions on DNA evidence. Similarly, the ALRC has suggested that a model jury direction should be developed. Goodman-Delahunty and Hewson demonstrated that exposure to pre-recorded expert tutorials significantly improved mock-jurors’ knowledge of DNA evidence by an average of 37%. This enabled mock-jurors to understand critical issues associated with DNA evidence, including limitations of DNA profiling and the significance of random matches. This article recommends that pre-trial information sessions should be mandated for all trials involving genomic evidence to ensure jurors are appropriately educated on DNA processes. This will reduce the tendency for lay jurors to convict based on ‘inculpatory forensic evidence that they do not fully understand’.
Finally, this article recommends that police training processes should be improved, particularly where DNA is the only inculpatory evidence. DNA-only cases, such as Jama, illustrate the minimal appreciation of the limitations of DNA. Vincent further recommended the review and improvement of police training:
That police training in this area be reviewed with a view to developing a greater level of understanding of investigators with respect to the use of DNA evidence for both intelligence gathering and evidentiary purposes, and particularly in cases where there is minimal corroborative evidence to support proposed or pending charges.
Recent studies in the UK demonstrate that deficiencies in forensic awareness are universal. This stems from ‘insufficient training of investigators, and their perceptions that forensic knowledge is not a core part of their required skill set’. This article recommends that police training processes in Australia should be reviewed and revised with an emphasis on educating police officers and investigators on the use of DNA evidence for intelligence gathering and evidentiary purposes. The limitations of DNA analysis should be particularly stressed in instances where DNA is the only evidence identifying or inculpating the suspect.
3. Reporting Obligations
Accurate and thorough reporting is essential for transparency and effective oversight. The research conducted for this article has revealed limitations in the available information on the role, impact, and effectiveness of DNA evidence in criminal prosecutions. The NAS Report criticised the lack of research on the accuracy, reliability and validity of forensic methods, particularly on the impact of context bias. Further research is necessary to ensure ‘evidentiary reliability’ is based on ‘scientific validity’. This article firstly recommends the development of oversight reporting frameworks to obtain this data. This will allow for adequate planning and provision of forensic services to criminal investigations and prosecutorial processes, alongside early identification of DNA-related weaknesses in the criminal justice system.
Sherman and the Victorian Law Reform Committee have also advocated for the collection of data and reporting of DNA evidence in criminal proceedings to Parliament. They recommended that reports be made detailing the number of cases involving DNA evidence, the amount of guilty pleas, the verdicts of each case, and the role of DNA evidence. This will enable ‘informed decisions to be made in relation to the effectiveness of current collection and investigative policies’. This article recommends a statutory requirement for reports of this nature to be provided to Parliament or an independent body of review, such as the Commonwealth Ombudsman.
The second recommendation targets reports for forensic purposes. Vincent recommends that ‘in cases where DNA testing is carried out for forensic purposes, a full report be provided to the investigating police members’. He suggests that these reports should include:
(1) the history of the samples,
(2) a statement indicating the findings of the examination, including when, where and by whom the examination was performed, and
(3) a statement setting out any opinions and limitations.
Reporting of this nature is essential for re-tracing the collection, transport, storage, and analytical processes the biological material has undergone to reveal potential contamination. This article recommends that consistent reporting obligations for forensic purposes should be regulated by statute. Statutory obligations will ensure each participant in the DNA process is held accountable for the integrity of their operations and quality processes.
Finally, reports for oversight and general forensic purposes should be written in simplified language to assist the court. As recommended by Howes et al, reports directed at non-scientists should be simplified to a Grade 7-9 high school level, as many legal practitioners have not studied science past the compulsory level. All scientific and technical language should be defined in appendices to the reports. Any inferences that can be drawn from numerical LRs should be stated by reference to a verbal scale. This article supports these suggestions to mitigate miscommunication and misinterpretation. This will facilitate the presentation of DNA evidence to a predominantly legal audience with varying scientific backgrounds.
D Additional Considerations
1. Appointment of a Forensic Science Regulator
In the UK, the Forensic Science Regulator Act 2021 (UK) recently received Royal Assent on 29th April 2021. The enactment of this legislation addresses the shortcomings of the regulation of forensic science activities in England and Wales. The Act requires the appointment of a Forensic Science Regulator who has a duty to establish and enforce a statutory code of practice. This ensures forensic science services are carried out impartially and with an appropriately high standard of scientific quality. The remit of the Regulator includes all ‘forensic science activities’, such as the application of scientific methods for the detection and investigation of crime and the giving of forensic evidence in criminal proceedings.
Gary Pugh was appointed as the Forensic Science Regulator, commencing in May 2021. Pugh notes that the statutory powers relating to investigation and enforcement are unlikely to be used. Regardless, Pugh acknowledges that the existence of these powers provides ‘an important safeguard to the Criminal Justice System which can be utilised if appropriate’. Existing codes of practice and conduct, as well as criminal procedure rules relating to expert evidence, will be reviewed and replaced by statutory codes and policies. This process is estimated to take 18 months. Although it is too early to determine the effect this legislation will have the UK’s approach to genomic evidence regulation, it is a significant acknowledgement of the importance of forensic activities and the subsequent need for high-quality regulation. Monitoring the progress of the Regulator in coming years will be important for assessing whether this is a potential option for implementing and regulating quality standards for DNA evidence in Australia.
2. Uniform Language for Testimony and Reports (‘ULTR’)
The US Department of Justice has made a series of quality assurance guidance documents designed to regulate forensic statements. The documents aim to standardise language used when testifying and writing reports for various forensic DNA disciplines. In relation to DNA, there are guidance documents relating to autosomal DNA with probabilistic genotyping, mitochondrial DNA and Y-STR DNA. These documents provide qualifications and limitations of each type of DNA analysis, and the conclusions that can be made. Examiners are required to prepare reports and testify in compliance with these standards. Despite this, if different terminology is used, it should not be construed that the findings are erroneous or incorrect. The relevant documents should be referenced in testimony, attached to laboratory reports and included in case files.
The development of these documents has been critical in addressing the lack of standardisation of forensic evidence. However, there has been some criticism of the ULTR documents’ categorical reporting framework. The ULTR provides three distinct categories which results must fall into: (1) ‘identification’, (2) ‘inconclusive’, and (3) ‘exclusion’. This framework assumes all evidence distinctly fits within these categories and distorts actual probabilities by creating a binary of results. Anything defined as ‘identification’ should have a probability of one (certainty), while evidence within the ‘exclusion’ category should have a probability of zero (impossibility). The categorical framework overvalues identification by assuming absolute certainty. In reality, probability is a spectrum in which actual probabilities of DNA evidence originating from a source lie between zero and one.
