Procesos colectivos de interpretación, atribución y acción

There is currently no convicted offender database in South Africa. In other words, the South African National DNA Database currently only consists of DNA profiles collected from crime scenes (crime scene samples) and DNA samples of persons suspected of a crime/arrestees. The existing DNA database in South Africa has evolved under the governance of the Criminal Procedure Act 1977. South Africa has no specific legislation that regulates the existing DNA database. Currently the Criminal Procedure Act434 is the only statutory provision that deals with the ascertainment of bodily features of an accused. Section 37 makes no mention of the collection of DNA evidence.435 This problem will, however, be

432

Criminal Law (Forensic Procedures) Amendment Bill (B9-2013) 4 at 35 and page 5 at 50.

433 _{1996 (8) BCLR 1109 (W) 1120B.} 434

51 of 1977, section 37.

435

‘South Africa: The current situation/DNA Project-South Africa” http://dnaproject.co.za/

legislation-homepage/legislation/south-africa-the-current-situat ... (accessed

addressed by the current Criminal Law (Forensic Procedures) Amendment Bill436 once it becomes law, and if put into operation by Parliament. Chapter 5B as inserted by the Criminal Law (Forensic Procedures) Amendment Bill above437, in the South African Police Service Act 1995438 will authorise the establishment of the National Forensic DNA Database of South Africa once this amendment comes law and put into operation. The purpose of the National Forensic DNA Database is to keep forensic data for comparative searches -

(1) to serve as a criminal investigative tool in the fight against crime,

(2) where applicable identify persons that might have been involved in the commission of offences, including those committed before the coming into operation of this chapter (Chapter 5B),

(3) where applicable prove the innocence or guilt of accused persons, or

(4) where applicable assist with the identification of missing or unidentified human remains439. Section 15G of the South African Police Service Act provides for the establishment of a National Forensic DNA Database of South Africa (NFDD) that is to be administered and maintained by the authorised officer. The NFDD consists of the following indices, which contain forensic DNA profiles: (a) A crime scene index, (b) an arrestee index, (c) an offenders index, (d) a volunteer index and (e) an elimination index. (4) Section 15G of the Police Service Act allows and authorises the use of such forensic DNA profiles derived from samples taken in accordance with the Police Service Act for comparative searches against forensic DNA profiles derived prior to the coming into operation of the Police Service Act in 1995.

3.6.2 The position in foreign jurisdictions 3.6.2.1 The position in the United States of America

In the USA the DNA database that is used is CODIS, which was formed in 1998 by the FBI. CODIS enables federal, state and local laboratories to exchange and compare profiles electronically, thereby linking crimes to one another and to convicted offenders. All 50 states have enacted legislation to establish a data bank containing DNA profiles of individuals convicted of felony sexual offences and other crimes, depending on each state’s statutes. CODIS creates investigative leads from two sources, the Forensic Index and the Offender

2013/07/04) which will become part of the new Act 37 of 2013 once signed and put into operation.

436 _(B9-2013). 437

As sections 15E to 15AD.

438

(Act 68 of 1995).

439 _{Section 15F of the South African Police Service Act which is not in operation yet.}

Index. The Forensic Index currently contains 110 000 profiles from unsolved crime scene evidence. Based on a match, police in multiple jurisdictions can identify serial crimes, allowing co-ordination of investigations and sharing of leads developed independently. The Offender Index contains the profiles of nearly seven million convicted or arrested individuals. The FBI has joined 15 states that collect DNA samples from those awaiting trial and detained immigrants. This information will be entered into an Arrestee Index database. Unfortunately, hundreds of thousands of samples are backlogged, still awaiting DNA analysis and entry into CODIS. Law enforcement agencies search this index against DNA profiles recovered from biological evidence found at unsolved crime scenes. This approach has been tremendously successful in identifying perpetrators because most crimes involving biological evidence are committed by repeat offenders.440

In a notorious rape case (The Centre City Rapist case), which occurred in Philadelphia, the facts are as follows:

