DNA Sampling Authority - Essay Example

DNA Introduction British backpacker Joanne Lees’ and her boyfriend, Peter Falconio, had a struggle with a stranger at night on a lonely remote highway. It resulted in death of Falconio and Bradley John Murdoch was declared guilty of the murder. This article outlines the legal tools utilized during the three-month search for Murdoch and a two-month court battle over his DNA sample. It will conclude with a proposal for a new DNA sampling authority that might have given the investigators a more satisfactory means of catching Murdoch. DNA Analysis An unknown man’s DNA found on Lees’ t-shirt, at the time of Lees’ brief kidnapping and Falconio’s permanent disappearance during a struggle with a stranger, was actually investigators’ best lead but less certain. The police, because of legal concerns, refuse to pursue this lead by acquiring samples from each of the thousands of persons of interest to it. The investigators’ second-best lead was the footage shot at a truck stop on the night Falconio vanished. Bradley Murdoch was interviewed because his appearance and match with truck video, and passed over for DNA sampling. But Murdoch provided an apparent excuse to the police and he was declared innocent. After six months, the Broome police pulled over Murdoch’s former flat mate and business partner, James Hepi. This was Taskforce Regulus’ third big break, after the t-shirt DNA and the truck stop video. As a consequence of Hepi’s arrest, the police was offered the identity of the suspected killer of Falconio. In Australia, arrest and DNA sampling powers are typically restricted by a requirement that the police have objective investigation specific justification for using force. Murdoch was deliberately avoiding the Falconio investigators, so it was doubtful that, even if they found him, they can not touch him without his consent. At the same time Hepi was a first-time informant and, moreover, had much to gain (and nothing to lose) from pointing Murdoch. Without any grounds to trust Hepi himself, Taskforce Regulus took considerable efforts to verify claims made by Hepi. But every claim proved to be off-key. According to Senior Sergeant Megan Rowe, the head of Taskforce Regulus’ intelligence cell, Murdoch was the only man not ‘eliminated’ out of the nominated by the public as men in the truck stop video, hot prospects identified by Rowe, and persons ‘of interest’ to the investigation. Hepi’s tips were of some hope, but Taskforce Regulus’ ability to lawfully take Murdoch’s DNA sample, once he was found, was in doubt. So Taskforce Regulus opted for a different way of testing Murdoch’s link to the t-shirt smudge. They approached Murdoch’s older brother, Gary, for his DNA sample. Gary’s consent for sampling yielded a partial DNA match. The partial match – to be expected if a blood relative of Gary’s was the source of the smudge – was certainly enough, in combination with the other information gathered by Taskforce Regulus, to objectively narrow the investigators’ suspicions to Murdoch himself. But, when Murdoch was located, two weeks later, none of the information gathered by the investigators was used, because of some legal concern, to justify either his arrest or the taking of his DNA sample. A phone call on 28 August 2002 was the final major break in the Falconio case. A mother and her daughter had been raped and kidnapped by Murdoch a week earlier. After this call Murdoch was arrested, and thus provided a new way for lawfully acquiring his DNA sample. However, the Australian jurisdictions require that the objective justification for a proposed DNA sampling should cover, not only who is sampled but also the investigative utility of sampling. So, to force Murdoch to provide a DNA sample to investigate the allegations by the mother and daughter, the police needed reasonable grounds to expect that obtaining Murdoch’s DNA sample would make a difference to that investigation. DNA sample of a suspect rapist is crucial to a rape investigation. However, three facts dramatically reduced the potential value of Murdoch’s DNA to the investigation into the South Australian allegations. The mother had disposed of her and her daughter’s clothes the day after the alleged crimes, along with any DNA evidencing them. The two alleged victims did not go to the police until a week after the alleged rapes occurred, so it appeared unlikely that any fluids from the rapist would have remained on their bodies. The alleged crime scenes described by the child and her mother were, respectively, Murdoch’s own bed and his Toyota Land cruiser. Both would have Murdoch’s DNA on them whether he had raped the complainants or not. The rape investigation was at an early stage at the time of the court’s decision. Forensic results on the crime scenes and victims’ bodies were unavailable and Murdoch had refused to comment on the allegations. So, the South Australian court considered the