The Criminal Bar Association proposed that steps should be taken in Australia to increase uniformity of language and presentation of expert DNA evidence in criminal trials. Common miscommunication and misconceptions must be addressed through development of uniform language guidance documents. However, these documents should incorporate a ‘weight of evidence’ framework in place of the ULTR’s categorical reporting framework. This framework utilises numerical measures of weight of evidence, such as standardised LRs. This approach has been supported for DNA evidence specifically.
3. Further Research and Considerations
Practical adoption of these recommendations will require further research, particularly ethical and financial considerations, which are outside the scope of this article. The cost of innocence testing is likely to be significant, but ultimately less than the cost of continued incarceration of innocent individuals. To overcome the financial limitations of post-conviction review, eligibility testing may be introduced in which specific criterion must be met before individuals can pursue these avenues for review. Additionally, statutory schemes for compensation should be made available for wrongfully convicted individuals. This will take positive steps to rectify injustices and provide incentives to improve regulation of the criminal justice system.
PART VI CONCLUSION
In summary, this article contemplates the interactions between science and law. To create meaningful change and ensure the administration of justice is achieved, the role of DNA evidence in the criminal justice system and its potential for contributing to miscarriages of justice must be understood. In doing so, the article identified limitations of the analysis and presentation of DNA evidence in criminal investigations and litigation. In particular, lay jurors and legal participants often misunderstand the significance of statistical and technical evidence, and enter into fallacious conclusions. This can largely be attributed to the perception of DNA as infallible and inconsistent methods of communication and reporting. The consequences of these faults in the criminal justice system are significant, resulting in innocent people, such as Jama, being imprisoned for crimes they did not commit.
Following the qualitative investigation, this article proposed practical recommendations for reform to address these limitations. Firstly, the article recommended the establishment of avenues for post-conviction review to overcome the limitations of traditional appeal processes. Secondly, recommendations were provided for the development of education programs and training targeted at all participants of the DNA process. Finally, the article acknowledged that increased reporting obligations are essential for effective transparency and traceability. These reforms will allow genomic evidence to have significant probative value in reliably securing convictions of the guilty and acquittal of the innocent. Failure to implement these recommendations has the potential to contribute to the further imprisonment of innocent people.
A Appendix 1: Existing Legislative Frameworks in Australia
Table 1: Commonwealth and State/Territory legislative frameworks.
Australian Capital Territory
Crimes (Forensic Procedures) Regulations 2000 (ACT)
New South Wales
Police Powers and Responsibilities 2000 (Qld) ch 17
Police Powers and Responsibilities Regulation 2000 (Qld)
Forensic Procedures Regulations 2010 (Tas)
B Appendix 2: Background of Genomic Evidence
Table 2: Likelihood ratios and verbal equivalents. *A likelihood ratio of 1,000 means the prosecution hypothesis is favoured over the defence hypothesis by a factor of 1,000.
1 – 10
The probability that the DNA profiles have originated from the same person is 1 to 10 times more likely than if they originated from different people.
10 – 100
The probability that the DNA profiles have originated from the same person is 10 to 100 times more likely than if they originated from different people.
100 – 1,000*
Moderately strong support
The probability that the DNA profiles have originated from the same person is 100 to 1,000 times more likely than if they originated from different people.
1,000 – 10,000
The probability that the DNA profiles have originated from the same person is 1,000 to 10,000 times more likely than if they originated from different people.
10,000 – 1,000,000
Very strong support
The probability that the DNA profiles have originated from the same person is 10,000 to 1 million times more likely than if they originated from different people.
Extremely strong support
The probability that the DNA profiles have originated from the same person is over 1 million times more likely than if they originated from different people.
The 20 CODIS Core Loci: CSF1PO, FGA, THO1, TPOX, VWA, D3S1358, D5S818, D7S820, D8S1179, D13S317, D16S539, D18S51, D21S11, D1S1656, D2S441, D2S1338, D10S1248, D12S391, D19S433, D22S1045.
Figure 1: STR loci used in the CODIS database. The 13 original CODIS Core Loci are shown in yellow and the additional seven loci are shown in green.
Figure 2: Process of modern DNA profiling.
Appendix 3: Projected Wrongful Conviction Statistics
Table 3: Reported and projected wrongful conviction statistics in the UK and Australia.
Total Overturned Convictions (since 1997)
Average Convictions Overturned (per year)
Percentage of Wrongful Convictions (per year)
Reported Wrongful Conviction Statistics based on CCRC’s Success Rate
Projected Wrongful Conviction Statistics based on the UK
Appendix 4: Summary of Recommendations
1. Recommendation 1.0. Innocence Testing and Post-Conviction Review Schemes
The Commonwealth should establish a statutory process by which applications for post-conviction review, made by offenders serving terms of imprisonment for serious offences, may be considered if it is alleged that DNA evidence exists which would provide reasonable doubt of the legitimacy of the conviction. There should be no statutory time limitations imposed upon applications.
Amendments should be made to the Crimes Act 1914 (Cth) to require retention of biological material found at crime scenes indefinitely or for a fixed period of at least fifty years for the purpose of post-conviction DNA analysis. These amendments should incorporate appropriate measures to ensure the integrity of the biological material is maintained.
2. Recommendation 2.0. Training and Education
National legal and forensic professional societies, such as the National Judicial College of Australia, the Law Council of Australia, the National Institute of Forensic Science, and the Australian and New Zealand Forensic Science Society, as well as corresponding state and territory associations, should collaboratively develop and promote continuing legal education programs for judges and legal practitioners. These programs should be aimed at improving knowledge and understanding of reliable methods of DNA analysis, statistical calculations, and presentation of evidence in criminal proceedings.
Pre-trial information sessions should be mandated for all criminal trials involving genomic evidence. These sessions should cover critical issues associated with DNA evidence, including limitations of DNA profiling and the significance of random matches.
Police training processes should be reviewed and revised with an emphasis on educating police officers and investigators with respect to the use of DNA evidence for both intelligence gathering and evidentiary purposes, and particularly in instances where DNA evidence is the only evidence identifying or inculpating the suspect.
3. Recommendation 3.0. Reporting Obligations
Consistent processes for oversight reporting to Parliament or an independent body of review, such as the Commonwealth Ombudsman, should be developed and provided for in statute. These reports should include details such as the number of prosecutions involving DNA evidence, the associated outcome of each case, and the role, impact and effectiveness of DNA evidence in producing that outcome.
Reports for general forensic purposes should include the following information: (1) the history of the samples, (2) a statement identifying the items examined and indicating the findings, including details like when, where and by whom the examination was performed and whether a DNA profile was obtained, and (3) a statement setting out the basis upon which any opinion rests and limitations within which it is expressed.
