Committals: Report (html)
10. Forensic reports and delay
Introduction
10.1 The Commission was told frequently about difficulties obtaining timely forensic analysis.[646] This chapter examines the provision of forensic services in Victoria and associated delay, and how to address this. It concludes that funding for forensic service providers should be increased and conferencing between the parties and forensic experts should be encouraged. To the degree possible, the lower courts should ensure that the time frames set for service of forensic reports are realistic.
Forensic services in Victoria
10.2 Forensic science ‘is the application of science to assist in the judicial process’,[647] primarily through analysis of physical evidence. It includes a variety of disciplines such as medicine, toxicology, pathology, biology, chemistry, and engineering.[648] The use of these disciplines for the purposes of forensic analysis is a highly specialised area requiring extensive training.[649]
Victoria Police Forensic Services Department
10.3 Most forensic services are provided by Victoria Police’s Forensic Services Department (FSD). FSD provides forensic services in a variety of areas relevant to indictable cases, including:
• biological analysis, such as DNA profiling; detection and identification of biological material including blood, semen, and hair; and bloodstain pattern analysis
• ballistics
• drug analysis
• processing major crime scenes, which involves searching, collection of exhibits, and recording scenes using photography and video.[650]
The Victorian Institute of Forensic Medicine
10.4 The Victorian Institute of Forensic Medicine (VIFM) is a statutory authority that primarily provides assistance to the Coroner[651] but also provides forensic services in criminal cases. These include:
• forensic pathology, involving death-related investigations and preparation of autopsy reports[652]
• forensic toxicology, involving analysis of drugs and poisons in biological tissues[653]
• clinical forensic medicine, involving medical examinations of victims of crime and alleged perpetrators.[654]
Other providers
10.5 Victoria Police’s E-Crime Squad conducts analysis of digital material. In Commonwealth cases, forensic analysis is generally conducted by Commonwealth agencies, such as the Australian Federal Police.[655]
Timelines for forensic reports
10.6 The time taken to produce a forensic report varies according to the disciplines involved, the forms of testing required, and the volume of material to be analysed.
10.7 FSD publishes the turnaround time for its reports[656] and the current backlogs within each discipline for the information of courts, investigators, prosecutors and defence practitioners.[657] FSD is engaged in a multi-year program to modernise its service delivery model,[658] which it said has ‘dramatically reduced turnaround times and minimised backlogs in several key areas’.[659] Nevertheless, backlogs remain an issue.[660]
10.8 In some disciplines, such as DNA analysis, the turnaround time is relatively short (12.8 working days) and there is no reported backlog. In others, such as drug analysis, there is large backlog of cases (92 cases) with a longer turnaround time (four months).[661]
10.9 VIFM told the Commission that it is usually able to provide an autopsy report within 12 weeks of having a case referred to it.[662] In some more straightforward matters the report may be completed in eight weeks but in more complex matters the turnaround time may be longer than 12 weeks.[663]
10.10 According to the Magistrates’ Court, Victoria Police’s E-Crime Squad takes 24 months to conduct standard e-crime analysis, or eight months where a matter is urgent.[664]
10.11 While the Commission does not have specific turnaround times for reports generated by Commonwealth agencies, representatives from the Commonwealth Director of Public Prosecutions said that in their experience, ‘State-based forensic services have longer delays than Commonwealth agencies’.[665]
Delay in the provision of forensic reports: stakeholder views
10.12 The Supreme, County, Magistrates’, and Children’s Courts, Victoria Legal Aid, the Law Institute of Victoria, the Criminal Bar Association and the Victorian Aboriginal Legal Service, all described the time taken to prepare forensic reports as a major source of delay in pre-trial proceedings.[666]
10.13 The Magistrates’ Court told the Commission:
Delay in drug and forensic analysis provided by … FSD … is the single greatest cause of delay in this jurisdiction.[667]
10.14 The Victorian Aboriginal Legal Service attributed delay in provision of forensic and medical reports to an ‘apparent under-resourcing’ of VIFM and FSD.[668]
10.15 Victoria Legal Aid said forensic analysis of IT evidence typically took ‘a minimum 6-9 months to process’.[669] Victoria Legal Aid also explained that delay obtaining forensic evidence was often greater in regional cases.[670]
10.16 CASA Forum viewed delay in conducting forensic medical examinations after alleged sexual assaults, and subsequent delays in the provision of forensic reports, as a serious problem warranting the provision of extra funding for VIFM.[671]
10.17 VIFM told the Commission that it had a ‘service level agreement’ with Victoria Police and was contracted to attend to examine victims of alleged assault within a certain timeframe. It said it was meeting its performance indicators for timely completion of examinations, but pointed out that:
As Melbourne is getting bigger it is difficult and we cover the whole state—not just Melbourne—this does raise issues around rostering.[672]
10.18 VIFM explained that it did its best to accommodate court deadlines for the provision of reports. It told the Commission that as long as police informants provided indicative timelines in advance, it met court deadlines ‘95 per cent of the time’.[673]
Causes of delay
10.19 The variation in indicative timeframes for forensic reports relates in part to the complexity of forensic science disciplines, with some requiring much more time for analysis than others.
