Chancellor Damian Bugg
The Honourable Michael Kirby was appointed to the High Court of Australia in 1996. He retired from that position on the 2nd February 2009. I did at the time offer him advice to say no for the first 12 months to all requests for work, but I notice from his CV which I won't read out to you, it's so impressive that it will take too long, that he didn't heed my advice, nor did he listen too much to most of my submissions when he was on the High Court. But he is now the President of the Australian Institute of Mediators and Arbitrators, he is still a Judge of the Supreme Court of the Solomon Islands, but his track to the High Court was one involving enormous hard work and great recognition for his skill as a jurist in this country. Before he was appointed to the High Court, he was the President of the Court of Appeal in New South Wales and before that was a Member of the Federal Court. I now welcome to the microphone the Honourable Michael Kirby AC.
The Honourable Michael Kirby AC
Chancellor Damian Bugg, your Honour the Chief Justice and Judges of the Supreme Court, Dean, Members of the Faculty and fellow citizens of Australia. It's wonderful to be here in Hobart and to have spent the whole day in the Law School with the magnificent team of the Faculty and the students, especially the post-graduate students, the under-graduates who ask a lot of curly questions during a sensational lecture I gave on Statutory Interpretation for which somebody thought me boring, but in fact it was very interesting and even if I say so myself and thank you all very much for coming tonight. It's a wonderful university occasion. This is what we should have more of, the engagement of the university with the scholars and the community because the issues that we're going to deal with tonight are not only issues for experts, they're issues for citizens and issues that concern the improvement and strengthening of the system of Criminal Justice in our country to make sure that people who are guilty are convicted and that people who are not guilty are not convicted which is what our business of Justice should be all about.
It's in the nature of trials, whether Civil or Criminal, that they involve the production of evidence, evidence which is produced to independent people who have to decide whether the evidence establishes the matters that are in contest in the trial. And in a Criminal Trial, it used to be thought that the best evidence you could possibly have was confessional evidence and many systems of Criminal Law try to emphasise confessions. I mean we all remember the trials under the Chairman Mao in China when heart rending confessions of guilt were expressed before the accused was carried off to we know not where and getting confessions is something which our own Criminal Justice system used to be more devoted to, getting confessions from the accused. Because if they confess, well the general inference would be, they must be guilty and therefore that relieves the system of any doubt as to the guilt of the person accused. The problem was as I was growing up, that that put tremendous pressure on Police and other public authorities to assert that a confession had been made and in Australia, before we had a system whereby confessional evidence had normally to be video recorded and sound recorded, that would often lead to a dispute between the accused who would deny having made the confession and the officials, the public officials, Police, who would assert that a statement was made and that was the so called problem of verbals. Verbal, but uncorroborated, unrecorded statements in proof of guilt. There is of course other evidence, circumstantial evidence, eye witness evidence. Eye witness evidence can be very problematic because of the fact that people with all good will in the world can make mistakes in testifying to the guilt of a person whom they assert they're seen at the crime scene and Courts are very much aware of this and the instruction of the High Court and of other Appeal Courts requires that juries be warned about the dangers of eye witness testimony.
But what I'm here today to talk about is forensic evidence and that forensic evidence can be what I'll call old style forensic evidence and new style DNA evidence. Old style forensic evidence has been around for a long while. It's nothing new and it's evidence which has been regularly placed before the courts of our state and of our country because this is the way the testimony is presented to establish the guilt of the accused. The old style forensic evidence would include for example, finger print evidence. Finger print evidence was really developed in the 1830's and after that to quite an established science of taking finger prints, but of course once criminals got to know that finger prints could be analysed, photographed and linked sometimes to them, they made it their business to try to prevent leaving finger prints around. I mean leaving a finger print around wasn’t a good trick and therefore finger print evidence has a limitation that if no finger prints have been left, well you don't have that form of evidence. But other forms of forensic evidence were developed. Hand writing evidence, hand writing experts who could analyse hand writing and give their opinion as to whether or not the hand of the written material was the hand of the accused by comparison of the accused's hand writing and even the disguised hand writing that may have been available in the case.
