Northern Territory Second Reading Speeches

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EVIDENCE AMENDMENT BILL 2003

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Madam Speaker, I move that the bill now be read a second time.

The purpose of this bill is to allow DNA evidence to be tendered by way of certificate in criminal proceedings. Criminal proceedings are intended to give the widest possible interpretation and extend from major criminal trials to pre-hearings, matters on complaint and minor indictable offences. If the Coroner chooses to do so, certificates may also be admitted as evidence in coronial inquires.

DNA evidence is an important investigation and prosecution tool in criminal proceedings. It provides a unique means of identifying an individual, and can be ascertained from biological matters such as blood, hair or saliva, and can be lifted from clothing, housebreaking implements or weapons. However, as opposed to fingerprints, where a fingerprint technician locates and lifts a fingerprint at a crime scene and compares it to a known fingerprint on file, DNA requires more scientific processing before the final product can be compared with samples on the DNA database. When the Forensic Biology Section of the Northern Territory Police accepts a case it is controlled by one scientist, known as the reporting scientist. A number of other scientists and technicians - examining scientists - may work on it. However, the ultimate responsibility for the scientific interpretations and conclusions for the final report remains with the reporting scientist. This concentration of responsibility for procedures and documentation in the reporting scientist reflects national standards for carrying out forensic DNA profiling.

Court obligations can impact heavily on a scientist’s time. As well, where the procedure for testing the sample is not at issue, valuable court time is used up in calling all the scientists - and there may be a number of them whose work has contributed to the chain of evidence.

In the Queensland case R v Hytch 2000 QCA 315, Justice Mackenzie said:

It will generally be inevitable that a forensic scientist will be called to interpret the findings of their analysis and statistics which give the findings their cogency. Whether it is necessary to call other persons involved in the process, either to prove continuity of the sample or for cross-examination in the hope that some actual flaw in the process may be fortuitously discovered is, no doubt, a matter for judgment for counsel in a particular case.

In other areas of the law where analyses are performed, identity of the sample tested, and by inference, the integrity of the testing process, can be proved by certificate; for example, under the Misuse of Drugs Act or the Traffic Act. The same kind of resource implications that underlies such provisions may be assumed to exist in the case of DNA samples.

It may be that if unnecessary strains are placed on resources by routinely calling persons who are unlikely to give contentious evidence, it will be necessary in the future for the legislature to consider such a provision with regard to DNA evidence. There should, of course, be no impediment to calling witnesses in cases where the real purpose will be served by requiring them to give evidence.

The decision I have quoted was handed down in Queensland. The same principles apply to the Territory where significant demands are placed on staff in our forensic laboratory without the additional burden of having to spend what, in some cases, is unnecessary time in court or in waiting to give evidence.

This bill, therefore, inserts a new section 24, Evidentiary Certificate by the Reporting Scientist, into the Evidence Act. The effect of this section is that the certificate signed by a reporting scientist appointed under the statute, because of their qualifications and experience, is evidence of the matters stated in the certificate. Matters in the certificate may include: the day a thing was received at the laboratory; the day or days within which testing was completed; that a stated DNA profile was obtained; and that the reporting scientist had examined laboratory procedures and confirmed that the records indicated appropriate quality assurance procedures had been complied with. If a party to the proceeding intends to challenge any matter in the certificate, then the reporting scientist must be called to give evidence. Other witnesses involved in the testing process, apart from the reporting scientist, do not have to be called by the prosecution unless the court gives leave to do so.

The section contains a number of safeguards to ensure that the rights of the accused are not prejudiced. A party seeking to rely on a certificate must, upon request, produce all records related to the receipt, storage and testing of the thing within a stated time. Further, a party seeking to challenge a matter stated in the certificate may, with the leave of the court and provided that the prescribed notice is given, call any person involved in the receipt, storage or testing of the thing to give evidence.

These provisions are in line with the statement in the New South Wales Court of Appeal in R v Sing [2002] NSWCCA20, that to admit the evidence of expert witnesses - in this case, scientists supervising DNA analyses - over objection, without the evidence of the persons who actually carried out the procedures which have resulted in the print-outs, and without any evidence that there was any difficulty in calling those persons, involved unfair prejudice to the accused. The new section of the Evidence Act is intended to preserve/conserve valuable resources within the criminal justice process without, in any way, prejudicing the rights of the accused.

Madam Speaker, I commend the bill to honourable members.

Debate adjourned.

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