IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM 060 OF 2008

BETWEEN:

THE STATE
The Applicant

AND:

RAYMOND RAJENDRA SINGH
The Respondent

Counsel: Ms. A. Rayawa for the State
Mr. H.A. Shah for the Respondent

Date of Hearing: Wednesday 13th August, 2008
Date of Ruling: Friday 5th September, 2008

RULING

[1]	The State by way of a notice of motion seeks the following orders:

(1)	The respondent to provide a Deoxyribonucleic Acid (DNA) sample to the Fiji Police Forensic Officer

(2)	For all other orders necessary to facilitate the testing of the Deoxyribonucleic Acid (DNA) sample.

[2]	The motion is made pursuant to the inherent jurisdiction of the High Court and is supported by an affidavit from the Police Forensic Officer, Ms Elizabeth Peters.

[3]	The respondent is charged for the murder of his wife. He has pleaded not guilty and the trial is pending before the Court. The respondent opposes the motion on the ground that the order sought if granted would violate his constitutional right, namely, freedom from scientific or medical treatment or procedure.

[4]	According to Ms Peters, the police have uplifted blood and fingernail samples from the alleged crime scene, which they want to test and determine if it matches with the respondent. If the samples match, the State will use it as evidence against the respondent.

[5]	The parties agree that there is no statute in Fiji that compels a person suspected of committing a crime to provide a DNA sample for testing. The State relies on the inherent jurisdiction of this Court to compel the respondent to provide a sample by citing a Canadian case of R v J R B, 1993 CanLII 5658 (NS CA). The issue in R v J R B was the admissibility of DNA evidence in the circumstances where the suspect was tricked into giving the sample DNA to the police. The case does not support the proposition that the High Court has an inherent jurisdiction to compel an accused to provide a DNA sample for testing, the evidence of which could then be used against him in trial. 

[6]	Section 25 (2) of the Constitution provides:

"Every person has the right of freedom from scientific or medical treatment or procedures without his or her informed consent or, if he or she is incapable of giving informed consent, without the informed consent of a lawful guardian".

[7]	The question is whether DNA testing is a scientific or medical treatment or procedure?

[8]	DNA is found in all living cells and it carries the information regarding the biological makeup of a person. In human context, DNA is the combination of chemical composition in a human body that is unique to each person.

[9]	The second concept is the DNA profiling. DNA profiling is a technique that enables a forensic scientist to compare two biological samples and to determine the likelihood that the samples originated from the same person. DNA profile is constructed by extracting a sample from body tissue, body fluids or hair. If the sample from a suspect and the sample obtained from a crime scene matches, then that constitutes DNA evidence.

[10]	The methods used for DNA testing are scientific and are generally recognized in the relevant scientific community as reliable methods. The forensic context of DNA analysis has been recognized internationally as seen by reported cases. 

[11]	In R v Karger [2001] 83 SASR 1 Mullighan J of the South Australian Supreme Court at p. 8 said:

"In early 1998 another system for DNA analysis was introduced into the relevant laboratory of Forensic Science Centre. It is known as the Profiler Plus system. All the samples were tested for DNA using this system but no result was obtained with respect of K022B, probably because all of the DNA had been extracted and used when the Quadruplex analysis was undertaken. The Quadruplex system inspects DNA at four loci and the Profiler Plus at ten loci, one of which is the same as a locus profiled by the Quadruplex system, known as vWA. The Profiler Plus inspects the amelogenin locus which indicates the gender of the donor of the sample, and eight other and different loci. As will be seen, a locus is a place or region on the DNA strand and loci is the plural of locus."

[12]	Karger held that the Quadruplex system and the Profiler Plus system for DNA analysis are recognized and accepted by relevant scientific community as reliable. At page 12 of the judgment, the court said:

"DNA analysis using this type of technology has been used extensively in the forensic context and commonly accepted in the courts as can be seen in various reported cases and, as yet, unreported cases: see Jarrett and R v Humphrey (1999) 72 SASR 558 and R v Smith (1998) 71 SASR 543 in this State and the cases referred to in R v Pantoja (1996) 88 ACrimR 554 by Abadee J at pp572-574 which show that evidence of this nature is accepted in courts in New South Wales, the United Kingdom, the United States of America and Canada. Other more recent cases show the acceptance of evidence of DNA profiling in New South Wales, R v Milat (1996) 87 ACrimR 446 and R v Lisoff (NSW CCA, 22nd November 1999, unreported), in Victoria, R v Noll (VSCA, 7th October 1999, unreported) and The Queen v Vivona (VSC CCA, 12th September 1994, Jgt No 82 of 1994, unreported) and in Queensland R v Fitzherbert (QCA, 30th June 2000, unreported)."

