A police task force is having to re-examine thousands of major crime cases after questions were raised over statements about DNA testing.
DNA testing thresholds were changed in 2018 meaning some samples with low levels were reported as “no DNA detected” or “DNA insufficient for further processing”.
Yesterday a Commission of Inquiry into the problem delivered an interim report into Queensland's state-run forensics lab.
Public hearings haven't begun yet – but already the inquiry's interim findings have sent shock waves across government and the justice system.
It made three recommendations, all of which have been accepted by the state government.
Premier Annastacia Palaszczuk called the findings "shocking".
Expert witness statements given to court will be corrected, while a police task force has been set up to re-examine samples in potentially thousands of major crime cases.
The interim report by former Court of Appeal president Walter Sofronoff KC spans 40 pages, but here are five takeaways.
1. Witness statements are 'untrue'
When DNA test results are used in criminal cases, forensic scientists give statements to police, the prosecution and the defence about the results.
The inquiry has so far found that statements issued by the Queensland Health Forensic and Scientific Services (FSS) since early 2018, that said "DNA insufficient for further processing" or "No DNA detected" were "untrue" or "misleading".
That was because, although the sample might have contained a low level of measurable DNA, there was also a possibility that further testing could have shown partial or full DNA profiles.
"That statement connotes the certainty that the sample cannot yield a usable profile when that is not known," Mr Sofronoff's report said.
"I am of the opinion that the practice of putting forward these untrue statements as true expert evidence is a profound issue for the administration of criminal justice, for the integrity of police investigations, and for decisions made by victims of crime."
Mr Sofronoff said the discovery that witness statements contained statements that were untrue was "deeply concerning", but said not all of the statements would have a "material effect" on investigations or criminal proceedings.
2. Four kinds of cases could have been affected
The report spells out four types of cases where the statement "DNA insufficient for further processing" might have had a material impact on the outcome.
- Where the line of police investigation might have been "unnecessarily weakened or abandoned" by a lack of DNA evidence, when it was, in fact, available.
- Where a prosecutor might have decided not to launch or to discontinue criminal proceedings, or accepted a plea to a lesser offence, because of the absence of DNA evidence when it might have been obtained.
- Where the absence of DNA evidence "might have weakened the prosecution case significantly".
- Where "the absence of evidence of an offender's DNA in a sexual assault case in which, because of the circumstances of the offending, the offender's DNA was expected to be found, might compromise the credit of a truthful complainant to such a degree that he or she is (or a child complainant's parents are) no longer willing to pursue justice under such conditions".
Mr Sofronoff said in the report it didn't mean any conviction that involved DNA evidence was in doubt – just that persons or parties might have taken a different course.
3. Not an oppressive burden
Scientists in management roles at FSS were told Mr Sofronoff was considering recommending the lab issue fresh witness statements to correct the previous ones.
But, according to the interim report, one senior scientist – dubbed 'Ms F' – told the inquiry if FSS had to do that, the lab would be severely hampered in its ability to do its current work, and the time and effort involved would substantially outweigh any benefit that might be obtained in the rare case.
Mr Sofronoff rejected that.
"I do not accept that the rectification of the current situation, in which some parties may have been materially misled about the evidence, involves an oppressive burden upon the resources of FSS," he said.
"I do not accept that it is impossible to achieve the necessary correction by efficient means.
"I am unpersuaded that it is better to save FSS the work involved than it is to ensure that there has been no miscarriage of justice in any individual cases, even if that is only a single case."
4. The options paper
Before early 2018, all samples in major crime cases were fully tested by FSS, "unless they returned a quant under 0.001 nano grams per micro litre".
Then in January of that year, FSS presented the Queensland Police Service with an "options paper", the report said.
"This document suggested that processing of major crime samples with quants between 0.001 ng/µL and 0.0088 ng/µL was not an efficient use of resources," it said.
"It was pointed out that there were advantages to abandoning such testing: the ability to potentially reallocate staff time currently allocated to processing, interpreting and reporting 'auto-microcon' samples, to samples with higher DNA yield, thus improving the turnaround time for results on these samples."
A meeting took place between FSS and QPS, and a few days later, QPS agreed these samples were no longer to be processed unless QPS asked for that to be done – meaning a new practice.
That threshold was removed when the commission of inquiry was called in June this year.
5. Proportion of samples capable of generating usable profile
The report said the proportion of samples that were capable of generating a usable DNA profile was 10.6 per cent, not 1.86 per cent.
"Some of these expert opinions may have been critical to an investigation of a serious offence, a decision to prosecute or the outcome of a trial," the report said.
"Such statements continue to circulate — with a potentially operative effect upon investigators and upon tribunals of fact."
