THE MISSING SISTERS: FINAL

INTEGRITY OF DNA SAMPLES

■ 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.