Wherever possible, forensic reports should be simplified to a Grade 7-9 high school level, with scientific and technical terms clearly defined in appendices to the report. Additionally, any inferences that can be drawn from numerical LRs should be stated by reference to a verbal scale in the appendices.
 Frank H R Vincent, Report: Inquiry into the Circumstances that Led to the Conviction of Mr Farah Abdulkadir Jama (Parliamentary Paper No 301, 29 March 2010) 11.
 Johanne Yttri Dahl, ‘Another Side of the Story: Defence lawyers’ views on DNA evidence’ in Katja Franko Aas, Helene Oppen Gundhus, Heidi Mork Lomell (eds), Technologies of InSecurity: The Surveillance of Everyday Life (Routledge, 2008) 219, 219.
 Michael Briody, ‘The Effects of DNA Evidence on Sexual Offence Cases’ (2002) 14(2) Current Issues in Criminal Justice 159, 176-177.
 Andrew Haesler, ‘DNA in Court’ (2008) 8(1) The Judicial Review 121, 140.
 R v Button  QCA 133.
 R v Jama (Victorian Court of Appeal, Warren CJ, Redlich and Bongiorno JJA, 7 December 2009).
 R v Keir  NSWCCA 30.
 Brandon L Garrett and Peter J Neufeld, ‘Invalid Forensic Science Testimony and Wrongful Convictions’ (2009) 95 Virginia Law Review 1, 36.
 Adrian Hoel, ‘Compensation for Wrongful Conviction’ (2008) 356 Trends & Issues in Crime and Criminal Justice 1, 1.
 Australian Law Reform Commission, Essentially Yours: The Protection of Human Genetic Information in Australia (Report 96, 20 May 2003) 973-1130.
 See, eg, Law Reform Committee, Victorian Parliament, Forensic Sampling and DNA Databases in Criminal Investigations (Report No 58, March 2004) 403; Vincent (n 1) 48-56.
 Michael Kirby, ‘Forensic Evidence: Instrument of Truth or Potential for Miscarriage?’ (2009) 20(1) Journal of Law, Information and Science 1, 22.
 See R v Jama (Victorian Court of Appeal, Warren CJ, Redlich and Bongiorno JJA, 7 December 2009); R v Button  QCA 133; R v Keir  NSWCCA 30; Aytugrul v The Queen  HCA 15; Forbes v the Queen  HCATrans 45; Fitzgerald v The Queen  HCA 28.
 Chester Porter, The Conviction of the Innocent: How the Law Can Let Us Down (Random House Australia, 2007) 8-9.
 Forensic Science Regulator Act 2021 (UK). This will be discussed further in Part 4.
 Cheryl Brown, Alastair Ross and Robyn G Attewell, ‘Benchmarking Forensic Performance in Australia-Volume Crime’ (2014) 5(3-4) Forensic Science Policy & Management 91, 92.
 In a forensic context identification is a form of classification (ie it may distinguish between species or groups of people), while individualisation excludes all individuals except the perpetrator (ie it may conclusively determine that a suspect is the source of the evidence): See generally David H Kaye, ‘Identification, individualization and uniqueness: What’s the difference?’ (2009) 8 Law, Probability and Risk 85, 87-90.
 Mark Benecke, ‘Coding or non-coding, that is the question’ (2002) 3(6) EMBO Reports 498, 499. It should be noted that there is increasing evidence that introns may be involved to some extent in gene regulation, and thus may contribute to phenotype expression, see: Nicole Wyner, Mark Barash and Dennis McNevin, ‘Forensic Autosomal Short Tandem Repeats and Their Potential Association with Phenotype’ (2020) 11(884) Frontiers in Genetics 1, 1-2.
 Marcus Smith and Gregor F Urbas, ‘Regulating New Forms of Forensic DNA Profiling Under Australian Legislation: Familial Matching and DNA Phenotyping’ (2012) 44(1) Australian Journal of Forensic Sciences 63, 68.
 See David H Kaye and George Sensabaugh, ‘Reference Guide on DNA Evidence’ in Federal Judicial Center (ed), Reference Manual on Scientific Evidence (National Academies Press, 3rd ed, 2000) 485, 491–492.
 A locus is any fixed, physical location of a gene or sequence of DNA on a chromosome.
 Australian Law Reform Commission (n 10) 975.
 Briody (n 3) 159.
 Michael Briody, ‘The Effects of DNA Evidence on Homicide Cases in Court’ (2004) 37(2) The Australian and New Zealand Journal of Criminology 231, 232.
 Margarita Guillen, ‘Ethical-legal problems of DNA databases in criminal investigation’ (2000) 26 Journal of Medical Ethics 266, 266.
 See, eg, Ewelina Mistek, ‘Toward Locard’s Exchange Principle: Recent Developments in Forensic Trace Evidence Analysis’ (2019) 91(1) Analytical Chemistry 637, 637-639.
 Trace is any remnant of a crime, particularly resulting from a physical presence or an event, see: Claude Roux and James Robertson, ‘Trace Evidence Overview’ in Jay A Siegel, Pekka J Saukko and Max M Houck (eds), Encyclopedia of Forensic Sciences Volume 2 (Elsevier, 2013) 279, 280. See also James Robertson and Claude Roux, ‘Trave evidence: Here today, gone tomorrow?’ (2010) 50(1) Science & Justice 18, 18.
 To collect this evidence, investigators typically utilise wet/dry swabbing, scraping, tape lifting or cutting techniques depending on the texture and permeability of the substrate, see: Angela L Williamson, ‘Touch DNA: Forensic Collection and Application to Investigations’ (2012) 18(1) Journal of The Association for Crime Scene Reconstruction 1, 2; Australian Police, ‘Forensic DNA’, The Thin Blue Line – Australian Police (Blog Post) <https://www.australianpolice.com.au/forensic-scientists/forensic-dna/>.
 R v Truong Hong Phuc & Truong Thi Van  VSC 242.
 Regina v Daley  NSWSC 1211.
 R v White  NSWSC 60.
 R v Truong Hong Phuc & Truong Thi Van  VSC 242, . See also Jeremy Gans, ‘Extra-bodily DNA sampling by the police’ (2013) 21 Journal of Law and Medicine 364, 367-368; Linzi Wilson-Wilde and Fiona Pitman, ‘Legislative and Policy Implications for the use of Rapid DNA Technology in the Australian Context’ (2017) 8(1-2) Forensic Science Policy & Management 26, 27.
 In practice, this often involves taking buccal swabs (via scraping the cheek), vaginal and anal swabs, blood samples, or hair samples from victims or suspects, see: Australian Law Reform Commission (n 10) 974.
 Crimes Act 1914 (Cth) pt 1D.
