Insights into the DNA Inquiry

Share

Social Media Twitter Facebook LinkedIn

The problems with DNA analysis of exhibits has caused considerable controversy, after recent disclosures made as part of the Commission of Inquiry into Forensic DNA Testing.

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. 


  1. https://www.health.qld.gov.au/_data/assetts/pdf_file/00036/117497

  2. Justice Denied in Lab Bungle – Report Slams DNA Decision that Let Crims off the hook – The Courier Mail, Wednesday 21 September 2022

  3. R v Button [2001] QCA 133

  4. Ibid at page 1

  5. Ibid at page 1

  1. Photo credit: Chokniti Khongchum

This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact the Fisher Dore team.

 

Don't take our word for it, here's what our clients say:

left arrow round - Fisher Dore LawyersRight

Fisher Dore Lawyers have to be the best criminal lawyers in Queensland.

Michael

Great law firm. Technically brilliant, and focused on achieving the outcome that the client wants... and achieving it as quickly as possible.

Josh - Facebook Review
5 star icon - Fisher Dore Lawyers

Excellent representation - solid advice - great outcome.

Michael - Google Review
5 star icon - Fisher Dore Lawyers

Highly recommended. Real people. Respectful.

Sylvia - Google Review
5 star icon - Fisher Dore Lawyers

I’ve prosecuted against Nick Dore and I’m a fan of his work. If I ever needed a Defence solicitor in my corner, I’d choose him... what can I say, the man is brilliant.

Acts1power - Google Review
5 star icon - Fisher Dore Lawyers

Fisher Dore are Brisbane’s best law firm. Honest, genuine and (most importantly) competent lawyers who will help you achieve justice. I give them 10/10.

Moreish Food - Google Review
5 star icon - Fisher Dore Lawyers

Long term professional association. Established credibility and integrity. A pleasure to be involved in multidisciplinary team work in benefitting clients.

Alec - Google Review
5 star icon - Fisher Dore Lawyers

The only law firm I trust!

Kimberley - Google Review
5 star icon - Fisher Dore Lawyers

Friendly and professional. Highly recommend the team. Approachable and non-judgemental with a passion and extensive knowledge of what they do.

Rachael - Google Review
5 star icon - Fisher Dore Lawyers

This firm was so easy to talk to, compassionate, reliable and 100% hardworking. Thanks so much.

Mich - Google Review

We can't express how grateful we are for all your kindness, support and generosity during this difficult time. With sincere thanks.

Thank you Fisher Dore for all you have done to release the burden we have been living with...well done.

Just want to say thank you for all your help and effort you have put in. You go above and beyond. I appreciate everything you and your team have done for me in helping better my life!

Thanks again…for going above and beyond what I could have ever imagined. I am so grateful I can now get on the right track and move forward with my life.

Thank-you for all the hard work you have put into my case and your continued support throughout the last few months. I appreciate everything you have done for me.

Thank you for fighting for me and for doing such a great job. Please pass on my gratitude to the team.

Thank you for your compassion, dedication and hard work throughout this difficult time. This has been life changing for me and I can't imagine how I would have got through this without your support, professionalism and expertise. I'm so grateful for your efforts and the great work you did on my behalf. Thanks again for going above and beyond, and doing everything you could to win my case.

I just wanted to put into writing, just how profoundly grateful I am for the sound advice & skilful representation you provided. The outcome you secured for me was better than I could have dared to wish for. I owe you a debt of gratitude.

5 star icon - Fisher Dore Lawyers

I personally have known Mr Fisher for 20 years and in my opinion this firm is by far the best representation in Brisbane city and surrounding districts! My first pick always and best results from both Mr Fisher and Mr Dore and their team!! Thanks guys.

Mohammed - Google Review

I just wanted to say thank you very much for your handling of my case. I am very pleased with the outcome as well as your professionalism in communication and encouragement in my difficult time. Once again, thank you very much.

I want to thank you for looking after us both in a legal sense and in your sense of care. This has been enormously stressful. Having your diligent professionalism was greatly reassuring.

You will always be known to me and my family as the person who gave us the biggest gift we could ever want. Thank you, thank you, thank you.