[13]	Another area of law developed in this field is the admissibility of DNA evidence. There are now many cases setting guidelines for the proper use of DNA evidence by the courts.

[14]	In Doheny and Adams v The Queen [1997] 1 Cr. App. R.369 the Court of Appeal outlined the proper use of DNA profiling in United Kingdom courts, which may be useful for the Fijian courts, particularly in criminal trials. The court proposed that the following procedures to be adopted in respect of DNA evidence:

1.	The scientist should adduce the evidence of the DNA comparisons between the crime stain and the defendant’s sample together with his or her calculations of the random occurrence ratio.

2.	Whenever DNA evidence is to be adduced, the prosecution should serve on the defence details as to how the calculations have been carried out. The calculations should be sufficient to enable the defence to scrutinize the basis of the calculations.

3.	The Forensic Science Service should make available to a defence expert, if requested, the databases upon which the calculations have been used.

4.	Any issue of expert evidence should be identified and, if possible, resolved before trial. This area should be explored by the court in the pre-trial review.

5.	In giving evidence, the expert should explain to the jury the nature of the matching DNA characteristics between the DNA in the crime stain and the DNA in the defendant’s blood sample.

6.	The expert should, on the basis of empirical statistical data, give the jury the random occurrence ratio – the frequency with which the matching DNA characteristics are likely to be found in the population at large.

7.	Provided that the expert has the necessary data, it may then be appropriate for him or her to indicate how many people with the matching characteristics are likely to be found in the United Kingdom or a more limited sub-group, such as the Caucasian, sexually active males in the Manchester area. 

8.	It is then for the jury to decide, having regard to all the relevant evidence, whether they are sure that it was the defendant who left the crime stain, or whether it is possible that it was left by someone else with the same matching DNA characteristics.

9.	The expert should not be asked his or her opinion on the likelihood that it was the defendant who left the crime stain, nor, when giving evidence, should the expert use terminology which may lead the jury to believe that he or she is expressing such an opinion.

10.	It is inappropriate for an expert to expound a statistical approach to evaluate the likelihood that the defendant left the crime stain, since unnecessary theory and complexity deflect the jury from their proper task.

11.	In the summing up by the trial judge, careful directions are required in respect of any issues of expert evidence. Guidance should be given to avoid confusion caused by areas of expert evidence where no real issue exists.

12.	The trial judge should explain to the jury the relevance of the random occurrence ratio in arriving at their verdict and should draw attention to the extraneous evidence which provides the context which gives that ratio its significance, and to that which conflicts with the conclusion that the defendant was responsible for the crime stain.

13.	In relation to the random occurrence ratio, a direction along the following lines may be appropriate, tailored to the facts of the particular case:

Members of the jury, if you accept the scientific evidence called by the Crown this indicates that there are probably only four or five white males in the United Kingdom from whom the stain could have come. The defendant is one of them. If that is the position, the decision you have to reach, on all the evidence, is whether you are sure that it was the defendant who left that stain or whether it is possible that it was one of that other small group of men who share the same DNA characteristics. 

[15]	Based on these authorities, I hold that DNA testing is a scientific procedure. Thus, a person cannot be compelled to DNA testing in absence of his or her consent. 

[16]	In this case the respondent refuses to provide a bodily sample for the purposes of DNA testing by the State. All agents of the State are bound by the provisions of the Constitution. The courts are bound by the Constitution. I have not received any submissions from the State on whether the Court should make exceptions to the right of freedom from medical or scientific procedure on public interest ground to bring a person suspected of committing a serious crime to justice. I leave this issue open for a future case. As far as this case is concerned I hold that to compel the respondent to subject himself to the DNA testing by the State would violate his constitutional right of freedom from scientific procedure. 

[17]	The respondent must have been charged after the investigation process had been concluded and the State had reasonable grounds to bring this prosecution. To compel the respondent to DNA testing after charging him and before the hearing of trial may infringe his right against self incrimination. 

[18]	For these reasons, the motion is denied.

Daniel Goundar
JUDGE

At Suva
Friday 5th September, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Haroon Ali Shah, Lawyers, Lautoka for the Respondent