But other forms of evidence were the subject of developed skills and expertise which were deployed and brought forward in criminal trials in order to establish the guilt of the accused. And probably the best known Australian case of this, apart perhaps from the unfortunate Chamberlain case and I'm not really going to speak about the Chamberlain case today, but the case that probably illustrates old style forensic evidence at its best, was the Graeme Thorne case. You may remember Mr and Mrs Thorne, they were the first couple, first winners of the Opera House Lottery in New South Wales. The lottery which was established in order to make the money to build Jørn Utzon's masterpiece on Sydney Harbour and the first prize was 100,000 pounds which in 1960 was a huge amount of money and Mr & Mrs Thorne were the first winners of the Opera House Lottery and within a few days of that event, their son was abducted and the pressure which was on the Police to solve what was every parent's nightmare, was enormous. And the pressure was redoubled after five days when the body of Graeme Thorne, the eight year old son of Mr & Mrs Thorne was found wrapped in a blanket near the club house at Clontarf Beach in Sydney, in the northern suburbs of Sydney. Now the Police were under a tremendous pressure to announce an arrest and by dint of the most careful and scrupulous forensic evidence they ultimately pieced together their case. First of all the blanket wrapping the body of Graeme Thorne was an Onkaparinga blanket but with a very particular design and they went to the Onkaparinga factory and they discovered that that design could be traced to 200 instances, all of them sold in the one shop in Melbourne and so one by one the Police started going through the 200 purchases of the Onkaparinga blanket. And in one case, they found a purchaser in Melbourne who had given the Onkaparinga blanket to Mrs Bradley, Mrs Steven Bradley who had just had a child. Mrs Bradley was a resident in Sydney and so one by one, the Police were going off checking the Onkaparinga blanket because that looked like a very good lead. Secondly on the blanket were hairs, but they weren’t just ordinary hairs. According to an expert in hairs, they were dog hairs and according to the expert they were not only dog hairs, they were Pekinese dog hairs and the expert would have no opposition, this wasn’t an Irish Setter, this was a Pekinese dog and so they were looking for somebody who probably had a Pekinese dog. Subsequently it was found that Stephen Bradley had a Pekinese dog and indeed when he left Australia he'd made careful arrangements, loving arrangements you might say, to arrange for his dog to be shipped to England where he and his family were moving to, in order that the dog could be looked after there. Thirdly, a young boy reported to the Police that on the day that Graeme Thorne had disappeared from the Clontarf shops, he'd seen a Holden sedan of Bright Asia Blue colour which was in the vicinity and so enquiries were made around the vicinity and it was discovered that Stephen Bradley had a vehicle which was a Holden, Bright Asia Blue coloured sedan which he'd sold a week or so after the abduction. Fourthly, on the soles of the shoe of Graeme Thorne were found microscopic seeds and they just weren’t ordinary seeds, they were seeds of trees and they weren’t just ordinary trees, there were seeds of trees of an exotic non-indigenous Australian variety and so the Police went to the Chief Botanist at the Royal Botanic Gardens in Sydney and photographed the two trees which would grow out of these seeds. And then they put the two trees together in a composite photograph and they went to all of the posties in the all the parts of Sydney around the Northern Beaches area and a postmaster, a postman who delivered the letters immediately remembered. Yes, I remember a place and he identified the place which was the residence of Stephen Bradley and his family and fifthly, on the sole of the feet of the shoes, was mould which tended to indicate the time that the murder had taken place and that was thought to be within hours of the child's abduction, but more particularly there was a particular pinkish mortar which was collected on the soles of the shoe and that was a mortar which was used in a particular area of Clontarf in building and it led the Police to believe that probably the body had been placed first under the house and so it was when they went to the house which had been the residence of the Bradley's they found mortar of the same variety under the house and when you put together all these little ingredients, this is a very particular, not completely atypical, but really excellent instance of gathering together identifiers, any one of which on its own would not be sufficient but which in combination built up a tremendous case against Stephen Bradley. Bradley was on a vessel leaving Australia with his family for England. The vessel was on it to Colombo in Ceylon as it was then called, and a warrant was sent to Colombo for the arrest and extradition of Bradley. A Magistrate in Colombo accepted the Application for Extradition, Bradley was sent back to Sydney, allegedly the Police said that on the plane he confessed to the murder, though he always denied that confession and that was a typical case of a so called verbal or at least it was a disputed confessional statement. But the jury didn't in the end really require that evidence in order to convict because Bradley could be convicted safely on the basis of the compilation of the forensic evidence which the Police had painstakingly, carefully and accurately recorded. So that is an instance where forensic evidence can be of great assistance in establishing the guilt of an accused person. The jury was only out for one hour when they convicted Stephen Bradley. He began his life sentence and died seven years later in custody of a heart attack and the jury had no hesitation in convicting him and his appeal was denied.
