Category Archives: Justice

26 December 2012 · 6:19 pm

DNA Evidence and Familial Matching

crime-scene

“THE son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son.”[1]

Regardless of your religious affiliations, the relentless progress of modern DNA science has the capacity to challenge and undermine this immensely sensible and vital moral, philosophical and legal foundation. DNA familial matching is the process of establishing the identity through a person’s blood relative. I will not go into the science behind this, suffice to say that we share half the alleles (DNA) with our father and mother. This material splits again with each relative, so we share a quarter of our DNA with our brothers and sisters and one sixteenth with our aunties and uncles. DNA testing is the process of identifying the loci for a distinct ‘fingerprint’ to be established that is unique to the individual.[2] Due to improvements in science today, it remains all too easy to cross-check the unknown DNA of an offender and compare it with a database to search for his or her relatives. This new form of surveillance could occur each and every time unknown DNA is found at a crime scene. It represents a Tower of Babel – a genetic panopticon where all those who are merely related to a convicted offender remain under the watchful eyes of the State.

Despite the fact that the technology is well within the capabilities[3] of the Victorian Police Forensic Services Department, there has been little public debate on familial matching impacting on our rights. This technology is available now and yet our legislature hasn’t debated or even remotely considered the issue.

The use of familial matching has significant consequences on individual privacy. The prospect that a relative may become a ‘genetic informant’ may have the capacity to break down trust within a family. If widely implemented, familial matching would focus the attention of police on families who are merely related to an offender. In the US, there have been concerns that this will create a form of racialised justice that disproportionately impacts on African American and Hispanic minorities. In Louisiana for example, a rape victim provided her DNA information to police that then subsequently led to the arrest of her brother.[4] Such concerns have significant weight here considering that in a 2011 study by the Australian Bureau of Statistics, Aboriginal and Torres Straight Islander’s comprise 26% of the prison population. Because of this overrepresentation in the penal system, Aboriginal and Torres Straight Islander’s would endure a far greater and disproportionate amount of genetic surveillance than the Caucasian majority.

dna-evidenceIn 2010, the Victorian Privacy Commissioner raised the additional spectre that strict existing procedures for taking DNA samples from suspects could be easily circumvented by taking samples from a relative instead. For example, the police could use the biological material taken from a pap smear as evidence against a relative.  But it is when we examine familial matching and the use of DNA databases that the impact on privacy becomes truly Orwellian. Between 2010-2011, Australia’s national DNA database, the NCIDD, held 602,317 DNA samples. Assuming that each offender has two to three blood relatives, the genetic spread of the database could creep across into the lives of roughly an estimated 1.2 – 2.4 million people. While these figures are based on simple arithmetic, they demonstrate the sheer number of Australians who would be subject to genetic surveillance. These figures would inevitably increase with the future rapid developments of science. It is foreseeable that the future will bring the ability to match second-degree relatives, like uncles, aunties, grandparents and half siblings. It is imperative that we therefore examine the policy, legal and ethical implications on our democracy before familial matching is adopted in Australia.

The other significant impact is on capacity for miscarriages of justice. Unfortunately, the Victorian criminal justice system does not have a good history when it comes to wrongful convictions through DNA evidence. Commenting on the wrongful conviction of Farah Jama, Justice Frank Vincent’s report noted the difficulties our legal system has had to adapting to the almost “magical” developments of DNA science. He concludes that everyone ignored “Locard’s principle”, which is the scientific principle that every contact leaves a trace. Jama’s wrongful conviction was based solely on a single piece of DNA evidence that had been transferred through entirely innocent means. A piece of DNA can transfer onto a person merely by sitting in the same car, at different times. There was no evidence that Jama was ever at the club, and perhaps more perturbing is the fact that there was no evidence that a rape had even been committed at all. The conviction was based upon blind faith in science. This unblinking trust sent an innocent man to prison and caused a woman to be re-victimised by the criminal justice system due to a crime that didn’t even take place. If we widen the net for DNA evidence to the realm of the family we also increase the possibilities for these types of tragedies to occur.

