Forensic science in the criminal justice system: the good, the bad and the academy

I begin this editorial by saying how honoured I am to be offering it as the current President of the Australian Academy of Forensic Sciences (the Academy). I am closing in on 30 years in the Forensic profession and, if there’s one constant in my career, it has been that at each different phase, there are more scientific and operational opportunities and a more diverse and critical set of challenges and problems that our employers, our justice system and our communities, require us to engage with, and hopefully, resolve. In this phase of my career, it is no different.

In March, I was asked to again lead AFP Forensics as it is re-established as a stand-alone command within a portfolio including our intelligence, specialist capability, and international commands. Whilst I have had this leadership responsibility since 2015, it has always been shared alongside other critical areas, such as Intelligence, ICT, and Cyber Security. So it excites me greatly to be able to focus solely on Forensic Science again, and even bring to my role new knowledge from my experience leading these aligned operational and technical areas. This is particularly so given the strategic and operational challenges we currently face, and the unprecedented scale and complexity that has arisen as a consequence of the technological age.

It is also timely, therefore, that my responsibilities as President of the Academy, and as the current Chair of our ACT Chapter, have increased in prominence. I feel there is a strong confluence and mutual benefit there. I will certainly look to bring insights from my work in the international, Commonwealth and National environment to inform, wherever possible, our work, together, as an Academy.

I will admit to feeling a heavy burden of expectation, built up by those who have held this position before me. As a practitioner, and Academy member, I have always regarded this position and the actions of our Past Presidents, to be highly influential on the standing and effectiveness of our field, particularly in the eyes of the judiciary and the wider community. I am glad that I have their example to guide me, and also their support. And I would like to mention specifically our two immediate Past Presidents Professor James Robertson and Dr Yvonne Skinner, who remain as advisors and role models for me. I thank them both for their encouragement and support, and, of course, for their service in their tenures as Academy President.

Having taken this opportunity to pen this Editorial, my intention is summarize, from my perspective, some key aspects of the current operating environment for forensic science. I will do this at a relatively high level, and I must declare that – not at all in the spirit of good forensic testimony – my input with be both selective and subjective. But, I hope nonetheless, that it will paint a reasonable picture of some of the key challenges and opportunities that we collectively face.

As I do, I will pass some observations on our performance against these challenges and opportunities, and in what way our environment is shaping expectations for us as forensic scientists within the Criminal Justice System. I will also highlight (again somewhat selectively) lessons that we might take resulting from the good and the not so good examples. I will then conclude with how this relates to our Academy, and the role that we can play to advance the shared objectives that have brought us together over our proud 55-year history, and advance forensic science in our contemporary times.

There are some examples where I feel we have unique advantages, and others where perhaps we need to re-focus or re-orientate our efforts. And in the spirit of President’s past what I say might provoke some questions or controversy, I hope that to be so. But it is important in that context that I convey that these views are my own and are offered as a contextualization for this editorial.

Without spoiling the punchline however, my key thesis is this. That whilst we face some unique and formidable complexity from diverse sources, there is no better environment than this Academy, to launch from our strong foundations and extend ourselves boldly into these new and challenging areas. Showing leadership for our peers and our community.

In drawing observations from our environment, I must first explain that it is my natural way to take a whole-of-system perspective on how I define that terrain. It is a cause of some frustration to me when we narrow our gaze to only review and address specific issues or perspectives from a particular part or standpoint of the system. So whilst my comments will pivot around two main thematics, I will endeavour to address them broadly from a whole system perspective.

The first area I wish to reflect on is the rise and rise of technology and technology-enabled crime. It is a fact, that in keeping with the rest of society, crime is now more digitized, globalized and connected, and manifests as a hybrid of the physical and digital worlds. Whilst the harm to victims and communities is real and lasting, the methods and enablers of crime are increasingly dependent on technology. Our connected world offers abusers, criminals and terrorists unfettered access to potential victims and funds. Modern modes of offending are often hidden and remote and can impact at a never-before seen speed, scale and seriousness. As evidence of this, serious crime in Australia is increasingly emanating from, or, directed by, a significant overseas element. The AFP estimates that about 70% of Australia’s serious criminal threats have an international dimension or emanate from an offshore entity or group. These criminals are not just drug traffickers, they are money launderers, terrorists, abusers, thieves and fraudsters who, through their actions fuel harm that directly or indirectly affects the security of Australian citizens and their way-of-life.

