After mounting concerns about DNA testing at the state-run forensics lab, the Queensland government yesterday announced a commission of inquiry.
This is a royal-commission-style inquiry with the power to summon witnesses and hold public hearings.
It will be led by one of the state’s most esteemed retired judges — former president of the Court of Appeal, Walter Sofronoff.
The scope of the six-month inquiry hasn’t been decided yet, but what could the flow-on consequences be for cases?
Here’s what we know.
What’s prompted this inquiry?
For months, the Queensland government has faced questions from media and the Opposition about potential DNA testing failures at the state-run forensics lab.
A government review into the lab was ordered.
But Premier Annastacia Palaszczuk said revelations last week about police concerns about DNA testing thresholds “changed everything”, prompting the need for a full commission of inquiry.
In a submission to the Women’s Safety and Justice Taskforce, the Queensland Police Service said it had requested additional testing on 47 samples relating to sex offences, which the lab initially had said didn’t have enough DNA for further processing.
Two thirds of those samples returned a usable profile.
Police are now re-examining all sexual assault cases dating back to 2018 which were initially deemed to not have enough DNA evidence for further processing.
What are the possible implications?
DNA testing is a crucial element in the criminal justice system.
The submission from police revealed that not all samples were being fully tested at the state-run forensics lab due to a “testing threshold”, but results may have been possible through additional testing.
That threshold has now been removed.
Defence lawyer Bill Potts, who has been practising criminal law for 40 years, said it “may well be that juries are not being provided with the best possible evidence, or indeed all of the evidence”.
“This is a two-edged sword,” he said.
Forensic biologist Kirsty Wright told ABC’s Radio National the consequences are serious.
“We’re talking about potentially false acquittals, wrongful convictions and really serious and violent offenders not being apprehended when they should have been and maybe having the opportunity to offend,” she said.
“A full inquiry is exactly what’s needed to really understand what’s been happening inside that lab and for how long it’s been happening, but importantly, what needs to be done to fix it.”
Dr Wright, who notably led the efforts to identify the Boxing Day tsunami victims and ran the National Criminal Investigation DNA database, said “nothing compares” to the issues at the lab, which she labelled the “biggest forensic disaster”.
When asked yesterday about the potential impact on any past or current proceedings, Health Minister Yvette D’Ath said “anything that arises out of this [inquiry] that may impact on any of those, the commissioner [Mr Sofronoff] will deal with appropriately”.
“What’s important to understand is that the QPS on any DNA — whether it comes back insufficient DNA or not — already have and continue to exercise the right to ask for further detailed testing and that process will continue,” she said.
Could double jeopardy play a role?
Under Queensland’s double jeopardy provisions, a person who has been charged with a serious criminal offence — including murder — and is acquitted by a jury, can be charged a second time if new evidence emerges that was not available to prosecutors at the time.
Mr Potts said the law was designed to “reflect changes in science” and agreed DNA evidence could potentially fall within it.
“It would fall down to an argument before a court and decision based on both the law and the facts of any individual case as to whether a person should be put on trial again.”
Could the government be liable?
While it’s still very early days, Shine Lawyers national practice manager Leanne McDonald flagged the government could be liable if any findings are made against it.
“If there has been mistakes made, when you consider that people may have suffered further psychiatric injury because of those mistakes, that’s what we’d look to see if we could help there,” she said.
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