 Crimes Act 1914 (Cth) ss 23WI, 23WO; Crimes (Forensic Procedures) Act 2000 (ACT) ss 23, 29; Crimes (Forensic Procedures) Act 2000 (NSW) ss 11, 20; Crimes Act 1958 (Vic) s 464R. See also Guillen (n 25) 266.
 Guillen (n 25) 266.
 Criminal Investigation (Identifying People) Act 2002 (WA) s 37.
 Guillen (n 25) 266.
 A base pair is a pair of nucleotides bonded together to form a ‘rung of the DNA ladder’. See ‘Genetics Review: Base Pair’, National Center for Biotechnology Information (Web Page, 29 September 1999) <https://www.ncbi.nlm.nih.gov/Class/MLACourse/Original8Hour/Genetics/basepair.html>.
 For example, D7S820 is an STR locus located on chromosome 7. Alleles at this locus have between 5 to 16 repeats of GATA. This means there are 12 different possible alleles at each chromosome, and 78 possible pairs of alleles (genotypes). See Karen Norrgard, ‘Forensics, DNA Fingerprinting, and CODIS’ Nature Education (Web Page, 2008) <https://www.nature.com/scitable/topicpage/forensics-dna-fingerprinting-and-codis-736/>.
 Benecke (n 18) 500.
 Ibid. See also Australian Law Reform Commission (n 10) 974.
 An additional seven CODIS Core Loci were introduced by the FBI on January 1, 2017. Prior to this date, there were 13 loci utilised (the Original CODIS Core Loci) between October 1998 and December 2016. See ‘Frequently Asked Questions on CODIS and NDIS’, Federal Bureau of Investigation (Web Page) <https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet>.
 The 20 core STR loci are shown in Appendix 2. Prior to this, only ten loci were analysed in Australia, including the amelogenin sex marker, and as such, conservative language was encouraged to convey the results of DNA analysis, see, eg, Forbes v the Queen  ACTCA 10; (2009) 232 FLR 229, 235.
 M Almeida et al, ‘Efficient DNA extraction from hair shafts’ (2011) 3 Forensic Science International: Genetics Supplement Series 319, 319–320.
 Crimes Act 1914 (Cth) pt 1D div 8A.
 THE NCIDD is managed by the Australian Criminal Intelligence Commission (previously CrimTrac) and has been operational since April 2001, see: ‘Biometric and forensic services’, Australian Criminal Intelligence Commission (Web Page) <https://www.acic.gov.au/services/biometric-and-forensic-services>.
 Smith and Urbas (n 19) 65.
 Gareth Griffith and Lenny Roth, ‘DNA Evidence, Wrongful Convictions and Wrongful Acquittals’ (Briefing Paper No 11/06, NSW Parliament Library Research Service, August 2006) 11; Australian Law Reform Commission (n 10) 975.
 Smith and Urbas (n 19) 64.
 Allan Jamieson and Scott Bader, A Guide to Forensic DNA Profiling (John Wiley & Sons, 2016) ch 1.
 K A Martire et al, ‘On the Interpretation of Likelihood Ratios in Forensic Science Evidence: Presentation Formats and the Weak Evidence Effect’ (2014) 240 Forensic Science International 61, 61. See generally Charles EH Berger et al, ‘Evidence Evaluation: A response to the court of appeal judgment in R v T’ (2011) 51 Science & Justice 43.
 In this instance, the LR would convey a ratio of the prosecution’s hypothesis (ie a fingerprint found at a crime scene has the same origin as the suspect’s fingerprint) and the defence’s hypothesis (ie a fingerprint found at a crime scene has a different origin from the suspect’s fingerprint).
 Geoffrey Steward Morrison, ‘Special issue on measuring and reporting the precision of forensic likelihood ratios: Introduction to the debate’ (2016) 56 Science and Justice 371, 371.
 Loene M Howes, ‘The communication of forensic science in the criminal justice system: A review of theory and proposed directions for research’ (2015) 55(2) Science and Justice 145, 145.
 Ibid 146.
 Briody (n 3) 176-177.
 Forbes v the Queen  ACTCA 10; (2009) 232 FLR 229, 235.
 Martire et al (52) 61.
 Ibid 66-67.
 Garrett and Neufeld (n 8) 36.
 Haesler (n 4) 140.
 Griffith and Roth (n 49) 11.
 A primary transfer occurs where the suspect has been to the scene or directly handled an object and as a result has shed a biological source from which DNA can be extracted (generally hair or skin cells). A secondary transfer occurs where the suspect has shed a biological source in a different location, and an intermediary individual or object, acting as a vector, has transferred the source to the scene where the crime took place. See generally Duncan Taylor et al, ‘Helping to distinguish primary from secondary transfer events for trace DNA’ (2017) 28 Forensic Science International: Genetics 155, 155.
 Riley v Western Australia  WASCA 190; (2005) 30 WAR 525, .
 Russ Scott, ‘Medical issues: DNA Evidence in Jury Trials: The “CSI Effect”’ (2010) 18 Journal of Law and Medicine 239, 257.
 Peter Gill, Misleading DNA Evidence (Academic Press, 1st ed, 2014) 12.
 Jennifer J Raymond et al, ‘Trace DNA and street robbery: A criminalistic approach to DNA evidence’ (2009) 2(1) Forensic Science International: Genetic Supplement Series 544, 544-546.
 A J Jeffreys, V Wilson and S L Thein, ‘Individual-specific ‘fingerprints’ of human DNA’ (1985) 316 Nature 76, 78.
 Lee Ferran, ‘Rare Twin Murder Case Echoes Bizarre Fingerprint Origins’, ABC News (online, 23 February 2010) <https://abcnews.go.com/TheLaw/atlanta-twin-murder-case-echoes-fingerprint-origins/story?id=9909586>.
 Rachel Dioso-Villa et al, ‘Investigation to Exoneration: A Systemic Review of Wrongful Conviction in Australia’ (2016) 28(2) Current Issues in Criminal Justice 157, 159. See also Garrett and Neufeld (n 8) 36.
 Ray Finkelstein, ‘The Adversarial System and the Search for Truth’  MonashULawRw 8; (2011) 37 Monash University Law Review 135, 136.
 Jones v National Coal Board  EWCA Civ 3; (1957) 2 QB 55, 63 per Denning LJ.
 Barbara Etter, ‘The contribution of forensic science to miscarriage of justice cases’ (2013) 45(4) Australian Journal of Forensic Sciences 368, 369-370.
 Richard Nobles and David Schiff, Understanding Miscarriages of Justice (Oxford University Press, 2000) 16-17.
 Chamberlain v The Queen  FCA 235; (1982) 69 FLR 445.
