'Forensic science' can be an indispensable tool within the criminal justice system. It is the application of scientific methods and techniques to the available evidence for the purpose of assisting a court of law in pursuit of the truth.
Science by nature, is concerned only with knowledge and understanding based on systematic methodology. Where applicable, the science is presented to the court by way of 'expert opinion' from the scientist with specific knowledge (expertise) in that field.
Legal practitioners, judges and juries will of course have limited training or understanding in this field, if at all, and readily trust that the accuracy of the expert's conclusion (or opinion) is grounded in scientific methodology.
In recent times, we are exposed to the reality of the inherent flaws in forensic science which inevitably threaten the legitimacy of criminal justice. This article considers some of the unsettling implications within Australian legal practice, outlining instances where questionable techniques, and ungrounded opinions falsely presented as fact have led to unsafe convictions.
These cases demonstrate that there is, at least, an onus on the defence to be alive to these issues.
WHAT IS FORENSIC SCIENCE ?
The term 'forensic science' captures a range of scientific disciplines that may be used to assist in law enforcement and the judicial process. These disciplines encompass a broad array of activities which can be conveniently divided into four groups.
First 'field sciences' which includes the investigation of crime scenes, fingerprints, and the examination of firearms. Second, 'forensic medicine' which includes pathology, psychiatry and psychology, odontology et cetera. Third is 'laboratory services' where inter alia, biological and toxicological testing is carried out. And finally 'digital evidence' (self-explanatory).1
Each discipline exhibits wide variability in terms of techniques, methodologies and levels of research but what is applicable to the majority is the practices of collection, analysis, interpretation and reporting.2 At the conclusion, the expert may then present their findings to the court as 'scientific' and 'reliable' evidence.
The expert must not advocate for the prosecution or the defence.3
ONUS ON THE DEFENCE
In reporting on their conclusions, forensic practitioners are required to be transparent in their reasoning process.
It is their paramount duty to assist the court, and one might expect that this requires a positive obligation to identify any limitations or controversies in their findings, so as to not offend the presumption of innocence. However, precedence would suggest that this is not always the case.
It is far to say the burden openly rests upon the defence to assist the trier of fact in determining the meaning and weight of the forensic evidence before them.
In order to do so, the defence advocate must have a sufficient understanding of the material to expose its weaknesses and to challenge its reliability. In this regard, practitioners may be assisted by considering the history, as well as the present status of forensic science in Australia and its place in context of international standards.
GOVERNANCE AND STANDARDS
Australia's 'peak body' for advancing forensic science is the National Institute of Forensic Science ('NIFS'). This is not an independent institution. It is a directorate of Australia New Zealand Policing Advisory Agency ('ANZPAA') which is predominately made up of law enforcement and funded by state and federal police.
Government laboratories are accredited against the internationally recognised standard for forensic science, ISO/IEC 17025. The National Association of Testing Authorities ('NATA') is responsible for accrediting laboratories though accreditation is not mandatory.
It is important to recognise the limitations of the ISO/IEC 17025 as it does not standardise specific requirements for collection, transport, examination, or (and perhaps of the greatest significance to legal practitioners) interpretation of results and reporting evidence of fact or opinion.4
Further, accreditation in the absence of regulation and enforcement does not, and cannot, guarantee the quality of results. It seems that there are presently no auditory processes in place.
In January 2023, Civil Liberties Australia ('CLA') called upon the Attorney-General to establish a federal regulator similar to the forensic science regulator in England and Wales. CLA highlights:
'the lack of independence in some forensic services from policing is also extremely problematic in Australia, further minimising proper independent monitoring'.
CASE STUDIES
In this regard we can look to the relevant Australian case studies.
The most recent of which was the mishandling of DNA samples in the Shandee Blackburn case. An inquiry into a state owned forensic laboratory found that the methods, systems and processes do not measure up to best practice and that collection procedures could have affected the viabilities of samples.
