One of the rights afforded to accused persons is the right against self-incrimination.
This raises the question of whether deoxyribonucleic acid (DNA) evidence is the same personal testimony.
Under law, an accused person has the right to remain silent — not to make any statement that may be used as evidence against him or her in court. But given the deeply personal and individual nature of DNA, there is an argument that it must be treated as personal testimony.
There is also the question of whether it is physical evidence, existing independently of the entity from which it originates.
In an address at the recent 2023 Prosecutors Conference at the Warwick Fiji Resort, a senior legal officer with the Director of Public Prosecutions office, Taitusi Tuenuku, said with the way DNA profiling had revolutionised forensic investigations in Fiji, its implications needed to be examined.
Mr Tuenuku said this was especially true for the implications DNA profiling had on fundamental human rights.
“Through my own career as a prosecutor I have seen that the police have increasingly relied on this tool during investigations, especially to find out what might have occurred, especially for serious offences such as murder and rape,” he said.
“In embracing DNA profiling, its implications must also be examined, especially for our fundamental human rights.
“It is my view that it is a necessity that we examine its impacts to prevent any abuses by those who wield this powerful tool.”
Mr Tuenuku said there was a perception that when investigators go around asking for a bodily sample, they are going to use it to prove that an accused person committed an offence. “That is still the perception that I get when I read the files coming into the office.
“In some caution interviews, members of the private bar have advised their clients not to give their informed consent.”
While Mr Tuenuku said he understood that was legal advice, he said DNA profiles may also point to an accused person’s innocence of a crime.
He said it was a sad situation, considering the police had been utilising DNA profiling since the late 1990s, and that to date Fiji still does not have any legislation or regulations whatsoever that specifically deal with the extraction process of DNA for the purpose of criminal investigations.
“In Fiji, in a case of murder, if investigators find DNA samples from their collections at the crime scene, these are sent to the forensic department for testing.
“If a DNA profile is found on the murder weapon, often if it contains blood such as a knife, they may find the DNA of the murder victim.
“Sometimes they find another DNA profile, which most of the time belongs to the suspect.”
Mr Tuenuku said in the ideal scenario, a suspect gives his or her consent to a police officer obtaining a bodily sample, being informed that the result of the DNA profiling on that sample may be used against him in court.
“Once informed consent has been obtained, the bodily sample has been obtained, the sample is tested and results must be disclosed to the defence and the court.
“Often if the DNA does not match, and the prosecution’s case heavily depends on it, in my view, the ethical thing to do is to reconsider the charges against the accused.”
Mr Tuenuku said at this stage the prosecutions withdraws the charges against the accused, but what happens to the sample?
“Are they legally bound to keep it in their custody indefinitely?
“Does the law allow that? “Can the suspect or accused request the sample to be destroyed if the charges against him are withdrawn?”
Mr Tuenuku said these were just some of the questions that arise in these situations and, “unfortunately, for us in Fiji, it’s a grey area of the law”.
Another difficulty facing the prosecutions is when an accused person, whether acting on the advice of counsel or of their own volition, refuses to provide informed consent to a bodily sample being collected.
Mr Tuenuku said the prosecution had previously obtained orders from the courts to compel an accused person to give a bodily sample under section 11 (3) of the 2013 Constitution.
He said that with there being no Fijian legal procedure for this, the prosecution has modelled these applications to the requirements contained in section 13 of the Criminal Investigations (Public Samples) Act of New Zealand, which contained questions for the courts to consider when deciding whether to grant a compulsion order.
“These considerations, among other things, include reasons that must justify the suspicion of the suspects involved in the crime why obtaining the suspects DNA evidence is necessary, and grounds to believe that the analysis of the bodily sample affirm or disprove the suspects involvement in that offence.
“In my opinion, this provides a platform that allows the court to perform the balancing exercise of considering the constitutional rights of the suspects, as well as the need to perform a thorough investigation of the case.
“In that exercise we are not just after a conviction, we are basically trying to find out if the suspect was involved in the crime or not.”
