“Bodies found in water are treated very differently from bodies found on land, for example there is not a county in this country [USA] that would take a body in a field and drag it a couple hundred feet before they put it in a body bag and transport it out. It would never happen,” said investigator Andrea Zafares.   “What we have been teaching around the world is to treat a body with the exact same standards that you would treat a body on land; that requires training,” she said. What we can take from that is that bodies recovered from water will routinely be dragged before being bagged.

This is an interesting thought, particularly as New Zealand is surrounded by water and has many waterways.  There are well-documented ways to distinguish drownings from bodies being dumped in water (such as analysis of internal organs for the presence of diatoms) – although this doesn’t necessarily tell you if the person was deliberately drowned, only if the cause of death could have been drowning. Good scene examination and thorough recording from the scene to the time the body arrives at the mortuary will help investigators and experts identify the information of interest.  To my knowledge, New Zealand does not yet have a well-established and regularly used specialist team of experts who can advise on the best way to recover human remains from unusual settings (such as sand graves or water bodies); this job tends to be done by police officers whereas input from specialists should increase recovery of potential evidence.

What I also found interesting in the ABC article is the first line of the penultimate paragraph: “When there is a deadly fire, trained arson detectives are called in.” What’s interesting about that is that they have chosen to reference an are of investigation that has become very controversial in the past decade or so. Of all areas of forensic investigation, fires is one that has undergone very close scrutiny because many preconceived ideas about whether or not fires are arson have been successfully challenged; the case of Cameron Todd Willingham springs to mind, a case in which Mr Willingham was executed for arson (his children died in the fire) but since that time, the findings of the original fire investigators have been robustly challenged and called into question. The National Fire Protection Association reported that between 1999 and 2011 there was a national drop in the USA from approximately 15% to 8% of fires being identified as arson – this apparent drop seems attributed to better understanding of fire dynamics and that fires previously identified as arson are now being determined to be non-intentional. The figures for Massachussetts are more impressive: from 1984 to 2001, the number of structure fires ruled arson fell more than 70 percent, while total structure fires remained largely stable. In 1984, roughly 10,600 structures caught fire and investigators ruled 2,133 arson; in 2001, there were about 10,200 structure fires, of which 618 were ruled arson.

Water or fire – it pays to investigate as well as possible and to be aware that science develops and crime scene practices change. Nothing stays the same.

The focus is about false confessions and the police investigation.  However, the case doesn’t end there; there is a significant body of scientific information in this case as well but we have struggled to gain access to it, for the reasons to which Mr Krebs refers in the Radio Live interview.

Having been involved with this case for 2 and a half years and having worked on several large cases like this now, although Legal Aid has funded much of the Pora investigation, this case would not have got as far as it has without a massive amount of time for which Legal Aid will never be billed just because it takes so long to carry out so much of this work. As Mr Krebs indicates, there was also a massive amount of unpaid work completed before Legal Aid could even be approached, particularly by Tim McKinnel and also Mr Krebs before Legal Aid would even consider whether or not to fund the further investigations – that time and cost can never be recovered.

There is significant work ahead, for this case and others, some of which will be paid and some of which will not, but it is work that must be done because we have to have confidence that our legal system will deliver justice.  Funding for case re-investigations is a major hurdle that many people can never overcome.

The need for this type of standard setting has been recognised for a few years, not least since the National Academy of Sciences hammered the poor standards of forensic science in a 2009 report. England and Wales has imposed and been updating the Criminal Procedure Rules and the Civil Procedures Rules on experts since the early-mid 2000s.

All we really have at present in NZ is Schedule 4 of the Judicature Act 1908, which isn’t compulsory for experts in the criminal arena.

Watch and learn New Zealand – we need this sort of standardisation just as much as the States.

Actually, I’ve been looking for five months.  Five months!  Usually we do it in 5 days, at the outside!!  In fact, much as I hate to admit it, we have failed to find said expert; there just doesn’t seem to be anyone in New Zealand willing to even think about considering the case.

