This limited cross section of cases illustrates the serious problems including lack of appropriate laws relating to DNA as evidence and systemic indifference to the reasons DNA as evidence is causing unnecessary and serious injustice.
Falconio case – see also “Dark Centre” by Robin Bowles
It may be there is little sympathy for Murdoch because he is in fact a drug criminal.
This does not diminish the serious public interest of the injustice of the actual process by which he was convicted of murder nor the way due process is trampled out by DNA as evidence which can so easily be falsified yet cannot be detected. Why is it that the traditional defense of "shadow of doubt" which was once the result of misleading and conflicting claims by witnesses including Joanne is being trampled on by DN A as evidence? And why doesn't the prosecution have to prove Murdoch's DNA used in the test was that actually found on the shirt?
The injustices relating to DNA as evidence are similar in paternity fraud as well as crimes of violence. The suffering and loss and human rights issues for mothers and children is immense yet trivialised and ignored.
The most obvious fact is the way serious discrepancies in witness' statements do not raise doubts in the minds of judges as regards the DNA evidence. The ageold idea of “shadow of doubt” is trampled on by DNA tests as evidence despite the ease and many ways in which DNA evidence can be tampered with or falsified and the ease with which scientists' evidence can inadvertently as well as deliberately mislead defence lawyers as well as judges when no technical error is present. .
There almost certainly was no detectable technical error in the DNA tests. Ethical scientists would have checked and rechecked the technical working notes even though the samples were not available. What they cannot check or prove of course is if the sample tested in the first test was indeed the one found on the shirt; that scientists collude with unethical police is illustrated by the Chamberlain case.
Was the sample tested actually part of the sample provided by Murdoch himself? Shouldn't prosecutors have to prove absolutely conclusively it wasn't in view of all the other evidence in Murdoch's favour? Shouldn't there be more concern by ethical police that the real murderer is still out there as in the Shane Davis case and other miscarriages of justice? Is this a case which should go before a Crimes & Corruption Commission rather than be left in limbo ? The safeguards and procedures do not prevent this kind of problem and traditional laws, out of date though they are, are not being applied where DNA evidence is concerned. Clearly it cannot be detected by ethical scientists or defence lawyers, much less judges who fail to warn juries of the possibility even when all the evidence points to error or fudging of this nature.
Coupled with the serious discrepancies in witness' statements, and long period of time between the murder event and the finding of the DNA on the steering wheel which could so easily have been planted at such a late stage in the investigation, it raises serious doubts as why the DNA evidence was accepted by the judge not to mention ignoring serious discrepancies in witness statements and other blatant anomolies. Probably one reason is lack of comprehension and reasoning powers when it comes to DNA as evidence. But the more serious problem is the way DNA evidence wipes out due process and “shadow of doubt” in the minds of uneducated judges as well as juries.
Eden paternity case.
The serious systemic indifference to lying on oath and other evidence in cases involving DNA tests including in paternity is beyond comprehension. Cynthia believed one of the reasons for a DNA paternity test giving a false negative result was because some scientists were claiming “mutations can cause false negatives”. If this was true of paternity tests then it was true of violent criminals. The little boy concerned has fragile X syndrome.
But was this the real reason for the false negative? The father claimed he had a vascectomy and therefore could not father a child. Cynthia was able to prove that he did not have one at the time. He had indeed attended the clinic where he claimed he had the snip but Cynthia's lawyers were able to establish he had not gone ahead. Clearly a misleading lie. The father also refused to have further confirmatory DNA testing even when reassured the issue of mutations could be overcome. Why, with such blatantly obvious evidence, did the whole system of lawyers, courts, politicians etc. accept the DNA test . Did the father send someone in his place who resembled him? Or, and much more common – did he pay an insider to switch the samples? Was there an accidental mixup in e.g. labelling? No error would be detectable – so why wasn't confirmatory DNA testing ordered? Many cases illustrate that where DNA testing is recommended at an independent lab under strict security justice is swift rather than the convoluted years and years of injustice other women and children have suffered.
Brian Cole (pseudonym) jailed for a rape he didn't commit, needed the DNA of the police officer who framed him to be tested against that provided to the lab. This would have proven that the woman claiming rape was the girlfriend of the police officer and the DNA tested was that of the officer. It would have saved taxpayers a fortune, including the compensation finally paid. Why, having willingly and voluntarily provided a DNA sample, was Brian refused this right? And why wasn't the Court suspicious of the refusal? Finally, after a twelve year journey, including two failed appeal hearings, his friends, lifestyle and family wiped out Brian obtained justice via the Crimes & Corruption Commission NSW. Taxpayers of course footing the bill not only for endless court appearances but compensation.