In the High Court of Australia, I sat in a number of cases involving forensic evidence. One of them was a very disturbing case and it was disturbing to me for a reason that I'll now explain. Soon after I arrived in the High Court an Application was made for Special Leave to Appeal from an Order of the Court of Criminal Appeal of Western Australia, dismissing an appeal to it by Andrew Mallard. Mr Mallard had been convicted of the murder of a jeweller, a female jeweller in the city of Perth in 1994 and he'd gone through the process of appealing and he came up to the High Court and his Application for Special Leave to Appeal was rejected and then in 2005, which was seven years afterwards, it came back again to the High Court, this time from a second dismissal of his Application for a Petition of Mercy which had been referred to the Court of Appeal of Western Australian and Mr Mallard came back to the High Court seeking to appeal again against that decision and when the Application for Special Leave to Appeal on the second occasion was granted and I was then assigned to sit in the case and I started reading the Appeal Book and I thought, I can remember, this is all a bit familiar this case and then I realised that this is a matter that I'd read before and then I saw that the matter had come up to the High Court seven years before and that the High Court had refused Special Leave to Appeal. And because as I read the case I became more and more concerned about the case, I asked myself, who were the people who refused Special Leave to Appeal on the first occasion? And so I went to the Commonwealth Law Reports because in the Commonwealth Law Reports, they've got a list of all the Applications for Special Leave and all the Refusals, so I looked down the list and there it was, Justices Toohey, McHugh and Kirby. And so I thought oh, I better bring this to the notice of the parties and I did, and I said does anybody have objection to my sitting, because I said, I'm the only one that's left, Justice Toohey had retired, Justice McHugh had now retired and I was left and they said no, we have no objection to your sitting, so I sat in the case and first I looked at the transcript of the first Mallard Application.
And I was somewhat relieved to see that the first Application had been based on Mr Mallard's complaint that the trial Judge should have admitted evidence of a polygraph test, that's a lie detector test, but as that is rarely if ever used in Australia, and as we have not accepted in Australia that that is sufficiently accurate to be admitted in criminal trials, certainly not as a matter of course and certainly not constituting error in rejecting it, I wasn’t so disturbed about my part in the first Application. But when it came up the second time, two arguments were run. And they were run very skilfully by pro bono lawyers who appeared in Mr Mallard's case. The first argument related to the fact that the Director of Public Prosecutions in Western Australia had not revealed two elements of the evidence, of forensic evidence to the accused. Both of them were at least arguably evidence that tended to cast some doubt on the accuracy of the conviction. And if Mallard's case stands for any general principle of the criminal law, it stands for a very important principle that the Prosecutors for the Crown, the Prosecutors for the State, have to reveal matter which may be contrary to their thesis of the guilt of the accused. It's a level playing field principle, that's the general principle of law. But for me, the Mallard case when it came to be argued was mainly about mosaic. Not so much about forensic evidence, but mainly about the mosaic of the facts because Mr Mallard had been objectively identified earlier in the afternoon as being at the watch house at a certain place in the suburbs of Perth and then later in the afternoon as doing a runner from a taxi shown in the taxi video in another part of Perth near his home and the murder had taken place at another place in Perth and it was extremely difficult if not impossible for Mr Mallard to have been at point A and point B as objectively he was and yet to have been at point C where the murder took place. Mr Mallard suffered from schizophrenia and Mr Mallard wanted to help the Police and Mr Mallard gave all sorts of theories to the Police about the way in which the murder had taken place about the use of a mallet in attacking the deceased and those statements were interpreted by the Police and the basis of the Prosecution was, that this was an accurate statement by a person who knew how the murder had taken place. But what had been failed to be presented in the trial was how it didn't all gel. And that's why forensic evidence is important, but you must never lose sight of the picture, the whole picture and see whole picture fits together.
Another case in the High Court was the Gassy case. Mr Gassy was a medical practitioner who was delicensed and he was delicensed as a result in part of a decision by a Senior State Medical Officer in New South Wales and subsequently that officer moved to be the Chief Medical Officer of South Australia and she was murdered by a person unknown in South Australia, no CCTV camera evidence, no finger print evidence, no hair follicles, no evidence to establish who did this act. Mr Gassy did apparently have a motivation, but how did he get from Sydney to Adelaide, no plane journeys for a person named Mallard, how did he get there and back without being known? And so the Crown case was built on collecting a whole series of circumstantial pieces of evidence including forensic evidence of one CCTV camera which on a journey between Adelaide and Sydney had picked up a person in a car looking a bit like Mr Gassy depositing a white bag in a rubbish deposit which was then traced to the tip in that township which was then found to have a single day hotel receipt for a person staying in the hotel in Adelaide for one night, the night before the murder of the victim. The circumstantial evidence was quite powerful, but the jury found it difficult to reach a decision, the trial Judge who had the responsibility of the trial gave the jury instructions to endeavour to reach their decision which itself is not a mistake, but in the submission of Mr Gassy, who appeared for himself in the High Court, which is a rather unusual thing for a prisoner to come up and argue the case for themselves, he argued that that was an unfair direction and that the Judge had, as it were, put the weights on the jury to reach a conclusion without adequately counterbalancing the evidence for the Prosecution with the assertions of Mr Gassy. So the case was ordered to be retried by the High Court and ultimately that case didn't turn on the forensics, it turned on the fairness of the Judge's Directions which demonstrate that in cases involving proof, you not only have to have the forensic evidence right, but you have to have a trial which is fair and where the Judge has held the balance fairly and given correct and accurate instructions to the jury.
