DNA EVIDENCE: PROCEED WITH CARE
The Hon Justice Michael Kirby
My work as a member of the Ethics Committee of the Human
Genome Organisation has taught me much about DNA, the human
genome and their potential to change the ways many things are
done in society, including in medicine, science, policing and the law.
There is no doubt that, in the future, DNA evidence will be an
important tool for effective policing.
It will sometimes provide a
means to establish the innocence of a person accused (or even
convicted) of a criminal offence by demonstrating that the
perpetrator was almost certainly, or even certainly, someone else 1.
In appropriate cases, it will also help to eliminate suspects, narrow
down the possibilities and even identify the persons responsible for
serious crimes who leave behind traces of their DNA like a genetic
fingerprint2.

Based on an address to a seminar on science and digital/cyber
crime at the University of Technology, Sydney, 16 March 2000.
1
M Riley, "DNA testing gives freedom to 64th inmate", Sydney
Morning Herald, 1 April 2000, 25.
2
Fingerprinting was developed in the late 19th century and
provision for the compulsory taking of fingerprints was
introduced just before the beginning of the 20th century. The
Footnote continues
2.
Despite some recent cases which suggest that DNA evidence
can sometimes be faulted, because matching of DNA with a suspect
is, in a particular case, mistaken3, overwhelmingly DNA evidence will
be reliable.
It will be accurate.
It will therefore help the legal
process, both in criminal and civil cases4. In some cases where it is
applicable it will help solve unresolved crime and confine at least
some unmeritorious defences to criminal prosecutions.
Nevertheless, the introduction of enhanced facilities for
procuring DNA samples from persons suspected of criminal offences
should, in my view, occur in a way that is compatible with the basic
principles of our legal system. That system places great store on
bringing to justice those who can be proved by a public prosecuting
agency, to the requisite standard, to be guilty of a criminal offence.
introduction in 1924 of statutory provisions for bodily examination
of persons in lawful custody (Crimes Act 1900 (NSW), s 353A)
was held not to authorise extraction of a blood sample:
Fernando v Commissioner of Police (1995) 36 NSWLR 567 (78
A Crim R 64). As to further legislation since the demand was
made in that case, see ibid, at 582-583.
3
R Willing, "Mismatch calls DNA tests into question", USA Today,
8 February 2000. The report revealed an incorrect match to a
burglary in England of an innocent suspect - said to be a 1 in 37
million possibility of error.
4
Reports suggest that a "Do it Yourself DNA Kit" being marketed
in Britain for £15 will be used in adoption, paternity and like
cases. The kit was launched in the United States in January
2000. See The Times, 17 April 2000.
3.
But it also assigns great importance to other social objectives.
These include:

the control of the power of the state to intervene in the lives of
individuals; and

the imposition on the state of the obligation to prove its case
against persons accused and to do so by strongly convincing
evidence.
Doubtless, we could reduce crime somewhat by adopting a
number of different strategies, such as a widespread network of paid
informers, universal telephonic interception, unrestricted electronic
eavesdropping, aggressive inquisitional procedures and draconian
punishments. Because Australians place a high store on individual
liberty, they have so far rejected these expedients. In the name of
preserving a particular kind of society, they have imposed legal
restrictions on the use of these means. For the same reason, they
ordinarily subject proposals to enhance the power of the state and its
officials to proper and careful scrutiny characterised by a measure of
caution and scepticism. This is especially so where demands for
greater official powers are accompanied by extravagant claims and
media hype.
4.
Although some commentators have rejected as inapplicable
references to the excesses of the authorities in Nazi Germany and
Stalin's Russia5, more modern illustrations of the over-enthusiastic
enlargement of police powers stand as a warning against unthinking
alteration of fundamental principles. Thus the German Democratic
Republic maintained security and police files on 500,000 of its
citizens. One in three of the DDR's 17 million citizens were at one
time spied on or reports placed on an official file. The State security
organ, Stasi, had a full-time staff of 90,000 plus, at least 174,000
paid informers, not to mention legions of occasional narks. All of this
occurred in living memory in a highly civilised people and
comparatively modern and efficient economy. The spied and the
spied upon are now living satisfactorily together in the unified
Federal Republic of Germany which gets by with much more
restricted police and security powers and only a fraction of the files
about citizens maintained by the authorities6
Amongst the considerations which need to be taken into
account in placing effective controls over the procurement of body
samples from individuals for DNA testing are the following:
5
P Akerman, "Giant step into an age of innocence", Daily
Telegraph, 13 April 200, 27.
6
The Economist, 8 April 2000, 46.
5.

