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The Forum > Article Comments > Bedazzled by DNA - is it enough to convict? > Comments

Bedazzled by DNA - is it enough to convict? : Comments

By Mary Garden, published 9/8/2007

Even though there were no witnesses, no motive established and no murder weapon found, Andrew Fitzherbert was convicted on the basis of DNA evidence alone.

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Mind boggling. And scary.

It is difficult to understand how the same justice system can put so much energy into incriminating someone against whom there is so little evidence, while at other times bend over backwards to protect someone who is undoubtedly guilty, as in the Anu Singh case in Canberra.

Maybe our justice system isn't about finding the truth after all.
Posted by CitizenK, Thursday, 9 August 2007 9:31:21 AM
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I worked for 28 years in laboratories mainly analysing blood. The image of profesionalism put out to the public does not match the reality. I would not trust any laboratory analysis which produced a result which could change the course of a person's life.

There was a telling statement in this article. It was "the best argument wins". It is essential that a defence should be the best that one can put together. This poor man had a poor defence.
Posted by healthwatcher, Thursday, 9 August 2007 10:15:49 AM
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Congratulations to Mary Garden for the article on Bedazzled by DNA. It is encouraging to see that people are now realising that there are problems with the first conviction based entirely on DNA evidence, especially when an alibi was ignored and no clear motive was established for the murder.

It is now very clear that the DNA evidence needs to be re-tested. Re-testing is a normal scientific procedure and is normally either mandatory or at least encouraged. Re-testing of the DNA work would at least clarify this bench mark case and show it to be either more or less reliable. If the Government is confident in the previous results used in the case there should be no problem with re-testing but there appears to be some reluctance for this. This reluctance should be of concern to everyone because the justice system should be clean and transparent.

The Andrew Fitzherbert Support Group was formed to help bring justice to this case. If you wish to know more please contact me at l.hamilton@qut.edu.au

Lloyd Hamilton
convenor
AFSG
Posted by Lloyd, Thursday, 9 August 2007 1:36:14 PM
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I would agree that the DNA should be re-tested, but there is a lot in this article that I do not agree with:

Firstly the author is actually claiming powers of persuasion in excess of those of both the Crown prosecutor and the counsel for the accused. Surely counsel for the accused was not so ignorant that he or she didn't argue many of the above points to the jury?

Because it should be remembered that it was a jury that convicted, based on the evidence.

The first paragraph of this article reads:

"There were no witnesses, no motive established, no murder weapon found. It was celebrated as a landmark case as it was the first time in Australia someone was convicted of a crime on the basis of DNA evidence alone."

I hate to have to raise this, but DNA evidence is not magically presented to the jury: Witnesses go into the witness box and in response to questions from the Crown present forensic evidence, such as evidence regarding DNA. These witnesses are then subject to cross examination, to have their evidences tested by the defence. If the evidence of these witnesses was so flimsy the defence should have been able to tear it apart.

Motive or weapons are not crucial parts of any real murder trial. This is real life, not television. Motive is not evidence.

The person who was found guilty had several layers of appeal, first to the Court of Criminal Appeal and also to the High Court. If there was any reasonable doubt either Court would have sent the matter back for retrial. Lastly if the state attorney-general thought it appropriate they could order a judicial review of the verdict.

One difficulty with DNA re-testing is that it is nearly always called for by those who want to have a convicted person acquitted. I would have to say that these arguments would be more convincing if they also argued for an acquitted person to be retried on the basis of new evidence found by DNA testing.

Of course this isn’t to civil libertarians’ tastes.
Posted by Hamlet, Friday, 10 August 2007 10:32:02 PM
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By the way, readers may want to look for themselves at the reasons for judgement of the Queensland Court of Criminal Appeal, which can be found at:

http://www.courts.qld.gov.au/qjudgment/QCA%202000/101-/CA00-255.pdf

It is short, only 8 pages, but deals with some of the matters that the article's author tries to obscure. It is enlightening reason, as the Judges who heard the argumenst and wrote the judgement are not there to argue the case of either the Crown or the convicted, unlike Mary Garden.

The interesting point is that the appellant tried to claim fraud against him. If a motive is required, according to the author of this article, then where was the motive for the testing lab to act in a fraudulent manner?

It is clear that the Court accepted that Fitznerbert had lied to police in his interview: this is sometimes used as 'consciousness of guilt', otherwise Fitzherbert had no reason to lie about knowing the victim.

My last point: the author praises Fitzherbert for his palmistry abilities: She is willing to accept his skill in that 'science' (rolls eyes) but is not willing to concede that evidence tested by methods proven by scientific method should be so easily accepted. Or is Mary Garden actually saying that perhaps the Courts should accept palmistry as a valid means of reaching a criminal conviction?

Perhaps Mary Garden should have told us all a bit more of the background, instead of just her own views
Posted by Hamlet, Friday, 10 August 2007 11:03:54 PM
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Neither Fitzherbert nor the Chamberlains are the first people in Australia to be convicted of murder largely on the basis of questionable scientific evidence. And it is likely that they won’t be the last.

It has something to do with the psyche of our society, which elevates the image of the scientist to that of the uncompromising, incorruptible, all knowing, almost mystical, authority. After all, if these people in their white lab coats weren’t as pure as driven snow, our mobile phones and microwave ovens wouldn’t work and aeroplanes would fall out of the sky. Scientists have become our infallible clergy for modern times, and the authority of the clergy must be upheld at all costs.

When innocent people are convicted without much evidence, it reflects on our whole society. It shows that despite scientific progress we are not much different from people in Salem.
Posted by Mick V, Saturday, 11 August 2007 7:08:43 AM
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