But the big issue that now faces our courts is the issue of DNA evidence because as you know in 1953, Watson and Crick the great scientists discovered the double helix with the DNA of our genetics which is individual to each one of us and which is now being used forensically in order to see if you can match the DNA evidence at the crime scene with the accused, then you have a very powerful scientific based case which can then be put before the jury for consideration by the jury. And if that evidence is accurate, has been properly proved, has been safe guarded and logged in its maintenance from the moment it's taken and is carefully preserved, recorded and then given to the jury, then it can be a wonderful source of information which can ensure that guilty people are convicted and punished and that innocent people are not. The problem is that in many jurisdictions where we tend to keep the hard evidence, that is now being subjected to DNA evidence, years after the conviction to see whether or not the DNA evidence bears out the accusation that's been made against the accused and in the State of Illinois in the United States, so many were the cases where when the hard evidence was examined, the DNA evidence did not match up with the person, often a person on death row, sometimes a person who had been executed in the United States, where they still have the death penalty, that the Governor of Illinois said there'll be no more executions where there's any chance that the DNA evidence may exculpate the accused. Now if we think this could never happen in Australia, unfortunately there are at least two recent instances where cases have occurred where DNA evidence has caused great issues in the case.
The first is the Button case which was a case in Queensland. The trial was in 1999 and the matter involved a young Aboriginal woman who was raped, a serious sexual assault. She gave a statement describing her assailant and at first said that she didn't know who the assailant was. Subsequently she changed that statement and pointed to Mr Button and Mr Button was charged and it was established that swabs, vaginal swabs had been taken of the victim and they had revealed the presence of sperm, but no proper match for DNA purposes had been recorded. And so in this case Mr Button went to trial without DNA evidence and he continued to protest his innocence, but the jury convicted him and he began serving his sentence. He then appealed to the Court of Appeal of Queensland complaining that there should have been better forensic examination of the evidence and in the time interval between his appeal to the Court and the hearing of the appeal, the Queensland Forensics Laboratory thought, well we better get our act together and have a look at this and they went and they got the bedding which had been kept and they took a match and the match did not inculpate Mr Button, but inculpated another person who was already in prison serving a sentence for a sexual assault, an earlier and other sexual assault case who lived in the same community as the victim and who fitted exactly the description which the victim had originally given of her assailant as Mr Button did not. And so it was established to the satisfaction of the Court of Appeal of Queensland that Mr Button had been wrongly accused, wrongly convicted and wrongly convicted because the proper forensic tests and analysis had not been done at all.
The second and perhaps more disturbing case is a case that happened in Victoria in 2009 which is called the Farah Jama case after Mr Farah Jama who was the accused. He was a 19 year old Somali refugee who had been given refugee status in Australia, living in Australia and the facts of the case were that a 48 year old woman had gone to a mature aged singles bar which existed in Melbourne. Now I don't know too much about this mature aged singles bar, but anyway she'd gone to the singles bar and before she'd gone, she'd had some medication and whilst waiting to, I suppose summon up the courage to walk into the singles bar, she had a few drinks in her sister-in-law's car and so she had the combination of the medication and the drinks and the excitement of the singles bar and she went into the singles bar, she was a very, very large lady and she was found collapsed in a cubicle of a toilet in the nightclub of the singles bar. And the Police came along and they said, how did you get into this state and she had no explanation, it didn't occur to think of the medication and the drinking, but she said I must have been raped. I've been drugged and raped, I can't remember anything, I can't remember how I got here and so the theory of a rape took place and the Police took the woman to a hospital in Melbourne where tests of a forensic kind are commonly taken and they saw her in a particular room where they take these tests and they then got a sample which was handed to the Police and the sample matched a sample of Mr Farah Jama. And the evidence, there was no other evidence against Mr Farah Jama. There was no one at the singles bar who remembered a young Somali, presumably black young person and a 48 year old singles bar who to say the least might have stood out in memory, but no one remembered it and nobody could identify him. All they had was this DNA evidence. When it came up to the Court of Criminal Appeal 19 months later, Mr Farah Jama having served 19 months of his imprisonment before the case came up, the Court of Appeal of Victoria, discovered there was a switching of lawyers. New Lawyers came in and the Court of Appeal of Victoria discovered that the place in the hospital where the sample was taken from the victim who was only known as M, was the very room in which Mr Farah Jama had been the subject of a forensic swab a week before and the inference which the Court of Appeal of Victoria drew was that the contamination of the sample which was attributed to the 48 year old so called victim, was contaminated with this sample that had been taken in that self same room a week earlier because of the lack of proper procedures. A lack of proper security, a lack of proper methods of keeping the samples and of keeping them separate and logging their movement through the system and so the Court of Appeal of Victoria set aside the conviction of Mr Farah Jama on the basis that it was unsafe and he was released, but they recommended that the matter be the subject of an enquiry.
