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LEGAL STUDIES ESSAY

DNA PROFILING

Breakthroughs in DNA testing have brought success to what would have otherwise been unsolved cases. DNA profiling is a technique used by many scientists and police to match DNA samples found at the scene of a crime with their respective counterparts generally found on their database. DNA profiling has helped match blood and semen samples found at the scene of a crime to the perpetrator, managing to sometimes solve cold cases that have been closed for decades. The introduction of DNA evidence has also helped to clear convicted criminals of crimes that they did not commit. However this new technology comes at a cost. DNA profiling, while highly accurate can be contaminated with other strands of DNA, or mismatched on the database and if presented in court can severely conflict with the rights of the accused to a fair trial, based on factual evidence. Fifteen years after the infamous Graeme Thorne case, in which forensic testing just started to be used, the Australian Law Reform Commission (ALRC) was asked to do a report into criminal investigations for the Attorney General after many believed that there had been a string of cases which have comprised the rights of the accused, in relation to bias on the part of the police and court system, in addition to the Guildford cases in the UK. The report concluded that no field of law could be can be expressed and reviewed without regard to relevant technology (Kirby, M 2010). In relation to DNA testing, that was just being introduced into the legal system, a British geneticist Sir Alec Jeffreys utilized a form of DNA profiling to be able to establish the probable identity of a criminal suspect (Fantino, J 2007). Since this discovery there has been a potent enhancement of successful criminal conviction rates, in what has essentially been a revolution of the methods used by police to make accurate investigations of the accused. In the case of Farah Jama, there was a gross miscarriage of justice due to a DNA mismatch. As a result, Jama was convicted of sexually assaulting a 40 year old woman in the bathroom of a Victorian nightclub and sentenced to six year imprisonment. However, in all likeliness, Jama was not even near the nightclub at the time of the attack and ended up serving one and a half years for a crime he did not commit. This was a result of DNA contamination. The scientist in charge of the DNA samples of the case had mixed up the samples with the DNA found on the womens clothing with that of Jamas in a completely unrelated case. An enquiry was conducted by the former Court of Appeal judge, the Hon Frank Vincent QC, and concluded that a wrongful miscarriage of justice has occurred; and that Farah Jama had been wrongly convicted. (Victoria, 2010) This further enforces the argument that the use of DNA evidence, when not analyzed sufficiently, may potentially conflict with the rights of the accused However, in relation to Cold Cases DNA profiling has brought major breakthroughs and can lead to arrests for major crimes committed years ago. Recently a vital strand of DNA was found at the scene of the Wanda Beach murders that occurred over 47 years ago where two 15 year old girls from Ryde were brutally murdered. Police are hoping that this vital strand, along with new testing methods will provide a clearer view of the killers profile. Police believe that a number of potential suspects are still alive, but will have to wait in order for the

Daniel Hickinbotham

Legal Studies Essay

RHM

DNA evidence to provide a more conclusive finding (Morri, M 2012). If, as a result of the findings, the killer is brought to Justice, than not only is this of great benefit to society and to upholding justice, but a conviction (provided the DNA, and other evidence is accurate) would entirely be within the rights of the accused. The Button Case is a well known example of how DNA evidence can help protect the rights of the accused; it was the first example of DNA exoneration in Australia. Mr Frank Button was accused of raping a 13 year old girl in a Queensland indigenous community. Originally, the girl in question claimed that she did not know her attacker, however later withdrew her statement nominating Frank Button as her rapist. Mr Button was found guilty and sentenced to prison. Police prepared a rape kit and obtained vaginal swabs from the victim for matching, however these failed to yield conclusive results as to who was the attacker. Mr Button always claimed he was innocent. Later, samples of sheets and pillowcases were sent to the lab for analysis; however they were not tested at all. Due to this inattention to scientific evidence, Mr Button served seven years in prison for a crime that he did not commit. This shows a gross conflict of interests for the rights of the accused not to have evidence tested. Mr Button then went to appeal his conviction in the Queensland Court of Appeal on the grounds of an absence of scientific evidence at the trial. It was only then that the government sent the bedding to be properly tested for samples of DNA. Eventually DNA samples were discovered that did not match Mr Button but in fact matched the DNA sample of a convicted rapist and he too matched the original description, given by the victim of her attacker, whereas Mr Button did not. The Court of Appeal of Queensland described the Button case as a black day in the history of criminal justice administration in Australia (K, Edwards 2008). A recent appeal to the High Court may potentially challenge the current laws stating that a person can be convicted of a crime based solely on DNA evidence. In the case of Benjamin James Forbes who was convicted in the Northern Territory of sexual assault, his lawyer claims that the courts cannot convict someone on criminal charges based solely on DNA evidence because they cannot prove conclusively that the two pieces of genetic material are from the same person (C.Merritt,2010). Although his appeal was quashed, Forbes questioning of normal procedures has raised questions on the reliability, solely of DNA evidence to convict someone and how this apparently conclusive evidence conflicts with the rights of the accused when, in the past DNA evidence has been proved false. Whilst many experts are in favour of the use of DNA evidence at trial, most agree that there needs to be tighter regulations in order to avoid miscarriages of justice in relation to DNA profiling. As a result, Justice Kirby believes that the use of scientific evidence can lessen cases of miscarriages of justice when there is a lower rate of human error (as seen in the Farah Jama case) and contamination when analyzing DNA. Kirby also states that we should increase the rigor of scientific analysis so that there is little doubt in the findings when presented at trial. Many examples of miscarriages of justice in relation to DNA testing is a result of subpar DNA analyzing that can lead to unreliable results, compromising the rights of the accused for factual evidence to be presented at his or her trial.

Daniel Hickinbotham

Legal Studies Essay

RHM