That the fundamental principles of human rights are
conformed to, as enshrined in international instruments to
which Australia is a party. These include the basic principle,
also reflected in the common law, that a person ought not to
be obliged without good cause and authority of law to
incriminate himself or herself in relation to a criminal offence 7.
They also include respect for individual privacy.8

That effective controls are instituted that ensure that the
presumption of innocence, which is central to our criminal
justice system, is not eroded and that officials, including
police, may only intrude into the lives of individuals with just
cause that can be established to the satisfaction of an
independent judicial officer at the tie or subsequently9.

That where an individual objects to the provision of a body
sample, whether for DNA testing or otherwise, such objection
is decided by reference to legal criteria which take into
7
See International Covenant on Civil and Political Rights, Art
14.2.
8
See ibid, Art 17.1; C Puplick, "Sirens sound over privacy",
Sydney Morning Herald, 13 April 2000, 17.
9
See Fernando v Commissioner of Police (1995) 36 NSWLR 567
at 584-585, 592.
6.
account the need to establish a strong reason to authorise the
state to extract a body sample from a suspect in the face of
that person's non-consent.
A basic question is whether
enforced taking of DNA samples, against the wishes of an
accused person, should be confined to persons already
arrested in respect of an offence or where reasonable cause
to suspect an offence can be proved. Or whether the facility
should be limited to persons actually convicted of one offence
in order then to discover whether they were likely to have been
involved in other unsolved offences in respect of which DNA
evidence is available10

That effective procedures are afforded to guarantee against
contamination of DNA samples.
The planting of evidence
("giving of presents") has been a distinct problem for the
criminal justice system in the past.
Given the likely
devastating power of DNA evidence, it becomes doubly
important to ensure the integrity of collection of samples and
their
transmission,
storage,
testing,
reportage
and
preservation for the scrutiny of independent experts and,
ultimately if need be, by the courts.
Contamination or
fabrication of evidence by officials is only part of the problem.
10
C Niesche, "DNA Splits on Timing", The Australian, 27 March
2000, 6 referring to statements of the Premier, Mr R J Carr.
7.
The planting of false trails by criminals, designed to implicate
others as suspects, cannot be ignored11.

That ready procedures are provided to require the destruction
of DNA samples where a person is acquitted of the crime in
respect of which the samples were procured or where
prosecution of that crime against the suspect does not
proceed within a specified period.

That disproportionate investment of personnel and resources
of the state is not devoted to DNA sampling and testing which
could more effectively be expended in other activities to
uphold law and order. The much publicised DNA testing of
five hundred persons in a country town in New South Wales
(and their fingerprinting and the collection of DNA data from
them) may have been an illustration of this12.
Opponents
11
A point made by T O'Gorman, "Genetic Databases not always
benign", The Australian, 12 April 2000, 15. This subject has
been reported upon by the New Zealand Report on DNA
Anomalies (November 1999), noted Puplick above n 8.
12
J Holcombe, "A presumption of guilt is going too far", The
Australian, 13 April 2000, 11; L Doherty and E Connolly,
"Frightening glimpse of future police state", Sydney Morning
Herald, 7 April 2000, 8. See editorials "Putting our motives to
the test", Daily Telegraph (Syd), 8 April 2000, 22; Role of DNA
tests needs investigation", The Australian, 7 April 2000, 6. cf
The State Coroner's reported remarks on praise of the Wee Waa
mass screening, Sydney Morning Herald, 21 April 2000, 5.
8.
suggested that it would have been a more effective
expenditure of police funds generally to keep the police station
open at night13. In the same category may be the demands
that DNA testing should be followed up by large scale testing
of employees at their workplace, in effect to see whether they
are using illicit drugs14.
Care would have to be observed
against extending testing for multiple causes given that, once
started, the list has an inherent and professional tendency to
expand.

That protections are introduced to monitor, and to provide
subject access to, DNA samples maintained in any public
register, in respect of those persons who are convicted of
crimes in relation to which the samples were procured15.

