By Masseh Danishyar

Assess the effectiveness of the legal system in dealing with DNA.

In reference to DNA, the Australian legal system is of mixed effectiveness, as it struggles to

adequately balance its powers with justice and civil liberties, demonstrating its need for
improvement. Essentially, DNA evidence is admissible in courts with the (NSW) Crimes (Forensic
Procedure) Act 2000 and (CTH) Crimes Amendment (Forensic Procedures) Act 2001. With the
support of legislation and other government establishments, DNA samples are somewhat useful in
creating links between suspects and a crime. Albeit, numerous issues continue to exist, issues which
are yet to be resolved by a mechanism. These concerns include but are not limited to, contamination
and the possibility of prejudice, as well as the over-reliance and withholding of DNA evidence by law
enforcers.

Various government establishments which regulate the use of forensic evidence can prove to be
integral when dealing with DNA. Exemplary, the National Criminal Investigation DNA Database
(NCIDD) is an effective organization, as it provides police with the adequate use of DNA samples to
identify criminal suspects. With this program, over 1.2 million DNA profiles have been uploaded
since its creation in April 2001(Australian Criminal Intelligence Commission). Additionally, the
(NSW) Police Code of Practice for Crime (PCPC) is a legal document which regulates police powers
when investigating crime. In section 7 of the NSWPCPC, police limitations regarding forensic
procedures are clearly outlined, striving to defuse police misconduct. The aforementioned
regulations are effective components of the legal system in relevance to DNA, as the NCIDD gives
law officials access to the use of DNA to identify suspects, while the NSWPCPC restricts police from
unlawful acts, rightfully balancing individual rights with police powers.

To an extent, the presentation of forensic evidence in courts can demonstrate the legal systems
efficient capabilities. While not entirely reliable as it is highly prone to errors, DNA is used to identify
suspects and convict them in a criminal trial. An example of this was demonstrated in R v Milat
(1996), when Ivan Milat was sentenced with the murder of 7 backpackers. Through the use of DNA,
the prosecution generated a link between Milat and one of his victims, which allowed the jury to
determine his guilt. With this decision, the legal system proved that in the correct circumstances,
DNA evidence can be effective, as this judicial response resulted in the lawful imprisonment of a
criminal, which preserves civil safety and achieves justice.

Due to the perceived proficiency of modern technology, prosecutors may over-rely on DNA evidence
to prove their case, demonstrating the legal systems complications, since it may lead to
misperceived verdicts. Following the enactment of the (NSW) Crimes (Forensic Procedure) Act 2000,
Police Minister Paul Whelan publicly stated that “They will still need to assemble a brief of evidence
against the offender; DNA alone will not convict” (Hansard, NSW Legislative Assembly, 2000).
Nevertheless, there have been several cases in which courts have solely relied on DNA evidence to
convict criminal suspects. A prime example of this was illustrated in R v Jama (2008), when Farah
Jama was wrongfully convicted of sexually assaulting a woman in the bathroom of Doncaster night
club, after the jury determined his guilt on the basis of a DNA sample that linked him to the crime
scene. Jama spent 15 months in prison before being acquitted after his DNA sample was re-
examined for contamination in December 2009. This false conviction was regarded as a “substantial
miscarriage of justice” (Brett Sonnet, SMH 2009), as the judiciary had allowed the prosecution to
solely rely on Jama’s DNA sample as the basis of their case, without presenting any other viable
forms of evidence. Despite Jama receiving $500,000 in compensation, the court was slow in
determining a just verdict, failing to reflect on the legal systems requirement to be responsive.

Teacher: Mr Fernandez
By Masseh Danishyar

Moreover, this response had a negative impact on the individual rights of Jama, as he was wrongfully
imprisoned without access to justice, which exemplifies the inadequacies of the legal system.

DNA evidence is a recurrent subject of contamination, which produces unjust and ineffective
responses by the legal system. Numerous cases feature the prosecution altering the crime scene to
contaminate the evidence at the expense of a suspect. This was demonstrated in R v Lisoff (1999),
when Nick Lisoff was charged with assault after traces of the victim’s blood was found on his
clothing. Subsequently, it was discovered that the prosecution had deliberately planted the victim’s
blood onto Lisoff’s jacket. Following a review by the New South Wales Criminal Court of Appeal
(NSWCCA), Lisoff was acquitted, as the inadmissibility of prejudicial evidence is interpreted under
section 137 of the (NSW) Evidence Act (1995). Although the NSWCCA was effective as it released
Lisoff and resolidified his rights, the prosecution refused to act in accordance with the rule of law, as
they unjustly exploited their powers by persecuting a criminal suspect on the basis of false evidence,
further illustrating the legal systems ineffectiveness.

In spite of DNA evidence being a significant factor in identifying victims and suspects in a criminal
case, the possibility exists that the prosecution may withhold of the evidence, exhibiting the legal
systems fallacy. As aforementioned, the (CTH) Crimes Amendment (Forensic Procedures) Act 2001
recognizes the admissibility of DNA evidence in courts. With this legislation, prosecutors are
permitted to present forensic evidence to prove their case, since it offers scientific evidence that
may determine the guilt of criminals. Albeit, the prosecution may choose to suppress viable DNA
samples which could be a determining factor in the case. This issue was exemplified in R v Button
(2001), which resulted in the wrongful imprisonment of suspect Frank Alan Button, who had been
accused of raping a 13-year-old girl. After 10 months in jail, Button was acquitted after the
government discovered the existence of DNA samples which re-established his innocence. As a
result of the judiciary’s ineffective procedure, JA Williams criticised the criminal justice system, as
“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” (Queensland Court of
Appeal, 2001). The prosecution failed to utilise viable resources by withholding of eminent
information regarding a criminal act, undermining the legal systems need to be efficient with its
resources. Furthermore, this unjust act had exemplified the legal systems ineffectiveness. The
prosecution ultimately failed to achieve justice and meet society’s needs, as Button was forced to
serve 10 months for a crime he didn’t commit, while the true perpetrator was unconfined with the
ability to further damage society, hence emphasising the legal systems inefficiency.

Following a critical analysis of various legal responses, it becomes evident that the Australian legal
system is of mixed effectiveness when dealing with issues regarding DNA. With the assistance of
legislation and other government establishments, DNA evidence is admissible in courts, and can
prove to be somewhat effective, evident by its ability to provide scientifically verified links between
crimes and perpetrators. However, the existence of the aforementioned issues regarding
contamination and the prosecutions unjust choices with DNA evidence, illuminates its mixed
reliability.

Bibliography

Teacher: Mr Fernandez
By Masseh Danishyar

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Teacher: Mr Fernandez