Access to crime scene samples
44.76 Where the prosecution seeks to rely on DNA evidence in a criminal prosecution, the usual procedure is for the prosecution to give defence counsel access to the crime scene samples, and the analysis results, as part of pre-trial disclosure.
44.77 Where a DNA sample is obtained from a suspect under Part 1D of the Crimes Act, the Australian Federal Police (AFP) must make part of the material available to the person as soon as practicable after the procedure has been carried out. If the material is analysed in the investigation of the offence, the AFP must ensure a copy of the analysis results are made available to the person.
44.78 There is no legislative requirement at the federal level that the prosecution must provide all or any part of a crime scene sample to a defendant. By contrast, the Crimes Act 1958 (Vic) requires that where there is sufficient material, a part of the crime scene material must be forwarded to the suspect (or any person from whom a sample has been taken in relation to the offence) on request.
Issues and problems
44.79 The Queensland case of R v Button provides an example of the potential consequences where the prosecution fails to analyse a crime scene sample prior to trial—or even to notify the defence of its existence so that they may arrange its analysis. In that case, the Queensland Court of Appeal held that the failure to analyse certain samples led to a miscarriage of justice. If the samples had been analysed before the trial, the defendant would have been excluded as a suspect in the investigation. Instead, the samples were not analysed and the defendant was convicted of the offence. Williams JA commented:
What is of major concern to this Court is the fact that the evidence was not available at the trial … What is disturbing is that the investigating authorities had also taken possession of bedding from the bed on which the offence occurred, and delivered those exhibits to the John Tonge Centre. No testing of that bedding was carried out prior to trial. The explanation given was that it would not be of material assistance in identifying the appellant as the perpetrator of the crime.
44.80 Williams JA emphasised that there is a two-fold purpose of DNA testing: being to identify the perpetrator of a crime, and to exclude a possible offender as the perpetrator.
Submissions and consultations
44.81 DP 66 proposed that forensic procedures legislation should be amended to provide that the prosecution has a duty to provide defendants withreasonable pre-trial notice of all DNA samples collected at a crime scene in order to give defendants an opportunity to have this evidence independently analysed.
44.82 Most of the submissions supported the proposal. The Law Institute of Victoria commented that:
It is an important rule of our criminal justice system that allows defendants an opportunity to consider all evidence to be adduced against them. This is even more vital where the evidence carries the potential prejudicial value of DNA evidence, and its technical nature may require time and expert advice to comprehend.
44.83 The Queensland Government broadly supported the proposal, but noted that:
as the collection of DNA samples becomes an increasingly routine investigative procedure, there will be direct cost implications for the criminal justice system as challenges to the validity of a DNA analysis become more common. It is suggested that in addition to requiring the prosecution to give the defence reasonable pre-trial notice of all samples collected at a crime scene, the prosecution must also give the defence reasonable pre-trial notice of which DNA samples it intends to tender as evidence in a trial.
44.84 The Victoria Police expressed concerns about laboratories’ practical ability to meet pre-trial disclosure deadlines:
This proposal must take note that any pre-trial notice is generally already adopted through legislation (eg. Magistrates’ Court Act [Vic]) and is largely dependent on the ability of the laboratory to meet the imposed deadline. Provided resources meet the output capacity, this should not be an issue. However, if demand rises and ability to complete cases within prescribed timeframes becomes more difficult then the court dates may need to be amended.
44.85 The New South Wales Police Service opposed the proposal on the basis that to provide notice of all samples obtained from a crime scene might infringe third party rights.
There may be many samples found at a crime scene that are irrelevant to the investigation of the offence. For example, at a break, enter and steal the DNA profile of the victim found in the house. It may be a breach of those persons’ privacy to disclose those details to the defence and allow them access to the profile.
44.86 In any criminal proceedings in which the prosecution relies on DNA evidence, it is important that the defence be given notice of, and access to, all genetic material collected from the crime scene. In addition, the defence should have sufficient access to retesting and independent expert advice, and be in a position to evaluate the probative value of the evidence and cross-examine the prosecution’s expert witness effectively.
44.87 Access to independent DNA analysis and advice is fundamentally important to ensure that a defendant receives a fair trial. This is particularly true where analysis of a crime scene sample may provide material evidence that would assist the defence in rebutting the prosecution case.
44.88 As discussed above, Part 1D of the Crimes Act requires the AFP to provide suspects with a portion of any DNA sample taken from them by way of a forensic procedure—where there is sufficient material to share—and a copy of the analysis of that sample. The Inquiry considers that as a matter of procedural fairness, similar provisions should apply in relation to crime scene samples. The prosecution should have a duty to provide the defendant with reasonable pre-trial notice of all DNA samples collected at a crime scene in order to give the defendant an opportunity to have this evidence independently analysed.
44.89 The Inquiry notes the Queensland Government’s suggestion that the prosecution should be required to give the defence pre-trial notice of which DNA samples it intends to tender as evidence in a trial. However, as this reflects the existing legal requirement for pre-trial disclosure of evidence, it is not necessary to incorporate this into the recommendation.
