Testing times for outdated DNA law
Victim of cold case warns of injustices if samples are destroyed. Jo Lines-MacKenzie reports.
She waited nine years for her attacker to be found and named – but by then it was too late. He was dead, and the only evidence left of her rape was DNA held in storage.
But without that critical piece of the puzzle, her attacker would never have been found. Now, she is worried that a Law Commission review into the way samples are collected and stored could prevent others obtaining justice.
The Hamilton woman, 52, was raped nine years ago by a man who approached her in the central business district in the early hours of a Saturday morning.
She wasn’t his only victim. Her rapist had previously coaxed two of his other victims into his car before attacking them.
It was the DNA taken from the 52-year-old woman that proved the same man was responsible for the attacks. And, on the back of that evidence police launched a nationwide manhunt for the serial rapist.
The man responsible was Mark Allan Nixon. At the time, he was 28 years old and working as a doorman at nightclubs in Hamilton. His DNA was not on record, and after the attacks he managed to silently shift to Australia to start a new life.
But Nixon couldn’t hide from science. In May 2013, he committed a minor non-sexual offence in Perth, Australia and had to provide his DNA to police there. Police in New Zealand were able to link him to the Hamilton rapes using the DNA profile provided to police overseas.
Nixon died suddenly in the same year. He was never charged for attacking the women in Hamilton all those years before.
‘‘We still don’t know if he’s done this to other women that haven’t come forward yet so that DNA is really important,’’ his victim said.
‘‘The whole process is yuck, the rape kit, it’s humiliating, it’s disgusting, but I knew they had his DNA and thought they will catch him.’’
Police announced they had closed the case after the DNA link was confirmed last year.
Nixon’s victim believed the DNA would ultimately nab her attacker. She was able to describe what he looked like, and police had created an identikit from the description given by her and the two other victims.
But, ‘‘without the DNA he would have been walking free’’.
The woman is disappointed to think that the Law Commission is considering changing the way that police store DNA and how long they hold it for.
Her attack was deemed to be a cold case, and she can’t see any reason to change the current system.
‘‘If it helps solve crimes of the past then it should be kept, if you aren’t a bad person then what does it matter that your DNA is on the record?
‘‘It’s got to stop crimes like mine happening, well, it will still happen, but they will be caught quicker. If he hadn’t mucked up in Australia he’d still be over there and I wouldn’t have an answer.
‘‘If it wasn’t for the DNA, if the two other girls hadn’t gone into police, he’d still be walking around in New Zealand.’’
In 1995, when the Criminal Investigations (Bodily Samples) Act came into force, New Zealand became only the second country in the world to collect and store DNA profiles. The national database is run by Environmental Science and Research (ESR) on behalf of the police, who collect the samples.
DNA science was in its infancy when the law was first introduced, and the technology has since developed significantly. The act has also undergone some major amendments, most noticeably in 2009 when police were given the authority to take samples without requiring the permission of a judge.
The commission, which will consult those who currently use the legislation – such as police, judges and lawyers – now faces a balancing act between protecting civil rights and preserving the database’s power as a crimefighting tool.
Law Commissioner Wayne Mapp admits the legislation has evolved in a haphazard way.
‘‘It’s a fairly difficult piece of legislation to use in practice and the police find this as well.’’
One issue to be considered is whether the principles underlying the clean-slate legislation should also apply to someone who was in the database for a less serious offence and had stayed out of trouble, he says.
Hamilton defence lawyer Roger Laybourn believes the power to decide if a sample can be taken from a suspect should be restored to judges.
‘‘It’s a huge leap of faith, to allow the police force to make their own decisions of whose civil liberties
It’s a huge leap of faith, to allow the police force to make their own decisions of whose civil liberties are justifiably breached. Roger Laybourn, Hamilton defence lawyer
are justifiably breached because there is always a balancing act in what is good for society and what’s good for the individual and that’s a necessary principle to have,’’ says Laybourn.
He is concerned there is no independent oversight to prevent rogue police officers or staff members abusing their power.
‘‘Wider concerns are, what if we get a more fascist-inclined government in the future?
‘‘It’s looking at the security of it, I think that if DNA rightfully convicts the people and exonerates the innocent you can’t argue against that, but how can you safeguard it from being abused?’’
For Inspector John Walker, national manager of Police Forensic Services, the issues surrounding DNA are less about the right to take samples and more about simplifying complex legislation.
He acknowledges that in some quarters taking DNA remains an emotive issue. Any review of the current law would have to consider human rights, especially given the ways samples can now be collected.
‘‘In 1995 we needed a great big blob of blood at a crime scene to get DNA and now we talk about touch DNA where simply just touching a pen or touching the phone is going to leave your DNA . . . which makes it pretty difficult not to leave your DNA all the time,’’ Walker said.
The police hope that changes to the legislation are relatively administrative.
‘‘We’re pretty happy with what we’ve got, it works, we don’t take DNA from everybody like other countries. It’s certainly a measured approach and we want to continue doing that.’’
The Privacy Commission has seen no reason for concern with the legislation and commissioner John Edwards said there was nothing to warrant a call for a review.
He is confident the current laws work well, due to people knowing the rules and regulations around the criteria police are working with. But the commission has a vested interest in the results of the findings, especially when it comes to the scientific advances of DNA.
As for Nixon’s victim, she still holds on to the belief that there is a case for a nationwide database of New Zealand citizens’ DNA.
‘‘The only people who would be afraid of that are the ones who would consider doing serious crimes in which they would rape or murder people. Everyday people wouldn’t be worried as they wouldn’t commit such crimes.
‘‘Because he raped me, the police now have my DNA on their database, I don’t care, as long as it helped catch him, that is all that matters.’’
The review will take two years, and it will be open for public comment mid-2017. A final report will go to Parliament in 2018.