Principles of Forensic Science - Bradley John Murdoch assignment. PDF

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Lauren Tawadros14163265BRADLEYJOHNMURDOCHPrinciples of Forensic Science - 65242Summary of Forensic Evidence in Court Following the disappearance and presumed murder of 28-year-old British backpacker Peter Falconio and the deprivation of liberty and aggravated assault of Joanne Lees, various incrimin...

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BRADLEY JOHN MURDOCH Principles of Forensic Science - 65242

Lauren Tawadros 14163265

Summary of Forensic Evidence in Court Following the disappearance and presumed murder of 28-year-old British backpacker Peter Falconio and the deprivation of liberty and aggravated assault of Joanne Lees, various incriminating pieces of circumstantial forensic evidence were presented to the Northern Territory Supreme Court leading to the eventual guilty verdict that 44-year-old Broome resident and key suspect Bradley John Murdoch would receive (R v Murdoch, 2005a). Although the majority of the evidence exhibited to the court contributed to the crucial final determination for Murdoch, there were simultaneously a large array of issues associated with the evidence, leading to the dismissal of certain evidence presented.

Closed Circuit Television (CCTV) was imperative in Murdoch’s case, where footage was retrieved from a petrol station in Barrow Creek and utilized as key evidence in the trial of Murdoch, whereby it was found there were consistencies identified by anatomist Dr Meiya Sutisno between the man presented in the footage and Murdoch’s appearances as well as similarities between the vehicle in the footage and Murdoch’s vehicle. CCTV can provide alternative evidence in cases where eyewitness evidence is lacking or weak, or where victims or eyewitnesses are unable or reluctant to testify in criminal proceedings (Gibson, 2017). It has also been theorized that juries prefer visual evidence as opposed to oral evidence, as it is often easier to understand context. Oral presentations in contrast can sometimes be repetitive, confusing and technical. Oral evidence including eyewitness statements can also be problematic due to the requirement of recalling often stressful and large amounts of information (Gibson, 2017). Therefore, to limit inaccurate information and to present evidence in a quick, relatable way, CCTV has become more prevalent in criminal proceedings with the evolution of technology.

Murdoch’s deoxyribonucleic acid (DNA) profile was also a key piece of forensic evidence heard in Court, sharing common sources with the fingermark being recovered from the victim’s steering wheel and gear stick as well as the make-shift cable-tie handcuffs used to restrain Lees. Murdoch’s DNA was also found to be consistent with a blood sample recovered from Lees’ t-shirt (R v Murdoch, 2005a). Since DNA was adopted in Australian Courts in the 1990’s, there has been significant contribution demonstrated to aid in criminal investigations, and analysis techniques continue to develop and adapt to new technologies (Gans & Urbas, 2002). DNA is a valuable tool in the identification of an individual due to the unique structure and variety of short tandem repeats (Smith & Mann, 2015). Low copy number (LCN)

analysis technique was utilized for Murdoch’s DNA profile, whereby trace amounts of DNA can be multiplied, however this technique has high potential for contamination, and therefore the reliability of this method is brought into question. (Smith & Mann, 2015).

Issues Linked with Key Evidence Each individual piece of evidence provides a contextual defining feature to the specific case in which it is presented. Despite being used widely over a variety of criminal cases, DNA and CCTV footage can prove to be problematic and confusing. There is large room for error and personal opinion as experts interpret their findings, which may have damaging effects on a criminal proceeding. In Australian criminal proceedings, in order for evidence to be deemed admissible in Court, facts must be proven beyond reasonable doubt (NAA, 2021). Both the prosecution and defence are able to call upon expert witnesses to analyse and present their findings to aid the investigation and provide further understanding to the court room the nature of evidence presented. The Federal Court of Australia (2021) outlines the duties of an expert witness as a specialization in a subject to provide relevant and impartial evidence in their area of expertise by providing their expert opinion on an aspect of the case.

Throughout Murdoch’s trial, there was a conflict in the interpretation provided by forensic anatomist Dr Meiya Sutisno, who examined the footage and formed a conclusion that it would be sufficient to not exclude Murdoch as a viable suspect. Dr Sutisno stated Murdoch shared comparable features including his general statue, posture, movements and facial similarities to the man displayed on retrieved CCTV footage from a petrol station in Barrow Creek (R v Murdoch, 2005b). Body mapping and facial recognition techniques which Dr Sutisno defines as a process of identification based on the principle that no two individuals are the same in morphology and habits (Mildren, 2016) was applied to draw these inferences, however the defence disputed this was not an acceptable form of evidence. Despite Dr Sutisno’s claim that body mapping is essentially an extension of facial mapping techniques, the practice of body mapping is not classified as specialized knowledge nor a recognized field of forensic examination, according to the High Court of Australia (Notre Dame, 2020). The defence called upon forensic examiner Professor Maciej Henneberg to verify Dr Sutisno’s assessment, who stated the verdict was not plausible due to the low quality of the images being examined (Netk, 2007). The material being analysed had been copied into analog format from the original format in turn degrading the quality and increasing probability of

producing inaccurate results of analysis.