Shane Davis case
Whatever happened to "shadow of doubt?" Why did a huge legal team which included a retired judge believe in Shane's innocence? Why did they try for eight years to get a second DNA test. And why did it take that long as compared to say a second opinion in alcohol or drug tests to simply get a confirmatory test? what is so different about such a request, ? In drug and alcohol tests the defendant is given a control sample to double check. Why not in DNA tests? Shane claimed at the time he volunteered a sample that the police fitted him up not that there was an error in the test itself - something ethical scientists would quickly have detected. The fact is DNA evidence can easily be misleading in a number of ways which are escaping the systemic radar especally judges. The fraudulent or faulty result cannot be detected because no error shows e.g. when false samples are used or false claims made as to where the matching DNA came from. The findings of the ALRC Genetics Inquiry should have been a legal basis on which any DNA test done prior to 2003 when its findings were published should be set aside when significant other evidence casts doubt on the DNA evidence as in Shane's case.As in the Farnell case, the Appeals Court ignored the significant precedent set in the Chamberlain case by Judge Morliong that the forensic sample itself must be made available to the defence team. . The real problem in such cases is not the DNA evidence but rather the ignorance of judges as well as the legal profession coupled with out of date laws, and recommendations made by NATA designed to coverup not just the problems with DNA as evidence, but the solutions. It is absolutely inexplicable and intolerable that the legal system has no comprehension of the many ways DNA evidence can be false and misleading. See more at the Links site.
Far more unnecessary suffering was caused to the family of the murder victim as well as Shane and his family by the consistent, unjust refusal of the Attorney General to agree to DNA testing to confirm the first. But why did Shane need permission for his own samples to be retested? And what was the point when clearly there was no error in the technicalities or report. The error, if that is what it was was in the sloppy practices (see ALRC Report 96) where there was little if any concern to ensure human errors which go far beyond the mere wrong interpretation of results are addressed, such as sample mix up - where no error can be detected In the Farnell case, Judge Frederico actually stated "it is possible but didn't matter" More info available on the internet. e.g. 7.30 Report, Austlii etc.
In the early days of DNA testing, it was common practice for police to ensure there were two samples. This was based on an assumption that the procedures were the same as those for drug and alcohol testing. Dr Laszlo Szabo is one of several ethical scientists who questioned why willing participants in DNA tests have such difficulty accessing samples from labs. It not only flies in the face of the Chamberlain precedent but it is a total reversal of normal disclosure practice and procedure. The ALRC Genetic Ethics inquiry established that inadequate guidelines and oversight for sample collection etc were a significant problem with DNA as evidence. The diverse ways DNA evidence can and is false seems to totally escape the minds of judges and lawyers not to mention the media.
Farnell/ Chipperton vs Penhalluriack S.C.Vic. case
The Farnell website at www.cute.com.au/dna only tells the story up to when the findings of the ALRC Genetic Ethics Inquiry were published and tabled in parliament. The findings were stunning, yet many of the recommendations inexplicably incomplete or irrelevant. Several that were more appropriate ignored. See http://www.alrc.gov.au/publications/report-96 "Essentially yours" tabled in Federal Parliament 2003
By then the "child" was an adult, and Farnell was advised to apply to the Supreme Court under Section 10 of the Status of Children Act. This Act was updated In Queensland in 2002 to include that the Supreme Court could order DNA testing where it was refused. Neither Labor or Liberal governments in Victoria see it as a human rights issue to do so. With still no Crimes & Corruption Commission, and an Ombudsman with his brains up his backside the 12 year struggle continues. After a further 6 year totally unnecessary convoluted legal journey, the Court of Appeal refused the application yet Farnell and the daughter had consistently pointed to the fact they were agreeable to DNA testing if under the tighter security and improved procedures now known to be essential. In the original S.C. Judgement, Judge Bell establishes paternity, but then says the father suddenly started thinking "for whatever reason" he should ask for a DNA test. Bell totally missed the significant motive including the dates when Chipperton got into a relationship with his Indian associate and the date he sought DNA testing "coincide". Fully updated story contact the Coalition at coalition@democraticjustice.com
The Chipperton's preferred spending over $700,000 in legal fees and a convoluted six year and still going unending court battle rather than agree to DNA testing under the stricter procedures now known to be essential before the matter went to court. Judges refused to allow Farnell to point to evidence of misleading claims by the corrupt perpetrators claiming it was "scientific" when in fact is was clear evidence which should and could be accepted into court. The judgements bore no relationship to the facts, the evidence, the truth or the law. The solicitor turned out to have a serious conflict of interest, withheld vital evidence by scientists and seriously breached her duty as a lawyer by disclosing information to Penhalluriack which caused him to renage on an agreement. Pilch claimed they were unable to obtain a replacement lawyer even though there were strong grounds for a re trial including new evidence and evidence the scientists misled the court so Farnell's 12 year battle continues - yet in conjunction with considerable other evidence of what went wrong, a strictly scrutinised DNA test would end things one way or the other.
