How three words opened a black hole in Qld’s justice system

Language can be tricky, as anyone trying to order the same-sized beer in each Australian state could know. It can be trickier still when trying to condense technical, scientific or legal details into words that can be understood within and across professions, and by the public.

When those words have the potential to influence a judge or jury, convince prosecutors and police to seek justice for victims of crime, or give those victims hope, their importance reaches another height.

That is the situation bearing down on Queensland’s criminal justice system: a 2018 change in testing processes at the state-run forensics lab, which stymied detailed processing of DNA samples for major crimes (such as murders, rapes, assaults), the results of which were translated into the phrase “no DNA detected”.

Instead, an interim report by former Appeal Court president Walter Sofronoff — leading a powerful commission of inquiry — found this week expert witness statements given by the Forensic and Scientific Services lab to courts and prosecutors had been “untrue” or “misleading”.

More detail could be pulled from up to 10 per cent of those samples. Queensland’s threshold for the more detailed work was more than double that of NSW. Some jurisdictions test them all. None use words Sofronoff believed could mislead someone to thinking a result wasn’t possible.

After asking staff in the lab, he found there was no agreement between them about what the statement meant. “This is remarkable,” Sofronoff wrote.

Queensland Health Minister Yvette D’Ath addresses media about the report. “Hindsight’s a wonderful thing in any job,” D’Ath said of criticisms the government did not call the inquiry sooner.Credit: Matt Dennien

The report and swift response from government, which dismissed calls for the inquiry for months, has sent shockwaves. Shadow attorney-general Tim Nicholls said the findings “opened a Pandora’s box of trouble for the justice system in this state”.

A hotline has been set up by police (1300 993 191) for anyone who thinks they may be affected.

The statements will be tracked down and corrected by taskforces across the police, health and justice departments. They will then retest every related sample, expected to be in the thousands, and assess the impact on any criminal cases.

But the larger, still unanswered question, is how and why this occurred, and who — if anyone — is responsible. While Sofronoff steered clear in this report, two senior staff members at the lab have been stood down by the department, pending the outcome of a final document due in December.

The questions will likely be unpicked in public hearings set to start next week, too. A submission from the Director of Public Prosecutions suggested the decision may have been made in the context of “workload pressures”.

Several reviews and reports stretching back to at least 2005 point to resourcing and funding issues in Queensland’s forensic space. The latest, from the Queensland Audit Office, found the lab had struggled to keep pace with the increased demand for DNA analysis in the five years to 2018.

About $1 million had been lost from the lab’s budget and four full-time equivalent staff had dropped from its roster, while the number of samples analysed jumped by 21 per cent and formal interagency bodies responsible for higher-level planning disappeared.

“This void has meant that unnecessary delays and inefficient practices impede the delivery of forensic services in Queensland,” the 2018 report noted.

Until Sofronoff makes his own findings, a small shift in wording will ripple throughout the state. While some have already told him police “knew” what was meant by the statements, Sofronoff was unsure they, or lawyers, judges and juries, did.

“It is also unlikely, and nobody suggested, that any victim of crime to whom a police officer reported such a result was given a conceptual scientific explication,” he said.

“The choice of language has been unfortunate. It has been in use for a long time. It should not be used any longer.”

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