DNA Evidence In The NSW Criminal Justice System

Discuss the legal implications of the use of DNA evidence in the
NSW criminal justice system

DNA evidence is a widely used tool in the NSW criminal justice system that aims to help achieve justice. DNA, short for deoxyribonucleic acid, is a long molecule found within the cells of the human body. Each cell contains genetic material in which, apart from identical twins, is exclusive to every individual. DNA though considered a reliable piece of evidence can present many issues in the criminal justice system such as its influence on juries, the issue of maintaining the balance of an individual’s rights with the state’s responsibilities and the issues of DNA contamination, storage and interpretation. These issues will be discussed later.
Firstly, DNA is predominantly used in the criminal justice system to achieve justice; justice being the fair and equal treatment of all people under the law.
Dr Zakaria Erzinçlioglu (2006, p. 14) states that “the techniques of forensic science are the techniques of reconstructing the past.” The ability to reconstruct the past enables the jury and the judge to properly establish the guilt or innocence of the accused with supporting evidence.
In the Crimes (Forensic Procedures) Act 2000 (NSW), this legislation aims to regulate the manner in which forensic samples are obtained and ensures the state’s responsibility to enforce the law does not impinge on an individual’s rights for e.g. their right to privacy. The Act allows for select police powers to undertake forensic procedures on suspects, offenders and volunteers and also allows for further investigations in cases to be made which can be later used as evidence in trials.
A type of procedure that is most commonly presented in trials is DNA profiling. DNA profiling is a type of identification testing. The testing uses DNA samples taken from suspects or the crime scene to generate a person’s profile. A match can therefore statistically prove the likelihood of that sample’s relation to the suspect or crime
scene. For example, in the Desmond Applebee case, the first Australian case to have used DNA evidence in 1989, Applebee was charged with sexual assault after blood samples matched with the blood and semen found on the victim’s clothes. This was achieved through the results of the DNA profiling that had subsequently showed that Applebee had a one in a 165 million chance of it not being his.
Also, in an interview by Trent Dalton (2009, p. 5), Dr Carol Mayne, a geneticist and director of DNA Evidence states,
When you look at those nine profile markers and you only match up one or two of those, then it’s 100 per cent not your DNA profile. That’s why it’s such a good tool for exclusion.
This proves the positive use of DNA profiling within a case to help to eliminate factors presented against the accused.
In saying this, the presentation of DNA evidence in trials has the ability to either assist or eliminate factors presented forth in the trial. In a later case in 1989, DNA evidence had helped to induce a confession. The accused, George Kaufman, a Melbourne serial rapist, confessed of the crimes and pleaded guilty after DNA evidence was presented against him.
Thirdly, not only the use of DNA profiling but the establishment of DNA databases can help the NSW criminal justice system achieve justice. A DNA database is a storage system in which retains the DNA profiles from previous samples that can be then used in future investigations. An example of this is through the comparison of profiles on databases to that of a crime scene. Links such as ‘cold hits’ in which a link is established between an offender or suspect and the crime scene helps the police identify a suspect through their DNA profile had no other leads surfaced in the case. The database thus enables many unsolved crimes to be solved. DNA databases are held both at a federal and state level in which state jurisdictions are able to access other profiles from other jurisdictions that are shared within the national database. NSW databases thus increase the efficiency of the NSW criminal justice system to achieve justice.
Though DNA evidence has helped to achieve justice, it has also been proven to be the cause of many miscarriages of justice. In Every Family’s Nightmare (2010) Independent Forensic Investigator Robin Napper states, “Forensic evidence is ‘vitally important’ because it is neutral and independent provided that samples are taken correctly, are not contaminated and are analysed correctly.” These three factors; storage, contamination and interpretation are three vital factors that have led to serious miscarriages of justice. Any faults within them can result in the wrongful conviction of an innocent person in which the State would be held responsible. For example, in the Farah Jama Case, DNA evidence was the only evidence presented in the trial that linked Jama to the alleged rape of a 40 year old woman. The DNA sample that was used was later proven to have been contaminated, however this contaminated evidence was used in the trial and had been a significant factor to his conviction. His conviction was later overturned due to the faulty DNA samples however the State is held responsible for not maintaining an individual’s right, the right to a fair trial, and thus this case shows how DNA evidence in the hands of the State has failed to achieve justice.
Jama’s case also links the influence of DNA evidence on juries which is another contributing factor to state criminal justice systems.
Due to the complexity of forensic science, DNA evidence has been overlooked by juries and assumed as infallible. However, in some cases prosecutors have failed to inform juries of the failings of DNA evidence thus juries remain blinded to the errors of DNA. Studies have shown that this impact strongly affects the convictions of individuals. This impact known as the ‘CSI effect’ in which the Director of Civil Liberties Australia, Tim Vines, explains to be, “Where juries will consider DNA evidence a stronger form of proof over any other because of what is presented to them in the media.” has strongly impacted many convictions including the Jama case. Television programs such as, CSI, have created the notion that forensic science in particular DNA evidence is beyond doubt infallible and accurate. However, Dr Zakaria Erzinçlioglu (2006, p. 30) states “Contrary to some popular beliefs, science is a highly uncertain endeavour. It does not deal in certainties, but probabilities.” DNA evidence is based solely on probabilities. A jury’s assumption that the DNA evidence presented before them is infallible, free of contamination, exaggeration, misinterpretation etc. only increases the risk of a wrongful conviction and furthermore failure to achieve justice through the criminal justice
system. In summary, DNA evidence when properly used and analysed reflects the common principles of our legal system. The NSW criminal justice system is based on procedural fairness which is the means of achieving natural justice and the rule of law. The rule of law states that everyone is equal in the eyes of law and in this case also relates to the presumption of innocence and the right to a fair trial. When DNA evidence had been proven faulty, a defendant’s innocence had thus been overlooked resulting in a miscarriage of justice and a wrongful conviction. These two factors have a significant impact on the individual’s right to a fair trial and thus the State is held responsible for the injustice against an innocent person. In relation to natural justice, it is stated a defendant has the right to be heard under an unbiased adjudicator however, it has been shown that the media’s impact on a jury can induce a misconception of the DNA evidence presented and thus lead to a biased conviction. The criminal justice system however, allows the opportunity for an appeal in which in many cases has helped to properly achieved justice for individuals and society.

Reference List
Cowdery, N 2002, FORENSIC SCIENCE IN CRIMINAL LAW , Office of the Director of Public Prosecutions, accessed 26 June 2011, .
Crimes (Forensic Procedures) Act 2000 (NSW).
Dalton, T 2009, 'Reasonable Doubt - How DNA could set the innocent free ', Qweekend, 29 August, accessed 26 June 2011, . 'DNA and Criminal Law ', 2002, Hot Topic, no. 36, pp.20-22.
Erzinçlioglu, Z 2006, FORENSICS, Gary Allen, Australia.
Every Family 's Nightmare 2010, television program, SBS TV, Australia, 9 June.
Haesler, A 2003, DNA - An Overview of Testing and the Crimes (Forensic Procedures) Act 2000 , Lawlink, accessed 26 June 2011, .
Key Dates in the History of DNA Profiling 2008, CrimTrac, accessed 26 June 2011, .
Merritt, C 2010, 'DNA under legal microscope ', The Australian, 30 March, p.15.
Rout, M 2009, 'DNA in the dock ', The Australian, 11 December, accessed 27 June 2011, .