Police obtained DNA evidence unlawfully while investigating a sexual assault in a remote Aboriginal community but a Northern Territory judge has ruled it admissable owing to the seriousness of the case.
The test results, taken last March, allegedly matched a then 16-year-old boy to DNA alleged to be that of the perpetrator of a sexual assault in December 2015. Justice Stephen Southwood has ruled it was in the public interest to allow the evidence to go before a jury. The teenager is accused of sexually assaulting a woman inside her Warruwi house in 2015.
The ruling has left questions about the samples from 41 other men and boys obtained in a mass testing in the Arnhem Land island community of Warruwi, the NT News reported.
Police were unable to identify the perpetrator for more than two months after the attack, which Southwood noted caused tension within the small community of about 500 people, including safety fears among the women and suspicion of many of the men.
To eliminate suspects, a male elder and traditional owner asked police to take voluntary DNA samples. Of the 42 males from whom samples were subsequently taken at the local art centre, five were youths, including the accused, whose DNA was subsequently matched to the sample taken from the victim.
In a supreme court hearing last week, Southwood criticised a series of errors made by police in taking the samples, including failing to gain informed consent or explain the potential consequences of giving a sample, and agreed with defence counsel that it constituted a contravention of the NT’s Youth Justice Act.
Southwood found that police did not follow several obligations, including explaining that a DNA match would result in serious charges. “I am not satisfied that [the accused] understood this was the case and unless he did he was incapable of giving informed consent.”
But in his judgment, Southwood found that the contravention was not deliberate or reckless and “the admission of the DNA evidence would specifically and substantially benefit the public interest and does not unduly prejudice the rights of any person”.
The prosecution’s case might never have eventuated without the DNA match, Southwood said, noting the serious nature of the charges and the “cogent and significantly probitive” evidence.
Southwood found that while the accused had a good command of spoken English, he could not have read and understood the consent form without assistance and explanation. The explanations provided by police officers were in a language and manner the accused was likely to understand, Southwood said, but no police officer told him he would be charged if the samples matched and that the evidence would be used against him.
The trial is set to go ahead next month but the case has left open questions about the legality of the other samples taken and their continued inclusion in NT police databases.
Russell Goldflam, president of the NT Criminal Lawyers Association, said it was not clear that the other samples had also been obtained unlawfully but there was a concerning “vagueness” about what police might do with them.
“There’s no provision in our legislation, as I understand it, that stops police from hanging on to that sample,” he told Guardian Australia. “There’s a general lack of understanding in the community about the extent to which police can retain data that they acquire, when they get a swab from a person in the course of a particular investigation.”
Any future case which involved one of the other 41 individuals and used a DNA match as evidence would have to be examined at the time, he said. “I am concerned about the more general issue about what happens to the DNA sample once the police have obtained it in the course of an investigation.”
Goldflam likened the vague and potentially broad nature of the police’s powers to metadata retention laws. “It’s quite unclear just how that information on the database can be used, for how long it’s kept.”
NT police said they were unable to comment on the case as it was before the courts.
