Justice loses from DNA delay

Australia's criminal justice system is behind the DNA times, writes Chris Nyst

When an innocent person is convicted, everybody loses. But a single victory can become an affirmation, a defining moment that shapes a career and inspires a life's work. For me it was the day, 20 years ago, when as a young criminal lawyer I walked to the dock in an outback courthouse, swung the gate open, and said to a raw-boned young shearer: "Stand down. You're a free man."

It had not started well. When I first met him a year earlier in the old Boggo Road jail, the shearer was in deep trouble. Police had found him in his rented house early one morning covered in his house-mate's blood, still clutching the blunt instrument used to smash his head into a bloody pulp. The crime scene photographs showed the body lying face down on the carpet, spattered with blood, bone and tissue. The shearer, in an advanced state of intoxication, claimed he had disturbed an unidentified intruder, but no one was listening much. There were only two men at the murder scene. One was dead, and the other was covered in his blood, and brandishing the murder weapon.

The story might have ended there, but for the astute memory of a taxi driver who recalled the precise time he had dropped the shearer home after a big night at the local pub. The timing was crucial. It gave my client only several minutes in the house to perpetrate the crime. As a budding lawyer I was fortunate enough to have the guidance of an experienced criminal barrister whose immediate reaction was "Let's get down and have a yarn with the forensic people." A quick telephone call and a walk down George St found us in the office of the Government Scientist who had conducted the tests on the police exhibits.

He carefully went through the photographs and reports, explaining the forensic findings. When we pointed out the separate pool of black-red blood opposite the body, he was as intrigued as we were. The victim had been first attacked at some time earlier, had fallen, bled profusely for a period, and then moved to another position where the fatal blows were finally administered. Now we were all looking even more closely at a photograph that showed a strange pattern on the back of the victim's blood-soaked T-shirt.

The scientist quickly retrieved the T-shirt, which fortunately had been retained. A close inspection soon explained the patterning. Coagulated blood had formed around the indentations in the carpet, reproducing the carpet pattern on the back of the man's T-shirt. It meant two things. The victim had lain face up, not face down as he was when the fatal blows were administered, in his own blood on the carpet, and he had lain there long enough for the blood to coagulate. The forensic scientist concluded that on the times provided by the taxi driver, the shearer could not have been present when the first attack occurred.

Fast forward several years to when a young lawyer came to me, seeking my assistance on an equally troubling case. I gave him the same advice that I received 20 years earlier, and together we went off to see the forensic scientists. But this time we were met with guarded circumspection, defensive stonewalling and mutterings of the Privacy Act and Freedom of Information applications. The threat of litigation and recrimination seemed the dominant theme, not the pursuit of justice.

Since 2001, I have had the privilege of working with the Griffith University Innocence Project, a post-appeal body created to assist the wrongly convicted to prove their innocence. The Innocence Project is concerned with the discovery of new evidence, primarily DNA and other forensic scientific evidence, to detect and reverse failures in our criminal justice system.

The experience has highlighted that while internationally the wrongful conviction of innocent people has been acknowledged, Queensland and most other Australian states have no measures to facilitate DNA or other forensic scientific exonerations, no regime for the preservation of evidence post-appeal, and no access by convicted persons to forensic testing of evidence used against them. Under the current Queensland system the biological evidence relating to trials and appeals with an element of doubt might well be destroyed, and even if the evidence had been preserved, the accused would have no right to know that it was still available, or to have it tested even if he or she did know.

In the US legislation is now being enacted to enable the preservation of evidence and access to DNA innocence testing as a right. While every state in Australia allows for additional DNA testing for the purposes of a "cold hit", none provides a convicted person with the right to have evidence subjected to DNA innocence testing. Without a forensic scientist's open and enthusiastic assistance an innocent shearer would have been convicted 20 years ago. Until justice, and not merely administration, becomes the dominant theme in the administration of justice in this state, we will continue to risk and suffer failure.

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