Invisible innocence: it happens here too

The next step is to determine what biological material is available for DNA innocence testing and to gather any other scientific information. Queensland Health Forensic and Scientific Services, commonly known as the John Tonge Centre, is where most DNA tests in the state are undertaken, and was the starting point for the further investigation and requests for infor­mation on cases after our initial review. Early on we wrote letters requesting specific information about cases. But when the information was not forth­coming, we realised that pursuing information on behalf of our applicants was not going to be easy.

We were undertaking activities beyond the traditional legal avenues, and newness was one of our obstacles: there were no precedents for providing this information. Meetings and discussions failed, and we could not obtain information about what evidence existed for potential DNA testing.

Freedom of Information also failed, despite requests and payments by applicants who had so little money. Selected information was provided but it became clear that Freedom of Information would not provide a full review. Not only was the known available information not fully provided, but also the possible unknown documents that could make a difference. The Andrew Mallard case showed that when exonerating documents not disclosed to the defence at trial became available, new light was shed on the case. But you cannot request a document through Freedom of Information if you do not know it exists.

Reform was needed if claims of wrongful conviction were to be effectively reviewed. The Attorney-General would have to intervene to access information and DNA innocence testing. We have had support from five Attorneys-General since the project commenced but the process was never easy. Rod Welford was the first we met in 2002. His office subsequently began considering two cases, but while the extra information he sought was being prepared a new Attorney-General was appointed. Because no legis­lation or protocols formally existed, with each new Attorney-General we essentially started again – gaining support and then satisfying the additional requirements of each. Four barristers, including two QCs, provided pro-bono briefs, stating that after reviewing the cases, they considered them suitable for DNA innocence testing. From initial investigations, the process took almost seven years before we were informed whether the evidence for such testing even existed.

The answer was no. There was no evidence that could be tested in either case. We were very disheartened. It was devastating for the applicants. We reminded ourselves that despite all the setbacks we were still pursuing a just cause, and that the students were learning important lessons, including the significance of undertaking work to the best of their abilities and in the most ethical way in whatever area of law they chose – they were seeing the conse­quences of potential failures in the system.

Knowledge of the existence or not of evidence to test is essential and seemingly non-controversial. Our experience highlighted the need for infor­mation about the evidence to be provided in a timely fashion, and the need to preserve evidence for possible future testing.

Knowing that some American innocence projects had been told there was no evidence, and evidence was later found, we asked when the biological evidence in the two cases we were pursuing had been destroyed. Six months later we were told that biological material from one case still existed.

Immediately afterwards, Cameron Dick became our fourth Attorney-General, and our advisory board, which includes prominent and highly respected judges and lawyers, among them at that time the former High Court Justice Mary Gaudron, began to push for DNA testing. The media got wind of the investigations, and – while we had never publicly discussed cases, out of respect for victims and their families – this increased the pressure.

In December 2009, Attorney-General Dick allowed DNA retesting to take place on one piece of the biological evidence collected and tested for the original trial. The DNA testing used on this piece of evidence at the time is now considered highly subjective and new technology has dramatically improved the accuracy of testing, assuming the now twenty-year-old evidence still has integrity. The retesting in 2010 provided a remarkably perfect match to the DNA of the suspect – yet aspects of the collection, handling and label­ling of samples and evidence two decades ago unfortunately call into question its true probative value today. It is likely that other, significantly more proba­tive evidence exists in this case that has never been DNA tested.

There are multiple dilemmas in the use of DNA in criminal courts, at the juncture between law, science and the media. DNA can absolutely exclude someone as the donor of the crime scene biological sample – but when it is used to demonstrate a person's guilt, calculations are employed to estimate the likelihood of the DNA profile obtained from the sample originating from the accused compared with the chance of it coming from another person selected at random. Such calculations might suggest billion-to-one odds in a country of about 22 million people, and could easily lead to an inflated impression of a defendant's connection to the crime. DNA 'matches' can be reported or construed by juries as conclusive evidence of guilt without their having considered interpretative error, contamination, or planting of evidence, among other things.

Even today, with more stringent procedures for the collection, trans­fer, storage and testing of biological evidence, errors still occur. Recently, in Victoria, contaminated DNA evidence resulted in Farah Jama spending approximately fifteen months in prison before his conviction was overturned. Despite this, Jama was fortunate. If the mistake had not been corrected at appeal he might well have languished in prison, yet another of those inmates claiming innocence but with no opportunity to prove it.

After almost a decade of lobbying, on 5 August 2010 Queensland Attor­ney-General Cameron Dick introduced guidelines that allow, for the first time, an official avenue for DNA innocence testing for wrongful-conviction applicants. These guidelines alone will not be sufficient to correct wrongful convictions, or address the systemic issues surrounding wrongful conviction. Much more needs to be done – possibly including a body to review all claims of wrongful conviction, akin to England's more wide-reaching Criminal Cases Review Commission. For the small number of wrongful convictions in which DNA will be probative, these guidelines are limited and require further expansion.