That limitations are established by law to control official
access to any data base by public officials and to restrict,
13
Quoted E Wynhausen, "DNA's stress test", Weekend Australian,
22 April 2000, 17 at 20.
14
The Deputy Director of Sydney's Institute of Clinical Pathology
and Medical Research (Dr Ross Vining) explained how drug
tests at work had been used in the NSW Police Service. He
urged their extension to air pilots, heavy vehicle operators and
"anyone with public safety responsibilities". Reported ABC
News Online, 31 March 2000 at 9.30 a.m.
15
Puplick, above n 8.
9.
under judicial or other independent control, the building of
large scale, national composite data profiles, particularly
where such data is maintained in the control of a police or
equivalent body undisciplined by effective external monitors.

That judicial officers who will receive such DNA evidence, and
lawyers who tender it, examine and cross-examine upon it, are
afforded basic information and training to ensure that each
can perform his or her professional duty and safeguard the
individual concerned from risks of mistake, oppression and
injustice.16

That effective facilities are provided to suspects to permit them
to secure independent scientific scrutiny of DNA samples
alleged to relate to them.
It is important that the relevant
experts should not be entirely within the employ of the state.
Just because a result is produced by an expert or a machine is
no reason to accept it without further questioning, or the right
to question, the applicability, accuracy and reliability of such
result.
An abiding difficulty of the present age is the
unwillingness of many to accept that experts and machines
16
cf R v Pantoja (1996) 88 A Crim R 554.
10.
sometimes err. There remains much truth in the old adage:
garbage in, garbage out.

That independent statutory guardians of civil rights, such as
the Privacy Commissioner, the Ombudsman or the Anti
Discrimination Board have a role in auditing the system put in
place and monitoring its operation17.

That the discrepancies between the laws of different
Australian jurisdictions on this subject be reconsidered by the
appropriate bodies, particularly because of the mobility of
sections of the population and the possible difficulty of
securing equivalent facilities in respect of a person who is in
another Australian jurisdiction.
Such discrepancies should
also be kept in mind by judicial officers asked to interpret
applicable legislative provisions by reference to judicial
authority addressed to different legislation18.
17
Puplick, above n 8.
18
A point made by Priestley JA in Fernando v Police
Commissioner (1995) 36 NSWLR 567 at 583 and by Powell JA
at 593 by reference to R v Franklin (1979) 22 SASR 101. See
M Chulov, "Police in doubt on using DNA to convict", Sydney
Morning Herald, 15 April 2000, 9.
11.
At the heart of these expressed concerns is not a Luddite-like
resistance to a valuable forensic advance to respond with a measure
of caution to what is now being promoted as the miracle cure for
future crime clear-up rates. This is simply a reminder, which lawyers
are bound to give, that our criminal law and procedure operate in a
society of a particular kind. That the agents of the state are subject
to the supervision of independent courts. That ordinarily the state
has no right to intrude in the lives of individuals without just cause.
That the law puts limits on the entitlement of the authorities to do so
in order to safeguard a most precious feature of the kind of society
we live in.
None of us would wish a society in which we could be stopped
on the corner by an official with the demand: "Papers!". Yet in the
future the ambitious official will not demand a passport of the paper
variety or even one with electronic coding. He or she will want the
most indelible passport of all - one written in the subject's DNA. To
the extent that we arm officials with the power to secure, and then to
collect and then to aggregate and match such data (and to build
from it a universal data base) we must be careful that we do not
thereby reduce the measure of individual freedom and privacy which
the law presently upholds. Our Constitution and also our criminal
justice system accept that there are other values to be served than
efficiency and clean-up rates.
None of the foregoing represent reasons to reject the
advances of science and the benefits of DNA testing. But they are a
12.
reason to proceed with a degree of care and to monitor carefully any
new legislation that is implemented. As well, such legislation should
be regularly audited not only against the criterion of efficiency - but
also against the touchstone of liberty19.
19
For a comment on the abiding role of the judiciary of our tradition
in this regard, see G Robertson QC cited in Sir David Williams,
"Bias; The Judges and the Separation of Powers" [2000] Public
Law 45 at 60.
DNA EVIDENCE: PROCEED WITH CARE
The Hon Justice Michael Kirby