10. Contaminated DNA
by Fauwaz Abdul Aziz, Malaysiakini
A lawyer who has successfully argued against the seemingly incontrovertible findings of DNA evidence in one court case said it is “unthinkable” for the government to treat such evidence as irrefutable and absolute.
M Puravelan (right), who represented G Sara Lily, had in 2006 successfully fought for the court to recognise a body that had been kept for two years at the Universiti Malaya Medical Centre mortuary was that of her deceased son, Francis Udayappan.
Despite a testimony by a DNA expert to the contrary, the presiding magistrate Nazran Mohd Sham said the clothes, height, gender, relevant period of death and discovery of the body meant there were “reasonable grounds to suspect” that the deceased was indeed Sara Lily’s son Francis.
Puravelan said the government failed to learn from that episode judging by its attempt to bulldoze the DNA Identification Bill 2008 through without placing legal safeguards to prevent or correct deliberate and accidental errors of scientific evidence.
“No doubt, there are uses for DNA as it is a valuable tool of evidence. But just as with other forms of proofs, DNA evidence must also be subject to the normal rules of evidence, and that includes being able to subject it to cross-examination and so on,” he said when contacted.
DNA evidence considered conclusive proof
Last week, opposition MPs failed to force the DNA Bill to a special committee for reconsideration before being debated further in Parliament.
The DNA bill, they claimed, exposes suspects to both police and political manipulation.
Among their concerns with the DNA Identification Bill is Section 24, which states that DNA evidence should be admissible as “conclusive proof” in court.
Recollecting the Udayappan case, Puravelan said the Chemistry Department had “certified” its finding - that Udayappan was not Sara Lily’s son - despite its own expert’s admission that there imbalances, degradations and deteriorations of quality had occurred in the DNA sample.
He also pointed out that justice Nazran in his verdict said the DNA report, which had denied any link between the recovered body and Sara Lily, could not be relied upon due to the possibility of contamination.
“It’s unthinkable what may happen if they allow DNA evidence to be exempted from being challenged in court - it goes against all cornerstones of law,” said Puravelan.
Australian police review 7,000 DNA-related cases
In Australia early last month, Victoria’s police announced they were reviewing 7,000 cases that had used DNA evidence after it was found that DNA evidence used to convict a murder suspect, Russell John Gesah, was contaminated.
Gesah was earlier convicted of a 1984 murder of a mother and her young daughter.
The contamination reportedly occurred when clothing containing Gesah’s DNA - from an unrelated offence - were examined on the same day as the clothing from the murder case.
The Australian police have subsequently apologised to Gesah.
Accidental contamination of DNA can occur anywhere during the handling of DNA samples such as during its collection, testing, analysis, and storage.
What more when the police force - in which corruption is said to be rampant - is in control of DNA forensics, said Puravalen.
According to him, a mistaken conviction based on DNA evidence that goes unchallenged in court can have an effect more disastrous than merely imprisoning the wrong man.
“We have to remember that in Malaysia, we have a mandatory death sentence for certain offences. It’s frightening to think what can happen (if such evidence is deemed as conclusive),” he said.