Thank you so much for your amazing work. You have made a compelling argument for me and I believe my application was successful only because of your excellent work. You have always been very professional, punctual and provided me with accurate advice at all times. I am extremely grateful that I had you as my lawyer.

5 star icon - Fisher Dore Lawyers

Strongly recommend if you would like the best chance at freedom.

Alex - Google Review
5 star icon - Fisher Dore Lawyers

Thank you to the wonderful and professional team at Fisher Dore Lawyers. The experience you brought to the table was nothing but excellent, achieving an amazing result.

Andrew - Google Review
5 star icon - Fisher Dore Lawyers

When you want the best this is the number you call. They do it right the first time. Thanks Nick.

Dale - Google Review

We cannot thank you enough for the amazing outcome; it was so much better than we could have hoped for. Having a highly skilled professional such as yourself was so beneficial, thank you again.

5 star icon - Fisher Dore Lawyers

Professional but caring! Very informative and assisted in navigating me calmly through a very stressful situation. Very experienced. Highly recommend.

5 star icon - Fisher Dore Lawyers

Michael is a fighter, and a winner, to say the least. Truly amazing, words cannot express my gratitude. I had a complex situation, he was able to find a way through the puzzle.

James - Google Review
5 star icon - Fisher Dore Lawyers

Very friendly and professional. Perfect solution for your legal difficulties.

Syed - Google Review
5 star icon - Fisher Dore Lawyers

Mark - Google Review
5 star icon - Fisher Dore Lawyers

Amazing service! Professional, frank, straight forward and no nonsense legal advice you can rely on. Worth absolutely every dollar I've spent. Communication has been first class. I have felt really supported from the moment I engaged their services. So far, my experience has been entirely positive. If you are facing a tough case, and need the best of the best, look no further. I can't recommend this firm highly enough!

Judah - Google Review
5 star icon - Fisher Dore Lawyers

My experience with the firm relates to a common law claim for compensation, in which I was represented by Brendan and Steve and their associates. They did an absolutely amazing job and it was right in the very deepest of the pandemic that they assisted me. There was a fantastic result for me and the work done by the team was "above and beyond". In the very height of the unusual circumstances of the pandemic, these lawyers continued to provide the absolute highest standard of representation. My claim for compensation was related to circumstances of a sensitive nature. And the ability of the team to be compassionate, yet professional and focused on the details pertaining to a result was again "above and beyond". Brendan, especially stands out as a lawyer who not only understands the workings of law relating to compensation but also has the ability to relate and understand and act accordingly and appropriately to ensure a good result and at the same time providing a comfortable environment for a client like myself who has a claim relating to sensitive issues. Thanks so much Brendan. And thank you Fisher Dore lawyers.

Peter - Google Review
5 star icon - Fisher Dore Lawyers

I’m so happy I chose Fisher Dore. My lawyer Hamish was outstanding, professional, courteous, transparent and reliable from minute one. I cannot praise him enough; he fought hard to get the best result and kept me notified throughout. I always felt Hamish and his team were by my side. I highly recommend Fisher Dore as I am forever grateful to them.

David
5 star icon - Fisher Dore Lawyers

Extenuating circumstances led to a license cancellation due to previous criminal history. Antoinette and Tanya worked together to compile all the correspondence, facts and supporting evidence which led to my license being reinstated by the government agency. This was completed within a prompt time frame and their support through the process was outstanding. Highly recommend their services.

Stephen
5 star icon - Fisher Dore Lawyers

Tom just about had a crystal ball, he knew what was likely to happen based on prior experience. This enabled a patient strategic approach to achieve a much better outcome than expected. I am still amazed at the final result. I am extremely grateful. Tom was professional, empathetic and a realist. Tom was tactical, strategic and patient. Tom engaged expert Counsel to negotiate reduced charges, including dropping a very serious fraud charge. Tom was thorough, maintained communication to keep me updated and showed attention to detail. I now appreciate the complexities of an adversarial legal system that is under pressure and the need for an expert criminal lawyer to navigate you through the process. My advice to anyone who is about to be questioned by police or who has been charged with a criminal offence is to contact Fisher Dore. Do not give up hope, trust their expertise and accept their advice and advocacy. Thank you Tom!

Close popup tab