The remote and borderless nature of the internet and other rapidly changing technological advancements have made the Cyber domain a critical strategic risk. The threat from technology and cyber-enabled crime is pervasive and affects all levels of society. Operationally this has led law enforcement agencies to place an increased emphasis on prevention and disruption outcomes, and, this is, in turn, redefining offence categories, the powers provided to police, the prevalence of multi-agency partnerships, the role of industry and the expectations of Governments and the public.

In support of this contention, I offer some of the following supportive data:

• Sexual assault recorded by police increased by 13% from 2020 (over 31,100 victims nationally).¹

• 61% of victims of sexual assault were under 18 years of age at the date of incident and 37% of all reported incidents were FDV related.¹

• Since 1993, the rate of victimization for sexual assault has increased from 69 to 121 victims per 100,000 persons in 2021. This is the highest rate of victimization for sexual assault recorded by police across the 29-year time series.¹

• During the 2021–22 financial year, over 76,000 cybercrime reports were made via ReportCyber, an increase of nearly 13% from the previous financial year. This equates to one cybercrime report being made approximately every 7 minutes.²

• This figure sits neatly between national number of victims of unlawful entry with intent at around 139,094 victims and the number of victims of motor vehicle theft at around 49,742.²

• The AFP-led Australian Centre to Counter Child Exploitation (ACCCE) has recorded on average, more than 100 reports of sextortion every month in 2022, which is a 100-fold increase from 2021.³

• It is likely that the true number of victims in Australia is much higher with conservative estimates indicating that less than 25% of minors report to police.³

• More than 90% of victims were males 15–17 years of age, however police had seen victims as young as 10 years old.³

• A major study led by the Australian Institute of Criminology (AIC) found three-quarters (72.3%) of the almost 10,000 respondents (dating app users) reported being subjected to at least one form of online dating app facilitated sexual violence (DAFSV) in the last 5 years. Thirty-four percent of respondents said that they had been subjected to in-person DAFSV after they had met in the ‘real world’ someone they had connected with on a mobile dating app or website.⁴

I am sure some of you will have heard the shocking account of a Perth father who shared his horror after finding out his 10-year-old son had been sending images of himself to a stranger he met online for 2 years.⁵ He revealed how he had checked his son’s phone after it kept receiving WhatsApp calls from a contact labelled ‘best friends for life’ and realized his son had been in communication with this stranger for 2 years. They’d originally met on the popular video game Fortnite before the conversation moved to WhatsApp. He was horrified to discover his little boy had sent the person photos of himself in exchange for $300 worth of Xbox vouchers.

At a local level, in the ACT, over 50% of reported incidents responded to by our community police officers are family or domestic violence or involve a mental health dimension. In his 2022 National Security Address, Director General of Security Mike Burgess spoke of the concerning rise of radicalized youth they were monitoring in their cohort of ideologically or religiously motivated extremists;⁶ mirroring concerning trends in property and anti-social crimes that are currently devastating remote and rural communities across Australia.

It’s undeniable from this selection of data that the criminal justice environment is becoming increasingly complex, in particular due to the rise of cybercrime and technology facilitated abuse.

Our field of forensic science has a long and established role in supporting Criminal Justice outcomes. In many ways it has endured by responding to changes in our operational environment by driving relevant changes in forensic approaches and capabilities. For example, the rise in prominence of forensic evidence in the 1980ʹs, mostly for the wrong reasons, was associated with the evolution of our now entrenched quality assurance and accreditation regimes. The DNA revolution of the 1990ʹs contributed to the expansion of forensic services into high-volume crime and the dominance of the database era. In Western countries, the September 11 attacks and the subsequent waves of international terrorism increased the role and prominence of forensic science in our national security and military apparatus. The expansion of the technological and digital age saw digital forensics emerge as a dominant specialization, and a driver of demand and innovation. And as the scale and distribution of offending has broadened, operational agencies have placed a higher emphasis on the disruption and prevention of crime. Again, forensic science has adapted to contribute more to intelligence and criminological domains.