And so it was the subject of an enquiry by the former Justice Frank Vincent, a former Judge of Appeal of the Supreme Court of Victoria who conducted the enquiry and reported on the enquiry and he came to the conclusion that not only was Mr Farah Jama wrongly convicted, and not only was he not guilty of any sexual or other offence against the 48 year old Mrs M, but in almost all probability, no sexual offence had occurred against Mrs M. That there was no offence, that it was simply that she was a result of her medication and of her drinking alcohol and that these were the explanations because she was a very big woman and it would have taken a much stronger person than the young Mr Farah Jama or a couple of Mr Farah Jamas to move her into the cubicle and she had just postulated this theory and nobody stopped to ask, is this a true theory of the case? Because everybody was so mesmerised by the DNA evidence and this caused such a scandal when the Vincent Report came out that demands were made for a better procedure for the security, safeguarding and care and recording and tracing and following and recording the collection of, DNA evidence because if the DNA evidence is not carefully safeguarded from the very beginning, you have the risk of contamination of the evidence and contamination of the trial process and particularly of undue weight being given to the DNA evidence when it may be that it's fatally flawed at its foundation and if it is fatally flawed at its foundation and if this is demonstrated in repeat cases, it will raise questions and doubts in our community about the forensic evidence.
And so basically that's all I came to tell you. Law is about stories. Law is about stories. When I was a Judge as I was for 35 years, I never read fiction, never. Why did I need fiction? Every day of my life was a story and some of the stories, you wouldn't believe. I mean you would think that could not happen in life and yet it did. I'm now back to reading fiction because I'm not reading Appeal Books, but it is a matter of stories. The story of Graeme Thorne, the story of Lindy Chamberlain which I haven’t dealt with, but which is in some respects a bit like Mr Farah Jama. The story of Andrew Mallard, the story of Jean Gassy, the story of Mr Button, the story of Mr Farah Jama, they're all stories which demonstrate that forensic evidence is vital to our system of proving cases, that DNA evidence is only one particular and new kind of forensic evidence, that we can be sure that there is a lot of good science in DNA evidence and as in the Button case it will help exculpate people who are not guilty, but as in the Farah Jama case, the presence of some DNA evidence doesn’t necessarily prove that the evidence is relevant to the case. And as in the case of Gassy, the presence of forensic evidence doesn’t override the duty of the Judge to make sure that a person gets a fair trial and as in the Mallard case, well the Mallard case weighs on my mind, because I often ask myself, if you had had more time, if you had had more help, if you had had more opportunity to reflect upon how the mosaic fitted together, could you have stopped Mr Mallard from serving 10 years in prison and that is always the risk. We can be sure in Australia that our system is very good and it's conducted by people who we call Judges who are not corrupted. That's an unusual thing in this world. Uncorrupted, independent, serious minded, doing very important work, but human justice is prone to human error and what we have to do with forensic evidence is to reduce the risks of error and to try to make sure that systemic changes are introduced that reduce the risks of error, heighten the use where it is safe, because where it is safe it will contribute to ensuring that the guilty are convicted and that the innocent are not. Thank you.
Now the reason I have to go at 6:15 is that Jet Star waits for no one and therefore that puts a limit, but that still gives us about half an hour time for questions. So are there any questions or comments. This is a democracy, this is a free country and you don't have to agree with what I say. Any questions? Yes now we've got some roving mikes. There's somebody with a roving mike. There's a question over here. Who's the next questioner? Yes okay well we'll have to ...
Sally Shaw (formerly Sally Lowe)
Forensic evidence of course is very close to my heart because of the Chamberlain case, but how do you see the forensic evidence. Should it be viewed before it goes to a jury, should it viewed by a panel of scientists who often can't agree or should it be in closed chambers before a Judge and then there's an agreement between both parties and then that part of the forensic evidence that they agree on goes before the jury? What do you think would be the best avenue?