So it was, on Friday evening, that I had ended my work for the week and stopped worrying about outstanding case issues and the vexatious expert.

I sat with a beer in hand, toying with the idea of having another one and watching the last segment of the Graham Norton Show, the part when members of the public sit in the Red Chair and tell a story.

Much to my shock, the last lady to get into the Red Chair was a dermatologist, specialising in paediatrics.

If only the show hadn’t been filmed five weeks ago and the show had been filmed here – I would have had my expert.

…but at least I know that such a person exists, so the search continues…

Actually, I’ve been looking for five months.  Five months!  Usually we do it in 5 days, at the outside!!  In fact, much as I hate to admit it, we have failed to find said expert; there just doesn’t seem to be anyone in New Zealand willing to even think about considering the case.

So it was, on Friday evening, that I had ended my work for the week and stopped worrying about outstanding case issues and the vexatious expert.

I sat with a beer in hand, toying with the idea of having another one and watching the last segment of the Graham Norton Show, the part when members of the public sit in the Red Chair and tell a story.

Much to my shock, the last lady to get into the Red Chair was a dermatologist, specialising in paediatrics.

If only the show hadn’t been filmed five weeks ago and the show had been filmed here – I would have had my expert.

…but at least I know that such a person exists, so the search continues…

Whether or not this takes the form of a charity is not something that has been decided; charity status is difficult to achieve and may not be the best way forward and, in fact, may not be appropriate.  We just don’t know yet but there are a few models that would be fit for purpose that can be explored.  We don’t even have a name for this organisation at present.

Based on my casework experience, I do believe there is a gap in the system into which fall post-conviction criminal cases that need to be reviewed but not necessarily on a solely legal basis.  There are three main contributors to miscarriages of justice and those cases that become miscarriages of justice will probably have at least one of those three contributors:

• poor or inadequate police investigation
• poor or inadequate science
• poor or inadequately prepared defence

The more of these three there are, the more likely the chances of miscarriage of justice.

It is a fact of life and the adversarial legal system that sometimes the system gets it wrong, for whatever reason.  We cannot expect to get everything right all the time so we should have workable systems in place to test information as a case progresses and also a system to test those cases that may have been failed.  Not all cases will have any merit to them; many will not.  Other countries with an adversarial system have organisations that undertake this role; New Zealand currently does not.

My non-lawyer’s view is that drug driving law stipulates that a person is guilty of the office if their blood contains evidence of a qualifying drug.  This means that if even a small amount of any of the usual drugs of abuse or other drugs such as some prescription medications is found in a person’s blood, and they have also ‘failed’ a compulsory impairment test then the person can be found guilty of the offence.

It’s not as simple as that of course because there are other legal and procedural issues, but the point to make here is that merely the presence of any qualifying drug goes a long way to the likelihood of a successful prosecution.  Even if the concentration of that drug is not sufficient to cause impairment in itself; the analysis at the laboratory does not allow any comment on whether or not the concentration present is capable of causing impairment.  The analysis just has to show whether or not there is any qualifying drug present; there is no requirement to report any concentration of the detected drug/s.

The drug driving law uses a combination of the results of the compulsory impairment tests, the results of which are subjective and based on the experiece of the police officer who conducted them (and who is not usually medically trained) with the results of a blood test that do not have to show a concentration of a drug but just demonstrate the presence of a qualifying drug.

Compare this with the drink driving law, which states that people can legally drive around in their cars with blood alcohol concentrations more than capable of causing impairment but as long as their blood alcohol concentration is below 80 milligrams of alcohol per 100 millitres of blood then they’re not committing an offence.

Seems inconsistent to me to have one drug (alcohol) permitted in blood at a concentration more than capable of causing impairment below a level of 80 mg alc/100 ml blood whilst all other drugs only need to be demonstrated to be present, along with a ‘failed’ impairment test.

