QLD Prisoners DNA Bid

DNA = Do Not Assume - DNA Controversies!

THE curious case of Queensland's "cat lady" murder is set to test the state's legal authorities again, with the man convicted of the killing asking the Attorney-General to take the unprecedented step of releasing blood samples for DNA retesting.

Laura-Leigh Cameron-Dow, a Bond University "miscarriages of justice" law student working on behalf of Andrew Fitzherbert, said enough question marks hung over the DNA evidence presented at the landmark trial to give grounds for Attorney-General Rod Welford to release the samples.

However, [allegedly], no Australian legislature has grappled yet with the question of who owns DNA samples, and whether those implicated by them have the right to access them after the appeal process.

DNA yours or mine?

Fitzherbert, whose conviction is heralded as the first in Australia based on DNA evidence alone, has maintained his innocence of the savage knife murder of veterinarian and Cat Protection Society president Kathleen Marshal.

Current DNA tests show that, for example, sperm in a rape case is, [allegedly], "exceptionally unlikely" to have come from a source other than the perpetrator.

Which is why, in criminal trials, forensic experts talk about the probability that a sample came from the defendant, rather than answering "yes" or "no" when asked if it matches.

"The problem is that we will never really know how many people we've locked in prison with DNA matches are not guilty. People do regard DNA evidence as being very strong."

Even a fingerprint can be tested if skin cells from the offender's finger are left behind.

"But it could have been a cell left lounging around on the surface before the offender put their finger on the same place," Professor Shaw said.

"So there is always the question 'did it really come from that person?'. You can never be 100 percent certain."

Guilty until proven innocent

Professor Shaw said the proposed library could mean that innocent people become suspects, just because their DNA is close to that of the offender.

"If I was suspected of some crime and a DNA sample was taken and a profile stored, it's possible that at some future date, my DNA might be matched to the DNA of a suspect in a crime.

"Therefore the police would come knocking at my door and it would be very difficult to argue that I had nothing to do with that crime."

Although the chances of that happening were remote, "the more samples you get, the greater the chance that you find two samples that look the same but are not actually from the same person".

DNA = Do Not Assume - DNA Controversies!

The Australian Law Reform Commission recommended in March last year that the federal Government amend the Crimes Act to specify that it is the prosecution's duty to give defendants adequate time to organise independent testing before trial. The commission's report is still being considered.

Ms Cameron-Dow said the still emerging DNA technology was very new at the time of Fitzherbert's 1999 trial, and methods of testing, interpreting results and presenting them to juries had changed.

She said the testimony of the John Tonge Centre's forensic scientist, Ken Cox - in which he said there was one chance in 14,000,000,000,000,000 that the blood found at the crime scene was from someone other than Fitzherbert - was "not representative of his data".

Such a big figure, which has not been repeated in subsequent cases, would require almost perfect DNA "matches", which Ms Cameron-Dow said Dr Cox's results did not show. Dr Cox also limited his tests to blood samples in an area some metres from the stabbing scene. Fitzherbert wants to test samples that were never tested.

Ms Cameron-Dow said the rest of the case against Fitzherbert was highly contradictory and "hugely full of holes".

"When you build a circumstantial case the whole theory is that you build it strand by strand by strand until you get a rope, and you hang them by it," she said.

"When we have DNA evidence we have the tendency to go, 'I've got a rope and I don't need anything else'."

Comment: Anonymous

A couple of years back I had a look at the Fitzherbert case and concluded that it was almost certainly another Ken Cox stitch up (see below). Unfortunately I was unable to get any support or legal advice from Queensland to the media on it and was forced to drop it.

Part of the problem is that Fitzherbert and his supporter(s) seem to be incoherent and full of, out there, conspiracy theories. He was conspired against all right, but the rantings and ravings of his supporters are more likely to hinder him by scaring people away than help him.

Fitzherbert had the right to retest the blood samples at the government's expense at the time of trial and at his appeal, but the legal aid prisoner was never made aware of that right. He now wants to pay for the tests himself.

Saturday, December 07, 2002
Subject: Fw: R v Fitzherbert

Hi,

Today I got a rather incoherent anonymous letter from someone making various claims about Ken Cox's evidence in R v Fitzherbert.

There was a long copylist which included Owen & Karina and I conclude that it was probably prompted by the recent repeat of the 'Catalyst' program 'DNA A shadow of doubt'. The letter is more notable for its insistence that Cox lies (so therefore nothing he says can be believed) than it is for showing that he falsified evidence in R Fitzherbert.

But about a year ago I was concerned enough about what I had read in the online transcript to send the message below to Karen Fletcher, then head of Queensland Prisoners Legal Service.

Doesn't seem likely that Catalyst will be revisiting Ken Cox's standard of giving evidence in the near future but if anyone else at the ABC is following this up, please feel free to pass my contact info onto them.

================

Karen Fletcher
Tuesday, November 20, 2001
Subject: R v Fitzherbert

Hi Karen,

I've been looking into DNA evidence presented by QLD forensic scientist Kenneth Cox and am increasingly convinced that he routinely produces very dubious evidence.

One case which looks particularly shonky is the Cat Protection Society murder [R v Fitzherbert [2000] QCA 255 (30 June 2000)] where the defendant claims that Cox stitched him up.

His appeal on this basis was dismissed by Pincus, Davies and Moynihan who seem to have made every mistake in the book of misinterpretation of DNA evidence in doing so from the 'Prosecutor's Fallacy' to failing to recognise that failure to match at *any* loci implies exoneration (instead they decided that 5 matches out of nine loci was a good match).

Fitzherbert tried to appeal without the benefit of expert forensic assistance and although he seems to know he was stitched up by Cox he seems mystified as to how it was done or how to prove it (many of his allegations as to how it may have been done were completely fanciful and dismissed by the court).

Cox's graphs were used in the appeal and its hard for me to know exactly how bad the DNA evidence was without seeing them.

Was hoping you could help me to get in touch with Fitzherbert or his legal reps so that I can get my hands on a copy of Cox's evidence.

I'm pretty sure Cox is less than honest and unless he's exposed he will keep sending people down on bogus forensic evidence.

=============================

By RuFF Justice 26 February 04

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