The Honourable Michael Kirby AC
Well first of all I wouldn't be in favour of things happening in closed chambers before judges. In our system, whatever happens, it happens in open court, certainly in criminal matters with very, very few and rare exceptions and that really is a reaction of our system to the errors of the Star Chamber and doing things in private. We don't do that in Australia. We do in the course of the criminal trial sometimes exclude the jury and the judge will send the jury out so that they are not contaminated by evidence and I imagine that that's really what you were thinking of doing. But it's still done in open, it's done so that a citizen sitting in the back of the court can follow the whole thing and see that justice according to law is done. As to having panels, well as you yourself acknowledge, I'm not so sure that that's such a good idea because the fact of the matter is that scientists can be just as bad a lawyers in having disagreement. I mean scientists can have very sincere differences. When I was a young lawyer, I did quite a lot of compo cases and a number of those were cases involving heart attacks and the question was, was the heart attack at work caused or related to the employment? And there was one theory which was propounded by a wonderful witness, I remember he was not only a very good physician, but he was a great witness. He was like having a QC in the witness box because he was really a brilliant witness as well as being a very, very intelligent and honest witness, Dr John Raftos. And his theory was heart attacks are almost always caused by effort whereas there was another great witness in Sydney named Dr Gaston Bauer, Professor Gaston Bauer and he was also a wonderful witness and his theory was that heart attacks are almost never caused by effort and if you said well, we're going to have a group of experts who are made up of John Raftos and his friends, well they'll always come to one conclusion, or Dr Bauer and his people of the same persuasion, they'll come to another conclusion and that's the problem with much scientific and expert evidence that you have theories which are not yet fully developed. But the Federal Government as a result of the Farah Jama case and the big outcry in Victoria, you may have seen that outcry at the time and it got quite a lot of publicity nationally, the Federal Government, I think it was Minister Bowen in the former government announced that $500,000 was being given by the Federal Government as seeding money for the purpose of establishing a system of forensic examination to try to get at least Australia wide agreement about the standards and methods that would be adopted. Now this is important and it goes to the very first minute in a criminal investigation. In a criminal investigation, it's absolutely imperative that you take photographs of the crime scene to show all the evidence that is there because sometimes if say a cigarette is found with DNA of a person who happens to be the accused, then unless it can be specifically, accurately, preferably photographically and authoritatively traced to the crime scene, at the time it is virginal, you will have arguments as to whether this was planted. That's in criminal argo, that's called the "giving of presents", leaving presents at the scene in order to implicate somebody against whom there may not be clinching evidence. In the United States, the National Academy of Sciences has had a big, because of the sort of problem that's come out of so called "innocence projects". Many law schools have set up "innocence projects" to collect evidence of DNA, based on old material that was there before the DNA testing reached the present state of refinement and as a result of this, a big enquiry was conducted by the National Academy of Sciences in the United States, they produced a report a couple of years back called "The Path Ahead" and that was extremely critical of a number of the players in the criminal process. It was most critical of the judges because it said it's the job of the judges ultimately to safeguard against unjust convictions. But it was also critical of some forensic witnesses who it asserted were shown in the United States to have been dishonest or not fully honest and it was also critical of the DNA experts whom it said sometimes had their thinking contaminated by knowing extraneous facts about the case. The emphasis of the report was the DNA experts should just be gathering the information of the DNA material. They shouldn't have other evidence in case it contaminates the way in which they approach, they should simply be looking at the science and reporting that objectively, scientifically to the best of then standard of scientific knowledge and I think there's a lot of wisdom in that report and I would expect that that report will be the subject of a lot of examination in the Australian context to see how much of it is relevant to us in developing the Australia wide principles. We need it to be Australia wide because the DNA evidence may be gathered in different states of Australia for a criminal trial here in Hobart, and therefore you need to have the same standards elsewhere in the country. Now there was another question. Yes. There's a microphone coming. As you get older as a judge, you get a bit deaf, it's often a mercy.
My question goes towards DNA evidence. We're assuming that, and this occurs, two twins are born from the same egg which has been fertilised and the egg has split, they're DNA is the exact same, how does our law deal with that situation and if it doesn’t deal with that situation, say if one of them commits an offence, what reforms do you think would appropriately deal with such a situation?
The Honourable Michael Kirby AC
I'm sorry what is the situation? Oh identical twins. Yes that is a problem, but can I say there aren’t all that many identical twins in this world. When you get that case, well you've got to face with that particular instance and then you have the fight between the two twins but at least you've narrowed it down for the rest of the 6 billion of the rest of us and the twins. My brothers were twins, one of the twins died, but they weren’t identical twins and it's a very rare thing, it's a precious and wonderful thing of course. By the way when my brother, then 18 months lost his twin and my next brother came along, who is now Judge of the Supreme Court of New South Wales, my brother Donald twinned with my brother David. He just had to have his twin back and that's the remarkable thing about twins. But that's a very particular, very small, we're talking here about evidence which is useful in the mass of cases and okay there'll be particular problems, I won't lose too much sleep about that very particular problem. I think that's just something that would have to be dealt with in the event that one of the twins accused the other and the other accused the other. But I think that's such a particular case we don't need to worry too much about it. No sweat as they say. Any other questions? Or comments? Yes there's one down the front.