DNA was presented to the court which demonstrated consistencies between the recovered prints and blood samples and Murdoch’s DNA profile, provided with statistics presented by experts outlining the probability of the recovered samples returning as a match with key suspect Murdoch. A number of issues were identified during the examination, which were later contested and appealed by the defence (Murdoch v The Queen, 2007). Secondary (or indirect) transfer is defined as transfer between two objects that physically touch each other (Gill, 2014). This proved to be a recurring concern throughout the trial, bringing into question if there was in fact direct contact between the accused and the victim. A blood sample located on Lees’ shirt was confirmed to have been a probable match, providing some of the strongest evidence throughout the trial due to the DNA profile indicating a match consistent with Murdoch’s. The court heard from statistical expert that it is at least 640 billion times more likely the blood came from the accused than from an unrelated person from the Northern Territory population (R v Murdoch, 2005a). Although this evidence held high value, it was questioned due to the limited population in Alice Springs, and therefore implicated secondary transfer occurring prior to the incident. Similarly, DNA profile recovered from the make-shift cable-tie handcuffs were questioned by the defence due to the understanding that DNA had been indirectly transferred whilst being stored next to known items of Murdoch’s (Murdoch v The Queen, 2007). This DNA exhibit was cross contaminated by the Chief of the laboratory during the examination process, highlighting the ease in which DNA can be transferred onto an object (The Guardian, 2005).

Low Copy Number (LCN) analysis was a method of examination used to multiply trace amounts of DNA extracted from various surfaces in attempt to identify an individual which could be placed at the scene of the crime (Smith & Mann, 2015). The analysis conducted by forensic biologist Dr Jonathon Whittaker in the United Kingdom, revealed DNA profiles to be present from two individuals, one of which belonged to Murdoch. It was understood that the likelihood of the recovered profile being produced by someone else was less than one in 13 000, which could not exclude the accused from consideration. Despite being allowed within numerous criminal proceedings, the form of analysis is persistently challenged due to the high risk and susceptibility of contamination. As the template sample decreases in size, the higher the risk of problematic encounters are likely to occur (Budowle, et. al, 2009). The defence argued this method of analysis was highly unreliable and inaccurate as a result,

however the method was admissible in the criminal proceeding and utilized as forensic evidence against the accused.

Analysis of Evidence The use of CCTV and DNA is a common source of evidence and identification in a legal setting. As technologies and legislation continue to develop, the examination methods also progress to reflect the growing needs of society and essence of justice. These progressions can bring controversy and doubt regarding the validity of the methods used to identify an individual. According to Nedim and Bartle, 44% of wrongful convictions were based on profiling and weak circumstantial evidence, and 22% of cases involved discredited expert evidence (2020).

As previously discussed, the evolution of DNA extraction and comparisons have been extended exponentially since first introduced, and the case of Bradley Murdoch has not been the only trial subject to the harsh realities of backlash and criticism in relation to LCN techniques (Haesler, 2008). In 1998, the fatal Omagh bombing in Northern Ireland used LCN analysis to identify key suspect Sean Hoey, claiming his DNA was recovered from the bomb, connecting him to the weapon and therefore the crime (R v Sean Hoey, 2007). The defence disputed the prosecutions claims and stated further investigations would be required to provide refutable evidence there was no possible cause of contamination from handling if guilt was to be proven. The judge questioned the method’s reliability and in turn the technique was suspended in England, Wales and Northern Ireland pending review, which also inferred implications to Australian legal systems when considering this method of analysis (ABC, 2007). In R v Pantoja (1996), a statement emphasizing the fact that a match obtained by DNA tests between the suspect and the offender does not establish that the two are the one and the same person (Urbas, 2002). Although the outcome for Murdoch’s outcome was not overturned, the use of LCN testing has been limited in criminal proceedings since, with alternative examination methods including lower error rates and are more widely accepted in the scientific field being utilized.

Secondary transfer has been the source of a high number of wrongful convictions on a global scale. Due to the ease of DNA transfer made by direct contact from person to person, or person to object, as well as the body shedding approximately 40 000 skin cells a day, it is no

surprise that trace amounts of DNA may be located on an individual who may have not been involved in an offence (Haesler, 2008). Farah Jama was a convicted and since exonerated victim of secondary transfer, where his DNA had been taken from a prior incident and contamination by indirect transfer had occurred to the victim of the incident for which he was charged (R v Farah Jama, 2009). The continuous wrongful convictions determined by indirect transfer of DNA displays the importance of precision needed when analysing samples of DNA, as well as taking into account the context and circumstances of recovered traces (NRCC, 1996).

Body mapping is a technique which also continues to be a controversial topic in legal proceedings. Dr Sutisno presented the idea of body mapping again, following the dismissal of the technique in the Murdoch case, where she claimed key suspect Hien Puoc Tang displayed “unique identifiers” to the offender displayed in obtained CCTV footage (R v Tang, 2006). The expert evidence put forward by Dr Sutisno regarding body mapping was again refuted and was not admissible in court. As a result, section 79(1) of the Evidence (National Uniform Legislation) Act 2011 specifying the relevance of specialized knowledge was considered, and adaptions were created to reflect the essential requirements of specialized knowledge to incorporate a person’s training, study or experience must result in the acquisition of knowledge (Notre Dame, 2020).

