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 [1] . 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 [2] .

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 [3] , overwhelmingly DNA evidence will be reliable. It will be accurate. It will therefore help the legal process, both in criminal and civil cases [4] . 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 [5] , 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 [6]

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 [7] . They also include respect for individual privacy. [8]

                 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 [9] .

                 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 [10]

                 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 [11] .

                 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 [12] . Opponents suggested that it would have been a more effective expenditure of police funds generally to keep the police station open at night [13] . 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 [14] . 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 [15] .

                 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. [16]

                 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 [17] .

                 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 [18] .

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 [19] .


DNA EVIDENCE: PROCEED WITH CARE

The Hon Justice Michael Kirby



* Based on an address to a seminar on science and digital/cyber crime at the University of Technology, Sydney, 16 March 2000.

[1] M Riley, "DNA testing gives freedom to 64th inmate", Sydney Morning Herald, 1 April 2000, 25.

[2] Fingerprinting was developed in the late 19th century and provision for the compulsory taking of fingerprints was introduced just before the beginning of the 20th century. The introduction in 1924 of statutory provisions for bodily examination of persons in lawful custody (Crimes Act 1900 (NSW), s 353A) was held not to authorise extraction of a blood sample: Fernando v Commissioner of Police (1995) 36 NSWLR 567 (78 A Crim R 64). As to further legislation since the demand was made in that case, see ibid, at 582-583.

[3] R Willing, "Mismatch calls DNA tests into question", USA Today, 8 February 2000. The report revealed an incorrect match to a burglary in England of an innocent suspect - said to be a 1 in 37 million possibility of error.

[4] Reports suggest that a "Do it Yourself DNA Kit" being marketed in Britain for 15 will be used in adoption, paternity and like cases. The kit was launched in the United States in January 2000. See The Times, 17 April 2000.

[5] P Akerman, "Giant step into an age of innocence", Daily Telegraph, 13 April 200, 27.

[6] The Economist, 8 April 2000, 46.

[7] See International Covenant on Civil and Political Rights, Art 14.2.

[8] See ibid, Art 17.1; C Puplick, "Sirens sound over privacy", Sydney Morning Herald, 13 April 2000, 17.

[9] See Fernando v Commissioner of Police (1995) 36 NSWLR 567 at 584-585, 592.

[10] C Niesche, "DNA Splits on Timing", The Australian, 27 March 2000, 6 referring to statements of the Premier, Mr R J Carr.

[11] A point made by T O'Gorman, "Genetic Databases not always benign", The Australian, 12 April 2000, 15. This subject has been reported upon by the New Zealand Report on DNA Anomalies (November 1999), noted Puplick above n 8.

[12] J Holcombe, "A presumption of guilt is going too far", The Australian, 13 April 2000, 11; L Doherty and E Connolly, "Frightening glimpse of future police state", Sydney Morning Herald, 7 April 2000, 8. See editorials "Putting our motives to the test", Daily Telegraph (Syd), 8 April 2000, 22; Role of DNA tests needs investigation", The Australian, 7 April 2000, 6. cf The State Coroner's reported remarks on praise of the Wee Waa mass screening, Sydney Morning Herald, 21 April 2000, 5.

[13] Quoted E Wynhausen, "DNA's stress test", Weekend Australian, 22 April 2000, 17 at 20.

[14] The Deputy Director of Sydney's Institute of Clinical Pathology and Medical Research (Dr Ross Vining) explained how drug tests at work had been used in the NSW Police Service. He urged their extension to air pilots, heavy vehicle operators and "anyone with public safety responsibilities". Reported ABC News Online, 31 March 2000 at 9.30 a.m.

[15] Puplick, above n 8.

[16] cf R v Pantoja (1996) 88 A Crim R 554.

[17] Puplick, above n 8.

[18] A point made by Priestley JA in Fernando v Police Commissioner (1995) 36 NSWLR 567 at 583 and by Powell JA at 593 by reference to R v Franklin (1979) 22 SASR 101. See M Chulov, "Police in doubt on using DNA to convict", Sydney Morning Herald, 15 April 2000, 9.

[19] For a comment on the abiding role of the judiciary of our tradition in this regard, see G Robertson QC cited in Sir David Williams, "Bias; The Judges and the Separation of Powers" [2000] Public Law 45 at 60.