Given that much of this forensic evidence is probabilistic in nature, where do you set the boundary on finding someone guilty? Is it one in a hundred, one in a thousand, how precise does the evidence have to be?
The Honourable Michael Kirby AC
Well that will depend on the advance of science from time to time and scientific evidence doesn’t stand still particularly in genetics. In genetics, scientific evidence is leaping ahead by reason of the discoveries of Watson and Crick but also the discoveries of computerisation and informatics and the capacity to analyse data and it was the combination of the biotechnology and the information technology that made the charting of the human genome and the identification of our genes and the analysis of genetic material possible, which if we'd had to do it by sums or slide rules, which is what we had when I started out at school, you would have never been able to achieve the levels of scientific knowledge that we have today. But the answer to your question is, that will depend on the advance of science and on recognised skills and evidence in science that is accepted by the body of scientific experts in that particular field. However as I mentioned in my answer earlier, the problem is that sometimes there are two theories and sometimes it takes years or decades for the better theory to emerge and meantime courts are sitting there and they have to be deciding what evidence will be allowed, what evidence is safe to allow before the jury, and what direction should be given.
There was a case that came before the High Court last year, no I think it was this year, a case of Benjamin Forbes. Mr Forbes was another case where really the only evidence against him was DNA evidence and he wanted the High Court to give Special Leave to Appeal from the Supreme Court of the Australian Capital Territory in order as it was put, to lay down guidelines and rules for the courts of Australia as to what the judges should instruct juries on the issue of DNA evidence where particularly there was no other substantial evidence in the case and the matter was taken up on a Special Leave Application and in refusing Special Leave, Chief Justice French pointed to certain concessions which had been made in the courts below which the Judges of the High Court felt made that an inappropriate case to provide the test for what judges in the trial courts throughout Australia should say to juries where as in the Farah Jama case, really there was no other evidence and maybe if in the Farah Jama case, people had really stopped to think about the inherent likelihood of the case, the inherent unlikelihood that this 19 year old black man, who was not seen at a singles bar, would have been in some way implicated. Nobody stopped to do a reality check in the case, they were just mesmerised by the DNA and it may be that if cases of that kind warned by the miscarriage that took place in the Farah Jama case, not only do the officials and the forensic experts have obligations to get it better and to be more accurate and to safeguard the samples and to prevent their contamination and to track them and to make sure where they were collected is photographed and the whole process is carefully monitored and can be logged and proved, all of that has to be done. But maybe as well as that, the judges have to give thought as to reminding juries of the need to consider the issues of the kind that are coming up in the Button case where it was a case of the failure to do DNA analyse or in the Farah Jama case where there wasn’t sufficient attention to the surrounding circumstances and to the other evidence which made the presence of the accused at the time of the crime and his lifting and putting this very large lady in the toilet cubicle, a very unlikely reality. We've all got in all cases, but criminal cases in particular, to be vigilant against the risks of error, to be aware of the miscarriages that can occur, to safeguard against those errors and miscarriages and to keep our feet firmly planted on the ground. I think that's really the lesson that I draw from these cases. Any other questions? Yes.
The NAS report you referred to from the USA earlier is particularly scathing and critical of many of the traditional forensic disciplines. Do you agree with that premise or do you see the failures that we've seen from the USA more as a result of some of the practitioners working in those disciplines who have for whatever reason, perhaps incompetence or lack of training, that that's where the failures are coming from?
The Honourable Michael Kirby AC
Well as you know, there's been pressure in all of our societies, but particularly in the United States which led the way, and also in our country, to privatise everything. And I suppose it's a function of my age that I sometimes think there were certain merits in the old notion of the Crown and of the Crown service and of independent people not getting contaminated by private profit and private motives and so on. It's true, the National Academy of Sciences in the United States report is extremely scathing of virtually all the players and particularly scathing I think it's fair to say of the judges, of the Appellate Judges and therefore all of us have to, as it were, see how much of that is relevant to us in Australia. And if we say, well none of it is relevant to us in Australia because America's a special place, it's another world, most of them are private, too close to Police, no great tradition of independence and integrity or not the same tradition therefore we couldn't have those problems here. Well watch it, because you've got read Justice Vincent's report and you've got to read Justice Williams in the Button case.
