The John Tonge Centre, DNA evidence and miscarriages of justice - Part 1

“I’ve spent 15 years in prison for something I haven’t done, for something I knew nothing about. I watched my father die in prison for something he didn’t do. He’s innocent, the Maguires are innocent, the Birmingham Six are innocent. Let’s hope they are next.”

These were the anguished words of Gerry Conlon as he walked to freedom from the London Court of Criminal Appeal in 1989. It was the same court building 15 years earlier that had seen Conlon, Paul Hill, Paddy Armstrong and Carole Richardson (The Guilford Four) sentenced to life imprisonment in one of the gravest miscarriages of justice that ever occurred in Britain.

On Wednesday, February 9, 2005 the British Prime Minister, Mr Tony Blair, made an unprecedented public apology to the Conlon family on behalf of the British Government for that miscarriage of justice.

During that historic moment the British PM observed that people could not change the pain of the past in Northern Ireland, or the pain of the victims and their families, but sometimes people could do things that helped to deal with the pain of the present. He said that if it could be done, then it was the decent thing to try and do, and this was how he hoped the apology would be seen.

PM Blair added that the apology should not be viewed through a political spectrum but instead as something that was accomplished to help the families and would clarify once and for all that they were innocent victims of a miscarriage of British justice.

In contrast, Australian miscarriages of justice remain hidden behind official walls of silence or political obfuscation where apologies are non-existent. The degree of ministerial liability, or the prospect of monetary compensation, remain predominant factors that become prioritised before the official time-consuming process begins to determine whether a miscarriage of justice has occurred or not.

In Queensland that degree of liability is also governed by an entrenched sense of “Finchophobia” that permeates all government decisions concerning possible miscarriages of justice in the state.

The “Finchophobic” attitude stems from the 1973 fire-bombing of Brisbane’s Whiskey-Au-Go-Go nightclub in which 15 people died. John Andrew Stuart and James Richard Finch were subsequently arrested, convicted and sentenced to life imprisonment for the murders. Stuart allegedly committed suicide in dubious circumstances inside Boggo Road Jail, while Finch maintained for the next 15 years that he was innocent of the crime. His protestations eventually convinced journalists and Queensland politicians that a doubt existed regarding his conviction and he should be released from prison.

In 1988 Finch was released from prison and deported to Britain where he made an internationally televised confession on A Current Affair that he had indeed been involved in the Brisbane firebombing that resulted in the 15 deaths. Finch described how he had gained his freedom by duping the media and the Queensland Government. The televised confession drew international ridicule to Queensland for allowing the self-confessed serial killer to go free but the embarrassment also created an acute sense of “Finchophobia” in the Queensland political arena.

Queensland politicians are acutely aware of the ramifications that can evolve if there is a repetition of the 1988 Finch scenario, and they are not prepared to take that risk, despite the possible innocence of prisoners who are currently serving lengthy terms of incarceration.

On February 12, 2005 the entrenched “Finchophobia” and political obfuscation that governs the determination and time-consuming examination of possible miscarriages of justice inside the Queensland legal system, has been rocked to its foundation by a leaked report condemning Queensland’s main forensic testing laboratory. The report cast doubts over the validity of DNA evidence used in hundreds of Queensland criminal cases. The possibility of miscarried justice has collided with a secret culture of forensic science regularly used by Queensland prosecutors as irrefutable evidence to bolster their cases.

The leaked internal report in which a forensic biologist from Queensland’s major DNA testing laboratory, the John Tonge Centre at Coopers Plains, has exposed flaws in the DNA testing process at the JTC. The February 12, 2005 report compiled by Ms Deanna Belzer also recommends an immediate and independent audit of inconsistent evidence results that have occurred at the JTC during the past 12 months.

It was revealed in the Queensland media that Ms Belzer's report indicated guidelines had clearly been breached when she wrote:

A critical instrument in the DNA analysis procedure has not been validated and, further, proven to be inaccurate. I question if we are breaching the Justice Act when we sign statements which declare all information in the foregoing pages are accurate to the best of the scientists' knowledge …

Under the Queensland Evidence Act, a DNA analyst must produce an evidentiary certificate for any sample used in criminal proceedings. The certificate confirms that the records indicate all quality assurance procedures for the receipt, storage and testing of the evidence were followed. It also confirms the equipment used is taken to give accurate results.

Under existing legal sanctions forensic scientists at the JTC could be breaking Queensland laws by falsely declaring in evidentiary certificates that accurate results are being produced at the JTC and DNA testing equipment is reliable when, according to the leaked report, it is not.

Flawed DNA evidence used by prosecutors in Queensland criminal trials and the possibility of miscarried justice emanating from that flawed scientific evidence was first publicly ventilated at On Line Opinion on February 5, 2003.

My first feature article for On Line Opinion - "Marc Renton - another DNA mistake? Qld government must reopen the case" - explored the case of convicted bank robber, Marc Andre Renton, who was convicted and imprisoned on the basis of flawed DNA evidence emanating from Queensland’s John Tonge Centre in 1997.

The Renton Case

Queensland Police arrested Renton at Runaway Bay on June 16, 1996, while he was unlawfully at large after he had been released from Borallon Correctional Centre, where he was serving time for armed robbery. Renton failed to report to a parole officer upon his release and an apprehension warrant was issued for his return to prison. Renton was charged with three bank robberies that occurred at Morningside, Biggera Waters and Paradise Point while he was free.

