WE COULD all give a sigh of relief. Now we know Benjamin James Forbes is guilty of sexual assault.
Forbes’s appeal was denied in the High Court this week. The appeal was trumped up to be a major test for DNA evidence upon which hundreds of convictions rested.
Forbes was convicted on DNA evidence alone. His DNA was found on the victim. There was no plausible explanation for it being there other than that he did the crime. He and his wife said they were home the whole of the night of the attack. Ho-hum.
The court wasted little time on the appeal.
But I bet the real clincher in the eyes of the average observer was the knowledge (not disclosed to the jury at the time) that he had two prior convictions for sex offences and had been acquitted of an almost identical earlier attack.
The treatment of prior convictions and DNA evidence show some of the weaknesses of trial by jury.
With DNA, the trouble is juries are notorious for being swayed by scientific evidence. It is called the “CSI effect”. The CSI television series has seemingly endless episodes showing American detectives years after the crime matching DNA taken from crime-scene artifacts with the DNA on the database of known criminals. Each episode usually ends in the needle or 25 to life. (An excellent graphic on the CSI effect can be found here
A scientist can swear that the DNA samples match, with a probability that they are not the same person as several tens of million to one.
Juries then jump to the conclusion of guilt without considering two other possibilities: that the police messed up the sample-taking so it got contaminated or mis-labelled; or that there is an innocent explanation for the presence of the DNA.
An example of mishandling was the Victorian case of Farrah Jama, who was convicted of the rape of an unconscious woman on DNA evidene alone. Other evidence suggested it was highly unlikely he was near the place. The police ignored all that. His conviction was quashed after he served 16 months of his six-year sentence. Jama’s DNA sample had been taken in the same room as the DNA sample from the victim 24 hours earlier.
A report by Justice Frank Vincent tabled in the Victorian Parliament last week recommended radical changes to sampling procedures. He warned about not only juries but police and prosecutors being blinded by DNA evidence.
“The DNA evidence appears to be viewed as possessing an almost mystical infallibility,” he wrote. “It became clear that the DNA evidence was perceived as so powerful by all involved in the case that none of the filters upon which our system of criminal justice depends to minimise the risk of a miscarriage of justice operated effectively at any stage.”
Science often blinds juries to the possibility of innocent explanations for the presence of the accused’s DNA, particularly if the accused is related to the victim. This was the defence case in the trials of Steven Wayne Hillier who was found guilty of murdering his wife by a jury, won a retrial on appeal and was later found not guilty by a judge-alone trial.
It seems likely that the defence in that case was so concerned about the prejudice DNA evidence could have on a jury that they opted for a judge-alone trial.
The Hillier case and others also show how difficult it is becoming to hide from juries knowledge of prior convictions.
In Hiller’s case knowledge of the earlier trial would be in the memory of most jurors. But just say the High Court had granted Forbes a new trial. His case would have left an internet footprint. Indeed, just as Hillier’s case did.
It would be fairly simple for jurors to disobey judicial warnings and search for a defendant’s name and see if any prior convictions or trials come up. Internet searching has changed the game. Moreover, as time goes on, internet searching for prior trials embraces an ever longer period. Some newspaper databases go back 15years.
It is going to become more difficult as databases get more comprehensive and computer skills get more widespread. It only takes one of the 12 jurors to have the skill. Moreover, most media reports of criminal trials use full names of defendants – using second and even third given names, making searches easier. They do this for fear of getting a mis-identification or embarrassing people with the same given and surname.
You wonder how tenable the withholding of prior trials from jurors will be. True, if one juror finds a prior trial and tells other jurors who in turn tell the judge, that juror could face criminal charges. Nonetheless one juror could find out, not disclose and hold out for a guilty verdict.
Do we lock jurors up in major cases, as they do in the US? Or do we abandon juries as being too fickle, and too open to prejudice?
An alternative would be to allow evidence of prior convictions. Indeed, South Australian Premier Mike Rann proposed as much before the last election in a classic law-and-order-drum beat. But the prejudice of allowing prior convictions is probably equal to that of out-of-context DNA evidence.
Again the CSI effect: “We’ve got a DNA match; we must have the crim.” or “The suspect has prior convictions; we must have the crim.”
The effect is unfortunate. DNA can be a powerful tool in placing people at crime scenes and in getting criminals off the streets. Also criminologists suggest that fewer than five per cent of the people do more than 95 per cent of the significant crime. So prior charges should give rise to higher suspicion. Also, it would help to ease the rule that allows evidence of prior convictions if they reveal a pattern of behaviour.
But these things should be only part of the picture for police and prosecutors, not a prejudiced totality.
Applied well, DNA and prior charges can help clear up crime and take people off the streets before they become repeat offenders. If the sampling system and other controls were improved people might not be averse to widening the present database of about half a million people to include the whole population in order help fight crime.
But if DNA and prior convictions are used badly, you create injustice and lose confidence in valuable crime-fighting tools.
CRISPIN HULL
This article first appeared in The Canberra Times on 22 May 2010.