DNA EVIDENCE: PROCEED
WITH CARE
The Hon Justice Michael Kirby
My work as a member of the Ethics Committee of the
Human Genome Organisation has taught me much about DNA,
the human genome and their potential to change the ways
many things are done in society, including in medicine,
science, policing and the law.
There is no doubt that, in the future, DNA evidence
will be an important tool for effective policing.
It will sometimes provide a means to establish the
innocence of a person accused (or even convicted) of a criminal
offence by demonstrating that the perpetrator was almost
certainly, or even certainly, someone else. In appropriate cases, it
will also help to eliminate suspects, narrow down the possibilities
and even identify the persons responsible for serious crimes
who leave behind traces of their DNA like a genetic fingerprint.
Despite some recent cases which suggest that DNA
evidence can sometimes be faulted, because matching of DNA
with a suspect is, in a particular case, mistaken, overwhelmingly DNA evidence will be reliable. It will be accurate. It will therefore help the legal process, both
in criminal and civil cases. In some cases where it is
applicable it will help solve unresolved crime and confine
at least some unmeritorious defences to criminal prosecutions.
Nevertheless, the introduction of enhanced facilities
for procuring DNA samples from persons suspected of criminal
offences should, in my view, occur in a way that is compatible
with the basic principles of our legal system. That system places great store on bringing
to justice those who can be proved by a public prosecuting
agency, to the requisite standard, to be guilty of a criminal
offence. But it also assigns great importance to other
social objectives. These
include:
§
the control of the power
of the state to intervene in the lives of individuals; and
§
the imposition on the state
of the obligation to prove its case against persons accused
and to do so by strongly convincing evidence.
Doubtless, we could reduce crime somewhat by adopting
a number of different strategies, such as a widespread network
of paid informers, universal telephonic interception, unrestricted
electronic eavesdropping, aggressive inquisitional procedures
and draconian punishments.
Because Australians place a high store on individual
liberty, they have so far rejected these expedients.
In the name of preserving a particular kind of society,
they have imposed legal restrictions on the use of these
means. For the same
reason, they ordinarily subject proposals to enhance the
power of the state and its officials to proper and careful
scrutiny characterised by a measure of caution and scepticism. This is especially so where demands for greater official powers
are accompanied by extravagant claims and media hype.
Although some commentators have rejected as inapplicable
references to the excesses of the authorities in Nazi Germany
and Stalin's Russia, more modern illustrations of the over-enthusiastic enlargement of
police powers stand as a warning against unthinking alteration
of fundamental principles.
Thus the German Democratic Republic maintained security
and police files on 500,000 of its citizens. One in three of the DDR's 17 million citizens
were at one time spied on or reports placed on an official
file. The State security organ, Stasi, had a full-time
staff of 90,000 plus, at least 174,000 paid informers, not
to mention legions of occasional narks.
All of this occurred in living memory in a highly
civilised people and comparatively modern and efficient
economy. The spied
and the spied upon are now living satisfactorily together
in the unified Federal Republic of Germany which gets by
with much more restricted police and security powers and
only a fraction of the files about citizens maintained by
the authorities
Amongst the considerations which need to be taken
into account in placing effective controls over the procurement
of body samples from individuals for DNA testing are the
following:
§
That the fundamental principles
of human rights are conformed to, as enshrined in international
instruments to which Australia is a party.
These include the basic principle, also reflected
in the common law, that a person ought not to be obliged
without good cause and authority of law to incriminate himself
or herself in relation to a criminal offence. They also include respect
for individual privacy.
§
That effective controls
are instituted that ensure that the presumption of innocence,
which is central to our criminal justice system, is not
eroded and that officials, including police, may only intrude
into the lives of individuals with just cause that can be
established to the satisfaction of an independent judicial
officer at the tie or subsequently.
§
That where an individual
objects to the provision of a body sample, whether for DNA
testing or otherwise, such objection is decided by reference
to legal criteria which take into account the need to establish
a strong reason to authorise the state to extract a body
sample from a suspect in the face of that person's non-consent. A basic question is whether enforced taking
of DNA samples, against the wishes of an accused person,
should be confined to persons already arrested in respect
of an offence or where reasonable cause to suspect an offence
can be proved. Or
whether the facility should be limited to persons actually
convicted of one offence in order then to discover whether
they were likely to have been involved in other unsolved
offences in respect of which DNA evidence is available
§
That effective procedures
are afforded to guarantee against contamination of DNA samples. The planting of evidence ("giving of presents") has been
a distinct problem for the criminal justice system in the
past. Given the likely devastating power of DNA evidence,
it becomes doubly important to ensure the integrity of collection
of samples and their transmission, storage, testing, reportage
and preservation for the scrutiny of independent experts
and, ultimately if need be, by the courts. Contamination or fabrication of evidence by
officials is only part of the problem.
