The retention of DNA and other forensic evidence following the completion of
the trial process raises many issues for the criminal law. On one side, is
‘fresh’ DNA or other evidence to be used by the prosecution to
mount an appeal against what is perceived to be a wrongful acquittal, thereby
transgressing the rule against double jeopardy? Conversely, is such evidence to
be used to prove the innocence of a wrongfully convicted person? The problems
involved in equating wrongful acquittals and wrongful convictions are
discussed. The paper’s main findings are as follows:
- Both sides to the DNA evidence equation are live issues in the contemporary
debate, federally and for the States. At the Commonwealth level, Attorney
General Ruddock is reported to favour the abolition of the double jeopardy rule
by the adoption of legislation making it mandatory for Crown law officers to
preserve DNA evidence ‘in serious cases even after the appeals process
has been exhausted’. In 2003 the Australian Law Reform Commission
recommended the ‘long-term retention of forensic material found at the
scene of serious crimes to facilitate post-conviction analysis’. Mr
Ruddock is reported to be ‘keen to have the recommendations
implemented’. (p 2-3)
- At the State level, the NSW Attorney General Bob Debus has indicated that
legislation is to be introduced affecting both sides of the DNA evidence
equation, with a spokesman saying that ‘the Government supports retention
of DNA evidence after the appeals process has been exhausted, and the
Government is also drafting legislation for the retrial of someone after a DNA
review’. On 15 July 2006 it was confirmed that legislation would be
introduced to re-establish the NSW Innocence Panel, which is to be called the
‘DNA Review Panel’. (p 3-5)
- In the last 20 years, DNA evidence has increasingly been used in
criminal investigations and trials in Australia and overseas. DNA profiling is
often used to compare DNA deposited on a victim or at a crime scene with a DNA
sample taken from a suspect. If the two samples do not match, they did not come
from the same source. If the two samples do match, this is strong evidence that
they came from the same source but it is not conclusive. It is also noted that
the reliability of DNA evidence can be affected by contamination, lab error,
and planting. (p 6-12)
- Laws were enacted in NSW in 2000 that allow police to take DNA samples from
suspects, serious offenders and volunteers. These laws also allow DNA
information to be stored on a DNA database, and for certain types of DNA
information on the database to be matched (eg matching of a crime scene profile
with the profiles of serious offenders). Since 1998, attempts have been made to
establish a national DNA database but this has been delayed because of a lack
of uniformity throughout Australia in laws governing the collection and use of
DNA samples. (p 12-18)
- With reference to DNA exoneration cases, the term ‘wrongfully
convicted’ tends to refer to those who are ‘factually innocent
of the crimes for which they have been convicted’. Viewed in this light,
wrongful conviction cases are a distinct class, not to be confused with the
broader category of miscarriages of justice. (p 20-21)
- Miscarriages of justice and wrongful convictions alike are the products of
many diverse causes, often unrelated to DNA evidence. DNA exoneration cases are
but one class within the broader category of wrongful conviction cases. ( p
21-22)
- As at 31 July 2006, 183 people have been exonerated in the United States
due to DNA analysis. (p 22)
- The UK’s Criminal Cases Review Commission’s Annual Report in
2004-05 showed that since 1997, 6,842 convicted defendants (or in some cases,
their relatives) had sought to use its services, resulting in 271 (or 4.4%)
being referred back to the Court of Appeal; of these references, 135 (or 68%)
resulted in convictions being quashed (68%). These figures are not strictly
comparable with those for the United States. (p 26)
- Part 13A of the Crimes Act 1900 (NSW) provides for the review of a
criminal conviction or sentence. This applies where ‘there is a doubt or
question as to the convicted person’s guilt, as to any mitigating
circumstances in the case or as to any part of the evidence in the case’.
(p 27-29)
- The now defunct NSW Innocence Panel was established in August 2000
as a non-statutory body reporting to the Minister for Police. Unlike the UK
Criminal Cases Review Commissions, the task of the NSW Innocence Panel was not
to investigate offences or review convictions. Rather, its role was that of a
‘facilitator’, that is, to arrange for searches to be conducted by
Police for nominated items and for DNA testing and comparison to be carried
out. (p 32-33)
- The Finlay Review of 2003 recommended that the Panel, which is to
continue to focus on DNA evidence, should be given a legislative basis under
the Crimes (Forensic Procedures) Act 2000 providing for its membership,
duties, powers and responsibilities. A DNA Review Panel along the lines
suggested would be unique to NSW. Differentiating it from the model adopted in
the UK, it would not be a vehicle for general inquiry into all alleged
miscarriage of justice cases. Unlike the Innocence Projects in the United
States, it would operate under government auspices, albeit in an independent
capacity. If it is to operate effectively, it must be backed by legislation for
the long-term storage, preservation and retention of forensic material. (p
35-37)
- The term ‘wrongful acquittal’ is conceptually difficult.
To find any person guilty, where this cannot be proved evidentially beyond
reasonable doubt, or where the conviction is achieved by procedurally dubious
means, would be a miscarriage of justice. Of course injustices occur. The
actually innocent are convicted, just as the actually guilty are set free. It
is in this context that the term ‘wrongful acquittal’ is used,
often as the reverse side of the coin to ‘wrongful conviction’.
Both terms might be said to resonate more in popular than strictly legal
language, which is not to say that the subjects they refer to are not real
enough. (p 39)
- The rule against double jeopardy states that a person who has been
acquitted (or convicted) of an offence may not subsequently be charged with the
same offence again. It makes no difference that new evidence of guilt is
discovered after an acquittal. Is this rule to be amended? (p 39)
- The issue of double jeopardy raises many questions of a technical nature,
as well as underlying questions of principle that underpin the criminal justice
system. For those who support reform of the double jeopardy rule, the argument
is that a new ‘balance’ can be found in the criminal justice deal,
one that continues to uphold the rights of the accused while at the same time
recognising the impact made by scientific advances and applying these to
bolster the rights of victims and the interests of society at large. Those who
oppose reform might argue that the language of ‘balance’ is
misplaced in this context, suggesting as it does that rights can be traded
without loss to the individual accused and without impairment to civil
liberties generally. (p 63-64)
