Haesler, Andrew --- "Dna and Policing" [2001] ALRCRefJl 22; (2001) 79 Australian Law Reform Commission Reform Journal 27

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Reform Issue 79 Spring 2001

This article appeared on pages 27 – 31 of the original journal.

DNA and policing

The introduction of DNA testing and DNA databases has much promise for modern policing. However, much is still to be delivered. What is clear is that the use of new technologies, supported by appropriate legislation, will see a dramatic change in the way many high profile violent crimes are investigated and solved.

Andrew Haesler* reviews the introduction of laws allowing the use of DNA testing in criminal matters.

New laws relating to the use of DNA¹ in policing have been introduced by Australian governments of all persuasions. To date, all have been introduced as part of a persistently punitive attitude to criminal justice, with DNA laws portrayed as a ‘law and order’ issue. As retribution rather than deterrence now colours most modern responses to violent crime, the resort to new technologies to ensure those who offend get their ‘just deserts’ is inevitable.

In the rush to see such justice done, considerable damage can be done to the balance of our legal system.

Background

Interestingly, DNA testing was first used in the early 1980s to establish that 17-year-old Colin Pitchfork had wrongly confessed to two rape murders in the United Kingdom. The wider implications of the new technology soon became apparent. Legislation was introduced in the UK in the mid-80s to allow for the testing of those under arrest and the establishment of a DNA database. The Police and Criminal Evidence Act (UK) was extended in 1994 to allow mouth swabs to be taken from suspects for certain offences.

The UK legislation is designed to maximise ‘cold hits’, that is, the chance match between a DNA sample taken from a crime scene, and a DNA sample provided by a person who has been tested in regard to a completely unrelated crime. The occasional solving of a violent crime by such a method can appear miraculous.

In Australia, the New South Wales and Commonwealth governments have recently introduced legislation for the carrying out of forensic procedures — including DNA testing — on suspects, those convicted of serious indictable offences and volunteers.²

The Acts provide for the use and destruction of material obtained by those procedures, and set out rules for placing and matching profiles derived from forensic material on a national DNA database.

The NSW and federal legislation draw substantially on the work of the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorneys-General (SCAG). The MCCOC circulated drafts of a Model Forensic Procedures Bill for comment in 1994. Sixty-eight submissions were received in response to the Bill. In July 1995, the majority of SCAG endorsed the Bill and forwarded a proposal to establish a national DNA database to the Australasian Police Ministers Council.

A discussion paper, Model Forensic Procedures Bill and the Proposed National DNA Database, was released in May 1999. In February 2000, after further submissions were received in response to the discussion paper, a final report and model Bill were released.

To complement the new regimes, the Commonwealth government has established the National Criminal Investigation DNA Database (NCIDD). Matching of DNA data held by NCIDD will be allowed from other participating jurisdictions whose legislation is substantially consistent with the Commonwealth/MCCOC model.³

Although other States and Territories have forensic testing legislation that allows for the taking of DNA samples, as yet only the ACT and Tasmania have joined the Commonwealth and NSW in introducing legislation on the MCCOC model. South Australia and Victoria have stated they are committed to the model, while Queensland and Western Australia have indicated they are reviewing their legislation with a view to bringing it more in line.

Since 1998, all States and Territories have used the same standard testing procedure for DNA samples — Profiler Plus. It is envisaged that when all have legislation recognised by the Commonwealth, participation in NCIDD will ensure DNA matching can occur on a national basis. The database will then be able to match a sample from a suspect with that taken from a crime scene ‘in a matter of seconds’.⁴

DNA testing also can be a useful investigatory tool in the exclusion from suspicion of a suspect. Later testing has led to the quashing of a number of convictions, particularly in the United States. In NSW, an innocence panel – chaired by a former judge – has been established by the Police Ministry to review questionable convictions.

The MCCOC model was based on five principles:

• The protection of privacy is important, given that DNA contains much more detail about a person than, for example, a fingerprint.

• Evidence relying on scientific expertise can be so apparently convincing that safeguards which work against both error and tampering are essential.

• The success of any database will depend on the cooperation of volunteers; therefore, public confidence in the integrity of the testing system must be maintained. Samples given by volunteers must only be used in accordance with consent.

• Harassment of convicted offenders of itself does not solve crime.

• It would be naive to assume that all those involved in DNA testing will perform their tasks properly. Accountability mechanisms must be put in place.

Legislation based on the model varies, however, in the extent to which these principles are balanced.