possibilities that male bodily tissue might yet be found on the victims’ bodies, semen might be found in the bed or car or the victims’ account – such as smoking or drinking at the time of the alleged crimes or being at a particular location –might be verifiable by DNA identification. The court held that these possibilities sufficed as reasonable grounds to expect that the DNA sampling might yield an investigative benefit. These DNA samples were then sent to Northern Territory after proper agreement. Taskforce Regulus announced that his DNA profile matched the t-shirt smudge. Murdoch faced trial for the rape and kidnapping charges for three months and finally assoiled of all the South Australian charges. The announcement of the DNA match proved to be Taskforce Regulus’ highpoint, and Murdoch was arrested after his acquittal on the rape and kidnapping charges. During Murdoch’s prosecution, Lees, The only eyewitness, visited a BBC website. The DNA match allowed courts to uphold Murdoch’s conviction, despite some legal errors during his trial. The match to the t-shirt smudge was evidently sufficient for a jury to convict Murdoch of murdering Falconio and assaulting Lees at the conclusion of a lengthy Darwin trial in late 2005. Conclusion Taskforce Regulus can obviously be labeled a success. But can the same be said about the present legal regime for DNA sampling? The analysis in this article suggests that the regime failed at three points during the investigation: 1. At starting, when the police didn’t try to ask Murdoch for his sample. Taskforce Regulus probably avoided aggressive approach to sampling its shortlist because of concerns that such an approach might backfire legally if used against someone who will eventually be prosecuted. As a result Murdoch’s significance was not recognized for a further six months, during which time he ran away, and almost a thousand others were investigated unnecessarily. 2. When the Taskforce recognized the importance of Murdoch’s DNA, but also they lacked objective justification to have him compulsorily sampled once located. Again avoiding other ways of gathering his DNA, the investigators chose to approach Murdoch’s brother. A significant partial match was the result, on which they can never rely upon once Murdoch was arrested. Moreover, Murdoch’s brother promptly tipped off the investigators’ target. 3. When the police chose to rely on the South Australian charges, rather than the Barrow Creek incident, to obtain Murdoch’s sample. The serendipity of the rape and kidnapping charges emerging just as Murdoch was arrested – and that investigation remaining nascent during the court battle– meant that the constraints on the police’s DNA sampling powers were sidestepped. Keeping the South Australian events from the Darwin jury proved difficult, in one instance nearly causing Murdoch’s lengthy trial to miscarry. If Taskforce Regulus had been willing and able to obtain a group DNA sampling order for men whose height and vehicles matched the truck stop video – arguably, a group that could be reasonably thought to include the highway stranger – then many more people would have had their DNA taken1. Moreover, compelled DNA sampling would likely have been less burdensome on citizens and police resources than the investigation of macroscopic characteristics like appearance, belongings and movements used to clear Rowe’s various lists. Most importantly, sampling such a group would have avoided many of the uncertainties that burdened Taskforce Regulus’ search for the source of the t-shirt smudge. Instead of trusting Lees’ hazy memories or pouring over mostly irrelevant public tips to generate a smaller shortlist, the larger group is based on narrower and more precise leads2. Similar gains would not have flowed with any certainty from the methodology actually adopted by the Taskforce’s intelligence cell. With hindsight, Murdoch, six feet and five inches tall and the owner of a diesel 75-series Land cruiser, would have made him scarce when the group sampling order became public. However, the police could then have searched for free of the imperative of finding objective grounds to narrow the investigative focus to a particular person. Hepi’s reduced sentence and, perhaps, the unfortunate developments in South Australia might have been avoided. Moreover, Murdoch’s eventual DNA sampling could have been conducted on a secure legal footing without the need for the serendipity of further, ultimately unproven, allegations of serious crimes3. References Nicholls v. R [2005] HCA 1, retrieved 19 December 2006, http://www.austlii.edu.au/au/cases/cth/high_ct/2005/1.html R v. Schaeffer [2005] VSCA 306, retrieved 19 December 2006, http://www.austlii.edu.au/au/cases/vic/VSCA/2005/306.html Zaravinos v. State of New South Wales; State of New South Wales v Zaravinos [2005] NSWCA 320 at http://www.austlii.edu.au///cgi-bin/disp.pl/au/cases/nse/NSWCA/2004/320.html Read More