Brendan Navin Siva
This article first appeared in the New Straits Times on 29 March 2009
IN 1982, Sean Hodgson was sentenced to life in prison in England. He was found guilty of raping and strangling Teresa De Simone in Southampton in 1979. The prosecution's case was that De Simone was brutally raped and killed by the same person.
Hodgson made a confession to his priest that he had committed the crime. His blood type also matched blood samples obtained at the crime scene.
At the trial, his lawyers argued that he had mental health problems and had an obsession with confessing to crimes he had not committed. His lawyers argued that his confession was false and unreliable.
But the prosecution managed to prove its case against Hodgson and he was sentenced to jail for life.
In November last year, Hodgson's lawyers requested that his case be re-examined, using previously unavailable DNA testing on samples collected at the time of the rape and murder. The police and the Forensic Science Service undertook a comprehensive forensic case review.
The results were forwarded to the Criminal Cases Review Commission, an independent agency that investigates possible cases of miscarriage of justice. The commission referred the results to the Court of Appeal.
On March 18, the Court of Appeal quashed the convictions for rape and murder and set Hodgson free. The Court of Appeal found the convictions unsafe as the DNA analysis proved that it was not Hodgson who committed the murder.
This sad and unfortunate tale did not, however, end there. It has subsequently been discovered that the Forensic Science Service -- a government agency -- had apparently been requested in 1998 to retest the samples from this case. But at that time they said that none of the case material had been retained. This was an error. The case material was available. This mistake condemned Hodgson to another decade in prison.
When the news of Hodgson's case was first reported last week, it hardly raised an eyebrow here in Malaysia. But it should have.
It does bring into stark focus three issues that should be on the minds of all Malaysians -- the death penalty; the use of DNA in criminal investigations and prosecution; and the competence and accountability of government bodies and agencies.
The death penalty is brought into stark focus because, in Malaysia, "whoever commits murder shall be punished with death" (under the Penal Code). In Malaysia, many convicted murderers do not now have the luxury of making a request for a retest of the evidence in their cases as they have been executed.
One of the strongest arguments against the death penalty is the fallibility of the criminal justice system.
There is no absolute certainty that a person convicted under the Malaysian criminal justice system is guilty of the crime he or she is accused of committing. In fact, no criminal justice system in the world can offer such certainty.
DNA testing and analysis have resulted in the release of at least 17 death row prisoners in the United States, not to mention the release of countless other prisoners languishing in jail for crimes that were later found, conclusively by DNA evidence, not to have been committed by them.
On March 19, Governor Bill Richardson approved legislation that would see the state of New Mexico join 14 other states in the United States which have abolished the death penalty.
Governor Richardson was previously a supporter of the death penalty. His decision to abolish the death penalty was based on the fact that DNA evidence had shown that innocent people had been sentenced to death in the past.
The other compelling argument against the death penalty is that it has not been shown to deter crime any more than having long-term prison sentences.
More than two-thirds of the countries in the world have abolished the death penalty. The Malaysian government should seriously look into this, educate the people and shape public opinion through detailed and intellectually sustainable research and literature.
We cannot continue to support state-sanctioned killings. Every death sentence carried out in Malaysia diminishes each and every one of us and our humanity.
Hodgson's case also brings into focus the staggering developments in DNA testing and its immense benefits for investigation and prosecution of crimes. The Malaysian government must put in place a carefully thought out and comprehensive piece of legislation to introduce DNA testing and analysis in Malaysia.
The DNA Identification Bill 2008, tabled for second reading in Parliament by the home minister on Aug 26 last year, contained provisions that were not satisfactory.
The government has now postponed the committee stage of the bill's passage and it is hoped that a more comprehensive and fair piece of legislation will surface at a later date.
But the bill does not contain any provisions to retest samples from previous cases at a time when such technology was not available or where it was not utilised.
If the Malaysian government is indeed serious about improving and enhancing the investigation and prosecution of criminals and crime, it must also move quickly to establish a mechanism making a comprehensive forensic case review available to all convicted of crimes in cases where DNA evidence could now potentially exonerate them.
It could also potentially assist in resolving unsolved cases.
A poll conducted in March 2000 found that 92 per cent of Americans would support retesting evidence in cases where DNA technology was not available at the time of conviction. The numbers would be no different if such a poll were conducted here in Malaysia today.
Last, but no less important, the error of the Forensic Science Service in Hodgson's case also deserves special mention. His lawyers are in the process of considering launching a claim against the agency for the damage their mistake has caused him. But can this be done in Malaysia?
Most government agencies and bodies in Malaysia either have absolute immunity from prosecution or have limits as to their exposure to claims arising from the errors they have committed.
Many provisions in Malaysian legislation confer protection on officers of government agencies and bodies so as to take them out of the realm of prosecution in the event they do or do not do something which results in damage or loss to members of the public.
It is time for greater public accountability. This means ensuring that government agencies or bodies take responsibility for their action or inaction when it affects the public adversely.
This in turn would ensure that they take the steps and measures required to ensure safety, efficiency and competence in the provision of public services. The Malaysian public deserves nothing less.
Brendan Navin Siva is a member of the Bar Council. The views expressed are his and not necessarily those of the Bar Council.