The John Tonge Centre, DNA evidence and miscarriages of justice - Part 2

When the ABC-TV Catalyst program began to examine the interpretation of DNA evidence used in Australian criminal trials it discovered major discrepancies in the DNA evidence used to convict Marc Andre Renton in Queensland. Catalyst researcher, Robyn Smith, made a formal request to interview Renton in the maximum-security block of Townsville prison after he had been transferred there in 2000. Smith recalled:

Renton was convicted primarily on the DNA evidence. Renowned forensic scientist Professor Barry Boettcher later investigated that evidence and felt that the interpretation by the Queensland forensic scientist was flawed, and there was a good chance that Renton had been wrongfully convicted. We were featuring Renton’s case in our June 27, 2002 program. We wanted to do an interview with him but we were denied access.

Queensland Department of Corrective Services (QDCS) relied upon current legislation that restricted media access to Queensland prisons and its prisoners and refused permission on the grounds that Renton was a convicted bank robber.

The Catalyst program was undeterred by the refusal of Queensland’s “prison-eaucracy” and went ahead with their investigation of the scientific interpretation of DNA evidence used to convict Renton. When the controversial program “A Shadow of Doubt” went to air on June 27, 2002 Catalyst presenter, Karina Kelly, interviewed both Boettcher and Cox to reveal a chilling insight into how the interpretation of scientific evidence can be tilted to favour the prosecution.

Professor Boettcher explained there were four peaks of DNA in the forensic analysis that was presented during the Renton trial. Those peaks were best interpreted as DNA coming from two people and excluded Renton because his DNA was not present. The evidence presented in court assumed the four peaks came from three people because that interpretation favoured the prosecution case against Renton.

Cox was asked why he had concluded there were three people present in the DNA profile but he denied that he came to that scientifically incorrect conclusion. Karina Kelly dropped a bombshell when she confronted Cox with the transcript of his evidence in the Renton trial to which he had testified: “… well in the DNA isolated from the balaclava, it was obvious that it was a mixture of more than two people”. Cox also testified: “I can only say that there were more than two donors. I mean there were only more than two donors to that DNA.”

While the DNA interpretation and testimony of Cox was accepted by the Queensland court that put Marc Renton away for 14 years, the Catalyst program uncovered another disturbing factor - the DNA evidence presented at Renton’s trial could also implicate 94 per cent of the white Australian population who would have DNA that would fit into those four peaks. “A Shadow of Doubt” was again re-televised in late 2002 and shortly after the program went to air Ken Cox ceased working at the John Tonge Centre (JTC), Queensland’s DNA laboratory, and retired from the field of forensic science.

The credibility of the Catalyst program “A Shadow of Doubt” was reinforced when it won a prestigious US television award for investigative scientific journalism. In Australia the program also became a finalist in the 2003 Australian Teachers of Media (ATOM) awards.

The interpretation of DNA evidence used in Queensland criminal trials became a matter of concern when Professor Michael Moore, the then Director of Queensland Health and Scientific Services, revealed to the media in May 2002 that the John Tonge Centre had not received accreditation by the National Association of Testing Authorities until 1999, two years after the Renton trial. However, even with that accreditation, the John Tonge Centre continued to bungle DNA evidence used in other major criminal cases.

Charges in the 1997 Arnott's biscuit extortion case were dropped as a result of flawed DNA testing procedures at Queensland's John Tonge Centre.

Tweed Heads great-grandmother, Joy Ellen Thomas, 72, was accused of threatening to poison the company's biscuits unless four Sydney detectives took lie-detector tests concerning evidence they gave against her son, convicted murderer Ronald Henry Thomas. The prosecution against Mrs Thomas relied heavily on evidence from forensic biologist Barry Blair, who conducted DNA testing for the Crown at the John Tonge Centre.

Blair testified that DNA recovered from a stamp on one of the extortion letters matched Mrs Thomas' DNA but the stamp had not been tested for saliva, so it could not be determined whether Mrs Thomas had licked the stamp. Blair claimed that although saliva testing would have identified the source of the cells it would have ruined any chance of recovering the DNA profile.

During the pre-trial hearing on April 24, 2002, Blair changed his opinion about the key DNA evidence after a forensic biologist hired by the defence, Lazlo Szabo, revealed the existence of a second DNA profile from an unknown person also present on the stamp.

Szabo, from Tasmania's Forensic Science Laboratory Centre, believed the presence of the second person's DNA was evident at twice the levels recorded by Blair. His report detailing the second DNA profile was given to the Crown two months before the pre-trial hearing. Although the presence of the second person's DNA was indicated within a table in Blair's reports, it was not mentioned in the text because, as he testified at the pre-trial hearing, the second profile was a “stutter” - an anomaly in the testing procedures.

The presence of a second DNA profile was evidence that could have freed Mrs Thomas months earlier but the Crown opted to remain silent about its existence until they were forced during the pre-trial hearing to concede the legal significance of two DNA profiles being present. Prosecutor Paul Rutledge argued that the Crown’s silence resulted from a difference of opinion between the two experts.

Rutledge, who had successfully prosecuted Ronald Henry Thomas at his 1994 murder trial, withdrew the charges in Brisbane Supreme Court on April 26, 2002.