Despite these concerns, familial matching has an undoubtedly useful investigative function. The power of familial matching to generate new leads in unsolved murders and cold cases cannot be ignored. The notorious US serial killer, the BTK murderer (an acronym for “bind, torture, kill”) was caught using familial matching. But due to its impact on rights, familial matching must be limited by subjecting it to strict judicial oversight. One proposal is that a judge should only allow familial matching to occur only if a serious crime would remain unsolved unless authorities use familial matching.

Unfortunately, we are in a position of limbo on this matter. Our parliaments have not remotely considered the issue, leaving its legal status uncertain. This is despite the Ford Committees recommendation in 2010 that familial matching can “only be adopted after an appropriate exposure to public examination and assessment.” The Committee nevertheless concluded that while the legislature has clearly not examined this issue, there is nothing in the Federal Crimes Act 1914 (Cth) that would prevent familial matching. In Victoria, it may not be legal under the Victorian Charter of Human Rights unless explicitly enacted by parliament.

This crucial question has remained unexamined for far too long. It is time for the public to consider and debate this issue. Modern politics usually doesn’t have the capacity for foresight and often these things are upon us before we have a chance to scrutinise them. This must change due to the dizzying speed in which science can change, morph and undermine the ideals that define and protect us.

Felix Ralph

My thanks go to Ali for letting me occupy his online couch for a bit as a guest blogger. Feel free to comment below or contact me on the tweets  @fchralph.

[1] Ezekiel 18:20.
[2] For those who care about this issue and are interested to delve into the science behind it, I recommend Gregor Urbas & Marc Smith. ‘Regulating New Forms of Forensic DNA profiling under Australian legislation: Familial Matching and DNA Phenotyping’ (2012) 44 Australia Journal of Forensic Sciences 66.
[3] The VPFSD has recently upgraded their testing capabilities from 9 loci to 23 loci.
[4] See Mary McCarthy, ‘Am I My Brothers Keeper?” Familial DNA Searches in the 21st Century’, (2011) 86 Notre Dame Law Review 393.

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19 September 2012 · 5:42 pm

Life in Crime: The Elusive World of the Defence Lawyer

In my first year at law school I remember agonising over what electives I should take over the coming years. By way of career guidance, I was invited to chat with the many graduates who flooded our corridors with giant banners of their respective top-tier firms. Sadly, the only practical advice I took away about a career in criminal law was that I would be destined to a life of pauperism. The hackneyed phrase of ‘crime doesn’t pay’, according to my Armani-suit-wearing peers, evidently also applied to lawyers.

For the past eight months I have been employed as a criminal para-legal and I’ve had the pleasure of shadowing brilliant defence advocates at all levels of the criminal justice process – from pre-interview advice, bail applications, pleas, all the way through to jury empanelments, trials, and appeals. And I feel I should share my preliminary understandings of the elusive defence advocate role so that unlike myself, junior criminal law aficionados can make an informed decision about the electives they would like to pursue.

Humanising the Dehumanised:

The first realisation a defence apprentice encounters is the profound course of dehumanisation an accused person receives from the moment of contact with the criminal justice system. Within my first week at the Magistrates’ Court, a police informant approached us at a bail hearing and boldly asked, ‘are you guys representing my crook?’. That’s right, ‘my crook’. Our client had been branded as a criminal even prior to standing trial and had ostensibly become the officer’s personal chattel.

My induction into the courts taught me that the defence advocate is not only charged with the duty of holding prosecution to its burden of proving criminality beyond reasonable doubt, but equally, if not more importantly, the duty of presenting the individual behind the thick stain of criminality to the court. In other words, humanising the dehumanised.

