DNA testing laws could be set for an overhaul video

MARK TAYLOR FAIRFAXMEDIA NZ

A Hamilton woman knows DNA collection and storage was instrumental in catching the offender.

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 justice being served for others.

The Hamilton woman, 52, was raped nine years ago after she was approached by a man while she sat in the central business district in the early hours of a Saturday morning.  

The DNA from three rape victims matched the DNA of Mark Allan Nixon.
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The DNA from three rape victims matched the DNA of Mark Allan Nixon.

She wasn't his only victim. Her rapist had previously coaxed two of his other victims into his car before attacking them.

READ MORE: The man police refused to name

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.

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"The whole process is yuck, the rape kit, it's humiliating is 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 after the DNA profile lodged by police earlier in the investigation was matched to Nixon in 2015.

Nixon's victim believed the DNA would ultimately nab her attacker. She was able to identify 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 Law Commission is considering changing the way that police store their DNA and how long they hold it for. 

Her attack was deemed to be a cold case, and she can't see why there is any reason to get rid of the current system of storing and collecting DNA

"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." 

The Law Commission will review The Criminal Investigations (Bodily Samples) Act 1995, through consultation with those who currently are using the legislation, such as police, judges and lawyers. 

The Commission want to make sure that the legislation is modern, fit for purpose, protects people's civil rights but also ensures it's an effective crime fighting tool.

Since the law's inception in 1995 there have been major changes to the Act. Most noticeably in 2009 when police were given the authority to take DNA samples without the permission of a judge. 

In 1995, New Zealand was then only the second country in the world to collect and store DNA profiles in a databank. The National databank is run by  Environmental Science and Research (ESR) on behalf of the police who collect the DNA.

Police, a lawyer and the Law Commission agree that a review is long overdue, the current laws around DNA are complicated, due to the legislation having not been rewritten but instead amendments have continued to just be added therefore making it difficult to 

The review will also consider if the right to privacy and is being properly recognised. 

New Zealand Law commissioner, Dr Wayne Mapp admits the earlier legislation and the amendments "don't fit together very well".

Because science and technology have developed significantly since the legislation came into force, there will need to be an adjustment to those laws, given that when it was first introduced DNA matching was in it's infancy. 

Those conducting the review will have in-depth consultation with judges, lawyers, forensic scientist and police," said Mapp. 

The review will also consider whether a "clean slate" should apply to DNA left in storage for a certain amount of time. 

Mapp said it's been suggested that, "if you are in the database for a less serious offence should it remain on the database permanently or is there a case for DNA to be removed from the database? If they've shown they've been essentially crime free for a while, essentially the same system of a clean slate legislation." 

The review will also take into account whether Maori are disproportionately over-represented, and what that would mean for the storage of DNA.

Mapp said one of the questions being asked is Maori were more likely to come into contact with police as a result of more of their DNA being held in storage. 

"It's a fairly difficult piece of legislation to use in practice and the police find this as well. And I have no doubt in my mind that we can recommend a much more modern and more appropriate statute that reflects the current situations, the current understandings, and expectations of collecting DNA," Mapp said. 

Hamilton defence lawyer Roger Laybourn would like to see the legislation take a step backwards - to when it was first introduced in 1995 and judges were ultimately tasked with deciding whether DNA from a suspect was required. 

"It's a huge leap of faith, to allow the police force to make their own decisions of whose civil liberties 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," said Laybourn. 

Laybourn is concerned there is no independent oversight of how police store DNA.

"That means you don't have a rogue police officer or member of the police department somehow abuse it. That's a risk in every organisation, there have been examples of police officers illegally searching people's computer records for their personal interest or connection," Laybourn said. 

"I'm very uncomfortable that there isn't an effective independent oversight of the selection of suspects and the security of storage of DNA samples. 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?" 

Police have also welcomed a review of the legislation and have already met with the Law Commission and will work with them to simplify the Act. 

For national manager of Police Forensic Services, Inspector John Walker, it's less about what DNA samples the police can obtain and more about making the legislation user friendly.

"It's very complex, it's almost a how-to document than legislation, because it's had the add-ons, it requires a lot of work to understand it if you are looking from the outside in," Walker said. 

He also acknowledges in some quarters the taking of DNA is still quite emotive. Any review of the current law would have to consider human rights, especially with the way technology has improved the way in which DNA samples can now be gathered. 

"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, so technology in the DNA space has moved on to touch DNA space 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 have so many requirements under the Act in relation to each different type of sample, what we hope is that it will be simplified so that the requirements cover multiple sample types." 

"We're not rushing to put more pressure that we want new legislation 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." 

Current laws differentiate between adult and youth offenders, so if an adult commits a certain crime they could have to give a DNA sample, whereas if a youth committed the same crime they would not have to.

"We are happy that there is a demarcation between youth and adults we have a strong focus on our youth services and family group conferences. So at the end of the day it's one of those things that reflects our society and that's what we want." 

Walker notes that while police aren't necessarily taking more DNA samples now days instead of being voluntary given by offenders it is not taken for the intent of charging that person. 

The Privacy Commission haven't seen any 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 Privacy Commission will take 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 New Zealand citizen's DNA to be in a nationwide data base.

"The only people who would be afraid of that are the ones hwo 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 be presented in Parliament in 2018.

 - Sunday Star Times

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