Giving science clout at court, and beyond

Dec 19, 2023
Pillar of ACT judiciary proves our exceptionalism

Juries seem either to love forensic scientists or just be baffled by them (or by the spin put on their findings by cunning counsel). Some judicial officers have been somewhat slower to embrace them – with potentially disastrous consequences, not just in judge-alone trials, but when evidence is ruled inadmissible and does not go to the jury.

Forensic scientists shine in any number of TV shows: they are portrayed, variously, as impossibly glamorous or eccentric, and all seem to come fitted with a perfectly scripted dry, dark humour.

The common thread, on screen, is that they’re always right. It’s their finding of the vital piece of evidence, or their interpretation of something a plodding copper has stumbled over, that makes the difference and leads to the inevitable confession.

Would that it were all so simple.

Spend just a little time with some police who have worked in the area and tried to explain DNA to a judge who just didn’t want to grasp some foundational concepts. Their war stories are as manifold as they are chilling.

Could the scepticism flow from the fact that the forensic scientists don’t have a professional body, like, say, doctors and lawyers?

In 2019, the education charity Varkey Foundation conducted a survey in 35 countries canvassing opinions on 14 nominated typical graduate occupations, with 1000 members of the general public asked to rank those professions.

Doctors were first (average rank 11.6 out of 14), a good two lengths from lawyers (9.5) and engineers (9.1) filling the placings. Making up the top 10, in descending order, were head teacher, police officer, nurse, accountant, local government manager, management consultant and secondary-school teacher.

The other four of the 14 put forward were primary-school teachers, web designers and social workers, with librarians bringing up the rear.

While there might be some cross-over in some of those professions, where were the pure scientists? They didn’t even make the barrier draw.

Is it the absence of a professional body?

Doctors have their various accrediting colleges to document expertise and each jurisdiction has a law society to issue practicing certificates.

Many of the rest in the top 10 have powerful advocates. Think of the Institution of Engineers, teachers’ unions and the various police associations.

Another group who didn’t make the barrier with the Varkey Foundation but have a powerful lobby in Australia are pharmacists.
The 2023 Governance Institute of Australia Ethics Index had firefighters and ambulance-service workers as the most trusted professions, with pharmacists right up there in third place.

Scientists broadly have Science and Technology Australia, which represents 115,000 scientists and technologists and is, its website boasts, “an influential voice for evidence and expertise in public policy”.

Advocates are great and worthy, but they can only go so far.

What about forensic scientists and the life-changing decisions our courts make on a daily basis?

Professor James Robertson is in no doubt that a professional body is needed.

Professor Robertson’s first case in Australia was his involvement, 40 years ago, as an adviser to the Crown in the Royal commission into the conviction of Charles Edward Splatt for the murder of an elderly lady, Rose Amelia Simper.

Giving the 2023 McAulay Oration to the ACT chapter of the Australian Academy of Forensic Sciences, Professor Robertson reminded us that the conviction was overturned and Mr Splatt “went on to live out an uneventful life”.

“The ramifications, however, for forensic science in South Australia were profound and led to the formation of the first unified forensic laboratory, bringing together biologists, chemists and pathologists under one director.”

The oration honours Peter McAulay, former federal police commissioner who came to that job from the Northern Territory, where he had been commissioner during the Chamberlain case.

Professor Robertson said, “I think he had one look at the forensic capability in the AFP and decided one Chamberlain was enough in anyone’s career.”

After a decade teaching the Masters of Forensic Science program at the University of Strathclyde, Professor Robertson had nearly five years in SA before joining the AFP, under Commissioner McAulay, in 1989.

“My riding instructions were crystal clear, just fix it,” he said.

Over the next three decades, he would receive the Public Service Medal, be made a Member of the Order of Australia and be awarded, this year, the Adelaide Medal. The Australian and New Zealand Forensic Science Society notes that the medal “recognises scientific achievements that had a marked influence on the forensic sciences from an international perspective, in particular work that resulted in a change of direction, new thinking or significant improvement in existing methodologies.”

One big area of improvement Professor Robertson sees ahead is the establishment of a professional body for forensic science.
“A key feature of any profession is that, in order to be employed, you have to have a specialist degree where the professional body determines the topics and even the content for a degree to be accepted by that professional body,” he said. “Excluding forensic pathology, there is no requirement in forensic science for an employee to have a degree that includes the word ‘forensic’.”

He lamented the lack of any requirement to undertake postgraduate qualifications, including the demise of his own program at the University of Canberra.

“A major factor in the closure of our program was that we could not create postgraduate courses that would earn the university income as there is simply no domestic market – why would an employee spend in excess of $20,000 where there is no requirement to do so?” he asked his McAulay audience.

He hopes the voices of powerful figures, including former (if not serving) judicial officers, might bring change, and that those within forensic societies might “lift their game and truly embrace what it means to be a professional body and not a club”.

His fear, but also maybe a catalyst for change, is government regulation.

“The thing that constantly surprises me is that governments, state and federal, seem to have no appetite to regulate the forensic industry – perhaps it is just a general lack of public-policy interest in forensic science,” he said.

“Surely at some point, however, in response to the latest wrongful conviction or mismanagement, regulation will be raised. It has happened in the UK. This is when a professional body will be most needed to protect the interests of its members.”

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