Objectivity:

Many people have queried me about the morality, or rather the perceived immorality of defending those who have committed particularly heinous crimes – with murder, rape, and paedophilia topping the abhorrence scale. I’m often asked ‘how can you not feel for the victim?’. There’s a common public misconception that defence advocacy somehow dictates an empathic disconnect from the victim. But what the public doesn’t understand is that any person who has the interpersonal capacity to empathise with a defendant, by necessary implication, also cannot help but position themselves in the shoes of the victim.

What I’ve come to understand and respect is that it is a fundamental tenet of criminal law that the assessment of guilt or innocence of the accused remains with the court – not the advocate. As expounded in the joint judgement of Duffy CJ, Dixon, Evatt and McTiernan JJ, in the High Court back in 1934:

‘Whether he be in fact guilty or not, a prisoner is, in point of law, entitled to acquittal from any charge which the evidence fails to establish that he committed, and it is not incumbent on his counsel by abandoning his defence to deprive him of the benefit of such rational arguments as fairly arise on the proofs submitted.’[1]

Thus, the defence advocate undertakes the moral position of ensuring that the conviction of the accused is secured by due process, and not on the evidence of mere suspicion or guesswork by the police or prosecutors. In doing so, the defence advocate not only preserves the protection of the defendant’s rights, but the rights of the unsuspecting public who, dare I say, may also find themselves in the shoes of the accused.

Following Your Passion:

I had the privilege of talking to an esteemed former judge of the Victorian Court of Appeal, Justice Frank Vincent, after he delivered a moving presentation to us at work about the perils of Centrelink’s Income Management scheme. Justice Vincent, who currently sits as a board member of the Victorian Law Reform Commission, had represented over 200 defendants in murder trials before his appointment to the Supreme Court bench in 1985.

I asked Justice Vincent about what he attributed his successful career in law to, and his response was that he always followed his passion for criminal law. He explained that a career in law was incredibly demanding, and his only source of motivation was that he genuinely loved his work as a criminal solicitor, barrister, and judge.

Justice Vincent taught me that a successful career in law was in fact a by-product of a genuine desire and passion for a specific field of law. And this is the advice I ought to have received from my graduate peers at law school.

Ali Besiroglu

If there are any criminal lawyers who want to share their experiences, please do so below.

[1] Tuckiar v R (1934) 52 CLR 335 at 346.

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29 April 2012 · 1:37 pm

The ‘Income Management’ Disgrace: Confessions of a Welfare Dependent

Brace yourselves fellow law school colleagues. It might come as a shock to some of you when I proudly confess that I have been, and always will be, welfare dependent.

I was raised by a single mother of three in the Collingwood Commission high-rise apartments. Our brave mother, who migrated from Turkey when she was 18, made ends meet by working two jobs – a part-time teacher at our local kindergarten by day, and a cleaner at the same kindergarten by night. Mum also assumed the responsibility of full-time caretaker of our grandmother after she fell critically ill. The years of laborious exertion of transporting gran and hauling a heavy backpack-style vacuum cleaner eventually took its toll on her lower-back, and after gran succumbed to her illness, mum transformed from an employed caretaker to an unemployed patient.

Throughout our high school years, our family unit relied on a Disability Pension and ‘government handouts’ became our only means of survival.

Years later, whilst sitting in my Taxation Law elective, I was astonished to discover that I would continue to obtain the benefit of ‘government handouts’ throughout my professional legal career. These government handouts, however, were carefully guised by the corporate world as tax deductions, offsets, and subsidies. I could, for example, utilise Mr Lindsay Fox’s genius government handout idea of opening my collection of exquisite Ferrari’s and Porsche’s to public view for one day a fortnight and call it Ali’s Classic Car Collection to obtain a 100% tax write-off. I learnt that the government would also not differentiate in providing me a handout for flying First Class to the next Human Rights Conference at Geneva whilst sipping my complimentary Comtes de Champagne for a whopping $9,500 each way, instead of the $2,000 which I would otherwise pay in Economy Class.

