In the Sydney Morning Herald of 2 September 2019 Justice Chris Maxwell, President of the Victorian Court of Appeal said there was little proof that forensic techniques including gunshot analysis, footprint analysis, hair comparison and bite mark comparisons could reliably identify criminals.

He called on governments around Australia to urgently change the law so that Judges had to consider the reliability of forensic evidence before it was shown to juries and in that regard he referred to a 2016 High Court ruling that has meant that Judges cannot stop evidence from being shown to the jury over concerns of reliability.

In 2016 a major US Presidential Task Force on forensic science produced a report to the President asserting that 5 major forensic science techniques either do not work or have no strong evidence proving they work.  These related to the areas of matching a bullet to a gun, footprint analysis, hair comparison, DNA analysis of mixed samples, and bite mark analysis.

Forensic science in criminal cases depends for its effectiveness and credibility on the independence and scientific rigour of those called to give forensic evidence.

Forensic scientist Dr Mark Reynolds in commenting on the 2016 report has said,  “There was a lot of lip service given to that report but there was no palpable change.  Nothing has changed.  In my opinion it has gone backwards.”[1]

Relevantly, Dr Reynolds who was in charge of scientific quality in the Western Australian Police Force forensic science team and who retired in 2017 noted that scientists are supposed to objectively study evidence but most forensic scientists are police officers.

Dr Reynolds said, “The police hypothesis is to prove that a suspect did it.  The underpinning ethos is mutually exclusive.”[2]

More recently in May 2019 the House of Lords Science and Technology Committee called for urgent reforms to forensic science saying a crisis in forensic science has brought some of the country’s largest laboratories to the brink of collapse.[3]

Forensic science has been a consistent recurrent cause of miscarriages of justice over the last 30 years in Australia.  In 1980 Lindy Chamberlain was convicted of the murder of her young baby Azaria on the basis of supposed scientific evidence showing that red streaks under the glove box were arterial blood from Azaria when she was stabbed by her mother.  The Commission of Inquiry that was set up after the High Court rejected Chamberlain’s appeal found that the red streaks were derived from sound deadener paint sprayed on the glove box and other internal areas of the car when the vehicle was manufactured in the Opel car factory in Germany.

30 years later in May 2019, Victorian public servant David Eastman was found not guilty by a jury in a retrial after he had served 20 years in jail for the murder of Australian Federal Police Assistant Commissioner Colin Winchester.  A Commission of Inquiry set up to review Eastman’s conviction found that gunshot residue evidence that had been led in his trial was unreliable and should not have been used.

In Victoria, there is now a practice note listing standard questions that must routinely be asked of forensic witnesses after concerns were raised that forensic experts were not being properly questioned by both prosecutors and defence lawyers in Court.  As well, when fingerprint evidence is being led in Victorian Courts, the same Victorian practice note requires so-called fingerprint experts to tell the jury of the percentage error rates of fingerprint evidence.

It is high time that Victorian Court of Appeal President Maxwell’s call is implemented namely for governments around Australia to urgently change the law so that Judges have to consider the reliability of forensic evidence before it is shown to juries not only around the country but also particularly in Queensland.

[1] The Age “CSI not so scientific: Doubt cast on veracity of forensic evidence” by Liam Mannix August 18, 2019

[2] Dib.

[3] 1 May 2019 The Guardian (UK) Hannah Devlin, Science Correspondent