 Foetal haemoglobin is present in the blood of infants six months and younger. See especially T R Morling, Royal Commission of Inquiry into Chamberlain Convictions (Parliamentary Paper No 192, June 1987) 40. See also ‘AFP Forensics recruits get rare access to Chamberlain collection’, Platypus (Web Page, 7 May 2018) <https://www.afp.gov.au/news-media/platypus/afp-forensics-recruits-get-rare-access-chamberlain-collection>.
 Lynne Weathered, 'Wrongful Conviction in Australia' (2012) 80(4) University of Cincinnati Law Review 1391, 1396-1937.
 Re Chamberlain  NTCCA 3 per Asche CJ, Nader and Kearney JJ.
 Inquest into the death of Azaria Chantel Loren Chamberlain  NTMC 020, .
 Judy Bourke, 'Misapplied Science: Unreliability in Scientific Test Evidence' (1993) 10 Australian Bar Review 123, 127.
 Carl Reginald Shannon, Report of the Royal Commission of the Inquiry into the Conviction of Edward Charles Splatt (Report, 1984).
 The experts failed to consider the case holistically when they ‘linked’ trace evidence from the crime scene to material, including spherical paint and metal particles and seed endosperm, collected from Splatt’s trouser turn-ups, see: James Robertson and Claude Roux, ‘Trace evidence: Here today, gone tomorrow?’ (2010) 50 Science and Justice 18, 19-20.
 David Hamer, ‘The Eastman Case: Implications for an Australian Criminal Cases Review Commission’ (2015) 17 Flinders Law Journal 433, 439-441.
 Ibid 440.
 Bob Moles, ‘Foreword’ in Evan Whitton, Our corrupt legal system: why everyone is a victim (except rich criminals) (Book Pal, 2009) 6, 8.
 Dahl (n 2) 219.
 R v Jama (Victorian Court of Appeal, Warren CJ, Redlich and Bongiorno JJA, 7 December 2009).
 Loene M Howes et al, ‘The readability of expert reports for non-scientist report-users: Reports of DNA analysis’ (2014) 237 Forensic Science International 7, 8.
 Donald Shelton, ‘The 'CSI Effect': Does it Really Exist?’ (2008) 259 National Institute of Justice Journal 1, 6.
 Dioso-Villa et al (n 72) 160.
 Ross v The King  HCA 4; (1922) 30 CLR 246, 255-256.
 Howes et al (n 90) 8.
 Ibid 12-14.
 Ibid 15.
 Valerie P Hans et al, ‘Science in Jury Box: Jurors’ Comprehension of Mitochondrial DNA Evidence’ (2011) 35 Law and Human Behaviour 60, 61. See also J S Cecil, Valerie P Hans and E C Wiggins, ‘Citizen comprehension of difficult issues: Lessons from civil jury trials’ (1991) 40 American University Law Review 727, 728-729.
 Hans et al (n 98) 69.
 National Research Council (US) Committee on DNA Forensic Science, The Evaluation of Forensic DNA Evidence (National Academies Press, 1996) ch 3.
 For a full description of each fallacy or effect: see generally Gill (n 68) 12-17.
 See especially National Research Council of the National Academies, Strengthening Forensic Science in the United States: A Path Forward (Report, August 2009) 7-9.
 Ibid 8.
 Jeff Kukucka, ‘Confirmation Bias in the Forensic Sciences: Causes, Consequences, and Countermeasures’ in Wendy J Koen and C Michael Bowers (eds), The Psychology and Sociology of Wrongful Convictions: Forensic Science Reform (Academic Press, 2018) 223, 223.
 Ibid 226.
 Amos Tversky and Daniel Kahneman, ‘Judgment under Uncertainty: Heuristics and Biases’ (1974) 185(4157) Science 1124, 1124. See also Saul M Kassin, Itiel E Dror and Jeff Kukucka, ‘The forensic confirmation bias: Problems, perspectives, and proposed solutions’ (2013) 2 Journal of Applied Research in Memory and Cognition 42, 45.
 Jeff Kukucka (n 106) 223, 231.
 Itiel E Dror and Greg Hampikian, ‘Subjectivity and bias in forensic DNA mixture interpretation’ (2011) 51 Science and Justice 204, 204.
 Daniel Westreich and Noah Iliinsky, ‘Epidemiology Visualized: The Prosecutor's Fallacy’ (2014) 179(9) American Journal of Epidemiology 1125, 1125.
 See R v Keir  NSWCCA 30. See also National Research Council (US) Committee on DNA Forensic Science (n 101) ch 5.
 R v Doheny  EWCA Crim 728;  1 Cr App R 369, 372-373 per Phillips LJ.
 National Research Council (US) Committee on DNA Forensic Science (n 101) ch 5.
 Gill (n 68) 15.
 Norman Fenton and Martin Neil, ‘The “Jury Observation Fallacy” and the use of Bayesian Networks to present Probabilistic Legal Arguments’ (2000) 36(6) Mathematics Today 180, 183.
 Carmen de Macedo, ‘Guilt by Statistical Association: Revisiting the Prosecutor’s Fallacy and the Interrogator’s Fallacy’ (2008) 105(6) The Journal of Philosophy 320, 327. See generally Ian Stewart, ‘The Interrogator’s Fallacy’ (1996) 275(3) Scientific American 172, 172.
 Robert S Wyer and Rashmi Adaval, ‘Pictures, Words and Media Influence: The Interactive Effects of Verbal and Nonverbal Information on Memory and Judgments’ in L J Shrum (ed), The Psychology of Entertainment Media: Blurring the Lines Between Entertainment and Persuasion (Lawrence Erlbaum Associates, 2004) 137, 138.
 Allison Klein, ‘Art trips up life: TV crime shows influence jurors’, The Baltimore Sun (Maryland, 25 July 2004).
 Shelton (n 91) 5.
 Aaron Doyle, Arresting Images: Crime and Policing in Front of the Television Camera (University of Toronto Press, 2003) 13-31; L J Shrum, The psychology of entertainment media: Blurring the lines between entertainment and persuasion (Lawrence Erlbaum Associates Publishers, 2004) 137-160.
 Tom Tyler, ‘Viewing CSI and the Threshold of Guilt: Managing Truth and Justice in Reality and Fiction’  YaleLawJl 80; (2006) 115 Yale Law Journal 1050, 1062-1063.
 Rhona Wheate, ‘The importance of DNA evidence to juries in criminal trials’ (2010) 14 The International Journal of Evidence & Proof 129, 130.
 Ibid 141-142.
 Note, this expectation differs depending on the nature of the crime, with 46% of respondents expecting to see DNA evidence in crimes involving murder or attempted murder, and 73% expecting to see DNA evidence in crimes involving rape. See Shelton (n 91) 3.
 N J Schweitzer and Michael J Saks, ‘The CSI Effect: Popular Fiction about Forensic Science Affects the Public’s Expectations about Real Forensic Science’ (2007) 47 Jurimetrics 357, 358.