Quality of CCTV footage can prove to have significant consequences in the outcome of a criminal proceeding and can vary dependent on factors including whether the camera is fixed or mobile, if it can transmit digital or analog images and the capability of speed between frames (Shann, 2015). If the quality of footage being examined is of a poor quality, and displays grainy visual images, personal interpretation may result in inaccurate conclusions. William Mills was wrongly convicted of being identified by two police officers on CCTV footage as robbing a bank, a verdict which was overturned more than a year later due to confirmation that the wrong man had been accused (Kaye, Drake & Pike, 2014). The footage obtained displayed the offender to be in a scarf and sunglasses, making it difficult to identify accurately due to the coverage of majority of his face, yet a conviction was made despite poor quality of footage and limited display of identifiable characteristics to the individual. Although video footage is an ever-developing technology and used more widely by the public such as facial recognition technology one phones, as well as law enforcement through the use of body cameras, cautions are still recommended for regulation and examination as there is

always a potential for interpreted error and technological malfunctions (The Conversation, 2021).

As demonstrated in the trial of Murdoch and the outlined examples of issues and error in a legal proceeding, the importance of only using information which can be confirmed beyond reasonable doubt is reiterated, in order to limit inaccurate conclusions in a forensic aspect.

References:

ABC News Victoria. (2007, December). DNA Doubts: Police in Britain and Wales Have Stopped Using a Controversial DNA Test Pending a Review, A Decision Which May Have Implications for Australian Courts, and Criminal Law Proceedings, Including the Case of Convicted Falconio Killer, Bradley Murdoch. https://search-informitorg.ezproxy.lib.uts.edu.au/doi/10.3316/tvnews.tev20075100676.

Budowle, B., Eisenburg, A. J., VanDaal, A. (2009). Validity of Low Copy Number Typing and Applications to Forensic Science. US National Library of Medicine National Institutes of Health. 50(3). doi: 10.3325/cmj.2009.50.207. Federal Court of Australia. (2021). Expert Evidence & Expert Witnesses. https://www.fedcourt.gov.au/law-and-practice/guides/expert-evidence#:~:text=In %20some%20cases%20a%20party,expertise%2C%20training%20and%20specialised %20knowledge. Gans J. (2007). Catching Bradley Murdoch: Tweezers, Pitchforks and the Limits of DNA Sampling. Current Issues in Criminal Justice 19(1). Gibson, A. (2017). On the Face of it: CCTV Images, Recognition Evidence and Criminal Prosecutions in New South Wales. University of Technology Sydney.

Gill, P. (2014). Misleading DNA Evidence: Reasons for Miscarriage of Justice. London, England: Academic Press.

Haesler, A. (2008). Dealing with DNA in Court: It’s Use and Misuse. Judicial Review. 8(1).

Kaye, H., Drake, D. H., Pike, G. (2014). Harmful Evidence – Wrongful Conviction or Suspicion on the Basis of Flawed Eyewitness Testimony. International Centre for Comparative Criminological Research. https://oucriminology.wordpress.com/tag/cctvevidence/.

Mildren, D. (2016). The Falconio Case – A Study in Identification and Circumstantial Evidence. LexisNexis.

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National Archives of Australia. (2021). Evidence Law in Australia. https://www.naa.gov.au/information-management/information-governance/recordsevidence-legal-proceedings/evidence-law-australia.

National Research Council (US) Committee on FNA Forensic Science. (1996). The Evaluation of Forensic DNA Evidence. National Academic Press (US).

Nedim, U., Bartle, J. (2020). Imprisoning the innocent: The Causes of Wrongful Convictions in Australia. Sydney Criminal Lawyers.

Notre Dame. (2020). On the Case: Issue 10. Notre Dame Australia University. https://www.notredame.edu.au/about/schools/sydney/law/school-resources/on-thecase/issue-10.

The Queen v Farah Jama [2009] 96032404, VSCA.

The Queen v Murdoch [2005] 20215807, NTCCA 1.

The Queen v Murdoch [2005] 20215807, NTST 78.

The Queen v Sean Hoey [2007] WEI7021, NICC 49.

The Queen v Tang [2006] Ca 2121 of 2005, NSWCCA 167.

Shann, H. (2015, May) CCTV Use by Local Government: Findings from a National Survey. Australian Institute of Criminology. https://www.aic.gov.au/publications/rip/rip40.

Smith, M & Mann, M. (2015, November). Recent Developments in DNA Evidence: Trends & Issues in Crime and Criminal Justice. Australian Institute of Criminology. https://www.aic.gov.au/publications/tandi/tandi506.

The Conversation. (2021, May). Police Body Cameras May Provide the Best Evidence – But Need Much Better Regulation. https://theconversation.com/police-body-cameras-mayprovide-the-best-evidence-but-need-much-better-regulation-159631.

Urbas, G. (2002). DNA Evidence in Criminal Appeals and Post-Conviction Enquiries: Are New Forms of Review Required? Austlii. http://www5.austlii.edu.au/au/journals/MqLJ/2002/6.html#Heading235....