These lavish handouts were usurped from my mother when she literally broke her back to support our family. But to add insult to her injury, the Commonwealth Government would now like to subject my mother’s weekly payments of $300 to a demeaning ‘Commonwealth Income Management’ regime over the coming years.

Initially developed in 2007 as a part of the Northern Territory Emergency Response, the Greater Shepparton region in Victoria is one of five national jurisdictions earmarked for a five-year trial of the Income Management regime.[1] Starting in July this year, the Income Management scheme will apply to all ‘vulnerable welfare recipients’[2] and parents with dependents involved in the DHS child protection system.[3] Recipients on the regime will have 50-70% of their welfare payments quarantined, forcing them to shop at selected retail outlets on a ‘Basics Card’ in lieu of their welfare payments – currently limited to Coles, Target, Kmart and Bi-Lo. Recipients will not be permitted to use their Basics Card to purchase alcoholic beverages, tobacco products, pornographic material, home brew concentrates/kits, or gambling services.

Evidence provided to the Senate Inquiry Committee distressingly divulged that Northern Territory recipients were made to line up in separate queues in major shopping centres after all checkout registers did not cater for the Basics Card.[4] The scheme also impeded on the recipient’s freedom to shop at the local fruit shop, deli, butcher, or other major food stores such as Aldi, where food could be purchased at a considerably cheaper price.

The obvious revolt against the regime is that it blatantly treats welfare recipients as second-class citizens by fostering discrimination, limiting freedom of movement, and contravening the recipients right to privacy and protection of reputation – all of which are fundamental rights supposedly enshrined in our Victorian Charter of Rights.[5] The regime emulates the dreadful ‘food voucher’ scheme in the US, where welfare recipients are currently scorned by shop staff for using their Basics Card to make ‘extravagant purchases’ such as, ‘steak, lobsters, and birthday cakes’.[6] I implore you to read the deplorable sentiment of a US Walmart checkout girl in the link at the end of this post and think hard about whether this is what Australian’s aspire to be.

Growing up in the fringes of our society, I know too well that certain welfare recipients require professional assistance in managing finances, substance addictions, gambling addictions, and raising families. However, I also know that these are not isolated attributes of the indigent class. All societal echelons face the same social difficulties, but it’s evidently the marginalised who are profiled by government authorities and socially deprived of the dignity to correct their ways. Forcing welfare recipients to wear a WWII Gold Star in the shape of a Basics Card is but a perfect example. It’s outrageous and offensive.

George Orwell once wrote that ‘ALL ANIMALS ARE EQUAL, BUT SOME ANIMALS ARE MORE EQUAL THAN OTHERS’, and it’s an absolute disgrace that the more I experience life, the more this statement holds true!

Ali Besiroglu

Walmart staff member shares her views on US welfare reform: click here

Want to take action? Join the fight against Income Management on Twitter and Facebook.

[1] The regime is implemented via convoluted federal legislation, namely, the Social Security Act 1991 (Cth) and the Social Security (Administration) Act 1999 (Cth), Pt 3B.
[2] Decided by Centrelink social workers, recipients will include those who are facing financial hardship, financial exploitation, lack of reasonable self-care, or risk of homelessness.
[3] DHS criteria has not been published, but the decision will be left to the discretion of child protection officers. However, if we employ the Northern Territory’s Family Responsibilities Commission model ‘there are four triggers’ which can activate intervention – namely, a ‘court conviction, a breach of a tenancy agreement, a child safety notification, and a failure of a child to attend school for three days in one term’.
[4] Carol Carter, the Deputy Chairperson of the Bankstown Aboriginal and Torres Strait Islander Advisory Committee, evidenced this to the Senate Inquiry Committee.
[5] See Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 8, 12, 13.
[6] Christine Rousselle, ‘My Time at Walmart: Why We Need Serious Welfare Reform’ The College Conservative Blog [online]. 

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