Police claimed distinct similarities existed between the three bank robberies and was consistent with a proposition that one offender had been involved in all three robberies. They targeted Marc Renton as that offender. Detective Sergeant Peter Gray reinforced that proposition when he testified that he had not encountered a similar modus operandi of bandits breaking into a bank for the purpose of committing an armed robbery when the premises were closed to the public but had staff still inside.

Gray claimed he obtained the evidence from an inspection of armed robbery records contained on a police database dating back to April 1995.

The contention that distinct similarities existed between the three bank robberies fell short when Renton was acquitted for the Morningside robbery. The similar fact evidence linking the Biggera Waters and Paradise Point bank robberies fell into further disrepute with the arrest and conviction of the “Postcard Bandit”, Brenden James Abbott, who specialised in the same bank-robbing modus operandi as described by Detective Sergeant Gray.

Although not available at the time of Renton’s 1997 trial, Abbott provided a sworn affidavit on October 31, 2000, which disputes the similar fact evidence of Detective Sergeant Peter Gray used by the Crown to link the Biggera Waters and Paradise Point bank robberies:

I have been made aware of the circumstances of the District Court trial in relation to Mr Marc Renton. In particular I have been familiarised with the evidence relating to the alleged modus operandi of Mr Renton in the manner in which he conducted the robberies.

I disagree with the evidence of Detective Sergeant Peter Gray that these robberies exhibited a unique modus operandi in the manner in which entry was gained to the bank and whilst staff but not customers were within the bank. For example the robbery in January 1995 of the Commonwealth Bank of Australia at the Pines Shopping Centre at Elanora of which I was convicted. The modus operandi used in this robbery was entry through the roof whilst staff but not customers were in attendance.

Dark clothing and balaclavas were said to have been used and police frequencies were said to have been monitored.

I was also convicted of the robbery of the National Australia Bank at Springwood on 16 April 1992. The facts of this robbery were that the branch had just closed and staff were still conducting activities within. Entry was gained by breaking through the back door, police frequencies monitored and attention was paid to the branch’s main safe.

I was also convicted of the robbery of the Commonwealth Bank of Australia at Pacific Fair on 24 December 1993. Again entry was gained through a door before opening time. It was alleged disguises were worn. Police frequencies were monitored and again the bank’s central sections were targeted. I am able to provide evidence of further similar modus operandi in bank robberies in other parts of Queensland and in South Australia. In some instances in relation to robberies of which I have been convicted it has been alleged that I have had co-accused that have never been arrested.

The establishment of similar factual evidence linking the Biggera Waters and Paradise Point bank robberies: subsequently discredited by Renton’s acquittal for the Morningside bank robbery and by Abbott’s October 2000 affidavit, relied upon DNA evidence to convince the jury that a conclusive link had been established between Renton and both the Biggera Waters and Paradise Point bank robberies.

On August 21, 1996 Kenneth Joseph Cox, forensic scientist at the JTC, examined a blue balaclava located inside a stolen white Ford Laser allegedly used in the Biggera Waters bank robbery and found dumped in a back street. Two areas of fabric in the balaclava were sampled in an attempt to isolate DNA that could originate from mouth cells via saliva. No DNA was isolated.

The trial of Marc Renton and Brunetta Festa commenced on April 2, 1997 but was marred with controversy from the outset when Festa jumped bail and fled interstate. Festa remained a fugitive until her 1998 recapture in Sydney but the trial continued with Renton as the sole accused.

Mid-way through the trial Cox testified he had completed a second examination of the balaclava on April 17, 1997 and isolated a stain that yielded some DNA. Although Cox's second examination did not correspond with his August 21, 1996 examination of the blue balaclava, he claimed the DNA sample belonged to Renton, Festa and a third unidentified person.

Although Cox claimed he had not conducted the second examination of the balaclava until mid-way through Renton's trial, the late inclusion of the evidence restricted Renton's defence counsel from having independent testing done.

The Crown's circumstantial case was substantially bolstered by the late inclusion of the DNA evidence. It was argued as conclusive and irrefutable proof that Renton had committed the Biggera Waters bank robbery and Judge Hangar allowed the evidence to go before the jury untested. It resulted with Renton's conviction and subsequent 14-year sentence for the Paradise Point and Biggera Waters bank robberies.

Eighteen months after his conviction Renton wrote to Professor Barry Boettcher, Professor Emeritus of Biological Science at the University of Newcastle and a Member of the Order of Australia for his work in the field of reproductive immunology, and requested a review of the DNA evidence used at his trial.

Professor Boettcher reviewed the evidence including trial transcripts, DNA profile collation sheets, gene-scan-analysis printouts and two statutory declarations sworn by Cox on October 14, 1996 and April 17, 1997. Professor Boettcher disagreed with Cox's evidence, arguing that the DNA was more likely to have come from a third party than from Marc Renton. He concluded that the DNA evidence used to convict Renton was scientifically incorrect and that the methodology used by the Crown’s DNA expert was wrong. Professor Boettcher reinforced those scientific conclusions in a sworn affidavit.

Although Professor Boettcher’s interpretation of the DNA cleared Renton of bank robbery, the Queensland Government was not convinced it was sufficient to release him from prison or institute an inquiry into his conviction. The options for Renton had run out. He had already lost an appeal to the Supreme Court based on points of law, and Queensland only allows one appeal against conviction.