Rayment, Katherine --- "Faith in DNA: The Vincent Report" [2010] JlLawInfoSci 7; (2010) 20(1) Journal of Law, Information and Science 238

• Faith in DNA: The Vincent Report
• Overview
• 1 DNA Evidence
• 2 Decision to Proceed
• 3 Implications for the Legal Profession
• 4 Outcomes

Faith in DNA: The Vincent Report

KATHERINE RAYMENT[*]

… the DNA evidence was, like Ozymandias’ broken statue in the poem by Shelley, found isolated in a vast desert.^[1]

Overview

The sequence of events that led to an innocent man being convicted of rape and imprisoned for over 14 months began on 21 July 2008. On that day, Mr Farah Abdulkadir Jama was convicted of rape in Melbourne’s County Court on the basis of DNA evidence and sentenced to six years in prison with a non-parole period of four years.^[2] On 7 December 2009, prosecutor Brett Sonnet admitted to the Victorian Court of Appeal that a ‘substantial miscarriage of justice’^[3] had occurred in the case, most likely due to a problem at the Victorian Institute of Forensic Medicine (VIFM). Jama was acquitted immediately and has since been awarded an ex-gratia payment of $525,000 from the Victorian Government.^[4] On 31 March 2010, former Supreme Court Justice the Hon Frank Vincent released a report entitled, Inquiry into the Circumstances that Led to the Conviction of Mr Farah Abdulkadir Jama^[5] (the ‘Vincent Report’) which examined in detail the factors that led to this young man’s conviction. The Vincent Report revealed an extraordinary case of contamination and that the Victorian criminal justice system had wholeheartedly let Jama down.^[6]

Jama was convicted of raping a 48-year-old woman found semi-conscious in a nightclub toilet cubicle in Doncaster, Victoria.^[7] With no recollection of the evening, she was taken to a Crisis Care Unit (‘CCU’) in Macleod for physical examination and further tests. Routine internal swabs found semen that was later matched via a DNA database to Jama. More than fourteen months later, it was discovered that the same forensic medical officer had taken a swab from Jama’s mouth in a separate and unrelated investigation the previous day.^[8] His DNA had been placed on the database less than 48 hours before he was matched to the semen sample in Macleod.

The most likely explanation was found to be contamination.^[9] In his report, Mr Vincent found that the standard of cleaning of the examination rooms was inappropriate given the presence of DNA. The level of cleaning was directed at maintaining infection control, not avoiding the spread of DNA^[10] and the cleaning required of surfaces and equipment in the CCU in order to remove all traces of DNA was not carried out.

An investigation into the incident was requested by the VIFM and the Vincent Report was commissioned.^[11] In the Report, Mr Vincent acknowledges the assistance of the agencies and individuals involved in the initial case — all of which were concerned about how their procedures and practices could allow for contamination to occur.^[12]

The issues identified by the Report pose a number of important considerations for forensic scientists, investigating officers and the legal community in cases involving forensic and DNA evidence. The police response; the interpretation and use of scientific opinion; the decision to proceed with a legal case; and the prosecution and defence approaches in this case were particularly criticised.

1 DNA Evidence

… the DNA evidence provided the only foundation for concluding that a crime had been committed at all, and then constituted the only means of identifying the perpetrator.^[13]

There were no fingerprints, witnesses, CCTV footage or any other physical or biological evidence that a rape had been committed.^[14] The decision to proceed on DNA evidence alone was highly criticised.^[15] Throughout his investigation, Mr Vincent found that the DNA evidence was perceived to possess ‘an almost mystical infallibility that enabled its surroundings to be disregarded’.^[16] Only a matter of weeks before the appeal case was heard did the parties begin to realise the potential errors in the investigation and interpretation of DNA results.

2 Decision to Proceed

Further issue was found with the prosecution’s decision to proceed with the case to trial.^[17] There was evidence that the police officer responsible for the case had enquired as to the likelihood of contamination^[18] but was reassured that this was not possible. On the basis of this, the officer prepared a brief of evidence that meant the entire prosecution case rested on DNA evidence.^[19] The Vincent investigation took the advice of Dr James Robertson, a forensic scientist with the Australian Federal Police and now a member of staff at the University of Canberra.^[20] Dr Robertson maintains that, like all other evidence, whether DNA evidence can be seen as ‘reliable and probative in the determination of disputed issues of fact involves consideration of a range of factors’.^[21] In this case, there was no consideration of the lack of evidence surrounding the offence, resulting in the Office of Public Prosecutors (OPP) pursuing the matter to trial in the County Court.

