THE MISS­ING SIS­TERS: FI­NAL

INTEGRITY OF DNA SAMPLES

Fiji Sun - - Front Page - AVINESH GOPAL SUVA

■ The dis­ap­pear­ance of three sis­ters af­ter a fish­ing and pic­nic trip is still a much-talked about thing.

■ Ashika Sherin Lata, 19, Renuka Roshni Lata, 18, and Rad­hika Roshni Lata, 17, went miss­ing on June 26, 2005.

■ They went with Dip Chand, whom they called aaja (grand­fa­ther), but did not re­turn home and their bod­ies have not been found too.

■ Chand, a fish­er­man by pro­fes­sion, is serv­ing a life sen­tence in prison for the sis­ters’ mur­ders.

■ For the past three weeks, the Fiji Sun took a look at the case through the Supreme Court’s judg­ment on an ap­pli­ca­tion by Chand for spe­cial leave to ap­peal against a Court of Ap­peal judg­ment.

■ He had filed several grounds to ap­peal against the Court of Ap­peal judg­ment, which had af­firmed the con­vic­tion and sen­tence im­posed on him by the High Court in Lau­toka on May 19, 2006.

■ As we wrap up the se­ries to­day, we take a look at one of the ma­jor grounds on which Chand had sought spe­cial leave to ap­peal against the Court of Ap­peal judg­ment.

One evidence when Dip Chand was on trial for triple mur­ders was DNA samples ob­tained from the crime scene, which was his fish­ing boat. How­ever, he claimed in his ap­pli­ca­tion for spe­cial leave to ap­peal against the Court of Ap­peal judg­ment that the State failed to dis­charge the onus upon it to prove that the DNA sam­ple ob­tained from the crime scene and the vic­tims tooth brushes were not con­tam­i­nated.

The Supreme Court said in its judg­ment on Chand’s ap­pli­ca­tion that it was com­mon ground that at the time he was found in the boat adrift in the vicin­ity of Malake Island, there were blood strains in var­i­ous parts of the boat as well as on the clothes worn by him. Samples of these blood strains were up­lifted from the boat and Chand’s jeans, and along with tooth­brush samples up­lifted from the tooth brushes used by the three sis­ters were taken to a highly ac­cred­ited lab­o­ra­tory in Ade­laide, South Aus­tralia, for test­ing.

El­iz­a­beth Selina Llewellyn, a foren­sic ex­pert, tes­ti­fied at the trial in the High Court at Lau­toka and gave an ac­count of how the blood samples were up­lifted, pre­served and how the in­di­vid­ual samples were taken to the lab­o­ra­tory in Aus­tralia.

Her re­port was marked in evidence with­out ob­jec­tion and the evidence was un­chal­lenged by the defence.

The pros­e­cu­tion also ten­dered in evidence the re­port of the DNA ex­pert, An­drew Don­nelly, with­out any ob­jec­tion from the defence. In essence, the evidence showed that the blood stains matched the DNA of two of the three vic­tims. Chand’s lawyer sub­mit­ted in his

ap­pli­ca­tion that the trial Judge ought to have cau­tioned the as­ses­sors against re­ly­ing on facts which were spec­u­la­tive na­ture or re­gard­ing the doubt that arises from the fact that the blood strains of one of the vic­tims were not found in the boat at all.

The Supreme Court said the DNA evidence was unas­sail­able given that the tes­ti­mony of Mrs Llewellyn and the DNA re­port of Mr Don­nelly were not chal­lenged at the trial.

It said since the in­tro­duc­tion of the DNA fin­ger­print­ing tech­nique, the use of DNA evidence had been widely ac­cepted across the world. The court cited a case from the United States of Amer­ica in 1923 on the ad­mis­si­bil­ity of sci­en­tific evidence.

“Al­though DNA evidence has gen­er­ally been acted upon in ju­di­cial de­ci­sions since then, it must be stressed that DNA evidence would not al­ways be ad­mis­si­ble, es­pe­cially when a party of­fers ex­pert tes­ti­mony challengin­g the re­li­a­bil­ity of the pro­ce­dures or the re­sults,” it said. “In the in­stant case, we have the un­chal­lenged re­port of a well­known ex­pert of tests done at a very re­li­able lab­o­ra­tory and strong evidence of the chain of custody supplied by Mrs Llewellyn, and we find that in the ab­sence of even a sug­ges­tion in cross-ex­am­i­na­tion of the pos­si­bil­ity of con­tam­i­na­tion, it is too late in the day for the pe­ti­tioner (Chand) to put in is­sue the DNA match­ing or its re­liance by the trial court.”

The Supreme Court said it did not con­sider that the grounds de­served fur­ther con­sid­er­a­tion and that spe­cial leave to ap­peal on that grounds nec­es­sar­ily had to be de­nied.

The other grounds

The Supreme Court said the other grounds in­cluded in the amended pe­ti­tion for spe­cial leave to ap­peal filed by Chand on November 2, 2011 in­volved only fac­tual is­sues, which had al­ready been con­sid­ered by the Court of Ap­peal and there was noth­ing in them to merit the grant of spe­cial leave to ap­peal.

Con­clu­sion

Ex­cept for Chand’s confession, the pros­e­cu­tion re­lied entirely on cir­cum­stan­tial evidence to prove the guilt of Chand in the case. The cir­cum­stances re­lied upon were that the three vic­tims were the only per­sons who took the boat with Chand on the fish­ing trip and pic­nic, that the next morn­ing the boat was found adrift with only Chand in it.

Also, that an ex­ten­sive search over a large area of the sea in the vicin­ity of Malake Island where the boat was found adrift, failed to find the vic­tims or their bod­ies and that the blood­stains found in the boat and Chand’s jeans were shown by DNA evidence to match the DNA samples of at least two of the vic­tims.

“We have no doubt that the confession of the pe­ti­tioner ac­cord­ing to the tes­ti­mony of more than one in­de­pen­dent wit­ness and the find­ing of the High Court judge at the voir dire has been made vol­un­tar­ily,” the court said. “The confession does not stand alone and has been cor­rob­o­rated by other co­gent cir­cum­stan­tial evidence.

“For these rea­sons we refuse the ap­pli­ca­tion for spe­cial leave to ap­peal and dis­miss the said ap­pli­ca­tion,” the Supreme Court ruled.

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