It has become a truism in the law that when Justice Michael Kirby of the High Court posits an opinion, he tends to make a lot of sense. Putting aside his expertise as a jurist, his comments on various social issues associated with the law are based on common sense and clear public policy imperatives. So it is no surprise to see His Honour launch into a lucid dissection of a longstanding debate in the legal and law enforcement communities, now very much in the public domain. Put plainly, should we move towards the establishment of a national DNA database in order to assist the police in the search for criminal offenders?

Here's a mouthful - Deoxyribonucleic Acid - okay, we'll call it DNA. Think of it as a genetic fingerprint, a unique identification marker that cannot be duplicated between any two human beings, unless they happen to be identical twins. Make no mistake, it is not our intention to cast doubt on the usefulness of the testing procedure as a criminal investigative tool. In fact, DNA testing is probably the most sophisticated breakthrough in forensic evaluation since the development of the fingerprint - better, in fact, because it is a lot harder to avoid detection (you can't just slip on a latex glove). For instance, a cigarette butt, a strand of hair or saliva on the neck of a bottle may provide damning evidence.

Five hundred men, almost the entire male population of the town, had been swabbed by police to obtain a voluntary DNA test. As most of us saw on the television reports, the decision by police to undertake the tests was greeted with almost universal enthusiasm by the townsfolk. This is understandable. The victim is a member of a small community, and given the awful allegations, it was always on the cards that the locals would agree to undertake an unobtrusive test in an attempt to nab the offender. We take no issue with this attitude. Victims of crimes, or their relatives or friends, are fully entitled to expect convictions of those who prey on them and promote the means to do so. In a democracy it is up to the politicians to take the long view.

Let's argue the toss

Justice Kirby makes a salient point - law enforcement should not intrude on a person's life without reasonable cause. Sure, if you are caught near the scene of a crime and you do not have sufficient reason to be there, and the physical evidence is concurrent with a supposition of some involvement, it would be "reasonable" to seek forensic evidence to confirm or allay those suspicions. That doesn't mean a person should be compelled to take a test, but it is fair to seek an order of a judge to do so.

But as Justice Kirby recently asked, in relation to the question of mass DNA testing of the population, "How are we going to ensure the democratic checks and maintain the controls of the sort of society we have when the technology and the science rushes ahead and beyond the capacity even of informed, conscientious and intelligent people to keep pace?"

Of course His Honour is not without informed and conscientious opponents in this view. As Alistair Ross, the Director of the National Institute of Forensic Science countered, "DNA testing is an intelligent tool provided safeguards are in place." To be fair, Mr Ross does not appear to support enforced mass testing. But as many talkback callers have recently suggested, it would surely be simple enough to take DNA samples from the population to establish a national database, or as happened in Wee Waa, from a representative group in the vicinity of a crime, to establish a streamlined method of crime detection.

Our Verdict

There is nothing wrong in a forensic driven criminal investigation culture. That is good science and merely the result of technological advances. But let's be careful of politicians who suggest we should arm ourselves with a national DNA database, because as we all know, there are votes in law and order. It is one thing to match a DNA sample of a previously convicted criminal with a later crime, but what of samples taken from suspects eventually cleared of suspicion? Does the value of DNA testing mean that entire towns should be tested? In Wee Waa the testing was achieved on a voluntary basis, but can you imagine the peer pressure that would come to bear in a close-knit community suffering the aftermath of a terrible crime?

Our legal system is based on the concept, understood by anyone who has watched even the most fictional television crime show, that a person is innocent until proven guilty. That doesn't mean a person has to prove their innocence, quite the opposite. Lest we believe this is merely a technicality, or a bit of legalistic tap-dancing, it might be well to remember that our citizens have fought wars and laid down their lives to protect these basic freedoms. When the police come knocking at the door, let's not be quaking in our boots because we can't prove our innocence. Where will it stop - at one town, one city, our whole country? These are the basic issues that set us apart from societies that control their citizenry though fear and assaults on their privacy. What do you think?

Read this: The legal information contained above is intended to be general information about the law. It is not a substitute for legal and other professional advice. Lawscape Communications P/L does not accept responsibility for loss to any person, who either acts or does not act because of this information.

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