Australian police resisting improved standards for DNA testing

Given the many examples of incompetent or corrupt forensic science in the USA, this is quite unforgiveable. It could mean that a villain with a smart lawyer could escape justice if his lawyer can show that the DNA testing was not done under the highest standards.

SEVEN years ago, criminologist Mark Findlay reviewed the regulation of DNA and forensic evidence for the NSW government and recommended a major overhaul.

After handing over his 176-page report, Findlay waited for his recommendations to form the basis of what he hoped would be tighter regulation of this crucial part of the criminal justice system. He is still waiting.

"Nothing of substance has happened -- certainly nothing in terms of legislation," says Findlay, professor of law at Sydney University and deputy director of the Sydney Institute of Criminology.

Findlay has his suspicions about the reasons for that lack of action. If he is right, the fate of his report highlights the scale of the challenge confronting Graham Barr, the judge who is about to revisit this subject for the NSW government.

Barr, an acting judge of the NSW Supreme Court, was given responsibility this month for conducting a second review of the regulation of DNA and forensic science evidence. He will cover much the same ground as Findlay.

So what was it that caused that first report to be shelved?

Findlay believes there was a reluctance to impose more controls that could interfere with an area of science that was viewed as essential to achieving more criminal convictions. "There was a lot of pressure out there to keep the DNA ball rolling," he says.

"Any government that tried to strengthen the legislation -- either on the basis of rights or procedural fairness -- would not get much electoral mileage even though we established that there was a need for this."

After examining this subject in some detail, Findlay says he was particularly disturbed by one aspect of what he found.

"It became apparent that a lot of operational coppers were simply ignoring the legislation" and obtaining samples of DNA using methods that were sometimes improper, he says.

Police were then relying on judicial discretion to ensure DNA evidence that might have been obtained improperly was still admitted into evidence.

"If the defence challenges the way these samples were taken, judges fairly regularly will let it in because they believe its probative value outweighs any prejudice to the accused," Findlay says.

"So we have a situation where DNA has a disproportionate impact on the lives of people, coppers are to a measurable extent involved in taking samples without worrying too much about the legislation and their evidence is getting through."

Barr's review of the NSW Crimes (Forensic Procedures) Act may be broad enough to examine the extent of this practice.

But he will first need to come to terms with the fact that a NSW Police Force representative will be part of the taskforce that will be helping him undertake his review.

When it comes to DNA evidence, the influence of police is significant, not just in NSW, but across the nation.

Barr's review comes at a time when the regulation of this area is in a state of flux. The nation's police commissioners initiated research last week that will help them decide whether DNA testing of evidence in every state will shift to the much higher European standard.

As well as the cost of adopting a more thorough approach to DNA tests, the police commissioners are assembling information on the practical impact that such a change would have on policing and the justice system.

Some might consider it unusual that police, rather than forensic scientists, are responsible for making such a key decision on a matter that is essentially scientific.

Australia does have a National Institute of Forensic Science, but it is part of an organisation whose board consists of the nation's police commissioners.

Since 2008, Australia's NIFS has been part of the Australian and New Zealand Police Advisory Agency. ANZPAA's chairman is South Australian Police Commissioner Mal Hyde, who says police across the nation recognise the importance of using the latest advances in DNA testing and are committed to a national collaborative approach.

The influence of police on DNA evidence does not end there. Some of the most important DNA testing labs are controlled by police.

Police labs provide DNA evidence in Victoria, in the Northern Territory and for the Australian Federal Police. In NSW, DNA evidence is tested by the Division of Analytical Laboratories, part of the state Department of Health.

DAL is so busy it is understood to contract out some testing to another lab that, like itself, is nationally accredited. But NSW police have their own lab -- the Forensic Sciences Services Laboratory at Pemulwuy, in Sydney's west.

This police lab does very small amounts of DNA testing and focuses on providing police with broader forensic analysis.

When NSW Premier Kristina Keneally and Attorney-General John Hatzistergos launched the Barr review, they described the police lab as a $13 million state-of-the-art facility.

The Sydney media were even given an opportunity to photograph Keneally at the facility.

So should police in NSW be able to use this modern facility to move further into DNA testing?

When that issue was considered in the Findlay report, the answer was a firm "no".

That report, which was released before the police lab was established at Pemulwuy, proposed that responsibility for DNA testing should be given to an independent government agency that would have been called the "state institute of forensic science".

"This review opposes the suggestion that the bureaucratic and financial foundation for it should be within the Police Ministry," the report says.

"If the institute must have a ministerial connection, it cannot be with its principal client as this would entirely destroy any claim to at least operational independence."

One of the reasons Findlay's report favoured organisational independence was concern that scientists could be vulnerable to subtle pressure to adopt "a culture generated by a principal client or by the nature of the majority of the work unertaken".

"If an organisational buffer is in place which enables scientists to work independently of the interests of their principal clients, then the scientific independence of the laboratory will be fostered," Findlay's report says.

The report's call for independence pre-dated last year's recommendation by the American Academies of Science for the establishment of an independent institute of forensic science to oversee forensic standards in the US.

The chief scientist at the NSW police lab, Tony Raymond, says his facility has a complementary relationship with DAL.

Police still buy DNA testing services from DAL, but use their own lab for multi-disciplinary forensic analysis and high-end fingerprint analysis. "Pemulwuy's scientists also go into the field while DAL is very much focused on high-throughput DNA and toxicology," Raymond says.

"We don't do standard DNA, but are setting up a capability in niche areas that would be used very rarely. It is not designed as a high-throughput lab like DAL.

"They are complementary. It gives us, between them, a full forensic capability."

Original report here



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