 Tyler (n 124) 1063.
 Ibid 1060.
 Schweitzer and Saks (n 128) 358.
 ‘Exonerations by State’, The National Registry of Exonerations (Web Page, 13 April 2021) <http://www.law.umich.edu/special/exoneration/Pages/Exonerations-in-the-United-States-Map.aspx> .
 ‘Facts and figures’, CCRC (Web Page, August 2021) <https://ccrc.gov.uk/facts-figures/>.
 ‘Case Statistics’, Scottish Criminal Cases Review Commission (SCCRC) (Web Page, 1 April 2021) <https://www.sccrc.co.uk/case-statistics>.
 ‘Exonerations’, Innocence Canada (Web Page, 2021) <https://www.innocencecanada.com/exonerations/>.
 Rachel Dioso-Villa, ‘A Repository of Wrongful Convictions in Australia: First Steps Toward Estimating Prevalence and Causal Contributing Factors’ (2015) 17(2) Flinders Law Journal 163, 195-202.
 Data as of 30 June 2021, see: ‘Prisons data’, UK Government (Web Page, 14 September 2021) <https://data.justice.gov.uk/prisons>.
 Statistics based on the June 2021 quarter, see: ‘Corrective Services, Australia’, Australian Bureau of Statistics (Web Page, 16 September 2021) <https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release>.
 R v Jama (County Court of Melbourne, 21 July 2008).
 Vincent (n 1) 20.
 It should be noted that Jama was not charged in relation to this incident.
 Rachel Dioso-Villa (n 136) 188.
 Vincent (n 1) 11.
 Ibid 16-17.
 R v Jama (Victorian Court of Appeal, Warren CJ, Redlich and Bongiorno JJA, 7 December 2009).
 Katherine Rayment, ‘Faith in DNA: The Vincent Report’ (2010) 20(1) Journal of Law, Information and Science 238, 238.
 Vincent (n 1) 11.
 Ibid 30.
 Ibid 10-11.
 See, eg, Ibid 10-12, 17, 30-38.
 Kirby (n 12) 17.
 This may have resulted in a secondary transfer of a microscopic amount of genomic material from the initial examination to a swab and slide which was analysed as part of M’s examination, see: Vincent (n 1) 22-24. See also Laura Precup-Pop, ‘Doubting DNA: Scientific evidence and the adjudgment of guilt or innocence  Sydney University Law Society Social Justice Journal 2, 4.
 For the response, see Vincent (n 1) 25.
 R v Button  QCA 133.
 Ibid .
 Kirby (n 12) 12.
 Australian Law Reform Commission (n 10) 1117.
 Kirby (n 12) 12.
 Deborah L Kellie, ‘Justice in the Age of Technology: DNA and the Criminal Trial’  AltLawJl 64; (2001) 25(4) Alternative Law Journal 173, 174.
 Kirby (n 12) 16-21.
 Ibid 16.
 Crime and Misconduct Commission, Forensics Under the Microscope: Challenges in Providing Forensic Science Services in Queensland (Report, October 2002) 5.
 Kirsten Edwards, ‘Ten things about DNA contamination that lawyers should know’ (2005) 29 Criminal Law Journal 71, 73. See also Australian Law Reform Commission (n 10) 1109.
 R v Button  QCA 133, .
 Regardless, failure to impartially conduct DNA testing would not in itself constitute grounds for an appeal, see: Gregor Urbas, ‘DNA Evidence in Criminal Appeals and Post-Conviction Inquiries: Are New Forms of Review Required?’  MqLawJl 6; (2002) 2 Macquarie Law Journal 141, 157.
 R v Keir  NSWCCA 30.
 Australian Law Reform Commission (n 10) 1099.
 R v Keir  NSWCCA 30, .
 See R v G K  NSCCCQ 413 and R v Galli  NSWCCA 504.
 R v Keir  NSWCCA 30, .
 Ibid .
 Ibid .
 Jeremy Gans and Gregor Urbas, ‘DNA Identification in the Criminal Justice System’ (2002) 226 Trends and Issues in Crime and Criminal Justice 1, 4.
 Australian Law Reform Commission (n 10) 1099.
 R v Keir  NSWCCA 30, . See also R v Galli  NSWCCA 504, [89-97] in which it was stated that, although a direction about the prosecutor’s fallacy is not necessary in all cases involving DNA, a warning would have been desirable.
 Aytugrul v The Queen  NSWCCA 272;  HCA 15.
 Mitochondrial DNA testing produces higher frequencies of expected occurrences of particular DNA profiles in the community, in contrast to nuclear DNA testing. As such, nuclear DNA is the preferred method for investigatory analysis.
 Aytugrul v R  NSWCCA 272, .
 Aytugrul v R (2010) 205 A Crim RJ 157, 158.
 Ibid 187.
 Aytugrul v The Queen  HCA 15; (2012) 247 CLR 170, 183.
 Evidence Act 1995 (NSW) s 144(4).
 Ibid s 135(a)-(b).
 Aytugrul v The Queen  HCA 15, .
 Gregor Urbas, ‘The High Court and the Admissibility of DNA Evidence: Aytugrul v the Queen  HCA 15 (18 April 2012)’ (2012) 11(1) Canberra Law Review 89, 90.
 An event that has a non-zero probability must be possible (ie it cannot be impossible), see: ibid.
 Fitzgerald v The Queen  HCA 28.
 Jeremy Gans, ‘The DNA, the Handshake and the Didgeridoo: Fitzgerald v The Queen’, Opinions on High (Blog Post, 18 August 2014) <https://blogs.unimelb.edu.au/opinionsonhigh/2014/08/18/gans-fitzgerald/>.
 Lynne Weathered, Kirsty Wright and Janet Chaseling, 'Dealing with DNA Evidence in the Courtroom: A Plain English Review of Current Issues with Identification, Mixture and Activity Level Evidence' (2020) 1(1) Wrongful Conviction Law Review 59, 68; Marcus Smith and Monique Mann, ‘Recent developments in DNA evidence’ (2015) 506 Trends and Issues in Crime and Criminal Justice 1, 5.
 Fitzgerald v The Queen  HCA 28, .
 R v Sumner, R v Fitzgerald  117 SASR 271, .
 Fitzgerald v The Queen  HCA 28, .
 Ibid .
 Gans (n 194).
 Weathered, Wright and Chaseling (n 196) 68.
 See generally Roland van Oorshot et al, ‘Need for dedicated training, competency assessment, authorisations and ongoing proficiency testing for those addressing DNA transfer issues’ (2017) 6 Forensic Science International: Genetics Supplement Series e32.
 Forbes v The Queen (2009) 167 ACTR 1;  HCATrans 45;  HCATrans 120.
