Deoxyribonucleic Acid or DNA evidence is paramount evidence in identification. It would be highly incriminating against the accused as human being have distinct biological natures. If DNA found in identical with the accused, it would give a prima facie deduction that the accused has linked with the crime or present in the scene of crime. However, over stressing on the applicability of DNA would deny justice to the accused. Thus, DNA should only be referred as relevant evidence and standard of proving beyond reasonable doubt still lie on the burden of PP. Reliance on DNA evidence by the PP is so essential in persuading the court to accept it as material and conclusive evidence. In PP v Hanif Basree bin Abdul Rahman, DNA evidence has been debated until the apex court. The issue involved is whether the accused had sexual intercourse with the deceased. The vaginal swab of deceased revealed there accused was the major contributor for the seminal stain compared to tan unknown male. The court held that PP failed to prove that accused was the last person that had sexual intercourse with the deceased as the unknown man person also highly probable to the actual offender. The court referred to the DNA evidence found in the materials used to tie knots around deceased feet after the death. Therefore, DNA of accused could not be the conclusive evidence on convicting accused.
Could DNA standing alone is suffice for warranting a conviction against the accused? This question will be answered if DNA evidence alone is enough to prove the elements of crime actus reus and mens rea. The sole presence of semen on vaginal swab will not mean that accused has raped the victim. The sexual intercourse could be happened with consent. It is only proved in term of actus reus which is sexual intercourse. Actual intention of the accused on committing rape is left in doubt. Thus, DNA evidence alone is not sufficient if it is corroborated with a reasonable explanation by the accused. The weight attached to DNA evidence will be less significant. However, if the evidence found near the scene of crime and there is no defence from the accused, DNA evidence will be sufficiently reliable for conviction.
DNA evidence will not be admissible if there is proof of fabrication. Before DNA evidence is presented, the evidence will go through investigation and laboratory processes up until the tendering on evidence during trial. In my humble opinion, the chain of evidence might not be well-guarded as there is a possibility of the evidence being fabricated. Sometimes, even the defence council has failed to challenge the genuine of tendered DNA evidence as it is not a transparent process and there is a lack of proof on the part of defence. Thus, the notion that scientific proof never tells lies could not be the most accurate. Contamination of DNA evidence even can happen while the investigation process going on. Any person in the crime scene might lend a hand to the victim and causing fabrication of evidence. Even though the duty of collecting relevant evidence is assigned to the independent Forensic team, but there is no surety that all evidences will remain intact and fresh as if the crime had just happened.
Moreover, inaccuracy of DNA evidence might also occurred in the scientific conduct. The process involved in testing the DNA evidence would be definitely lengthy and complex. A small error at any stages of testing could impair the accuracy of evidence and causing mistaken judgment after trial. PP thereby should be able to convince the court on the correctness of evidence as it is so pertinent in safeguarding the accused from prejudiced. Furthermore, I opined that even though the accuracy of evidence tested in laboratory would be very high, but there is no one from the expert could 100% sure that identical DNA was genuinely from accused as human would not be free from error. Thus, DNA evidence must not be the sole evidence to warrant a conviction. It is merely a relevant fact and only becomes overwhelming significant after corroborated with other evidence.
Moreover, details of DNA evidence must be explained thoroughly by the expert maker. In addition to the details of DNA, procedures as how to conduct the test and he had arrived at the conclusion required to be disclosed for court determination. This is enshrined under s 51 Evidence Act 1950. Random occurrence ratio on similar DNA also considered a collateral weakness that might affect the evidential value of DNA evidence. In my opinion, despite DNA evidence would be relevant in proving a finding of guilt against the accused, it is not a definite evidence that could be solely reliable by the judge before imposing conviction. In other words, corroboration with others evidence is a must before a conviction warranted on the accused. Right of accused under judiciary system could not be strictly denied as the principle of law fortified that everyone is innocent until proven guilty. This presumption must be the frontier in putting the law in motion. Judges could not simply send the accused to the prison by merely based on the evidence of DNA.
LUM CHOI YUEN A129960