44.90 While some samples found at a crime scene might be irrelevant to the proceedings, it is important to the fairness of the trial that the defence be given pre-trial notice of the existence of such samples. The Inquiry proposes that the defence be given a list and description of all samples found at the crime scene; the defence would then need to request access to the physical samples themselves.
Recommendation 44–4 TheCommonwealth should amend the Crimes Act 1914 (Cth) to specify that the prosecution has a duty to provide defendants withreasonable pre-trial notice of all relevant crime scene samples in order to give them an opportunity to have such samples independently analysed.
Defence access to independent analysis
44.91 As a result of the small number of forensic laboratories conducting DNA analysis for law enforcement purposes, practical difficulties may arise for defendants in obtaining independent analysis of, and expert advice about, the DNA evidence relied on by the prosecution.
44.92 Dr Ian Freckelton has stated that
the reality in Victoria, as in many other jurisdictions, is that the pool of available experts in DNA profiling is shallow and almost exclusively to be found within the state facility (in Victoria part of the police force) that undertakes the overwhelming majority of forensic science work. For defendants who wish to re-analyse they have had little option but to seek assistance from one scientist who formerly worked at the Forensic Science Centre … or to seek advice interstate … For a range of reasons, this can be logistically and financially problematic.
44.93 Justice Michael Kirby, of the High Court of Australia, has commented:
Effective facilities [should be] provided to suspects to permit them a secure independent scientific scrutiny of DNA samples alleged to relate to them. It is important that the relevant experts should not be entirely within the employ of the state. Just because a result is produced by an expert or a machine is no reason to accept it without further questioning, or the right to question, the applicability, accuracy and reliability of such a result. An abiding difficulty of the present age is the unwillingness of many to accept that experts and machines sometimes err.
44.94 Several of the submissions received by the Inquiry raised concerns about the impact of the cost of DNA testing and expert advice for the defence. For example, the NSW Legal Aid Commission commented on the cost of obtaining DNA analysis and expert advice:
An increasing emphasis on DNA evidence adds to the cost of criminal trials in circumstances where the Commission’s budget is already overstretched. The Commission is a significant participant in the criminal justice system. However, increases in funding to law enforcement agencies are not accompanied by increased Commission funding. An increasing emphasis on expensive DNA evidence in criminal trials will have an impact on the services the Commission can provide to its clients.
44.95 The Inquiry recognises that due to the small number of forensic laboratories currently conducting DNA analysis for law enforcement purposes, practical problems arise for defendants who wish to obtain an independent analysis of, or expert advice on, the DNA evidence sought to be relied on by the prosecution in criminal proceedings. In practice, defendants might need to go to another Australian jurisdiction, or overseas, to obtain these services.
44.96 Access to independent testing and expert advice regarding prosecution evidence goes to the fairness of the trial; lack of access to these services could result in a miscarriage of justice. While this issue falls outside the Inquiry’s terms of reference, it is a matter that the Inquiry considers needs urgent attention by the Standing Committee of Attorneys-General.
Crimes Act 1914 (Cth) s 23XU. However, if there is insufficient material to be analysed both in the investigation of the offence and on behalf of the suspect, and the material does not need to be analysed immediately after the sample is taken, the suspect can request that a person be present while the material is analysed, or to be present personally during the analysis: Crimes Act 1914 (Cth) s 23XUA.
Crimes Act 1914 (Cth) s 23XW.
Crimes Act 1958 (Vic) s 464ZC.
R v Button (Unreported, Queensland Court of Appeal, Williams JA, White and Holmes JJ, 10 April 2001).
Australian Law Reform Commission and Australian Health Ethics Committee, Protection of Human Genetic Information, DP 66 (2002), ALRC, Sydney, Proposal 37–4.
Centre for Genetics Education, Submission G232, 18 December 2002; Institute of Actuaries of Australia, Submission G224, 29 November 2002; Human Genetics Society of Australasia, Submission G267, 20 December 2002; Association of Genetic Support of Australasia, Submission G284, 25 December 2002; Department of Human Services South Australia, Submission G288, 23 December 2002; Law Institute of Victoria, Submission G275, 19 December 2002; National Legal Aid, Submission G314, 19 February 2003.
Law Institute of Victoria, Submission G275, 19 December 2002.
Queensland Government, Submission G274, 18 December 2002.
NSW Police Service, Submission G306, 22 January 2003.
I Freckelton, DNA Profiling: Collection, Use and Effectiveness — An Issues Paper (2002), Victorian Parliament, 33–34.
M Kirby, ‘DNA Evidence: Proceed With Care’ (2000) 12 Judicial Officers’ Bulletin 57, 59.
New South Wales Legal Aid Commission, Submission G087, 21 January 2002. See also National Legal Aid, Submission G314, 19 February 2003.