Whilst our adaptation has been admirable, it has also been my experience that as we have added new capabilities or evolved our ways of working, it has been a largely additive process where we retain the existing array and add in different ways to it. But are we doing all we can to help to our communities currently as they deal with increased incidents of technology-enabled threats? How many forensic resources are dedicated to these cyber-enabled crimes – as compared to other community crimes like burglary? How advanced and accessible are our collective capabilities in the critical field of digital forensics? Do we even fully embrace the digital forensic specialization and have we duly reflected on what our traditional disciplines may need to learn from it? (In many jurisdictions digital forensics does not even exist as an accredited forensic capability). Are there opportunities for us to lean into this problem space, in a similar way that we successfully contributed to intelligence-policing led models that have driven down trends in rates of residential burglary and robbery? Are our laws and courts keeping pace with these emerging crimes and their prevalence?

Assuming forensic opportunities exist to counteract these challenges, they will likely rely on similarly sophisticated and leading-edge technologies. How well placed are we to adopt capabilities like artificial intelligence (AI) into our workplaces, and our established (and rigid) processes?

My worry with these observations is that we are potentially being too passive about these kinds of changes in our environment, such as those brought about by digitization. We don’t seem, in my opinion, to be collectively focused on developing relevant operational contributions to offer. I can see many reasons why this may be the case:

• the burden of existing demand,

• the challenges of generating forensic research,

• the different nature of the problem,

• the cost and complexity of technologies,

• the slow pace of policy and legislative reform,

• and possibly many others.

But, these shifts in our operating environment seem baked in to me. If so, we need to make a shift as well or we may well deal ourselves out of a meaningful role. Should that eventuate, we would be forsaking our responsibility as specialist problem solvers in the criminal justice system.

But having burrowed down that particular technological rabbit-hole as but one example of our changing operating environment, if one was to take a different path to this area of review the observations would be quite different. Perhaps, my choices reflect my current area of work. If one was to review leading recent examples of public or government commentary about Forensic Science, one would see it is focused on quite different (albeit familiar) issues.

Many featured stories in the past 12–24 months cover various calls for commissions, reviews of controversial cases or methodologies, and almost universally their focus is anchored to our core forensic value proposition of providing the highest quality evidence at trial, and whether this is being satisfactorily achieved. Several reference the calls that emanated from Victoria to establish a national review of the reliability of forensic evidence being used in courts, calls that were ultimately abandoned at the Federal level despite what was described as mounting concerns that innocent people are being jailed using questionable science.⁷

These positions were largely based on important cases (such as Jama and Kamo), both of which highlighted there were either shortcomings in the way in which the forensic evidence had been managed at forensic level, or about the circumstances surrounding the presentation of the expert evidence in the trial. The two cases also demonstrated what appears to have been a failure of the investigative and legal system, as it then existed, to grapple adequately with the expert evidence, which in both cases was crucial to the jury verdicts.

Other commentary, also attributing eminent Victorian Pathologists and Academics relates to deaths attributed to shaken baby syndrome.⁸ Those who agree with the science of shaken baby syndrome claim the injuries could not be caused by any other event other than extreme trauma. But others believe the science is flawed with concerns extending to the ‘absolute’ way in which forensic science is perceived in the justice system.

As The Honourable John Champion, Justice of the Supreme Court of Victoria and Chair of the Victorian Chapter of our Academy observed on these issues:⁹

Responsibility does not only lie with forensic practitioners but extends heavily onto the lawyers and judges that are required to manage this evidence in the court system. The adequate training of these participants is clearly required. The tools for forensic practitioners to take on their responsibilities effectively must be supplied by appropriate instruction and training. In this sense the practitioners and the judiciary must take a key and active role in keeping the process under control. The judiciary itself needs to be properly trained in these matters, and strong management is required. In my opinion, it is essential that the components of the criminal justice system reach out to each other from their respective silos.

Further afield in the UK, Parliamentarians also announced the establishment of a commission to investigate forensic science. MPs and peers launched the inquiry into the state of forensic science – amid concerns that mistakes are leading to innocent people being wrongly convicted. The Westminster Commission on Forensic Science will question experts, lawyers, police investigators and victims of miscarriages of justice.¹⁰ It will set out its findings in a report, expected in 2024.

The inquiry will be co-chaired by Professor Dame Sue Black, a forensic anthropologist and cross-bench peer, and Professor Angela Gallop, a leading forensic scientist. It has been established by the group of parliamentarians with an interest in the area known as the All-Party Parliamentary Group on Miscarriages of Justice (or the APPGMJ). Barry Sheerman, the Labour MP who co-chairs the APPGMJ, said:

Our reputation as the global gold standard for forensic sciences has been badly tarnished over the last decade. Today we launch an investigation into the state of the sector and we do that as a result of our concern that the innocent are being wrongly convicted. The Westminster Commission on Forensic Science will shine a light on the sector and how its ‘products’ are used, and make recommendations to drive up quality and reliability in this important but overlooked corner of the justice system.

