29 September 2014 - The Australian
The document means little to the disability support pensioner, who is illiterate. But he does notice that his name is spelled incorrectly and his date of birth is wrong.
“He explained that he couldn’t read the letter,” says the man’s lawyer, Redfern Legal Service police powers solicitor David Porter. “But we can surmise on the basis of what the police used in their letter that he had never served a sentence for a violent offence.
“It had been a number of years since he had come into contact with police. His last period of imprisonment was 15 years ago.”
This year in NSW alone, hundreds of people have had similar knocks on the door from police officers seeking a sample of their DNA via a mouth swab. It is part of a concerted drive by police to eventually capture the DNA of all recidivist offenders, whose samples are entered on to a vast national database that is growing bigger every year.
It is known as the DNA Back-capture Program and it is mandated by little-known legislation that was introduced in the state in 2007. But the back-capture of DNA has been ramped up exponentially this year and police command is making clear that the program has assumed a higher priority. Criminal lawyers are reacting with alarm at the sheer numbers of people calling or dropping in to legal centres confused as to why they must suddenly hand over their DNA, despite in some cases not having spent time in prison for a decade or even longer. Solicitors say the program runs counter to one of the central tenets of criminal justice: the assumption that rehabilitation can and should take place over time.
To be classified as an untested former offender and thus eligible to be targeted for the capture of DNA, two factors must exist. First, you must have served a period of imprisonment for a serious indictable offence that carries a maximum penalty of at least five years. However, the actual time served for that offence may be as little as a few months. Secondly, after release from prison, you must have been prosecuted for a further offence. You may have been acquitted of that offence, but having been prosecuted would be enough to elevate you to the status of untested former offender.
In the case of Porter’s illiterate client, after his release from prison many years ago — and after 2007, when the governing legislation was introduced — he was prosecuted for a low-level public intoxication offence.
“Clients are variously feeling intimidated, humiliated, they’re feeling hunted,” Porter says. “Some clients have felt ashamed that apparently their debt to society is not being allowed to be paid off. In the main the response has been one of alienation, the feeling that this law is not there for them, and that increasingly laws in general are not there for their protection or assistance.”
Police point to a host of cases that are before the courts as evidence that the DNA Back-capture Program is playing a crucial role in solving crimes. The NSW Police Forensic Services Group’s commander, Assistant Commissioner Peter Cotter, says that since January this year alone, the program has thrown up links to murders, attempted murders, incidents of shooting with intent, dangerous driving, multiple armed robberies, multiple sexual assaults and more than 100 break-and-enters.
“They are links which are now giving investigators very strong leads to build their brief of evidence to lead to arrest or indictment or prosecution,” Cotter says.
In NSW in 2012, police captured the DNA of 237 people under the back-capture program. By 2013, the figure had increased to 407. This year, 681 DNA samples were taken in the six months to July.
“In the last 12 months there has been an increased focus on it,” Cotter says.
“We’re building on it all the time. It’s a particular drive of this command, but it’s most importantly a drive of the organisation as a whole. We’ve got some DNA samples on our database that date back into the 70s. We have had considerable success as an organisation in solving some of those historical matters, primarily sexual assaults and murders.
“There is national data around that shows that 60 per cent of all people who are incarcerated for all crime types will offend again within a short space of time,” Cotter adds. “There is also empirical data that suggests that for some crime types, that rate of recidivism is even higher, especially for robbery, armed robbery, and break-and-enters.”
The cases cracked with the assistance of DNA rarely make the headlines. But only last month, a 44-year-old man was arrested and charged with five violent and random sexual assaults on five girls aged between nine and 17. The alleged assaults occurred between 1989 and 1991, but due to forensic and investigative limitations at the time, no one was ever charged.
In 2011, the NSW Police Force’s Cold Case Justice Project identified a clear DNA link between all five sexual assault cases as a result of the back-capture of DNA.
The case is an example of the way DNA evidence can throw up a suspect who may never have been on the radar of detectives. With a DNA match the hard investigative work is not over, but police have a good place to start.
The back-capture of DNA is not confined to NSW. Western Australia has a program; the ACT’s program commenced in 2008; and South Australia recently implemented the practice for offenders whose crimes occurred before the introduction of DNA profiling.
DNA profiles from across the country are uploaded to the National Criminal Investigation DNA Database, managed by the federal body CrimTrac. Unless there is an acquittal or another extraordinary reason for destroying DNA collected, the profiles are retained on the NCIDD indefinitely.
As well as samples from convicted offenders, the NCIDD also contains profiles of those suspected of crimes, missing persons, unidentified bodies, and samples collected at crime scenes.
CrimTrac’s latest annual report reveals that as of June 30 last year, there were 749,601 profiles on the NCIDD, an increase of 70,000 samples compared with the previous year. DNA samples taken from crime scenes were matched to those on the database a staggering 81,688 times between June 2012 and June 2013.
As the database keeps expanding and forensic work on cold cases is continually revisited, breakthroughs in cases that have long sat idle are occurring with increasing frequency.
Last December, a man was arrested for the rape and murder of a Sydney nurse, Mary Louise Wallace, who was killed in September 1983, aged 33, after a night out at a bar on the city’s north shore. It was the oldest unsolved homicide case in NSW in which fresh investigations resulted in an arrest.
The charged man is Robert Adams from Gladesville, now in his early 60s. An inquest heard in 2010 that Adams’s flatmates had told police they were surprised, in the period following Wallace’s disappearance, to see Adams, a carpenter known as “Bob the Yob”, allegedly vigorously cleaning his Holden Commodore sedan. He washed the seat covers, vacuumed carpets and even scrubbed inside the boot, the flatmates said.
But without a body or an eyewitness, the case hit a brick wall. Three decades on, a single piece of hair that was re-examined allegedly provided the breakthrough. Adams denies all of the charges against him and will next face court for a mention in December.
There are numerous other historical homicide and sexual assault cases currently before the courts in which DNA evidence has resulted in an arrest. But despite this apparent evidence that DNA can be key to solving crime, the back-capture program in particular is attracting fresh criticism.
In a newsletter distributed last month, the Redfern Legal Centre described it as targeting low-hanging fruit, and being “not so much about looking for needles in a haystack as it is about collecting hay to make a stack”.
The centre says the program favours statistics and charge rates over rehabilitation or crime prevention, by bringing people to police attention despite years of good behaviour.
Beyond back-capture, the breadth of state-based legislation that governs the collection and storage of DNA would surprise many people.
The Northern Territory and Queensland both allow DNA to be taken automatically on arrest for crimes above a certain threshold of seriousness. In the Territory the DNA data can be stored indefinitely even if the arrested person is cleared of the crime.
South Australia has what has been described as the broadest legislation in the world governing the obtaining of DNA: anyone even suspected of a crime punishable by imprisonment can have a sample taken and the resulting profile stored indefinitely, even if they are discounted as a suspect.
In recent cases in NSW police procedure has come under heavy criticism from judges, and consent for obtaining DNA has been very much in question.
But police insist that the public is only just beginning to appreciate the crime-fighting benefits that come with a comprehensive DNA database.
“It’s for no other intent or purpose than the pursuit of justice — to solve crime, stop crime and to keep people safe,” Cotter says. “There are thousands of samples on the database, thousands of samples of crime scenes which are unmatched. So this system is about looking at those recidivist criminals.
“The commentary will say it’s not respecting those that rehabilitate. Well, it’s actually quite the contrary to that, because this act and the whole intent of this amendment to the act was to take DNA from specifically those who do re-offend. That point is very much lost on the protagonists and the antagonists of this legislation.”