For example, there are two main differences between the NSW and Commonwealth Acts in their treatment of offenders. First, the NSW Act allows for testing of convicted serious indictable offenders currently serving a term of imprisonment so that their samples can be permanently kept on the database. The Commonwealth Act is much harsher, not only for serving prisoners but also for released offenders, who may be asked to consent to a forensic procedure. If no consent is given, application may be made to a court for testing to be ordered.

Second, the Commonwealth Act imposes quite strict criteria that must be complied with before the testing of suspects. The police and the courts must consider the seriousness of the circumstances surrounding the offence allegedly committed and whether carrying out the procedure is justified in all the circumstances. This protection is not present in the NSW Act. The NSW law is much tougher on the suspect. A test may be taken in NSW if it might assist in the investigation. Only the possibility of relevance must be shown while the probability of such relevance must be shown before Commonwealth testing.

Another example can be found in the provisions for taking and testing head hair root samples. These samples are now classified as ‘non-intimate’, meaning they can be taken by police without a suspect’s consent. To take samples via other intimate procedures (such as the taking of blood or a mouth swab) without consent requires a court order.

In the original MCCOC discussion paper, a distinction was drawn between the taking of intimate body samples, which would require a court order before being compulsorily taken, and non-intimate samples, which could be taken by police without the need to go to court. Hair samples were originally classified as intimate because they could yield DNA.

The distinction between intimate and non-intimate samples is based on whether the sample yielded DNA was not included in the final model Bill or the legislation based on it. Police can now take head hair roots as non-intimate samples, from which DNA can be extracted. An important nexus has been broken.⁵

DNA in the courts

To date there has been a focus on measuring the success of the procedures in the number of matches made between suspects and crime scenes. However, the real measure of success of the legislation should be the number of convictions and guilty pleas achieved. Statistics illustrating this measure of success are simply not available.

If convictions can be demonstrated to flow from DNA testing this may have a deterrent effect, causing those who are prepared to commit violent crimes to exercise restraint. To date, the experience in the UK has not shown their testing regimes to have had any great deterrent effect.

The trend in courts is now strongly in favour of the general acceptance of DNA evidence and assessments of the probability that a match exists between a crime scene and a suspect. The obvious exception to this is if firm challenge can be made to the rigour of testing procedures, subsequent analysis or calculation of probability.⁶

Questions have been raised in criminal cases in relation to the technique of DNA profiling used, in particular the Profiler Plus system. To date Profiler Plus has withstood challenges to its admissibility.⁷

Modern policing or civil liberty?

Many police and politicians want a society where every citizen’s DNA is on the database and available to be compared with a crime scene. Access to blood samples containing DNA from the Guthrie tests performed on most newborn infants would facilitate such a move. If ‘the innocent have nothing to fear’, such general inclusion on the database should not meet with opposition!

Yet there is much to fear from allowing such a broad approach to sampling and retention of DNA, even of convicted offenders.

First, it makes for lazy policing. Instead of seriously investigating crime, police may just take the sample and wait for a match. However, a match, even if found, does not mean proof of guilt, a mistake often made when the apparent success of DNA schemes in the UK is trumpeted. All a match does is indicate that the sample from the offender was present at the crime scene. It tells you nothing about how it got there. It is a useful investigative tool and, depending on the nature of the sample deposited at the crime scene, can be powerful evidence. The Scott Trurow book Presumed Innocent, premised on the planting of a semen sample, illustrates how potentially fallible even a persuasive sample can be.

Second, while DNA matching can be useful evidence capable of proving facts in issue, it may not be conclusive proof of guilt. When it comes to using DNA evidence in court the standard direction given by judges to juries is still couched in terms of probabilities: ‘The significance of a match ... establishes no more than that the accused could be the offender.’⁸

Third, there is a risk that DNA databases will be seen as a ready source of information to enable individual citizens to be identified and subject to ‘scientific surveillance’, for example, by being forced to provide DNA instead of other proofs of identity. At present, the legislation based on the model does not provide for the use of DNA sampling to identify a person.

Fourth, there are fears that the information from DNA samples could be used to profile an individual including such matters as their genetic makeup. At present the Profiler Plus system uniformly used in Australia uses parts of the DNA that contains no material that allows for determination of the donors’ physical characteristics other than their sex. In addition, the material entered on the database is simply a digital code with no identifying genetic features. Severe penalties for unauthorised access are provided in the various Acts.

However, the samples themselves can yield much more and as technological advances are made, the temptation will remain for legislation that allows for the re-examination of retained samples. Science is not static. Attempts to determine ethnicity and even whether a ‘criminal gene’ exists are being made.⁹

Depending on your view of the world this is either a good thing or gives rise to deep ethical concerns about how much knowledge the state should have and retain about its citizens.¹⁰ What is important is that legislation based on the MCCOC model contains provisions which protect individual privacy. Those protections should not be swept aside in the next bout of law and order hysteria.