Sir Bob Neill, the Conservative MP who co-chairs the APPGMJ and also chairs the Commons Justice Committee, also said that forensic science had been at the heart of notorious miscarriages of justice citing as his evidence the cases of the Birmingham Six (from 1975) and the Guildford Four (from 1976). He said:

The misapplication of forensic science can, and often has, resulted in the wrongful conviction for many years of the innocent. But pioneering forensic approaches can lead to wrongful convictions being overturned and justice restored.

Innocence Canada also generated public discussion in a report that highlighted nine main causes of wrongful convictions in Canada.¹¹ Innocence Canada is a non-profit organization focused on ‘identifying, advocating for, and exonerating individuals convicted of a crime that they did not commit’. They also work to prevent miscarriages of justice through legal education and reform. Nine main causes of wrongful conviction were identified by Innocence Canada and number 7 out of 9 is ‘Evolution of and errors in forensic science, for example, like using invalidated procedures such as bite mark analysis’.

In the detail, it was apparent that hair microscopy evidence played a role in the wrongful conviction of one individual in the sample. At trial, it had been argued that three hairs found in the defendant’s van matched those of the victim, suggesting he had forced the victim into his vehicle which he took to the murder site. DNA testing later revealed that the hairs thought to be the victim’s were, in fact, not. Out of all the causes of wrongful conviction, eyewitness misidentification contributes to approximately 70% of known wrongful convictions that have been overturned by DNA testing.

In the US, there has been further commentary reflecting on efforts to improve forensic science since the 2009 National Research Council (NRC) Report,¹² asking whether the problem has been solved?¹³ The article asked, does the forensic testimony now introduced in court rest on solid scientific ground? Interesting reflections follow from this inquiry from esteemed forensic scientist David Stoney who explained that:

Since the beginnings of forensic science in the early 1900s, it didn’t have external scrutiny and it was a profession that was being driven by practitioners in a very fragmented way.

Crime labs, even today, are run by states, counties, cities, and the private sector, with high caseloads straining their resources.

As a result, ‘they are not a bed for the intellectual development of forensic science’, Stoney said. The resources and day-to-day demands within an individual jurisdiction determine who gets hired as crime lab director, what is considered good forensic science, and how the people do their jobs, he said. The criticisms in the 2009 National Research Council report have been amplified by other reports and academic papers over the past decade, and much of the current criticism is coming from scientists who are now engaging with the field, Stoney said. ‘They are testing, doing research, and asking questions’, he said. The debate and rigour of academic science is now influencing much of forensic science and that is the most significant change from the past, he concluded.

Although change is occurring, the article cites two major impediments to progress. The first is a general resistance to change in the forensics community. Observing that institutions and professions are conservative, and practitioners are used to doing things a certain way. The second impediment is the time it is taking for the broader scientific community to fully understand forensic science; to appreciate that it is not merely an application of other scientific disciplines but one that comes with its own peculiar challenges and needs for intellectual development.

However, Stoney goes on to say

Forensic scientists should keep in mind that the legal system is one of the most conservative institutions around”. It’s important that we use the scientific criteria for evidence, but the law has built a system that is based on personal, subjective human judgment. So, I can testify, and the jury can decide they didn’t like the way I looked or responded to questions and dismiss me entirely. To be acceptable, the forensic science must be as good as it can be, our explanations must be understandable, and our processes must be convincing. It is our responsibility to bring this to the courts, so the standards should be developed and met.

Concluding, in the end, ‘the courtroom is not a scientific arena’.

What strikes me about this commentary is it’s familiarity. High profile failures for forensic science to have met the expected standards, particularly those that have led to wrongful convictions, remain at the heart of public and political discourse and decision making. Even those that occurred generations ago. Such is the steep slope from the high ground of public trust and expert opinion evidence.

What also strikes me about the continuing prominence of this legacy, is how it hampers in two very obvious ways our capacity to address some of the challenges earlier described in our contemporary operating environment. Firstly, these views (largely speaking) are anchored to the past, in an important, but not altogether helpful way. They hold the policy focus on forensic science to issues surrounding correcting our most famous failures, at the expense of enabling our exciting innovations or expanding our critical and valued contributions. Secondly, without trust and confidence in our core value proposition, and our most established and commonly utilized capabilities (for example, fingerprints and DNA), how will we engage our community on the dynamic environment of digital forensics, or the future introduction of technologies like AI, robotics, or sensors?

