From Our Desk

The shortcomings of the Queensland Health Forensic and Scientific Services Section (QHFSSS) have exposed significant issues which may amount to miscarriages of justice.  Criminal lawyers are rightfully concerned in regards to the potential for serious miscarriages of justice to have occurred, even amounting to wrongful convictions, in the criminal trial process.

The Queensland Government made public the interim report of the Commission of Inquiry into Forensic DNA Testing on 20 September 2022[1] and the preliminary findings caused immediate concern.[2] In the report, Commissioner Sofronoff KC outlined how expert witness statements issued by the QHFSSS have been potentially misleading the Court regarding the results of scientific DNA analysis conducted (or often not conducted) by that organisation.

The interim report outlines that a policy commenced in early 2018 which radically altered the quality of the analysis conducted by QHFSSS.  The policy was deliberate and systematic.  An administrative decision was made by the management of the QHFSSS to not conduct analysis of ALL biological samples lodged as exhibits seized during criminal investigations. This management decision determined that only those samples which exceeded a certain predetermined level would be subjected to forensic analysis.  The rationale for this decision was that the analysis of such comparatively small samples was unlikely to reveal sufficient evidence to warrant the costs incurred in conducting such analysis.

The interim report found that this administrative policy was not readily known outside of those scientists employed within the QHFSSS.  The Queensland Courts were not only not advised of the existence and operation of this administrative policy, but more disturbingly, the wording used by those expert witnesses during court proceedings could be construed as being misleading and potentially amounting to a miscarriage of justice. 

The failure to conduct an analysis of these exhibits was never acknowledged by the QHFSSS in court proceedings. Instead the statements contained predetermined and pre-agreed statements such as “Insufficient DNA for Analysis” or alternatively “No DNA Detected.” The interim report established that these statements were incorrect and misleading.

The Commission of Inquiry heard evidence from numerous expert witnesses who challenged the accuracy of the statements made by those employed by the QHFSSS. The evidence given to the Commission of Inquiry refutes the position of the QHFSSS.  Those exhibits could have been analysed and many of the experts indicated that a DNA sample sufficient for court purposes could have been expected to have been located in approximately 30% of those exhibits. 

During the Commission it was established that: biological samples under the threshold established by the QHFSSS could be analysed and it was possible that a complete DNA analysis could be obtained. In most instances the QHFSSS did not even attempt such analysis. Matters have proceeded through the court system with no such analysis ever having been conducted on those biological samples. Furthermore, the potential for a miscarriage of justice is compounded because this fact was never disclosed to any of the participants in those proceedings.

The overwhelming media focus from the interim report was on the fear that the failure to analyse these DNA samples may have led to legitimate offenders escaping justice. Already both the interim report and the testimony of numerous witnesses during these hearings have led to numerous calls for reform to Queensland’s double jeopardy laws.[3] Proponents of such law reform argue that it is improper for an accused person to escape conviction in circumstance where an actual analysis of the biological sample may have revealed highly probative evidence which would have assisted the prosecution case. 

Unfortunately, most of those advocating such legislative changes do so without having regard to the underlying adversarial nature of our criminal justice system. It is for the prosecution to prove the charges brought against the accused person. It is regrettably a decision made indirectly by the prosecution to not analyse the biological material seized as part of those investigations. Whilst the Commission of Inquiry clearly recognises that the office of the Director of Public Prosecutions (DPP) appeared to be totally unaware of the management practices concerning the QHFSSS, the Queensland Police Service (QPS) appeared to have been fully informed and complicit in the practices.

However, the failure of the QHFSSS to analyse biological samples obtained during criminal investigations does not only have significant ramifications to criminal prosecutions. Whilst DNA evidence is highly probative in certain instances relating to an accused person’s guilt, it is also highly probative, in certain instances, in establishing a person’s innocence. 

Unfortunately, the failure of expert scientific witnesses to adequately fulfil their obligations and objectively analyse biological evidence is not a recent deterrence. In 2001 the Queensland Court of Appeal (QCA) in R v Button[4] acquitted a post-convicted accused person because of “fresh” DNA evidence obtained after that person’s conviction in relation to a serious sexual offence. The acquitted person spent 10 months in custody for a crime that he did not commit.

In that instance the scientific experts, then based at the John Tonge Centre, failed to analyse pertinent relevant exhibits at any stage prior to the completion of the criminal trial.  The jury that convicted the accused was totally unaware that there was outstanding scientific DNA analysis which had never been conducted. This DNA analysis was only later conducted post-conviction through the assistance of the accused person’s lawyer and with the support of an order from the QCA.

In acquitting the accused the court stated that:

“Today is a black day in the history of the administration of criminal justice in Queensland. The appellant was convicted of rape by a jury and has spent some approximate 10 months in custody in consequence of that conviction (for a crime that he did not commit).  DNA testing carried out at the assistance of his lawyers after that jury verdict has now established that he was not the perpetrator of the crime in question, and indeed the recent DNA testing would appear to have identified some other person as the perpetrator of the crime.” [5]

This judgement was delivered 21 years prior to this Commission of Inquiry, and it appears that the same problems afflict our scientific experts today.

DNA analysis has been shown to be invaluable in rectifying wrongful convictions in other jurisdictions. The success of the innocence projects in the USA attests to the invaluable role played by scientific evidence in correcting miscarriages of justice and wrongful convictions. Both the UK and New Zealand have established separate independent specialist bodies designed to investigate potential wrongful convictions objectively. Australia has no such specialist body; it relies entirely upon the Appellate Court system as having the overwhelming authority to rectifying wrongful convictions.

Australia’s ability to rectify erroneous convictions is hindered because there are no laws which require the police, prosecution, or any of the scientific laboratories to retain the forensic evidence at the extinguishment of an accused person’s appeal rights. It is accepted that at a time determined by the administrative body holding those exhibits, not under 28 days from the conclusion of the accused last post-conviction appeal rights, that all exhibits may be destroyed. This is not the situation in the USA, which is required, because of capital punishment, to retain such exhibits indefinitely.

The results obtained by the Commission of Inquiry into Forensic DNA Testing further highlight the real inherent flaws which currently exist in the system. Should you or anyone you know have any concerns in relation to a conviction where DNA analysis of exhibits may not have been conducted during a trial, please contact the team at Fisher Dore Lawyers for a consultation as soon as possible.  Strict appellate time constraints may apply.