A national review of the reliability of forensic evidence being used in courts has been abandoned by the nation’s attorneys-general despite mounting concern that innocent people are being jailed using questionable science.
The investigation was cancelled 16 months after it was announced in November 2019 by the Council of Attorney-Generals and before a team of top legal, forensic and scientific minds could conduct any significant work or develop a reform plan.
Changed priorities: Attorney-General Michaelia Cash.Credit: Dominic Lorrimer
The review into the use of forensic evidence in the Australian criminal system was announced after international studies found five widely accepted forensic “sciences” – bullet, hair, footprint, bite mark and mixed-sample DNA analysis – do not work or have no strong evidence proving they work.
The review’s working group intended to examine the capability of juries to understand complex evidence and whether baseline standards should be introduced in courts to restrict the use of untested or speculative expert opinions.
It was quietly shelved early this year after the national cabinet downsized the Council of Attorney-Generals and restricted its focus to the “national priorities” of family violence, protecting older Australians and defamation law reform. Its operations were also delayed by the COVID-19 pandemic.
A spokesman for Attorney-General Michaelia Cash declined to comment on whether the review would be reinstated at a future date.
President of the Court of Appeal Justice Chris Maxwell.Credit: Jason South
“Although this working group now falls outside the remit of the meeting of attorneys-general, it is open to jurisdictions to continue progressing work out of session,” the spokesman said.
Professor Gary Edmond, director of the University of NSW’s expertise, evidence and law program, said completing a review was already “long overdue” but it now appeared there was no end date in sight.
“That doesn’t mean the states themselves can’t go ahead on their own. What’s stopping Victoria from looking at the same issue itself? This needs to be done – we’re completely out of step with other comparable countries that have standards that say forensic science evidence doesn’t get into a trial unless it’s demonstrably reliable.”
The push to put the review on the national agenda had been spearheaded by then Victorian attorney-general Jill Hennessy and president of the Victorian Court of Appeal Justice Chris Maxwell, who were both outspoken in their concerns about the integrity of the legal system and potential for miscarriages of justice.
“The use of reliable and robust evidence in a criminal trial is a key element of our criminal justice systems, and critical to maintaining community confidence,” Ms Hennessy wrote to her national colleagues in September 2019.
The Andrews government declined to comment on whether it would launch its own review after the decision to abandon the national review, noting only that it was “considering opportunities for improvement to our laws and procedures”.
“Victoria’s justice system has processes in place to ensure the quality and reliability of forensic evidence presented in court,” a spokeswoman for now Attorney-General Jaclyn Symes said.
The state has its own forensic evidence “working group” – comprising judges, forensic scientists and lawyers – that has been used to develop policy in the past and could pick up the mantle for reform. However, two sources familiar with the group’s operations, but who were not authorised to speak publicly, said its work had stalled in the wake of the federal initiative and lack of interest from the state government.
“How can it be considered so important and there be an agreement to act, and now it’s no longer important?” a source said. “The issues haven’t gone away.”
Justice Maxwell declined to comment.
In 2019, he told The Age and The Sydney Morning Herald “there have been a string of wrongful convictions across the world. This seems to me to be a matter of profound concern.”
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