10.20 The Magistrates’ Court of Victoria, Victoria Legal Aid, and the Victorian Aboriginal Legal Service all suggested that informants tended to delay requesting forensic reports. According to these stakeholders, informants wait to see if the defence will request a report rather than acting on their own initiative to obtain reports at an early stage.[674]
10.21 Victoria Police acknowledged that delay has been a long-standing issue for FSD:
Historically, FSD has had testing backlogs and extended turn-around times that have impacted [its] ability to meet court dates.[675]
10.22 FSD suggested its service modernisation project would help it to reduce delays and backlogs in the provision of reports.
10.23 VIFM observed in relation to the provision of its forensic medical reports that:
there has been investment in Court services to improve the timelines of the criminal process which in turn raised an expectation that forensic medical reports be provided more quickly. This presents us with a very big resource issue which can only be met by a redesign and investment in technology, laboratory infrastructure, laboratory process, and specialist workforce funding … which has not been forthcoming.[676]
Effects of delay
10.24 Delay in the provision of forensic reports undermines the efficient functioning of the justice system. The Supreme Court observed:
Inefficiencies are created when one or more aspects of the system are not resourced to keep up with the processes of other parts of the system. Bottlenecks and adjournment are typical signs of this occurring. For example … the adjournment of cases otherwise ready to proceed because resources to process forensic evidence do not match demand.[677]
10.25 In cases in which forensic evidence is central to the prosecution case, delay in the provision of forensic analysis can prevent early resolution. As Victoria Legal Aid pointed out:
If forensic evidence is pivotal to the prosecution case, then the delay in collecting and analysing forensic evidence will affect the ability of the parties to enter into plea negotiations.
Commission’s conclusions: better resourcing for forensic service providers
10.26 The complexity of forensic analysis and the amount of material requiring analysis in many indictable cases, especially those involving e-crime, mean that Victoria’s forensic service providers are sometimes failing to keep up with demand for their services.
10.27 In the case of FSD, this may not be attributable solely to a lack of resources. Delay in the provision of reports by FSD appears to be a product of internal workflow issues that FSD is currently redressing.[678] Nevertheless, additional funding would allow FSD to cater for increasingly complex cases in some areas of forensic analysis.
10.28 VIFM does not have enough specialised personnel nor the infrastructure necessary to support its work. Along with FSD, it should be provided with additional funding.
Recommendation
38 Funding for forensic service providers should be increased to support faster preparation of forensic reports.
Publicise timeframes for the provision of forensic reports
10.29 Victoria Legal Aid proposed that:
forensic services and analysts should have an active presence or voice in communicating to the court which services they can realistically deliver, as well as the time frames in which [those services] can be delivered.[679]
10.30 Better awareness of forensic processes among courts and practitioners will assist with issues such as courts setting hearing dates based on unrealistic expectations about how long forensic reports take to prepare.[680]
10.31 As well as publishing FSD turnaround times and backlogs, FSD told the Commission it had established a case management group to provide improved visibility to lawyers and investigators about the progress of forensic reports.[681]
10.32 VIFM explained that it had been engaging actively with the courts and practitioners to ensure they understand what timeframes are feasible for the provision of its reports.[682]
10.33 These measures should allow the courts to set realistic timeframes for service of reports.
Recommendation
39 Forensic service providers should publicise current turnaround times for the provision of reports and the courts should have regard to these when setting dates for the service of reports.
