DNA Inquiry – Bombshell update

In my last article I discussed a very significant event that is currently unfolding in Queensland, that had the potential to shake up the entire criminal justice system. For those of you who hadn’t read that article, I’ll provide a brief recap here.

On 6 June 2022 Premier Annastacia Palaszczuk announced a commission of inquiry – a formal hearing that is conducted in relation to matters of great public importance – into Queensland’s state-run forensics laboratory to “restore confidence” in DNA testing.

What prompted the inquiry was that the Queensland Police Service (those who are tasked to collect DNA samples) ordered the Queensland Health Forensic Scientific Service (QHFSS), who are responsible for the testing and processing of DNA evidence, 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.

The inquiry was scheduled to run from 13 June 2022 to 13 December 2022 but also had the power to release ‘interim’ findings – which are findings that are released prior to the expiration of the hearing date due to urgency.

The interim report

The interim report, released by Health Minister Yvette D’Ath on 20 September 2022, has found that statements made by forensic witnesses that DNA was not detected or was insufficient for further processing were not always correct, as DNA was obtainable in some samples if further testing had been conducted. This came as no surprise to anybody who was following the inquiry, and it was only a matter of time until this finding was released.

Queensland Police Service (QPS) and QHealth have formed taskforces to identify and review all cases in which those statements were made by forensic witnesses. This is likely to include the retesting of samples, and the Justice Department has noted that there could be retrials in limited circumstances.

The government has vowed to retest every DNA sample taken in the state during the last four years. Queensland Police acting assistant commissioner Marcus Hill said no one knew how many cases might be affected but it could be in the thousands. “Worst case scenario, there could be people that are offenders that are still out there.”

The ‘threshold’ problem

The inquiry, led by retired Court of Appeal president Walter Sofronoff KC found Queensland Health’s Forensic Scientific Service would routinely dismiss DNA samples under a certain threshold as not being reliable enough to produce proper results.

However, that threshold line seemed to be arbitrary. New South Wales, for instance, tested DNA samples with half the number of cells of Queensland. It meant that samples that could have produced a full or partial profile were ignored by the Queensland lab.

“The absence of DNA evidence when it was actually available might have resulted in a line of investigation by police being unnecessarily weakened or abandoned,” Mr Sofronoff wrote.

“Also, a prosecutor might be inclined to accept a plea of guilty to a lesser offence because of the absence of such evidence which, if it had been obtained, would have sustained a conviction for a more serious offence.

“I am of the opinion that the practice of putting forward these untrue statements as true expert evidence is a profound issue for the administration of criminal justice, for the integrity of police investigations and for decisions made by victims of crime.”

What does this mean?

The Queensland government will now have the massive task of going back and reviewing all matters in which QHFSS concluded that there was insufficient DNA for further testing to identify matters in which there were missed opportunities for charging or conviction. From 2018, this could be anywhere up to 9,000 different matters.

This re-testing has the potential to lead to the arrests and charging of those involved in serious crimes such as murders, robberies and rapes. And these are just the ‘easy’ matters, because it will simply be a process of charging and prosecuting any other defendant who is charged and prosecuted for the first time.

The more complicated ones are the ones which involve defendants who have already gone to trial, whether or not they were convicted. These matters are far more complicated because of the sorts the questions that will need to be asked. Did a prosecutor choose a certain course of action due to the lack of supporting DNA evidence, and if so, what then should be done with the matter? Should the defendant be re-tried? What other evidence was there available to the prosecutor at the time? What if the defendant decided to plead guilty to an offence that they didn’t commit, because there was no DNA evidence to implicate another person? Should their convictions then be overturned and they be allowed a new trial?

These are extremely difficult questions to answer and the entire situation is extremely complicated. I’ll keep my readers updated once there are any significant developments.

If you’re needing assistance with legal matters or determining your legal rights, Cridland & Hua are the specialists amongst Brisbane Law Firms, practising exclusively in criminal and quasi-criminal law. Contact us today.

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