How such protections and the balance between efficient law enforcement and individual civil liberty can be retained in a climate of persistent punitiveness is a very real question. There will always be a temptation to respond to the latest criminal outrage highlighted in the popular press with promises that the police will be given more powers. Rarely has the question asked: what about the existing punitive powers – why aren’t they being used efficiently? The problem stems from an emphasis in extracting retribution after commission of the crime rather than using modern policing methods and investing resources in addressing causes of crime and deterrence.

The experience in the UK is that where a serious crime has been committed the courts can and will still allow tainted evidence to be used against an accused.¹¹

When the police ask for new powers they should first be encouraged to use effectively the ones that they have.¹² When combined with solid and targeted investigations, DNA material can be a powerful investigative tool. If used effectively and in conjunction with other material, it can provide powerful evidence. This requires trained crime scene examiners and analysts. If challenges to DNA evidence are to be avoided, the independence and competence of these examiners and analysts cannot be compromised.

Conclusion

There will be a trend calling for more and more citizens to be placed on the national DNA database. These calls should be resisted.The successes and failures of the current legislation should first be carefully evaluated. Intimate testing to obtain DNA, while generally benign, can involve the violent invasion of a person’s physical integrity, as graphic footage of the sampling of a recalcitrant prisoner shown recently on SBS television demonstrates.¹³

Too great a reliance on DNA testing can lead to lazy policing without promise of convictions of the guilty. It can lead to calls for more powers and more testing of samples in response to law and order propaganda, not hard facts. It can lead to the state having a degree of information on citizens that is far from healthy in a democracy premised on individual liberty. For too long, the ‘greater good of the state’ has been the tool of totalitarian regimes for it to sit comfortably with our democratic society.

On the other hand, efficient use of DNA testing should, if resources are well targeted, result in quicker and more secure convictions for certain types of crimes. In some cases innocence can be established and resources devoted to pursuit of the real offender.

The MCCOC model sought balance. To an extent it favours the policing side rather than that of individual integrity and liberty. It is too soon to see whether the balance is right, but we must be vigilant. The NSW Act is less than 12 months old but already the NSW police have asked for more.¹⁴

* Andrew Haesler is a New South Wales Barrister and Public Defender.

Endnotes

1. DNA – Deoxyribonucleic acid is a molecule found in the nucleus of every cell (except red blood cells). It contains the genetic blueprint for an individual. With the exception of identical twins it is now accepted that no two individuals have the same DNA.

2. The Crimes (Forensic Procedures) Act 2000 (NSW) commenced on 1 January 2001 and the Crimes Amendment (Forensic Procedures) Act amending the Commonwealth Crimes Act 1914 (Cth) commenced on 20 June 2001.

3. See Crimes Act 1914 (Cth) ss 23YUA to 23YUD.

4. JD Mobbs, NCIDD - An Investigation Tool for the Future, Seminar paper, NSW Institute of Criminology, 11 April 2001.

5. B Saul, ‘Genetic Policing: Forensic Testing in NSW’ (2001) 113 Current Issues in Criminal Justice 1, 86.

6. See, for example, R v Pantoja (1996) 88 A Crim R 554; R v Milat (1996) 87 A Crim R 44; R v Lisoff [1999] NSW CCA 364; and R v Kerr [2001] NSWSC 637.

7. See R v Karger [2001] SASC 64 (Unreported, Supreme Court of South Australia, Mullighan J, 29 March 2001); R v McIntyre [2000] NSWSC 31; and R v Gallagher [2001] NSWSC 462 (although Mr Gallagher was ultimately acquitted).

8. See R v Pantoja (1996) 88 A Crim R 554, 564.

9. G Turbett, ‘In Defence of DNA: A Scientist’s Perspective’ (2001) 26 Alternative Law Journal 4, 177.

10. E Webb & K Tranter, ‘Genes R Us’ (2001) 26 Alternative Law Journal 4, 168.

11. See Attorney General’s Reference No 3 of 1999 [2000] 1 All ER 577, [2000] UKHL 63, where a sample which should have been destroyed was retained and subsequently tested.

12. The broccoli principle: you can’t have dessert until you eat what’s already on your plate!

13. SBS ‘Police Force’ Insight, 31 May 2001.

14. NSW Police Submission to the NSW Legislative Council Standing Committee on Justice, May 2001.