Why I oppose DNA law

The presumed innocence of an accused is a fundamental provision of the Constitution. The prosecution has the burden of proving the guilt of anyone accused of a crime.

Therefore, an accused citizen is entitled to say, "It is the prosecution that has brought me before the court; therefore, I cannot be compelled to give any assistance to the police, the prosecution, or to any other organ of the State concerned with an obligation in law to prove my guilt." Simply put, he has the right not to incriminate himself.

It follows that any law - including the DNA bill set to be debated in Parliament - which seeks to compel an accused to render assistance to the prosecution in proving his guilt is bound to collide with the provisions prohibiting self-incrimination. The proposed law will empower the police to forcibly hold a suspect and pluck from his body, hair from its root, and likewise, remove saliva from his mouth. If it is wrong to force an accused to confess to a crime - even when that confession is the truth - it follows that it must equally be in breach of his rights to take saliva from his mouth or hair from his body to prove his guilt.

It was Lord Sankey, in 1935, in the well-known and celebrated case of Woolmington v The DPP, who described the principle of the prosecution having total responsibility of proving the guilt of an accused. He said, "Throughout the criminal law, one Golden Thread is always to be seen, that is, it is the duty of the Prosecution to prove the prisoner's guilt."

Whereas Section 3A (1) (a) of the 2005 amendment to the Fingerprint Act is consistent with his rights in requiring the consent of a suspect before his prints and photograph can be taken, I humbly submit that Section 3A (1) (c) violates his constitutional rights because it compels him to surrender to the extrajudicial and forceful taking of his prints and photograph by the police.

The supporters of the new DNA bill have argued that accused in other countries are compelled to give up DNA samples, so that is the way to go. Respectfully, this is not the test. It must firstly pass the constitutionality test.

When the State passed laws making lawyers police their own clients, that argument was also erroneously advanced. It, alongside this other-countries-have-done-it point, is used to argue that the laws are required for the sake of expediency and good governance to stem our high crime rate. In rebutting this, I am immediately reminded of the statement made by Lord Diplock in the Privy Council case of Hinds and other v R (1975 13 JLR at page 270), where he rightly stated that it was not part of the court's business to be concerned with the "propriety or expediency of the law impugned". "They are concerned solely with whether those provisions, however reasonable and expedient, are of such character that they conflict with ... the constitution".

LEARNING FROM EXPERIENCE

I was one of the defence attorneys in the 1983 case where Dennis Jenkins was accused of the brutal rape and murder of an Immaculate High School student, Dianne Smith. In that case, without the knowledge or consent of his lawyer, Jenkins' pubic hair was forcibly taken by the police. Jenkins, thanks to the then Minister of Justice Winston Spaulding, was allowed the expense incurred under the Poor Prisoners Act for the defence to employ the services of an internationally renowned forensic scientist, Mr Nepes. It was the first time in recorded history that the State had stepped in and provided the defence with its own expert to challenge the prosecution expert's evidence at a retrial.

Nepes, who I met at the airport with lead counsel, Earl Witter, could not hold back on one of his observations of police misconduct in that case, directly related to the forcible extraction of evidence from the accused. He was alarmed at the amount of pubic hair allegedly matching that of Jenkins, which was said by the cops to have been found at the crime scene. The crime scene had more than 10 times the average amount the expert was used to seeing at crime scenes! When he looked at the said hairs microscopically, they all had sharp ends and not the jagged ends which hairs at crime scenes normally have. His conclusion was that hairs cut with scissors and taken from Jenkins in his prison cell 'found' their way to the crime scene!

The planting of evidence is a reality. DNA is the most conclusive, potent evidence known to man. Consequently, its misuse can lead to grave miscarriages of justice. What we have not done is to have in place the will to punish evidence-planting. Where police lie in their witness statements that they took a loaded magazine from the pocket of an inner-city youth from Riverton City, they, in my experience, present a nightmare of a task to have a court disbelieve them and accept the testimony of that young man in a court of law.

Yet, in the case of David Clarke, where an exemplary JDF corporal made it known to the Gun Court in September 2014 that he took the said magazine from the bushes and not the pocket of Clarke, as the lying cops stated, with the lapse of seven months and in the face of written

requests to the director of public prosecutions and Independent Commission of Investigationsto take the necessary action, nothing has yet been done to those two police officers who perverted the course of justice.

What of the case of Neville Williams who, in 2003, was acquitted on appeal when it was discovered that the prosecution had in its possession DNA evidence sitting at the forensic laboratory "uncollected", which excluded him from committing the crime of rape, but this was never disclosed? He suffered a conviction, which was corrected on appeal when the DNA by fresh evidence was introduced at his successful appeal, but he had been in prison for more than four years at the time his appeal was heard.

INNOCENT ON TRIAL

Also, what of Sangster and Dixon, whose images never appeared on the video camera during a robbery at a bank where a police officer was shot and killed, but they were nonetheless sentenced to hang, though this tape was in the possession of the prosecution? To our certain embarrassment, that videotape was presented to the Privy Council where they were finally acquitted.

And what of the men from Irwin, St James, who were in 2013 also excluded by DNA, but the prosecution continued, unmoved by this scientific finding?

And what of Winston Hamilton, who was, in 2010, tried for rape where the assailant left behind a condom with semen which was compared with his by the prosecution's forensic scientist and excluded him, yet the prosecution continued with the trial?

The lesson is that, in the absence of any commitment to follow where the evidence leads, we will continue to put the innocent on trial in the face of compelling evidence that they are innocent. The mistrust of the defence is clearly not fanciful; it is real!

Should my prediction that the new law will be declared unconstitutional be wrong, and it becomes a permanent feature in the administration of justice, these are some of my concerns:

1. What access will the defence have to use the DNA bank?

2. Will the suspect have his lawyer present, who will also be given a sealed sample of the body hair/fluid taken?

3. What is in place to guarantee the international accreditation of our DNA bank?

4. Is funding in place to keep this DNA bank circumspect and able to keep samples with the requisite privacy required?

5. Will there be provision for experts employed by the defence to interface with state experts and use the facilities of this laboratory?

In the Bible, Potiphar's wife sought to plant evidence in the form of the shirt of Joseph (her husband's servant), a shirt she forcibly ripped from him while he resisted her attempts to lure him into her bed. Joseph was duly imprisoned, only to be rescued by God himself. DNA, in the hand of the unscrupulous forcibly wrestled from a suspect - be it police officer or prosecutor - will take only divine intervention to save the innocent from prison!

- Bert Samuels is an attorney-at-law. Email feedback to columns@gleanerjm.com and bert.samuels@gmail.com.