A lower legal blood alcohol concentration would seem, to me, to bring the drink driving law more in line with the drug driving law.

For the rest of my job, you’d be quite, quite wrong to think that what I do involves specialist scientific knowledge. What it actually requires is specialist forensic knowledge that has taken years to accumulated regarding the inner workings of police investigations, Legal Aid and court processes.

I don’t mean all the complex legal machinations – that would be the realm of the lawyers. No, I mean the way a criminal case is progressed through the administrative regions of the investigative system before and after it reaches the courts and then how it leaves traces of itself throughout the legal system: how documents are generated, kept and stored, where the important information is kept, where it should be duplicated, what should be in police and scientific files. The basic tenet of forensic science is that every contact leaves a trace – whether that be a piece of broken glass or a court file: both will leave a trace of where they have been.

Only by knowing what should be present is it possible to recognise when something is missing. It’s one of those situations where absence of information is significant, and potentially more telling by its absence than its presence.

When it comes to forensic science, paperwork is crucial. In some cases the critical piece of paper in a case might be something as simple as an Item Receipt & Continuity Sheet – for example, in a DNA case: how and when did the Complainant’s sock with the Defendant’s DNA on it get from the assault scene via two police officers, a laboratory receptionist and a scientific technician and finally onto the scientific laboratory bench? We need to know this information so that we can assess whether or not the DNA findings truly resulted from the Defendant being at the scene or whether accidental contamination is a live issue. This scenario should be relatively simple to address and a single sheet of paper like a missing Item Receipt & Continuity Sheet may just have got jammed in the photocopier when the casefile was being copied for the defence lawyer. A phone call should sort it out and a freshly copied page forthcoming.

What happens though when literally a whole stack of documents goes missing and can’t be found? Such as a court file.

A court file for a complex case that had a trial lasting many days will consist of several large archive boxes, full of confidential witness statements, witness lists, exhibit lists, legal rulings and such like.

This was a problem we faced 18 months ago when we were looking for crucial information in a serious criminal matter that we have been instructed to investigate. Crucial information was missing from the copy documents we had been given. The logical place to find it was the original court file and after some to-ing and fro-ing we were finally given permission to go and look at the court file. However, despite looking high and low, the court office was curiously unable to locate said multi-box court file. We had to suspend our quest to examine the critical information with a promise from the court that they would continue to look for it.

Days turned into weeks. And months. No court file.

Then a journalist happened to ring the court and ask if they could look through the exact same court file. Imagine our suprise when the court file amazingly reappeared, apparently having been located some time earlier but no-one had told us.

It took a journalist a few days to achieve what we couldn’t manage in 18 months.

The power of the media.

It has been an eventful year from my perspective.  There have been some major criminal trials in which science played a significant part, those of George Gwaze and Ewan Macdonald featured high on the media hit list. We were also involved in many interesting cases that didn’t hit the major headlines, including Shanal Kumar – that was an interesting case because it dealt with aspects of polymer science and engineering that are not commonly encountered. 

I also belatedly agree wholeheartedly with Jonathan Temm’s comments about television in court rooms: in brief, in my opinion, it should be an all-or-nothing approach; either screen the whole trial or nothing at all. Allowing the media to choose which sections to air without indicating if the pieces they show are in correct chronological order or if there are any restrictions on filming (both of these issues were in the Bain retrial of 2009) is not helpful to the public. Generating emotion around trials is not helpful to the legal/justice process. I may blog about this further if there is any interest in my comments.

Onto a subject where I can give comment: here are some highlights of the 25 (mostly unpaid) presentations I gave this year.  This is briefer than my first draft because the University of Auckland computer on which I drafted this post crashed and didn’t save two-thirds of it and I just don’t have time to re-do it.  Anyway:

Presentation to 600 Girls Into Science students over two days.  Best question: if you knew then what you know now [i.e. that I would decide at the age of 30 that I didn't want a job in academia and I didn't want to work in geology despite 8 years at uni], would you still have done a PhD?  This took me by total surprise, having just answered questions about whether I see dead bodies every day or the grisly case in which I’ve ever been involved.  Also, I had never thought about it before.  The answer was eventually yes, because it taught me a way of thinking and analysing data that is invaluable for my current day job.  Plus when it comes to giving evidence it helps to have a PhD because of how things often play out in the arena that is the court room.

