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Court in the Act
22 February, 2010  
Forensic follies

Western Australia maintains its reputation for cocked-up prosecutions … The DPP defiant in the face of glaring oversights and errors … Flawed forensic approach not addressed … Tom Westbrook reports on the case of Patrick Waring

A 15-year-old boy is accused of rape.

He’s arrested in the middle of the night and imprisoned. For almost a year he’s in custody.

The crime scene investigation is botched. The forensic evidence is contaminated and inconclusive. The DNA evidence suggests no crime has been committed.

The story told by the alleged victim is inconsistent from the outset and changes dramatically as the trial approaches.

The trial runs for three weeks and the jury deliberates for 10 hours before finding the accused not guilty.

This is the latest in Western Australia’s distinguished litany of miscarriages of justice.

It’s also the subject of a compelling documentary, Every Family’s Nightmare, from filmmakers Ed Punchard, Julia Redwood and Michael Muntz at Prospero Productions.

imageIt will come to a small screen near you this year.

The accusation against Patrick Waring (pic) was that in 2006 he raped the complainant in broad daylight several times in a busy Perth park, a stone’s throw from the WA Police Academy, and threatened to kill her.

He (falsely) denied having ever met the young woman, but was refused bail because of the alleged death threats and the fact that his mobile phone number was saved in the complainant’s phone.

CCTV footage also placed him near the crime scene, close to the time of the alleged offence.

The procedures of police, forensic experts and the WA DPP once again is at the heart of the vice – as it was in the cases of Darryl Beamish, John Button, Len and Dean Ireland, Clark Easterday, Rory Kirk Christie, the Mickelbergs, Andrew Mallard (more on Mallard here) and recently Salvatore Fazzari, Jose Martinez, and Carlos Pereiras.

imageWaring’s barrister, Tom Percy (pic), says that in WA there is a need for the DPP to take, “a far more robust attitude, because we see many cases going to court which should never see the inside of a courtroom”.

The doco takes us to the UK to examine how the investigative process proceeds there.

In the 1990s the Brits make substantial reforms in the wake of several high-profile miscarriages of justice, including the Guildford Four and the Birmingham Six.

A key development was the formal adoption of an “eliminative” investigative approach, where the coppers apply evidence to eliminate suspects from a pool.

By contrast, the WA police continue to pursue a “nominative” approach, building a case around a nominated suspect, which can and does result in evidence being used selectively.

The nominative approach has been discredited in the UK and Europe and, of course in WA, where its flaws have been discussed in this organ.

The UK also reformed the function of forensic scientists in investigations; viz: Silent Witness.

imageProfessor David Barclay (pic), an eminent Scottish forensic scientist, was a key player in the British reforms, where the scientists now “control” the crime scene and indeed the entire forensic side of the investigation.

British forensic scientists are independent of the police and the prosecutors and they take a leading role in determining the direction of investigations.

In Australian jurisdictions, police generally call the shots and forensic pathologists end up “investigating” in a piecemeal fashion what is fed to them by the detectives.

Barclay says the Australian method of criminal investigation is flawed.

In Waring’s case it meant that the police used contaminated clothing as “evidence”, collected after the accused had ridden in patrol cars and been interviewed.

The crime scene wasn’t properly examined in daylight before it became contaminated.

According to the documentary the report from PathWest (the state DNA lab) failed to note that a complete lack of identifiable DNA from Waring in the complainant’s intimate samples (and vice-versa) was highly unusual, given the allegations.

The prosecution, relying on PathWest’s report, insisted that the evidence showed it wasn’t possible to categorically exclude the notion that some of the DNA on the claimant’s clothing came from Waring.

Dr Brian McDonald, the DNA and forensic expert hired by the defence team, was wary of the jury being influenced by the “CSI effect”.

This occurs, he says, when jurors place undue importance on DNA testing results as the be-all and end-all piece of evidence that links the accused with the victim and the crime.

In this instance, he feared the jury would infer from the DNA results that Waring’s lack of exclusion was grounds for his inclusion, when in fact the most illuminating revelations from the DNA (omitted from the report) were the unusual results of the intimate samples and the discovery of the DNA of a completely different male on the complainant’s underwear.

This prompted the defence to seek permission to question the complainant about her sexual history and challenge her assertion that prior to the rape she was a virgin.

The complainant then conceded that this claim, which she had maintained for nearly a year, through more than eight hours of interviews, was untrue.

Incredibly, the complainant then said that in addition to consensual sexual experiences, she had been raped by another man, only hours before Waring raped her.

In the face of numerous inconsistencies and discrepancies the DPP still proceeded with the case.

The prosecutor, Amanda Forrester, said in her opening address that all of the complainant’s claims would be corroborated. In fact, none were.

Every Family’s Nightmare captures a distressing fly-on-the-wall scene where Tom Percy briefs the Warings on the dramatic changes to the claimant’s story.

The Warings, utterly disillusioned with the justice system, resist Percy’s attempts to persuade them to re-apply for bail.

His parents feared that should Patrick be released the police might set him up in some way to assist their case.

imageEventually, Waring was released on bail before the trial got underway.

Robin Napper (seen here) is a forensic expert and former British detective superintendent hired by the defence team.

He said the flaws in the Australian criminal investigative procedures identified by Barclay “are the tip of the iceberg”. Napper added:

“Practices and procedures [in Australia] are years out of date. The police simply refuse to change.

Forensic science should be totally independent [but in Western Australia] the DPP, PathWest and the police are very much part of the same prosecutorial team …

[In Europe and the UK] the crime scene belongs to the scientists and the investigation belongs to the police.

[In Australia] police are missing key forensic evidence in every crime. The evidence is far too complex for police to collect.”

For over a decade Napper has been unsuccessfully pushing for changes to the way the science is handled in Australian criminal cases.

Needless to say, the police are tight lipped about their latest flawed forensic escapade.

The hapless Robert Cock has departed the DPP’s office.

In the face of a dreadful record of bungled investigations and misconceived prosecutions Cock invariably made little or no concessions that something was horribly awry with the way the police and prosecutors went about their business.

For the Warings, it meant the loss of their family home and their savings to defend their son, plus they bear emotional scars that will last a lifetime.