Justice Williams said in the Button case, this is a black day for justice in Queensland and Australia. Because Mr Button was convicted and served 18 months or so of his prison sentence on the basis of the failure to take proper forensic tests and the failure to present them at the trial. Even when the tests were conducted at the Tonge Centre in Brisbane, the person who was in charge of the original tests in the Button case said, well how do we know that the girl wasn’t raped by Mr Button and by somebody else? Now the only problem with that was that the girl had claimed that she was a virgin, had claimed that she'd never had sex before, she was 13 years old and she asserted that she'd only been sexually assaulted once and she gave an original description of the accused which fitted perfectly the person who's DNA subsequently matched. So even to the end, the person who had done those tests, it's nature of human activity that nobody likes to admit mistakes. To be truthful, I can say to this audience I never was worried about admitting that I'd made a mistake. I made a mistake in Mallard. I regret the mistake in Mallard, I don't feel particularly guilty for that mistake in Mallard because I responded to the argument which was put to the High Court which was about lie detector tests, but still you do feel a responsibility that if only you'd had more time to consider the things, you might have seen that A and B didn't fit with C and that's what we've got to make sure that there are failsafe mechanisms that give judges the support and if necessary set up an independent commission that will have time to look at these cases, subsequently if more evidence comes forward that suggests that a miscarriage of justice has occurred.
It should be a fearsome thought for free people to think that there are serving in prisons tonight, people who are innocent. That is a fearsome thought and I have to tell you that as a judge, when I was a judge, I never took that responsibility lightly and I don't know any Australian judge who does and that's the best guarantee we have at the moment. But perhaps in the light of the American report, we need more guarantees and I think we're going to work towards these, because of the great faith that people have in DNA evidence. We've got to make sure that it's accurately collected, that's it's not the "giving of presents", that it's traced in every step of the way, that there are independent people who scrutinise it, that those people are not contaminated with outside matters and information about the fact that the accused is probably guilty. In the old days of the verbals when I was very young practitioner in Sydney, I am sure that most Police who verballed somebody were absolutely certain that that person was guilty and therefore they felt that was morally blameless because they were either guilty of this crime or they were probably guilty of some other crime. Well we've gone beyond that. The Police have gone beyond it, the Police now have the advantage of the video tests which in the Law Reform Commission, 30 years ago I said once the Police have this, this will be the greatest engine for the Prosecution case and they resisted it tooth and nail and I've been vindicated as I will be vindicated in many matters over the years. Okay next question.
In light of the end result of the Mallard case, do you look more favourably on polygraph tests now or in the event that perhaps that there's one person's word against another?
The Honourable Michael Kirby AC
Well I'm not sure what the latest evidence is about lie detector tests. I really don't know, maybe one day we will have accurate lie detector tests. You know when I left the High Court, the most horrible thing that happened to me was, I lost my Associates, my slaves who used to present to me every morning to the Great Man, the emails. I would have them presented to me at my desk. I never once saw an email about Russian brides, I never once saw an email about Viagra ads, I never got any of that. Now I've got to do it myself and I've now gone over to Dragon Dictate. It's a miracle what can now happen. Dragon Dictate 11, you speak and it turns up on the page and it's, for me, it's about 98% accurate and that has happened in 10 years. So I'm not ruling out the possibility that we will find ways of tracing people's heartbeats and their pulse and their water, but I've known some very good liars in my time and you know they look so perfect. The lesson of psychology is, you can't tell a book by its cover and you can't tell a person as a truthful or false witness simply by their appearance and that's why the great search is on for the inherent likelihood of the case and as much evidence about the case as is possible and if possible, objective and scientific evidence about the case. Because the more we can anchor the decisions in such material, the more we can be sure that it isn’t subject to human fallibility.
Well I see the Dean who has been cracking the whip on me all day today, I've had a terrific day at the University of Tasmania and I repeat again, the Law School at the University of Tasmania is one that everyone here can be proud of. It has a very strong grounding in black letter law, but it also has a very great, keen interest in the issues of biotechnology and forensic evidence and criminal law and sentencing and all the issues. To be a good lawyer you've got to have the two. You've got to have the two. You've got to be trained in the black letter, but you've got to have a heart that is open to the big issues of justice and if you've got those two, then you become a very valuable commodity to the Commonwealth of Australia.
Dean Margaret OtlowskiChancellor, Chief Justice, Justices, colleagues from the Law School, students and of course most importantly the audience, the many visitors to the university and I am just heartened by you voting with your feet to come to this lecture and to engage with it so fully. My name is Margaret Otlowski, it's been mentioned that I'm the Dean and it lies with me and I'm absolutely delighted to give the vote of thanks to Professor, Adjunct Professor, we're very, very glad and proud to claim him as Adjunct for the Faculty, to thank him for his wonderful presentation this evening, rich with examples, with humour, sharing his insights and his practical experience. Clearly the power of these tools is immense, but also the need for caution in their use and also his wonderful ability to make a complex subject accessible to all of us. For those who are interested it's worth mentioning that a written copy of the paper is available with us at the Law Faculty, so do get in touch if you'd like us to make that available to you. So it leaves now just to, as a token of our sincere appreciation and indeed he has worked all day, the schedule was really thick with business, so and this was really a culmination of an incredibly busy day, so on behalf of the faculty, may I present by a Tasmanian photographer.
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13 October, 2010