Most surprising audience: Howick Probus Club.  I was apprehensive about giving a presentation to them because at another retired men’s club at which I have spoken, half of the audience fell asleep (it was 10.30am) and the President congratulated me because only half of them fell asleep; some poor speaker on a previous occasion had had an audience member die during their talk.  Howick Probus however had an extremely interesting audience (reitired district court judge, retired Rhodesian police officer and a sprinkling of retired lawyers and NZ police officers) and we had a great post-talk discussion about impartiality of experts.  And no-one died.

Audience members I struggle to understand: the parents who didn’t tell me they had brought a 9 year old child to my night-time presentation and allowed him to sit through an hour of talk about blood, gore amd murder aimed at an adult audience.   If he had nightmares then they only have themselves to blame.

Most mixed response audience: LENScience students aged about 16 attending the Liggins Institute to see what it’s like to be a scientist.  Most of them were great and managed to look at me on at least one occasion.  The ones who made me question why I bother are the ones who looked out of the window or spun around on their chairs when I was talking and then when I asked if they had any questions looked at me like I asked them to put their pants on their heads.  It’s like blood from a stone.  Apathy from hormones or just thinking a school trip is a doss?  I can’t wait til they’re parents….

Place I’m least likely to be asked back to speak next year: the place where they were teaching forensic science to intermediate students but when I asked “what does the word ‘forensic’ mean?” not one student knew; they didn’t even hazard a guess.  With hindsight I realise embarrassed teachers may have contributed to the stony silence that followed my question; needless to say the following 40 minutes were touch-and-go.

Supreme Winner – most persistent audience member: the elderly lady who, five minutes into my presentation, projectile-vomited down her dress and across the floor.  Rather than going home she sat in the front row for the following 45 minutes with a bucket, just in case.

This computer is not happy, so I leave it there with a promise to try to blog more often (once I’ve finished writing that 75,000-word book that I’m doing…).

An alcohol interlock operates in a similar manner to a breathalyser in that it requires the driver to blow a sample of breath into it, which is then analysed by the device to determine the breath alcohol level.  If the breath alcohol level is in excess of a pre-programmed level, the ignition system of the vehicle remains disabled and the driver cannot drive the vehicle. 

Data is collected from the interlock device and downloaded at regular intervals for examination by a court-approved organisation.  Another person can drive a car fitted with an interlock but their breath alcohol reading will be recorded in the interlock’s computer. I see several issues here, as I am sure will other people, which I shall not discuss in a public forum but that I expect to pan out in the near future.

The my.lawsociety article (which is behind a login, hence no link) indicates as follows:

From 10 September 2012, courts will be able to impose an alcohol interlock disqualification on repeat drink drive offenders and first time offenders convicted of driving with blood alcohol levels double the current adult limit. [this is 80 mg alc/100 ml blood or 400 ug alc/L breath]

Interlocks in New Zealand will be effectively set for a zero limit.

Following a mandatory three month disqualification from driving, offenders given an interlock disqualification will be able to apply for an alcohol interlock licence, which will restrict them to driving a vehicle with an interlock devide fitted. Offenders will bear the cost of fitting and monitoring the interlocks.

A “zero alcohol” licence sanction will also be available from 10 September. If imposed, this will require drivers to maintain a zero alcohol limit for a fixed period of three years.

This presumably ties in with the arrival of the specialist Drug and Alcohol Courts that are being trialled in the Auckland region at about the same time this new power is implemented.

I will be very interested to see how this combined approach impacts on NZ’s attitude to drink driving which is, in my anecdotal and observational experience, more socially acceptable than overseas.