The Charter vs DNA labs

Today brings this shocking, disappointing but unsurprising news:

Police have dropped murder charges against a man over the 1984 killing of a mother and her young daughter after DNA evidence on clothing related to the case was found to be contaminated. Homicide Squad detectives last month charged 43-year-old Victorian prisoner Russell Gesah over the deaths of Margaret Tapp, 35, and her nine-year-old daughter Seana. Their bodies were discovered in their Ferntree Gully home on August 8, 1984. Victoria Police said today that forensic officers had identified a possible contamination of the biological evidence after a laboratory review. The contamination occured in 1999 when clothing containing the DNA of Gesah – from an unrelated offence – was examined on the same day that clothing from the Tapp murder case was examined. Deputy Commissioner Simon Overland today defended the force’s DNA testing procedures, describing them as the “world’s best practice”

The reason this is unsurprising is that it happened before. In 2003, the coronial inquest into the notorious depth of Moe toddler, Jaiydn Leskie, was distracted by a DNA database match between Leskie’s clothes and a rape victim living in Western Melboure. After that victim (and her relatives) were investigated, the police realised that a condom from the rape was tested at the Victorian lab two days before Leskie’s clothes. While anyone can see (and, indeed, just about every expert who looked at the case did see) that this was a case of in-lab contamination, the lab itself maintained that contamination was impossible; instead, they maintained that this must have been a coincidental match (an opinion they rarely proffer in routine cases.) The coroner despite concluding that there was in-lab contamination, said that the DNA system remains untarnished.

[EDIT: Indeed, I forgot that I gave an interview on Stateline in 2006 on contamination that reads quite nicely now. Watch Stateline tomorrow (Victorians) to see my spiffy corner office and me feigning an interest in a doorstopper called ‘Forensic DNA Typing’. Eagle-eyed viewers will see that what I actually was doing was finishing my post on Hearne v Street.]

The issue here isn’t lab practice. While it’s obvious that labs must do everything they can to avoid contamination, what’s more important is that labs and police recognise that contamination is always a possibility, one that should be treated as highly likely if crime sample and suspect sample were in the lab within days of eachother. It’s clear that in the Gesah/Tapp case, the DNA database match was released to the police without any check of the paperwork to test the possibility of contamination. Moreover, the police both charged Gesah and held a proud press conference naming him and lauding the ‘national’ database (even though the matched profiles were both Victorian), before any check was done. One has to wonder, indeed, if the only reason the check was done was because post-charge investigations went awry? Did Gesah have an alibi, which he was somehow able to establish after 25 years? If he hadn’t had an alibi, would this error have every been detected? Or would Gesah have decided to plead guilty in the face of apparent proof that semen on Seana Tapp’s clothing his? Beyond the possibility that an innocent man might have been branded a double-murderer-child-rapist, there’s also the chance that the lab’s blunder in 1999 now means that the real killer can breathe easier.

The behaviour of the lab and the police raises some interesting Charter questions too. Both of them are public authorities, bound by the conduct mandate to not act in ways that are incompatible with the following human rights of Gesah:

13 A person has the right- (a) not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and (b) not to have his or her reputation unlawfully attacked.

21(2) A person must not be subjected to arbitrary arrest or detention.

The interesting question is whether the lab and police’s failure to pursue a simple administrative check that would have established the possibility of contamination meant that the charging of Gesah (including  the publicity of that charge) were arbitrary and, perhaps, an unlawful attack on his reputation. Perhaps fortunately for the police, Gesah was already in prison at the time, though I suspect that the procedure of charging would have incorporated, in substance if not in form, an arrest. But the false assault on Gesah’s reputation may well have translated (and could, to the uninformed, still translate) into an actual assault on him, as his name has appeared on some rather nasty looking websites (here and here and here).

However, even if the lab and police did breach their conduct mandate, it’s not clear what remedy Gesah would have. Damages are not permitted for breaches of the conduct mandate. Indeed, if the planned review of 6000 DNA matches in Victoria reveals some wrongful convictions, there would still be no breach of the Charter, because the drafters deliberately omitted this ICCPR right:

14.6 When a person has by a final decision been convicted of a criminal offence and when subsequently his conviction has been reversed or he has been pardoned on the ground that a new or newly discovered fact shows conclusively that there has been a miscarriage of justice, the person who has suffered punishment as a result of such conviction shall be compensated according to law, unless it is proved that the non-disclosure of the unknown fact in time is wholly or partly attributable to him.

Perhaps Gesah will be able to find a non-Charter remedy or extract an ex gratia payment. Even then, he may not get the money. A bill presently before the Victorian parliament provides for the quarantining of (some) payments by states to prisoners for (some) ‘civil wrongs’, so that victims of crimes (such as the unnamed crime Gesah is in custody for) can have first dibs.

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