Frank Alan Button, 32, served 10 months of a 7-year sentence for the rape of a 13-year-old intellectually impaired girl before independent DNA testing established he was not the perpetrator of the crime.

The young girl claimed she had been assaulted during a party at her mother's home at Cherbourg, southern Queensland, on February 17, 1999. The following day she told two school friends she might be pregnant because she'd been raped. The school principal called the police and detectives took her back to the house where the rape had occurred.

Frank Button was asleep in a drunken stupor inside the house when police arrived. He became the prime suspect because he was wearing a shirt similar to the one the girl described to the police. Button was taken to the local police station where he was interviewed and subsequently charged with rape and locked up.

The girl was taken to the local hospital and subjected to a full examination during which internal swabs, nail clippings, pubic hair and blood samples were taken. The swabs and samples were sent to the John Tonge Centre for analysis. Although the sheet and pillowcase from the crime scene were not tested for DNA, the vaginal swabs revealed semen that resulted in a DNA profile of the victim. The swabs were tested for male DNA but no male DNA was obtained.

The absence of incriminating scientific evidence caused the police to collect other evidence to fill the gaps. A second statement was taken from the victim after she changed her earlier version of events. In that statement she named Frank Button as the rapist. Police typed her new answers into a radically altered version of events.

Police also took a statement from Frank Button's nephew, Lester Malone, who claimed Button had confessed the rape to him while they were in a park shortly after Button had been charged. Malone's statement fell apart when it was revealed that Button went straight to jail after he was charged and the confession in the park couldn't have possibly occurred. Malone later withdrew his statement and claimed in court the investigating detective had intimidated him and put words in his mouth, a claim the detective denied.

The case against Button relied heavily on the testimony of the young victim whose evidence was confused and contradictory. A school guidance counsellor testified that she had a mental age of eight or nine and an IQ half that of her peers. The trial judge also commented that her memory and knowledge of the events were limited but in the end it was up to the all-white Kingaroy jury to decide what to believe. They believed the girl.

Frank Button was sentenced to seven years imprisonment. At the Arthur Gorrie Correctional Centre, Wacol, Button claimed he became the target of violence and brutal rape by other mainstream prisoners. Although prison authorities placed Button in protective custody the violent abuse continued because he was classed as a “rock-spider” - a prisoner accused of sex crimes against children. When Button maintained his innocence and refused to do a sex offender’s course, Queensland prison authorities told him he lacked remorse and would serve the entire seven years without remission.

His legal team requested further DNA testing of the vaginal swabs and the bed linen from the crime scene. When scientists at the John Tonge Centre re-tested the semen taken from the young victim, a male DNA profile was finally discovered. That discovery resulted in the DNA testing of the bed linen, which revealed traces of semen matching the profile on the swab. The DNA profile from the swab and the bed-sheet was then entered into a database of DNA samples taken from prisoners and a match was recorded. The DNA profile on both the bed-sheet and the swab from the victim was not Button’s, it belonged to a prisoner doing time for another rape. He was a youth from the girl’s community who had been convicted of a separate assault.

The biologist who did the DNA testing was cross-examined by Button’s counsel and asked why he hadn't tested the bed linen prior to the trial. A forensic examination would have clearly established Button's innocence because the semen on the bed linen did not contain Button's DNA profile. According to the ABC's Four Corners, the biologist answered: “The tests were directed to try and implicate your client.”

On April 12, 2001 the Queensland Court of Appeal immediately ordered Button's release from prison after the new DNA evidence established he was innocent of the rape. The court's judgment contained a blistering criticism of the Queensland criminal justice system:

Today is a black day in the history of the administration of criminal justice. What is of major concern to this court is the fact that that evidence was not available at the trial. This court can do little so far as compensation to the appellant for the fact that he has had to suffer the ignominy of a conviction for rape which now proves to be entirely false.

Following Button’s release from prison the Queensland legal system went into damage control and the Director of Public Prosecutions requested Queensland’s Criminal Justice Commission investigate how the miscarriage had occurred. In January 2002 The CJC, now the Crime and Misconduct Commission, issued a press release saying there’d been no impropriety in the Button case. Police and scientists involved in the case were exonerated from any wrong doing. It was a happy ending for the Queensland legal system. No-one was to blame for Button’s wrongful imprisonment.

My continuing investigation of the Renton, Thomas and Button cases highlighted the flawed DNA testing processes that were occurring inside Queensland’s JTC as well as the scientific interpretation of DNA evidence offered to Queensland courts by staff from the JTC. In a chapter “DNA and The Justice Game” published in the June 2004 edition of The Griffith Review I revealed how possible miscarriages of justice were occurring as a result of those flawed processes. An edited version of that investigative report was published in On Line Opinion on October 8, 2004.

“DNA and The Justice Game” was recognised as an important critique of Queensland’s criminal justice system when it was short-listed as a finalist in the 2004 Queensland Media Awards - Best Investigative Report - All Media section, an award won by the A Current Affair program.

Despite my consistent ventilation of criminal cases that resulted from flawed DNA testing procedures at the JTC or the questionable interpretation of DNA evidence offered to Queensland courts by staff from the JTC, nothing changed. There was no investigation into the claims contained in my articles published in On Line Opinion or published in the Griffith Review. The Queensland Government and the John Tonge Centre remained silent on the subject. And Marc Renton remained in prison waiting for justice.