 Urbas (n 190) 93.
 That is, there was a random match probability of one in 20 billion. See Andrew Ligertwood, ‘Can DNA Evidence Alone Convict an Accused?’  SydLawRw 21; (2011) 33 Sydney Law Review 487, 488.
 Ibid 489.
 Ibid 492-493.
 Forbes v The Queen  ACTCA 10; (2009) 167 ACTR 1.
 Forbes v The Queen  HCATrans 120.
 Ibid .
 It is the jury themselves who set the standard of what is reasonable in the circumstances: Green v the Queen  HCA 55; (1971) 126 CLR 28, 32-33. Refusing to define this expression provides the jury with the flexibility to exercise discretion when determining guilt. For the origins of this expression, see generally BR Martin, ‘Beyond reasonable doubt’ (2010) 10 The Judicial Review 83, 83-84.
 Forbes v The Queen  ACTCA 10; (2009) 232 FLR 229, 236.
 Forbes v The Queen  HCATrans 120, -.
 Ligertwood (n 210) 514.
 Urbas (n 190) 94.
 Porter (n 14) 8-9.
 Lynne Weathered and Robyn Blewer, ‘Righting Wrongful Convictions with DNA Innocence Testing: Proposals for Legislative Reform in Australia’  FlinJlLawRfm 2; (2009) 11 Flinders Journal of Law Reform 43, 43.
 Kirby (n 12) 22.
 These recommendations are summarised in Appendix 4.
 Australian Law Reform Commission (n 10) 973-1130.
 ‘Law Reform Process’, Australian Law Reform Commission (Web Page) <https://www.alrc.gov.au/about/law-reform-process/>.
 Kirby (n 12) 22.
 See Crimes Act 1914 (Cth) Pt 1D. Part 1D was inserted into this Act by the Crimes Amendment (Forensic Procedures) Act 1998 (Cth), and later amended by the Crimes Amendment (Forensic Procedures) Act 2001 (Cth).
 See Crimes (Forensic Procedures) Act 2000 (ACT); Crimes (Forensic Procedures) Act 2000 (NSW); Criminal Law (Forensic Procedures) Act 2007 (SA); Crimes Act 1958 (Vic) Pt III; Forensic Procedures Act 2000 (Tas); Police Powers and Responsibilities 2000 (Qld) Ch 17; Criminal Investigation (Identifying People) Act 2002 (WA); Police Administration Act 1978 (NT) Pt VII.
 These laws conform to varying degrees to the Model Forensic Procedures Bill 2000 (Cth). See also Australian Law Reform Commission (n 10) 977, 982.
 Crimes Act 1914 (Cth) s 23XX(1).
 Ibid s 23XX(4). For the matters that may be considered by the court for the purpose of determining whether admission is justified on the balance of probabilities, see Crimes Act 1914 (Cth) s 23XX(5).
 For uniform Evidence Acts in each jurisdiction, see Evidence Act 1995 (NSW); Evidence Act 2008 (Vic); Evidence Act 2001 (Tas); Evidence Act 2011 (ACT); Evidence (National Uniform Legislation) Act 2011 (NT). For relevant, but non-uniform statute, see Evidence Act 1977 (Qld); Evidence Act 1906 (WA); Evidence Act 1929 (SA).
 Evidence Act 1995 (Cth) s 79.
 Ibid s 56.
 See Crimes (Appeal and Review) Act 2001 (NSW).
 Ibid s 96.
 Ibid s 97. The convicted person is liable for the cost of any DNA testing: ibid s 97(3).
 Weathered and Blewer (n 224) 44.
 Urbas (n 168) 164.
 Weathered and Blewer (n 224) 44-45.
 Lynne Weathered, ‘Reviewing the New South Wales DNA Review Panel: Considerations for Australia’ (2013) 24(3) Current Issues in Criminal Justice 449, 451.
 Weathered and Blewer (n 224) 46. See also Weathered (n 79) 1392; Stephanie Roberts and Lynne Weathered, ‘Assisting the Factually Innocent: The Contradictions and Compatibility of Innocence Projects & the Criminal Cases Review Commission’ (2009) 29 Oxford Journal of Legal Studies 43, 47.
 Weathered and Blewer (n 224) 45.
 The Innocence Panel was established in 2000 and suspended in 2003. Recommendations arising from the failure of the Innocence Panel were adopted and the body was succeeded by the DNA Review Panel in 2007 following the enactment of the Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2006 (NSW). The provisions establishing and regulating the DNA Review Panel have since been repealed and in 2013, this body was also abolished.
 Attorney General & Justice, NSW Government, The DNA Review Panel: Review of Division 6 of Part 7 of the Crimes (Appeal and Review) Act 2001 (Report, 2013) 6. For the general referral powers of the DNA Review Panel, see Crimes (Appeal and Review) Act 2001 (NSW) s 94(1), as repealed by Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2013 (NSW) sch 1 item 3.
 This comment was made by the President of the NSW Bar Association, see: Tim Dick, ‘Think again on double jeopardy, Iemma warned’, The Sydney Morning Herald (online, 23 September 2006) <https://www.smh.com.au/national/think-again-on-double-jeopardy-iemma-warned-20060923-gdogag.html>.
 Mervyn Finlay, Review of the NSW Innocence Panel (Report, 2003) 17-19.
 Applications for review to the DNA Review Panel could not be made if a person was convicted after 19 September 2006, see: Crimes (Appeal and Review) Act 2001 (NSW) s 89(3), as repealed by Crimes (Appeal and Review) Amendment (DNA Review Panel) Act 2013 (NSW) sch 1 item 3. The intention of this was to limit the panel to reassessing ‘past cases in which DNA technology may not have been fully utilised’, see: New South Wales, Parliamentary Debates, Legislative Assembly, 19 September 2006 (Morris Iemma).
 Weathered and Blewer (n 224).
 Criminal Appeal Act 1995 (UK) s 8.
 ‘About us’, Criminal Cases Review Commission (Web Page) <https://ccrc.gov.uk/what-we-do/>.
 ‘Access to Post-Conviction DNA Testing’, Innocence Project (Web Page) <https://innocenceproject.org/causes/access-post-conviction-dna-testing/>.
 Justice for All Act of 2004, Pub L No 108-405, tit IV, 116 Stat 1789, 2261. See also Michael E Kleinert, ‘Improving the Quality of Justice: The Innocence Protection Act of 2004 ensures post-conviction DNA testing, better legal representation, and increased compensation for the wrongfully imprisoned’ (2006) 44 Brandeis Law Journal 491, 491-493.
 Weathered and Blewer (n 224) 56-57. For the New York legislative framework, see: NY Criminal Procedure Law § 440.10 (2021).