Because the DNA evidence allegedly established that both a crime had been committed, and the identity of the perpetrator, particular care was required. This was particularly the case given the lack of corroborating evidence.

3 Implications for the Legal Profession

I have been left with the deep impression that at virtually every point, and by almost everyone involved, [DNA evidence] was handled with so little insight into the issues which it presented that no need was seen to explore further or conduct research into them.^[22]

Jama’s case and the Vincent Report have potential implications for the legal profession and cases involving forensic and DNA evidence. Recommendations from the Report encompass scientific procedures for Crisis Care Units, cleaning procedures for the VIFM and reporting requirements for police investigators and lawyers.^[23]

Recommendation 9 of the Report discusses police training on the use of DNA for both intelligence and evidentiary purposes — particularly when there is minimal corroborative evidence.^[24] As one of the earlier steps in the legal process, it is important to ensure that police officers understand DNA evidence, and the possibilities for contamination, however the Vincent Report does not recommend how best to implement this. If the relevant Victorian bodies can ensure police officers and investigators receive this training then there is the hope that contamination cases will never progress to the OPP and into the courts.

Recommendation 10 is that the Judicial College of Victoria, the Law Institute of Victoria and the Victorian Bar Council conduct courses that will assist legal practitioners and members of the judiciary in the appropriate use and nature of DNA evidence in the criminal justice system.^[25] If these courses do in fact go ahead they have the potential to ensure lawyers have greater understanding of the forensic process, and ensure open discussion of the potential for human error in DNA evidence. This requires meaningful and in depth training in order for cases like Jama to be properly understood and dealt with.

4 Outcomes

The Report places doubt on the use of forensic and DNA evidence in criminal trials, particularly those with little or no corroborative evidence of guilt.^[26] Mr Vincent highlights how easily contamination can occur and how the checks and balances on DNA evidence may cease to operate effectively. In particular, the Report places an onus on both legal bodies and lawyers to provide and partake in legal education on the threats to the integrity of DNA evidence. Whether these recommendations are adopted is particularly important in preventing miscarriages of justice and incorrect convictions in the Australian and more specifically, the Victorian criminal justice system.

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^[*] Katherine Rayment is a PhD candidate at the Tasmanian Institute of Law Enforcement Studies (TILES) and Faculty of Law, University of Tasmania. Her thesis topic is ‘The Effectiveness of Forensic Science in the Criminal Justice System – The Role of the Lawyer and DNA evidence.’

^[1] Frank Vincent, Report: Inquiry into the Circumstances that Led to the Conviction of Mr Farah Abdulkadir Jama (Victorian Government Printer, 2010) [11] <http://www.justice.vic.gov.au/wps/wcm/connect/5a103e804263c8da810e832b0760a79a/VincentReportFinal6May2010.pdf?MOD=AJPERES> (‘Vincent Report’).

^[2] Ibid, [13].

^[3] Kate Hagan, ‘DNA fiasco: rape conviction quashed’ The Age (Victoria), 8 December 2009,

<http://www.theage.com.au/national/dna-fiasco-rape-conviction-quashed-20091207-kfc3.html> .

^[4] Reid Sexton, ‘Man Paid $525,000 for wrong conviction’, The Age (Victoria), 30 June 2010, <http://www.theage.com.au/victoria/man-paid-525000-for-wrong-conviction-20100629-zjko.html> .

^[5] Vincent Report, above n 1.

^[6] Ibid.

^[7] Ibid, 13.

^[8] Ibid, 9–10.

^[9] Ibid, 48.

^[10] Ibid, 21.

^[11] Ibid, 7-8.

^[12] Ibid, 6.

^[13] Ibid, 10–11.

^[14] Ibid, 17.

^[15] Ibid, 10–12, 17, 30–38.

^[16] Ibid, 11.

^[17] Ibid, 30-32.

^[18] Ibid, 24.

^[19] Ibid, 30.

^[20] Ibid, 6.

^[21] Ibid, 30.

^[22] Ibid, 11.

^[23] Ibid, 48–56.

^[24] Ibid, 55.

^[25] Ibid, 56.

^[26] Ibid, 45–46.