DNA evidence – is it safe?
On 6 June 2022 Premier Annastacia Palaszczuk announced a commission of inquiry into Queensland’s state-run forensics laboratory to “restore confidence” in DNA testing. The inquiry will be conducted by a retired judge, the former President of the Court of Appeal (Queensland’s highest court), Mr Walter Sofronoff Q.C. and is scheduled to run for six months from 13 June 2022 to 13 December 2022.
The Queensland government had earlier ordered a review into the Queensland Health Forensic and Scientific Services (QHFSS) lab, but later made the decision to broaden it to a commission of inquiry after issues were raised by police over DNA testing thresholds.
This is a matter of great significance and I would expect the outcome will have a significant impact on not only the criminal justice system here in Queensland but also the wider community.
What is DNA?
To those who are not familiar, DNA is a genetic blueprint which is unique to each individual. DNA is contained within every single body cell of a human being and is made up of tiny pairs of molecules. DNA was first used in criminal investigations in 1984 to solve a very violent crime in the United Kingdom and it has been an extremely important law enforcement tool ever since.
DNA can exist in a person’s skin, hair, saliva, blood or any other body cell, provided that there is enough sample collected. Whilst it is easiest to extract DNA from an actual piece of skin, hair, drop of blood or saliva, it is also possible to extract DNA from surfaces or objects that a person has come into contact with. For example, if a person took a shower and then dried themselves off with a towel, there is a very good chance that the towel will contain skin cells (not visible to the eye) which contain DNA.
What is a ‘commission of inquiry’?
A commission of inquiry is a major formal public inquiry into a defined issue, established on an ‘ad-hoc’ basis (meaning when it is necessary or needed). In Queensland, it is created by the Premier on the advice of the government and are called to look into matters of great importance and usually controversy.
It has considerable powers, generally greater even than those of a judge but restricted to the terms of reference of the commission (the very specific questions or issues that are identified from the outset of the hearing). These powers include subpoenaing witnesses, taking evidence under oath and requesting documents.
Some of the purposes of the commission are to make recommendations or findings about the particular issue with a view to establishing change or improvement. Clearly, therefore, the ordering of a commission of inquiry into the state’s DNA facility is a matter of great importance and is scheduled to last for six months.
The ‘terms of reference’
The terms of reference are essentially the broad issues or questions that a commission of inquiry is asked to address. For this inquiry they are as follows:
(a) whether the methods, systems and processes used by the Queensland Police Service and the Forensic and Scientific Services for forensic Deoxyribonucleic Acid (DNA) collection, testing and analysis are, and have been, reliable, conducted in accordance with best international practice, and result in, and have resulted in, accurate reporting of the presence of DNA in samples submitted for testing and accurate matching of DNA samples; and,
(b) whether, if such methods, systems or processes are not, or have not been, reliable, or conducted in accordance with best international practice, or do not result, or have
not resulted, in accurate reporting or accurate matching, the reasons for any such failure.
What prompted the inquiry?
In early 2022 the Queensland Police Service (QPS) confirmed it was reviewing sexual assault cases dating back to the start of 2018 that the QHFSS had initially reported as ‘insufficient DNA for further processing’.
The process that occurs is that when a crime scene has been established forensic officers with the QPS take samples from various surfaces and locations – generally with a cotton swab – and submit them to the QHFSS for testing. The testing of the samples is undertaken by specialists with a view to identifying or excluding the presence of DNA from those samples that were provided to them by the police.
QHFSS have their own ‘threshold’ system – which means that unless the sample contains sufficient information they will not proceed further with the testing to determine whether or not an DNA profile can be extracted. In such a situation QHFSS will make a determination that there was ‘insufficient DNA for further processing’.
What prompted the inquiry was that the QPS ordered QHFSS to go back and continue with the testing of samples that QHFSS had previously determined was insufficient for further processing. And upon doing so, they discovered that there was actually a 66% success rate in extracting a DNA profile.
In summary therefore, what happened was that in 66% of cases where the QHFSS originally said that there was insufficient DNA evidence to continue, upon re-testing they were able to extract a DNA profile. The potential ramifications of this are enormous. False acquittals and wrongful convictions, and that’s before we even start to think about all of the suspects who will be identified as a result of further testing. As one expert in the field described this situation: “There’s nothing anywhere in the world that is like this and in terms of the scale how many years these issues may have gone on for.”
This inquiry is a matter of great public interest as it is in everybody’s interest that our system allows for the successful detection, identification and prosecution of the right perpetrators of criminal acts. I will follow this inquiry closely and provide updates as and when they arise.
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