 ‘Access to Post-Conviction DNA Testing’, Innocence Project (Web Page) <https://innocenceproject.org/causes/access-post-conviction-dna-testing/>.
 Australian Law Reform Commission (n 10) 1120.
 Ill Comp Stat § 116-4 (2013).
 Todd D Minton, Lauren G Beatty and Zhen Zeng, ‘Correctional Populations in the United States, 2019 – Statistical Tables’, US Department of Justice, Bureau of Justice Statistics (Web Page, July 2021) 11-12 <https://bjs.ojp.gov/sites/g/files/xyckuh236/files/media/document/cpus19st.pdf?fbclid=IwAR1kBrZz0X86Jxn52MoWBtHAED3RzJqJ3R0m2iC7fcBsaQvX_qAcWlr6oIQ#page=11>; ‘Statistics’, Federal Bureau of Prisons (Web Page) <https://www.bop.gov/about/statistics/population_statistics.jsp?fbclid=IwAR0B9o_Yn_l2WOnPiGuwySH-wFCRHj0gY0wdmj-6NeJhENB2nx8PJ1cJfck>.
 ‘Corrective Services Australia’, Australian Bureau of Statistics (Web Page, 16 September 2021) <https://www.abs.gov.au/statistics/people/crime-and-justice/corrective-services-australia/latest-release>.
 Weathered and Blewer (n 224) 58.
 Australian Law Reform Commission (n 10) 1120-1122.
 Ibid 1120.
 Ibid 1123-1124.
 Weathered and Blewer (n 224) 73.
 Justice for All Act of 2004, Pub L No 108-405, § 413, 116 Stat 1789, 2285.
 Australian Law Reform Commission (n 10) 1099-1108; see also Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information (Discussion Paper No 66, 2002) 892.
 Australian Law Reform Commission, Protection of Human Genetic Information (Issues Paper 26, 16 November 2001) 408-409.
 In determining these recommendations, the ALRC consulted many experts in the field to ensure that scientific education programs for legal professionals are the most appropriate course of action. These experts include Jeremy Gans, Barbara Hocking, Wendy Abraham, Ron Trent, Ian Freckleton, and James Robertson, see: Australian Law Reform Commission (n 10) 1099-1108.
 Vincent specifically recommended the Judicial College of Victoria, the Law Institute of Victoria and the Victorian Bar Council. See Vincent (n 1) 56.
 Such as the National Judicial College of Australia, the Law Council of Australia, the National Institute of Forensic Science, and the Australian and New Zealand Forensic Science Society, as well as corresponding state and territory associations.
 Law Reform Committee, Victorian Parliament (n 11) 404.
 Australian Law Reform Commission (n 10) 1106.
 Jane Goodman-Delahunty and Lindsay Hewson, ‘Improving Jury Understanding and Use of DNA Expert Evidence (Report, July 2009) 39.
 Ibid 41-42.
 Vincent (n 1) 55.
 Sarah Wüllenweber and Stephanie Giles, ‘The effectiveness of forensic evidence in the investigation of volume crime scenes’ (2021) 61(5) Science & Justice 542, 543.
 National Research Council of the National Academies (n 104) 22-23.
 Ibid 10.
 Tom Sherman, Independent Review of Part 1D of the Crimes Act 1914: forensic procedures (Report, March 2003) [5.110].
 Law Reform Committee, Victorian Parliament (n 11) 381-382.
 Ibid 382.
 Ibid 381.
 Vincent (n 1) 54.
 Howes et al (n 90) 16.
 Forensic Science Regulator Act 2021 (UK).
 Mark G Baron, Timothy Rohrig and Jose Gonzalez-Rodriguez, ‘Forensic Science in the UK. Part III: Regulation of Forensic Science in England and Wales – The Role of the Forensic Science Regulator’ (2020) 32(1) Forensic Science Review 2, 2-5.
 Explanatory Notes, Forensic Science Regulator Bill (UK) 6.
 ‘HM Government Public Appointments: Forensic Science Regulator’, Cabinet Office (Web Page, 17 May 2021) <https://publicappointments.cabinetoffice.gov.uk/appointment/forensic-science-regulator/>.
 Gary Pugh, ‘Forensic Science Regulator Act 2021’ (2021) 36 Forensic Science Regulator Newsletter 5, 5.
 Ibid 6.
 ‘Uniform Language for Testimony and Reports’, United States Department of Justice (Web Page, 11 January 2021) <https://www.justice.gov/olp/uniform-language-testimony-and-reports>. The ULTR documents were developed in response to the NAS Report, see: National Research Council of the National Academies (n 104) 189.
 For the Uniform Language for Testimony and Reports documents relating to DNA evidence, see, eg, Department of Justice, Uniform Language for Testimony and Reports for Forensic Autosomal DNA Examinations Using Probabilistic Genotyping Systems (ULTR Report, 18 March 2019); Department of Justice, Uniform Language for Testimony and Reports for Forensic Mitochondrial DNA Examinations (ULTR Report, 18 March 2019); Department of Justice, Uniform Language for Forensic Y-STR DNA Examinations (ULTR Report, 18 March 2019).
 Simon A Cole, 'A Discouraging Omen: A Critical Evaluation of the Approved Uniform Language for Testimony and Reports for the Forensic Latent Print Discipline' (2018) 34(4) Georgia State University Law Review 1103, 1107-1108.
 Law Reform Committee, Victorian Parliament (n 11) 397.
 See generally David J Balding and Christopher D Steele, Weight-of-Evidence for Forensic DNA Profiles (John Wiley and Sons, 2015) 200-204.
 C Neumann, I W Evett and J Skerrett, ‘Quantifying the weight of evidence from a forensic fingerprint comparison: a new paradigm’ (2012) 175(2) Journal of the Royal Statistical Society 371, 372.
 Weathered and Blewer suggest that a DNA test would cost roughly $300 in comparison to the $60,000 it costs the state to keep a person imprisoned for one year, see: Weathered and Blewer (n 224) 70.
 An example for eligibility testing is provided in Law Reform Committee, Victorian Parliament (n 11) 429.
 Amanda Dingle, ‘R v Frank Alan Button  QCA 133: Exposing a Wrongful Conviction Through DNA Testing’  SCULawRw 13; (2001) 5 Southern Cross University Law Review 271, 273.
 ‘Frequently Asked Questions on CODIS and NDIS’, Federal Bureau of Investigation (Web Page) <https://www.fbi.gov/services/laboratory/biometric-analysis/codis/codis-and-ndis-fact-sheet>.
 Celia Henry Arnaud, ‘Thirty years of DNA forensics: How DNA has revolutionized criminal investigations’, Chemical & Engineering News (Web Page, 18 September 2017) <https://cen.acs.org/analytical-chemistry/Thirty-years-DNA-forensics-DNA/95/i37>.