Conferencing with forensic experts
10.34 The Commission was told that conferencing between forensic experts and prosecutors and defence practitioners would improve efficiency in cases involving reliance on forensic evidence.[683]
10.35 VIFM explained that it does not see itself as a witness for the prosecution but as a witness for the court, whose role is to ‘support the court and the justice system’.[684] It proposed that time would be saved if, instead of requiring its experts to provide pre-trial oral evidence, the parties clarified forensic issues during out-of-court consultations with experts.[685] If the forensic issues in dispute can be narrowed, there will be less need to traverse highly technical material that is potentially difficult for juries to follow during a trial.[686] Professor Ransom, from VIFM, said:
A great example of effective communication was the Palm Island case—I … travelled to Brisbane and spent an entire day with the prosecution team … and later a day with the defence team. This process … short-circuited many issues that might have otherwise been a matter of dispute at trial.[687]
10.36 Conferencing between forensic experts and prosecution lawyers already occurs in cases involving clandestine drug laboratories.[688] According to Victoria Police, these meetings are ‘essential in streamlining work flow and meeting set dates by targeting key items for analysis and ensuring appropriate prioritisation of work’.[689] Victoria Police and FSD supported expanding these case conferences to a broader category of cases.[690]
10.37 As well as expanding conferencing with the prosecution, conferencing between forensic experts and defence practitioners will often be appropriate. Defence practitioners may be reluctant initially to engage in pre-trial conferencing with forensic staff because of concerns about the independence of staff whose reports have been sought by the prosecution. The professionalism of FSD and VIFM staff should ameliorate these concerns.[691] Defence practitioners should be conscious of the substantial benefits for the accused flowing from reduced delay and greater clarity about the issues in the case.
10.38 As the County Court noted, ‘there is no property in witnesses and a cultural change needs to [occur] whereby the defence are more proactive in speaking to forensic witnesses’.[692] As a general rule, conferencing should take place before leave is granted to cross-examine forensic experts during committal proceedings.
Recommendations
40 Forensic case conferencing between forensic experts and the prosecution, based on the existing model used in clandestine laboratory drug cases, should be adopted in all cases where forensic evidence is in issue.
41 Forensic case conferencing between forensic experts and defence practitioners should be encouraged in cases where forensic evidence is in issue.
Preliminary forensic reports?
10.39 New South Wales now permits brief, or ‘short-form’ forensic reports in limited circumstances.[693] The reports present the results of preliminary forensic analysis. They were introduced to ensure that unnecessary time and resources are not expended ‘producing evidence [in circumstances in which] the defendant is ultimately likely to plead guilty’.[694]
10.40 The Director of Public Prosecutions (New South Wales) told the Commission that preliminary forensic reports:
provide flexibility and do cut down on unacceptable delay, especially in drugs and ballistics cases. They allow us, for example, to identify what the drug is and let the other side know quicker or let them know if the bullets match the gun.[695]
10.41 Caution was expressed in Victoria and New South Wales about the efficacy of preliminary forensic reports.[696] VIFM told the Commission that providing a preliminary report prior to the completion of thorough forensic examination can pre-judge an issue and set the case on a particular path, which may not be the right one.[697] VIFM also warned that it can be difficult to revise the trajectory of a case on the basis of a full report, even where the full report demonstrates the preliminary report got it wrong.[698]
10.42 New South Wales Legal Aid expressed scepticism about reliance on short-form reports, saying that while these reports tend to be less problematic in drug identification cases, the conclusions provided are scientifically dubious where they involve DNA testing, fingerprint tests, and firearms tests.[699]
10.43 The Commission did not receive submissions in favour of introducing preliminary forensic reports. It does not support their immediate introduction, but their use in other states should be monitored. This will allow an evidence-based assessment of whether preliminary reports should be adopted if delays in the provision of forensic reports continue to be a major issue.
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See Submissions 11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria), 19 (Victorian Aboriginal Legal Service), 20 (County Court of Victoria), 22 (Supreme Court of Victoria), 24 (Law Institute of Victoria); Consultations 1 (Victorian Aboriginal Legal Service), 8 (Victoria Legal Aid), 10 (Law Institute of Victoria), 13 (Goulburn Valley practitioners), 15 (Magistrates’ Court of Victoria), 16 (La Trobe Valley Practitioners), 23 (Children’s Court of Victoria), 30 (County Court of Victoria), 31 (Supreme Court of Victoria).
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National Institute of Forensic Science, ‘What is Forensic Science?’ Forensic Sciences (Web Page) <http://www.anzpaa.org.au/forensic-science/forensic-sciences>.
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Consultations 17 (Victorian Institute of Forensic Medicine), 37 (Victoria Police Forensic Services Department); National Institute of Forensic Science, ‘What is Forensic Science?’ Forensic Sciences (Web Page) <http://www.anzpaa.org.au/forensic-science/forensic-sciences>.