It is also hard to square this circle from a systems perspective. At one end, there are big data volumes arising from a largely ungoverned technological ‘metaverse’, potentially requiring us to embrace AI and advanced models for attribution via biometrics or other identifiers. At the other end is our justice system that requires as a fundamental right, careful consideration of a unitary, first-person testimony on specific aspects of individual proofs and offences. Clearly, there is dissonance between these two areas and a risk of imbalance in our system – or perhaps it is already there?

Having reflected on those examples of pressures and opportunities in our environment, I turn now to the Academy, and my views on the role that we can play in identifying, evaluating, and influencing matters such as these. I have based my reflections on a review of Proceedings captured in our Journal. Proceedings and learned contributions that I believe illuminate the path that we should embark down together.

As many of you will know, the first plenary scientific meeting of the Academy was held in December 1967 and the papers that were read and an account of the formation of the Academy was detailed in the first issue of the Journal, published in 1968. The first paper in fact was authored by Professor R. J. Walsh, on the genetic determination of sex. I found that quite incredible that a namesake, who was also a geneticist, performed a similar function to the one I am performing now, at the inaugural plenary meeting of the academy over 55 years ago.

Our founder, Oscar Schmalzbach in his ‘short history of the formation of the Academy’ explained that … ‘the need for an interdisciplinary scientific society in our country, to bring together the professions of Medicine, Science and the Law, became apparent’.¹⁴ His Honour Justice R. Le Gay Brereton (our inaugural President) further indicated that the Academy would not attach itself to any particular branch of science, nor was it intended to be a mere forum for the discussion of scientific and legal problems. His Honour underlined the importance of the Academy’s aims, which are to encourage the progress of those branches of the sciences which are, or are likely to become, of great importance in the detection of crime, in the determination of guilt and innocence, and in the resolving of civil disputes with particular reference to the needs of the Courts and the advancement of the administration of Justice.

We are, as Past President His Honour Justice Michael Kirby wrote in 1987, ‘after all, the only body that brings together in Australia, on a permanent and regular basis, medicine, science and the law’. No other body has such a national mission. No other body provides such a permanent record of scientific meetings over 55 years devoted to pressing problems of the day which are of interest to the members and of importance to the society they serve.¹⁵

The Academy has proven itself able to react promptly to issues of contemporary concern. The membership are citizens of established position in a number of professions but, more importantly, people of vision and intellectual curiosity. From those beginnings, through times when specialization and insularity have been the rule, our Academy has insisted upon interdisciplinary discussion.

On the event of the Academy’s Golden Anniversary (in 2018) Justice Kirby remarked how our Founder Oscar Schmalzbach had an eye for the important issues and controversies of his time. They had to be issues of cross-disciplinary interest or the members would have drifted away and withdrawn. And whilst His Honour went on to reflect on the departure from this tradition towards more technical, scientific contributions at Plenaries and in our Journal, notwithstanding, the Academy should accept the challenge of broadening the focus of its definition of ‘forensic sciences’ and look at topics that open up cross-disciplinary dialogue about some of the most important issues of our time. Dialogue in which expert and non-expert discussion is helpful to the traditional professions, to their members, and to society.¹⁶

As we have before, we face new and complex challenges in our fields. Tonight I have summarized but a few of them. More than anything, I hope this encourages us to back to the foundational intent of our Academy.

• To be bold, and frankly share our opinions, ideas and concerns.

• Tackle issues of National significance.

• Debate the difficult problems and forecast the bold science that just may be their solution.

• Always adopt an inter-disciplinary approach.

And after COVID, make a concerted effort to rebuild our community. Ensure we hear from our traditional areas of law, medicine, and science, but also draw in voices from areas such as criminology, policing, technology and intelligence. Standing on such strong foundations and drawing on that strength to be bold in striving for something new. These objectives that I have are consistent with the Academy’s formal aims and it’s proud legacy.

In practice, as a Council, our focus will be:

• Effectively administering the Academy;

• Our Plenary Programme;

• Support to our Research and Education Fund; and

• Steering and guiding this vital institution to positively influence the standing of our community in the eyes of the criminal justice system and the public.

I look forward to the opportunity to lead and support the Academy during my tenure as President and to embracing our contemporary challenges and opportunities together.