Lloyd Clark Fletcher
This sad case illustrates just how serious the huge reliance and false claims about DNA as evidence are.. E xperienced Queensland police had diligently gathered significant evidence against their original suspect in a violent rape/murder. The family of the victim believed the police had the right suspect, but DNA test was negative so Clark was released. It took two more violent acts of rape and murder before the police had the wit to have confirmatory DNA testing. This case also raises questions as to why only the police are allowed to apply for DNA testing. Listening to the ordinary man in the street ie the family of the first victim would have saved the lives of other women.
Sandra Olsen
has diligently worked almost full time for 17 years to try to get justice in a case which bears many similarities to Farnell. The claimed father is Chinese and is still alive. The daughter strongly resembles him. Many cases reported in the Washington Post blog accessible from her UTube page say the same thing - the test gave a negative result yet the child looks like the father. The father consistently refuses to have DNA testing under the newer, tighter procedures yet courts see nothing strange in his willingess to fork out thousands in defence. Ding ding. See also website at http://www.dnaerrors.freehomepage.com/
It seems to be a common, global practice that police claim women are delusional and paranoid if they say fathers corrupt DNA tests, despite the fact many go to extreme lengths to avoid child support. This extends in some cases to murdering their kids, so what's a little corruption here and there - especially when they have a motive as strong as Chipperton had in the Farnell claims and politicians who don't think corruption exists in Australia. ? Solidarity is not just in political parties and blue collar unions. The naive ignorant view it doesn't exist in the DNA testing industry including between police and forensic labs poses a public danger. The dismal disgusting handling by the Courts of the Olsen case is very similar to that in the Farnell case and highlights the extreme bias in Courts against women and the way they are squashed when they try to point to the evidence that DNA paternity tests are being corrupted. Why not just order a strictly secure DNA test with the additional protection in place such as e.g.mother's lawyer and putative father to sign the sample, and a control sample immediately given to an authorised mother's representative at the time of extractoin . .
Henry vs Anderson case
See Janine's story at www.cute.com.au/dna It is widely believed that after the findings of the ALRC inquiry were released several women, including Janine Henry were able to get the proof they needed that the previous two DNA test results were false. The scientist who acted in other cases (and had obtained "positive" results after earlier negative ones claims at least two other mothers who tried to get justice via the State Courts were not able to obtain confirmatory DNA testing and the Court rejected their claim. He should be called to give evidence by a Senate inquiry or preferably a Royal Commission as regards the conflicting results.. Why all the secrecy and coverup of criminal activity? Is it in the public interest?
Long vs Long 1993 FC Vic.
If only police, politicians, courts had the brains of the police officer who acted in the case of Arthur Long. Long had orginally been ruled out as the father resulting from a blood test. When DNA testing was claimed as reliable, Mrs Long sought this evidence. When the test came back negative, Mrs Long complained to police. Response? Arthur Long was simply asked to "voluntarily" attend Victoria Institute of Medicine to have confirmatory testing - which came back positive. (Other Mums have since also been able to get justice via this lab. but the scientists there don't think it necessary to recommend an investigation as to why they obtain opposing results despite former Federal Attorney General Philip Ruddock pointing out that providing false evidence is a crime and that in his view paternity fraud by either parent is a crime.) See also update of the long running Farnell case.
This site is still under construction - feel free to send your experiences and comments
Links (watch this place - more to come)
http://www.smh.com.au/news/world/british-dna-database-riddled-with-errors/2007/08/27/1188067034649.html
DNA evidence in question 17.12.2003 7.30 Report |
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Bungling in Vic. Police Lab. Jadyn case & others Ten News Item 3 Oct
http://www.theaustralian.com.au/business/legal-affairs/forensics-at-fault-we-need-reform-dna/story-e6frg97x-1225869367748
http://www.haaretz.com/print-edition/news/israeli-scientist-says-dna-samples-can-easily-be-forged-1.282271#article_comments
D:7_30 Report - 08-09-2004 DNA evidence may not be infallible
DNA debacle: the case of Farah Jama
http://search.news.com.au/related/id%3Astory_1225869360536/0/Fil
Many more to come - watch this site.
DNA injustice - cases