It should come as no surprise that objections to applications for compulsion orders by the prosecution have come from defence counsel, on the ground that as enshrined in our legal system, that accused persons may not be compelled to be witnesses against themselves.
“All of us know that it is a cornerstone of our justice system and protects individuals from being forced to provide evidence that could be used to prove their own guilt.”
Mr Tuenuku said traditionally the right against selfincrimination focused on testimonial evidence such as confessions or statements made by the accused.
“But with DNA evidence we enter a realm where a mere biological sample can potentially reveal incriminating information without any verbal expression at all from the accused person.
“This begs the question, does the extraction or analysis of DNA violate the right against self-incrimination.”
Mr Tuenuku said various opinions had been reached by the courts as they grapple with the issue.
“Some argue that DNA evidence is merely physical evidence, not like making a confession.
“Considering the procedures, extraction and the nature of the DNA evidence itself, it might well establish the innocence of the accused person.
“While a direct confessional statement, where an accused person confesses that he committed the crime, does not establish the innocence of the suspect.”
Mr Tuenuku said there were some decisions in other jurisdictions which contended that the right against selfincrimination was primarily concerned with respecting the will of the accused to remain silent.
“The extraction of blood, urine samples and bodily tissues for the purpose of DNA testing is not selfincriminating because these materials exist independent of the will of the suspect.
“As I see it, you can say whatever you want but if your DNA is found on the murder weapon the court is open to draw that inference that you were involved in that murder.
“It has its own message.”
He said others contended that DNA contained intimate and private information about an individual’s genetic makeup, and that akin to personal testimony, it should be protected under the right against selfincrimination.
Mr Tuenuku said striking a balance that respected both the potential of DNA evidence as a powerful investigative tool and the importance of protecting individual rights was important.
To achieve this, he said an open mind must be kept on the potential of DNA from all parties involved in an investigation.
“If a suspect or accused truly believes in his innocence, a DNA profile can be a pathway.
“It is also important to realise that a fair and proper investigation needs to utilise all resources that it has at its disposal to get to the truth of the matter.
“Maybe DNA profiling is the key that solves cold cases from the past, and also allows investigators to keep an open mind on the cases they investigate regardless of their own biases and views of the evidence,” he said.
As far as the way forward for DNA profiling in Fiji is concerned, Mr Tuenuku says specific legislation, similar to the Criminal Investigation (Bodily Samples) Act of New Zealand but tailored to suit our circumstances here at home, is needed.
“I know that will require consultation and processes, but there is no other option. It must be done and must be done quickly, or we risk the erosion of public confidence in our criminal justice system.”
Such sentiments, he said, were shared by High Court judge Justice Riyaz Hamza while recently granting a compulsion order to the prosecution.
“His lordship recognised there is an urgent need for similar provisions in the New Zealand Act to facilitate the obtaining of body samples for the purpose of gaining profiling in the course of investigations.
“That legislation would ensure that various checks and balances are in place.”
Mr Tuenuku said this would provide a platform for telling relevant stakeholders what should be considered, what should be done and what should not be done.
“What to do with DNA evidence, where it should be kept, how long it should be kept, who has the legal authority to take bodily sample, should the police be empowered to take a bodily sample from children, should we take DNA evidence for every offence in the crimes act, or should it be limited to a certain number of offences.
“I would also add that having an act here at home would also ensure consistency in judicial decisions, especially in this area of law.
“I dare say, with all due respect, it will reduce the need for serious forms of judicial activism in this grey area of law in Fiji, ensuring that case law in this area is centred on the purpose of the act itself.”
Mr Tuenuku said the rise of DNA evidence had undeniably transformed criminal investigations, providing unparalleled accuracy in identifying the guilty while it also has the potential to exonerate the innocent.
“As we harness this powerful tool, we must also remain vigilant in protecting our fundamental constitutional rights.
“Through thoughtful consideration, proper legal frameworks and ongoing dialogue, we can strike a balance that upholds justice, respects individual rights and ensures the fair and ethical use of DNA evidence in our pursuit of truth.”
