This contribution to today’s Blog Carnival comes from Professor Jeremy Gans, Associate Professor at Melbourne Law School. Professor Gans researches teaches on all aspects of the criminal justice system. In 2007, he was appointed as the Human Rights Adviser to the Victorian Parliament’s Scrutiny of Acts and Regulations Committee. His early research focused on fact-finding in sexual assault trials, the subject of his doctoral thesis and a number of published articles, and criminal investigation, especially the technique of DNA identification. He has contributed to public debate on criminal justice in a number of forums and he publishes a running commentary on Victoria’s Charter of Human Rights and Responsibilities at charterblog.wordpress.com.
While England is rightly regarded as the world’s leading jurisdiction when it comes to DNA profiling, Australia has some claim to be its coal mine canary. Over a century ago, its national court was probably the first to hold that a fingerprint (‘an unforgeable signature’!) can be the sole basis for a criminal conviction. More recently, some its states and territories, unencumbered by human rights laws, have pushed DNA databasing powers beyond even England at its zenith.
The Northern Territory, for instance, has, for over a decade, permitted automatic collection (and permanent retention) of DNA, not only on arrest but also from anyone merely suspected of any crime. In 2007, when South Australia’s poorly administered database proved to be full of illegally retained profiles (resulting in one criminal being freed), the government responded by urging the database’s administrators to ignore the existing destruction requirements and then convincing its Parliament to speedily repeal all the laws that were bothersome to administer. Its new law, while limited to imprisonable offences, again pushes beyond England’s by allowing for automatic collection and permanent retention based on mere suspicion.
And yet, just three years later, it’s hard to imagine any current Australian parliament being so bold. The reason isn’t S & Marper v United Kingdom. Only two of Australia’s ten jurisdictions have even a weak human rights law – the federal government just ruled out adopting one – and there’s no strong supranational court to keep even the ones with such laws in line. Nor is it the National Academy of Sciences report on the dire state of forensics in America. Australian courts have shrugged off concerns about the validity of cutting edge DNA techniques like low copy number analysis.
Rather, the change is due to some spectacular DNA mistakes in my home state of Victoria. The most dramatic case occurred late last year, when the Victorian Court of Appeal overturned the rape conviction of Melbourne teenager Farah Jama. Jama’s DNA was detected in semen in a vaginal swab of a 40 year-old woman who had passed out in a nightclub and woke up in a toilets with no memory of how she got there. Jama was convicted of her rape, even though no-one had seen any black youths in the crowded ‘over 28s’ venue and the teenager denied having even been to that Melbourne suburb. The trial judge even congratulated the jury for seeing through the lies of Jama’s family, who supported his alibi that he had spent the night reading the Koran to his ailing father.
It was only after Jama had served sixteen months of his prison sentence that lawyers working on his appeal noticed that the forensic officer who took the vaginal swab had, the previous day, taken a similar swab from another woman who accused Jama of rape and who the teen admitted he had sex with. (No charges were laid in respect of that matter.) Confronted with this detail, Jama’s prosecutors quickly realised that only evidence implicating the teenager in the nightclub rape could well have been transferred by accident by the officer. The coincidence not only made it very unlikely that Jama was the nightclub rapist but actually cast doubt on whether any rape had occurred. DNA analysis, rather than solving the case, had created both a fictitious rapist and a fictitious rape, a calamity for defendant and victim alike.
Even more damaging for the standing of DNA in Australia was that this was the third such error in Victoria in six years. In 2003, a teenage rape victim was wrongly linked to one of Victoria’s most notorious unsolved cases – the death of toddler Jaidyn Leskie – after her DNA was found on the toddler’s clothing. It was only after the victim was investigated and interrogated for child homicide that it emerged that the clothing and a condom from the rape had coincidentally shared a table of Victoria’s forensics lab four years earlier. In 2006, Victoria Police first proudly announced that their DNA database had solved a notorious cold case (and publicly named the suspect) and then hurriedly retracted the claim when they realised that, again, the evidence from cold case had contemporaneously shared a lab table with evidence from a separate case involving the suspect. This case prompted a review of 6000 of the state’s DNA cases to calm public fears that similar errors might have sent someone to prison. Within months, Victoria Police assured the public that the review, which almost certainly covered Farah Jama’s prosecution (then in its pre-trial stage), had firmly ruled out any such possibility.
It remains to be seen whether these errors, which attracted intense but brief media coverage, have shaken the Australian public’s faith in DNA. But what is clear is that the nation’s justice institutions have become newly wary. The government of New South Wales, one of the first to join Australia’s national DNA database, stopped receiving DNA from some jurisdictions because of concerns (fueled partly by the Leskie case) about the databasing of victims’ DNA. Victoria Police responded to its most recent debacle by taking the stunning (and somewhat baffling) step of suspending all DNA testimony for a few months, reportedly to refine statistical protocols. Although such testimony has since resumed, prosecutions based solely on DNA evidence remain suspended for now, pending a review of the Jama case by a retired judge. The state’s long-awaited new DNA legislation, expected late last year, is yet to emerge.
Most dramatically of all, Australia’s highest court, nearly a century after endorsing fingerprinting as the sole basis for a conviction, recently agreed to hear an appeal on whether a conviction can stand when it’s exclusively based on DNA. Benjamin Forbes’s appeal, like Jama’s, involves a stranger rape, a suspect who was investigated for another sexual crime, a witness who described a quite different attacker and a family alibi. But the risk of error in his case is said to flow, not from contamination, but rather the slight possibility of a coincidental DNA match.
While it’s unlikely that the High Court will declare that all uncorroborated DNA evidence is unreliable, merely overturning Forbes’s conviction will cause a ripple effect through hundreds of other DNA cases completed or progressing through Australia’s courts. More importantly, a judgment that prominently identifies DNA as a new risk factor in miscarriages of justice will undercut the chief argument for any further expansion of DNA databasing. Perhaps other nations will also take note that the Australian canary has suddenly changed its tune.