The planting of false trails by criminals, designed
to implicate others as suspects, cannot be ignored.
§
That ready procedures are
provided to require the destruction of DNA samples where
a person is acquitted of the crime in respect of which the
samples were procured or where prosecution of that crime
against the suspect does not proceed within a specified
period.
§
That disproportionate investment
of personnel and resources of the state is not devoted to
DNA sampling and testing which could more effectively be
expended in other activities to uphold law and order.
The much publicised DNA testing of five hundred persons
in a country town in New South Wales (and their fingerprinting
and the collection of DNA data from them) may have been
an illustration of this. Opponents suggested that
it would have been a more effective expenditure of police
funds generally to keep the police station open at night. In the same category may
be the demands that DNA testing should be followed up by
large scale testing of employees at their workplace, in
effect to see whether they are using illicit drugs. Care would have to be observed
against extending testing for multiple causes given that,
once started, the list has an inherent and professional
tendency to expand.
§
That protections are introduced
to monitor, and to provide subject access to, DNA samples
maintained in any public register, in respect of those persons
who are convicted of crimes in relation to which the samples
were procured.
§
That limitations are established
by law to control official access to any data base by public
officials and to restrict, under judicial or other independent
control, the building of large scale, national composite
data profiles, particularly where such data is maintained
in the control of a police or equivalent body undisciplined
by effective external monitors.
§
That judicial officers who
will receive such DNA evidence, and lawyers who tender it,
examine and cross-examine upon it, are afforded basic information
and training to ensure that each can perform his or her
professional duty and safeguard the individual concerned
from risks of mistake, oppression and injustice.
§
That effective facilities
are provided to suspects to permit them to secure independent
scientific scrutiny of DNA samples alleged to relate to
them. It is important
that the relevant experts should not be entirely within
the employ of the state.
Just because a result is produced by an expert or
a machine is no reason to accept it without further questioning,
or the right to question, the applicability, accuracy and
reliability of such result.
An abiding difficulty of the present age is the unwillingness
of many to accept that experts and machines sometimes err.
There remains much truth in the old adage: garbage in, garbage out.
§
That independent statutory
guardians of civil rights, such as the Privacy Commissioner,
the Ombudsman or the Anti Discrimination Board have a role
in auditing the system put in place and monitoring its operation.
§
That the discrepancies between
the laws of different Australian jurisdictions on this subject
be reconsidered by the appropriate bodies, particularly
because of the mobility of sections of the population and
the possible difficulty of securing equivalent facilities
in respect of a person who is in another Australian jurisdiction. Such discrepancies should also be kept in mind
by judicial officers asked to interpret applicable legislative
provisions by reference to judicial authority addressed
to different legislation.
At the heart of these expressed concerns is not a
Luddite-like resistance to a valuable forensic advance to
respond with a measure of caution to what is now being promoted
as the miracle cure for future crime clear-up rates. This is simply a reminder, which lawyers are
bound to give, that our criminal law and procedure operate
in a society of a particular kind.
That the agents of the state are subject to the supervision
of independent courts. That ordinarily the state has no right to intrude
in the lives of individuals without just cause. That the law puts limits on the entitlement
of the authorities to do so in order to safeguard a most
precious feature of the kind of society we live in.
None of us would wish a society in which we could
be stopped on the corner by an official with the demand:
"Papers!".
Yet in the future the ambitious official will not
demand a passport of the paper variety or even one with
electronic coding. He
or she will want the most indelible passport of all - one
written in the subject's DNA.
To the extent that we arm officials with the power
to secure, and then to collect and then to aggregate and
match such data (and to build from it a universal data base)
we must be careful that we do not thereby reduce the measure
of individual freedom and privacy which the law presently
upholds. Our Constitution
and also our criminal justice system accept that there are
other values to be served than efficiency and clean-up rates.
None of the foregoing represent reasons to reject
the advances of science and the benefits of DNA testing.
But they are a reason to proceed with a degree of
care and to monitor carefully any new legislation that is
implemented. As
well, such legislation should be regularly audited not only
against the criterion of efficiency - but also against
the touchstone of liberty.