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Consultations 17 (Victorian Institute of Forensic Medicine), 37 (Victoria Police Forensic Services Department).
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Victoria Police, ‘Areas of Forensic Science’, Forensic Services (Web Page, 13 March 2019) <https://www.police.vic.gov.au/forensic-services>.
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Victorian Institute of Forensic Medicine Act 1985 (Vic) s 66.
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Victorian Institute of Forensic Medicine, ‘Supporting Victoria Police’, Forensic Services (Web Page) <https://www.vifm.org/forensic-services/overview/victoria-police/>.
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Ibid.
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Consultation 7 (Commonwealth Director of Public Prosecutions).
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Turnaround time is the time taken to provide a report from the receipt of the case at FSD—not from the date of offence or date of arrest: Victoria Police Forensic Services Department, Turnaround Times and Backlogs for Forensic Units (Report, 1 October 2019)
<https://www.police.vic.gov.au/turn-around-times-and-backlogs>.
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Ibid.
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Letter from Victoria Police Chief Commissioner Graham Ashton to Chair of the Commission, 28 December 2019.
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Consultation 37 (Victoria Police Forensic Services Department).
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Victoria Police Forensic Services Department, Turnaround Times and Backlogs for Forensic Units (Report, 1 October 2019)
<https://www.police.vic.gov.au/turn-around-times-and-backlogs>.
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Ibid.
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Ibid.
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Submission 14 (Magistrates’ Court of Victoria).
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Consultation 7 (Commonwealth Director of Public Prosecutions).
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See Submissions 11 (Criminal Bar Association (Victoria)), 13 (Victoria Legal Aid), 14 (Magistrates’ Court of Victoria), 19 (Victorian Aboriginal Legal Service), 20 (County Court of Victoria), 22 (Supreme Court of Victoria), 24 (Law Institute of Victoria), Consultations 1 (Victorian Aboriginal Legal Service), 8 (Victoria Legal Aid), 10 (Law Institute of Victoria), 13 (Goulburn Valley practitioners), 15 (Magistrates’ Court of Victoria), 16 (La Trobe Valley Practitioners), 23 (Children’s Court of Victoria), 30 (County Court of Victoria), 31 (Supreme Court of Victoria).
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Submission 14 (Magistrates’ Court of Victoria).
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Submission 19 (Victorian Aboriginal Legal Service).
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Submission 13 (Victoria Legal Aid).
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Submission 13 (Victoria Legal Aid) and see Consultation 13 (Goulburn Valley practitioners).
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Consultation 3 (CASA Forum).
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Ibid.
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Submissions 13 (Victorian Legal Aid), 14 (Magistrates’ Court of Victoria), 19 (Victorian Aboriginal Legal Service).
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Letter from Victoria Police Chief Commissioner Graham Ashton to Victorian Law Reform Commission Chair, 28 December 2019.
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Submission 22 (Supreme Court of Victoria).
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Consultation 37 (Victoria Police Forensic Services Department).
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Submission 13 (Victoria Legal Aid).
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This was a problem commented on by VIFM: Consultation 17 (Victorian Institute of Forensic Medicine).
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Consultation 37 (Victoria Police Forensic Services Department).
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Submission 25 (Victoria Police); Consultations 17 (Victorian Institute of Forensic Medicine), 37 (Victoria Police Forensic Services Department).
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Ibid.
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Ibid.
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Ibid.
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Submission 25 (Victoria Police); Consultation 37 (Victoria Police Forensic Services Department).
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Submission 25 (Victoria Police).
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Ibid; Consultation 37 (Victoria Police Forensic Services Department).
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Although not necessarily a marker of independence, a third of VIFM’s forensic pathologists have legal as well as medical qualifications: Consultation 17 (Victorian Institute of Forensic Medicine).
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Consultation 30 (County Court of Victoria).
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Instances in which short-form reports may be provided include drugs and ballistics cases: Consultation 33 (Director of Public Prosecutions (New South Wales)).
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New South Wales Law Reform Commission, Encouraging Appropriate Early Guilty Pleas (Report No 141, December 2014) xx [0.19].
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Consultation 33 (Director of Public Prosecutions (New South Wales)).
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Consultations 6 (Criminal Bar Association (Victoria)), 17 (Victoran Institute of Forensic Medicine), 34 (Legal Aid New South Wales).
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Consultation 17 (Victorian Institute of Forensic Medicine).
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Ibid.
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Consultation 34 (Legal Aid New South Wales).
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