In 2006, Farah Jama spent fifteen months in prison for sexual assault following a positive DNA match. There was no other evidence connecting him to the victim but concerns of cross-contamination were met with the laboratory specifically discounting the possibility. The matter came back before the Court in 2009 and it was accepted that a miscarriage of justice had occurred on this basis.
David Eastman served nineteen years in prison for the murder of AFP Assistance Commissioner Colin Winchester. In May 2014, Justice Martin found that the issue of guilt was determined on the basis of 'deeply flawed' forensic evidence by expert Robert Barnes.
Perhaps the strongest argument for the urgency of an independent regulator is, Dr Colin Manock. For over two and half decades he was called upon to provide expert forensic evidence notwithstanding his lack of qualifications in this field. He was involved in over 400 major criminal cases.
It is alleged that the State was aware he was not properly qualified, and that Manock's findings deliberately supported the prosecution case theory.5 This is an alarming example of how the legal system's readiness to trust in forensic 'experts' can be terribly misplaced.
Forensic science, through its scientists, serves the administration of justice alongside legal practitioners who are under the watchful eye of the Legal commissioner. It is a fair to expect the same standard of governance which safeguards the provision of forensic science across the criminal justice system.
CLA believe that ANZPAA-NFIS are not equipped for the task.
Further, the recent Commission of inquiry into Forensic DNA Testing in Queensland has demonstrated its failings.6 The present governance structure under which laboratories operate in service of law enforcement may no longer be appropriate.
In addressing this point, the Honourable Walter Sofronoff said:
'[its] proper place is within the sphere of the administration of justice. The reasons why is so now follow... [63] there is an insistence upon both the fact and the appearance of the impartiality of prosecution experts.7
Further:
'[64] expert witnesses, like lay witnesses, are of course obliged to tell the truth, the whole truth and nothing but the truth; but expert witnesses have greater obligations than that. An expert witness's paramount duty is to assist the court and it follows from this that an expert must not be an advocate for a party to the proceedings. Accordingly, an expert must not accept instructions from any person to adopt or reject a particular opinion. This duty of impartiality overrides any obligation that the expert may have to the party that retained the expert or to any person liable for the expert's fees and expenses.'8
To date there has been no movement from Parliament.
QUALITY CONTROL
In 'What lawyers should know about Forensic Sciences',9 Professor Gary Edmond considered the findings and recommendations of international inquiries which raised some very important issues for consideration.10 Not just with respect to the challenges confronting forensic science but also the implications for our legal system and its stakeholders.
It goes without saying, where the cost of recourse so heavily impacts the State and the taxpayer, we must minimise the risk of errors.
A common factor (aside from the importance of independence) is the need for quality control and assurance. Through these processes facilities can assess and continually monitor accreditation, certification, and standards for best practice.
According to NIFS,11 quality assurance programs already exist within each facility however there are variations in practices and procedures. They say, that such variations can have significant ramifications on the way in which results are interpreted and reported, such that a perpetrator may escape justice, or an innocent person is unjustly punished.12
Brandi and Wilson-Wilde report that the increased exchange of forensic material calls for the establishment of common standards for forensic science in order to avoid uncertainty, and by extension unreliable justice outcomes.
Australia has seemingly developed more comprehensive standards than the presently recognised ISO standard for which laboratories hold their accreditation.13 The content of these standards has not been considered though common-sense would suggest a step-by-step approach.
Mandatory compliance to a platform of comprehensive relevant standards would go a long way to address the problem and as NIFS have outlined, provide the following benefits:
- consistency of practice within laboratories;
- consistency in procedures across laboratories and agencies;
- defined standards of reliability and quality for all forensic practitioners;
- Judicial confidence in forensic science laboratory output.14
Whether Australia needs to go as far as establishing independence in forensic science, or whether mandating new standards is sufficient one thing is clear – guarantee of outcome requires improved regulation.