Fort Collins, Colorado, Philadelphia and Pennsylvania are separated by nearly 1 800 miles. In 2001 they were tragically linked through DNA. Troy Graves left the Philadelphia area in 1999, joined the Air Force, and settled down with his wife in Colorado. A frenzied string of eight sexual assaults around the Colorado University campus set off a manhunt that ultimately resulted in the arrest of Graves. However, his DNA profile inextricably identified him as Philadelphia’s notorious “City Centre rapist”. This assailant attacked four women in 1977 and brutally murdered Shanon Schieber, a Wharton School graduate student, in 1998. His last known attack in Philadelphia was the rape of an 18-year-old student in August 1999, shortly before he left the city. In 2002 Graves was returned to Philadelphia, where he was sentenced to life in prison without parole, based on DNA evidence.441

In United States v Green, 548 F.2d 261 (6th Circ., Ohio 1977) it was held that novel scientific evidence is admissible if the proponent establishes that it conforms to a generally accepted explanatory theory that has received at least some exposure and general acceptance in the scientific community to which it belongs and has received peer evaluation to determine its validity and reliability. Under this test it is not the court’s function to adjudicate the merits of the underlying scientific disputes, as these are issues of weight for the jury to consider.442

440 _{Saferstein Forensic Science an Introduction 96-97.} 441

Ibid.

442 _{Brodsky G.G Q.C: DNA: The Technology of the Future is Here: HEINONLINE 36 Crim. L.Q}

1993-1994 page 13.

3.6.2.2 The position in Canada

The National DNA database in Canada 443 was established by section 5 (1) of the DNA Identification Act.444 The section provides as follows:

The Minister of Public Safety and Emergency Preparedness shall, for criminal identification purposes, establish a national DNA data bank, consisting of a crime scene index and a convicted offenders index, to be maintained by the Commissioner. The Commissioner’s duties under this Act may be performed on behalf of the Commissioner by any person authorised by the Commissioner to perform those duties445. The crime scene index shall contain DNA profiles derived from bodily substances that are found (a) at any place where a designated offence was committed, (b) on or within the body of the victim of a designated offence, (c) on anything worn or carried by the victim at the time when a designated offence was committed or on or within the body of any person or thing or at any place associated with the commission of a designated offence.446 The convicted offenders index shall contain DNA profiles derived from bodily substances that are taken under orders and authorisations447. In addition to the DNA profiles referred to in subsection (3) and (4), the DNA data bank shall contain, in relation to each of the profiles, information from which can be established (a) in the case of a profile in the crime scene index, the case number of the investigation associated with the bodily substance from which the profile was derived, and (b) in the case of a profile in the convicted offenders index, the identity of the person from whose bodily substance the profile was derived.448

3.6.2.3 The position in the United Kingdom

In England, the National DNA Database (NDNAD) was established in April 1995 following a recommendation from the Royal Commission on Criminal Justice in 1993. Scotland and Northern Ireland have their own databases but export the profiles of all persons they arrest to the NDNAD. The NDNAD is governed by a combination of the Home Office, the Association of Chief Police Officers and the Association of Police Authorities, together with invited representatives from the Human Genetics Commission. It was the first national DNA database to be established in the world and in 2007 it contained over 4 million profiles. The Forensic Science Services, under contract from Home Affairs, is the main organisation that

443 _{DNA Identification Act S.C. 1998,c.37 http://laws-lois.justice.gc.ca/eng/acts/d-3.8/page-2.html}

(accessed 2013/06/18). 444 (S.C 1998, c 37). 445 _{Section (2).} 446 Section (3). 447 Section (4). 448 _{Section (5).}

loads profiles onto the database, undertakes profile searches and matches, and reports back to the police authorities.

Who should be recorded on the NDNAD?

In England and Wales the police routinely take samples from anyone arrested on suspicion of having committed a recordable offence. Recordable offences are those for which a custodial sentence could be imposed if the suspect is found guilty.449