A HEAVY BURDEN
Whilst the literature demonstrates unrest in relation to where the burden ought to lie it can be accepted that any onus upon the defence will be a heavy one, where the vast majority of defendants lack the resources to effectively challenge forensic evidence.15
If it is to be accepted that the onus appropriately rests upon the defence, serious consideration must be directed to risk management and resources. Stephen Odgers SC suggests one possibility is an adequately funded independent body tasked with evaluating forensic evidence.16
Another is a significant increase in legal aid funding.
'Until such steps are taken, the risk of miscarriages of justice arising from unreliable forensic evidence will inevitably remain'.17
- Stephen Odgers SC
References
Alastair Ross, Contemporary Comments, Forensic Science in Australia: Where does Australia sit in relation to Trends and Issues in the international Context (July 2012), Current Issues in Criminal Justice, 24(1)
Gary Edmond, 'What Lawyers Should Know about the Forensic "Sciences"' (2015) 36(1) Adelaide Law Review 33
J Brandi and L Wilson-Wilde, 'Standard Methods' (2013) 3 Encyclopedia of Forensic Sciences, 522-527
Judge D Yehia SC, Expert Evidence (May 2015)
Judge A Haesler SC, Testing and challenging DNA evidence to avoid Miscarriages of Justice (March 2021)
Stephen Odgers SC, What Lawyers Should Do About Forensic Science Evidence, Adelaide Law Review, 36(1)
Footnotes
1 Australia New Zealand Policing Advisory
Agency, Forensic Science Disciplines <
Forensic Science Disciplines – ANZPAA Website>
2 J Brandi and L Wilson-Wilde, 'Standard
Methods' (2013) 3 Encyclopedia of Forensic
Sciences, 522-527, 526
3 Uniform Civil Procedure Rules 2005
(NSW) s 3.
4 J Brandi and L Wilson-Wilde, 'Standard
Methods' (2013) 3 Encyclopedia of Forensic
Sciences, 522-527, 525
5 Nine News, Bodies of Crime,
Australian Crime Stories, episode 5.
6 Queensland, Commission of Inquiry into
Forensic DNA Testing in Queensland (Report, December
2022)
7 Ibid, [62]-[63].
8 Ibid, [64].
9 Gary Edmond, 'What Lawyers Should Know about
the Forensic "Sciences"' (2015)
36(1) Adelaide Law Review 33
10 Committee on Identifying the Needs of the
Forensic Science Community, National Research
Council, Strengthening Forensic Science in the United
States: A Path Forward (National Academies Press, 2009);
Lord Campbell, The Fingerprint Inquiry
Report (APS Group Scotland, 2011); Expert Working Group
on Human Factors in Latent Print Analysis, Latent Print
Examination and Human Factors: Improving the Practice through a
Systems Approach (US Department of Commerce, National
Institute of Standards and Technology, 2012); Stephen T
Goudge, Inquiry into Pediatric Forensic
Pathology (Queen's Printer, 2008)
11 J Brandi and L Wilson-Wilde, 'Standard
Methods' (2013) 3 Encyclopedia of Forensic
Sciences, 522-527
12 Ibid, 522
13 AS 5388.1 Forensic Analysis Part 1:
Recognition, Recording, Recovery, Transport and Storage of
Material; AS 5388.2 Forensic Analysis Part 2:
Analysis and examination of material; AS
5388.3 Forensic Analysis Part 3: Interpretation; AS
5388.4 Forensic Analysis Part 4: Reporting; AS
5239 Examination of Ignitable Liquids in Fire Debris;
AS 5483 Minimising the Risk of Contamination in Products
Used to Collect and Analyse Biological Material for Forensic DNA
Purposes;
14 Ibid, 524
15 Stephen Odgers SC, What Lawyers Should
Do About Forensic Science Evidence, Adelaide Law Review,
36(1), 15
16 Ibid.
17 Ibid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.