"KIMANI ADIL BODEN: (JAMA'S LAWYER); WELL ABSOLUTELY. I MEAN WHAT'S IMPORTANT TO NOTE IS THAT THE INFORMANT SEEMS TO HAVE NOT DONE SUCH A BAD JOB, IN THE SENSE THAT SHE ACTUALLY QUERIED WHETHER OR NOT THE POSSIBILITY OF CONTAMINATION EXISTED. UNFORTUNATELY, SHE DIDN'T PROPERLY FOLLOW UP THAT REQUEST, AND IT'S JUST COMPOUNDING ERRORS THEREFROM. AS I SAID, SHE SAID WELL LOOK, THE OTHER ASPECTS TO THE CASE, FEATURES OF THE CASE WHICH MAKE IT MAYBE UNLIKELY THAT THIS OFFENCE WAS COMMITTED, SHE'S PUT IN A REQUEST TO HER SUPERIORS WHO AUTHORISED THE BRIEF, THE REQUEST WAS THEN MADE TO THE BIOLOGICAL SCIENCE DEPARTMENT WHO SAID, 'NO, OUR TESTING IS PERFECT', AND IT WENT FROM THERE. AND EVEN THE PROSECUTOR THEMSELVES, IN FACT THERE'S A SPECIAL UNIT WITHIN THE OFFICE OF PUBLIC PROSECUTIONS IN VICTORIA WHICH DEALS WITH SEXUAL ASSAULT MATTERS, THEY CONSIDERED THAT THIS PARTICULAR CASE WAS THE ONLY CASE WHICH WAS PROCEEDED ON, ON THE BASIS OF DNA EVIDENCE ONLY. AND IT'S NOTEWORTHY THAT THE DEPUTY CHIEF COMMISSIONER OF POLICE OF VICTORIA HAS STATED THAT IN THE UNITED KINGDOM WHERE HE IS FROM, NO CASES ARE PROSECUTED SOLELY ON THE BASIS OF DNA, BUT THAT THERE HAS TO BE SOME OTHER CORROBORATING FACTOR, WHICH WAS ABSENT IN THIS CASE."
ABC NEWS; THE LAW REPORT;
PHOTO: LEFT: FARAH JAMA; RIGHT; LAWYER KIMANI ADIL BODEN; LEFT;
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BACKGROUND: According to the Australian, Farah Jama was found guilty of raping a 40-year-old woman at a nightclub in Melbourne's outer-eastern suburbs after the victim was found unconscious. She had no memory of the crime but Mr Jama's DNA was later found on the victim. The then 20-year-old denied ever being near the nightclub on that night, saying he was reading the Koran to his critically ill father at his bedside in their home in the northern suburbs. The only evidence police had was the DNA sample of Mr Jama, which was coincidentally taken 24 hours before the alleged crime after he was investigated over another unrelated matter but not charged. Prosecutors told the Victoria Court of Appeal earlier this week that it had since been discovered that the same forensic medical officer who took the first DNA sample of Mr Jama had coincidently taken the DNA sample from the 40-year-old rape complainant 24 hours later. They said it had emerged that the officer had not adhered to strict procedure when taking the sample and therefore they could not “exclude the possibility” of contamination. Therefore they argued the guilty verdict was unsafe and satisfactory and should be quashed. His lawyer Kimani Adil Boden hailed a “momentous” day for Mr Jama, whose case he described as “tragic”. “He's been in custody for close to one-and-a-half years on charges he didn't commit. “Justice has finally been done, however, at a price.” Victoria's police chief responded to Mr. Jama's release by banning all forensic officers from submitting DNA evidence or providing statements to the courts until further notice.
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"A lesson to everyone: never put blind faith in science! Thanks to a contaminated DNA test, the young Melbourne man was sentenced to six years jail for a rape that, in all liklihood, never took place," the program begins, under the heading, "DNA debacle: the case of Farah Jama."
"Last week retired judge Frank Vincent handed down a damning report which slammed the scientific and legal communities and called for major reforms," it continues.
"This transcript was typed from a recording of the program. The ABC cannot guarantee its complete accuracy because of the possibility of mishearing and occasional difficulty in identifying speakers.
Damien Carrick: Hello, welcome to the Law Report. First, an appalling miscarriage of justice, a lesson to everyone: never, ever, put blind faith in science.
In 2008, thanks to a contaminated DNA test, young Melbourne man Farah Jama was sentenced to six years jail, for a rape that he did not commit. He served 16 months in jail before a court overturned his conviction.
Last week, retired Victorian Supreme Court judge, Frank Vincent handed down a damning report slamming the scientific and legal processes, and calling for major change. Farah Jama's lawyers are Hina Pasha and Kimani Adil Boden. The wife and husband team are partners in law firm Pasha Boden.
Hina Pasha: Farah Jama is a young man of Somali descent. He was unfortunately charged with a crime that we now know that he did not commit. He lives in the northern suburbs, and he has a lovely family, brothers and sisters, and unfortunately what's happened to him has affected his community and his family.
Damien Carrick: Kimani Adil Boden, tell me what happened back in July 2006. A complainant came forward and a connection was made to your client. Can you tell me what happened?
Kimani Adil Boden: In fact what's said to have occurred was that Mr Jama was to have been at a particular nightclub, in the outer suburbs of Melbourne, and is said to have raped this particular complainant. The woman, who was unconscious at the time, and who in her own statement said that she had no recollection at all of having seen Mr Jama, she effectively was told by security guards that found her, in a half-undressed state, that it's quite likely that she has been interfered with and raped.
Damien Carrick: So this woman was found, unconscious, in a toilet cubicle in a night club in the outer suburbs of Melbourne. She then goes to the hospital to have swabs taken to see if, or if not, she has been sexually assaulted. And those swabs, those tests, contained the DNA of your client, Mr Jama.
Kimani Adil Boden: That's correct. As to precisely what happened, there's still a degree of speculation, but clearly the report from retired Justice Vincent, makes it clear that some form of contamination has taken place, and that that in all likelihood occurred at the taking of the swabs from the particular complainant.
Damien Carrick: Because something like 28 hours before the tests were done on the complainant, in fact another test had been done by the same doctor. Can you tell me about that, Hina Pasha?
Hina Pasha: What I believe has occurred is that there has been contamination in the environment. Certainly he attended at the doctor's clinic, swabs were taken, those swabs were contaminated by something in the environment, and that's where the speculation exists, as to exactly where the swabs were placed prior to being stored and transported for testing. However, that small mistake, wherever it has occurred, has led to his conviction in circumstances where there was absolutely no other evidence.
Damien Carrick: So on the basis of this connection, these swabs, which were found to have been contaminated, a prosecution was commenced. Now let's just be clear: was there any other evidence to support this prosecution? Were there eye-witnesses, was there CCTV evidence? Was there anything else?
Hina Pasha: There was nothing at all.
Damien Carrick: Nothing at all. So a prosecution was commenced where there was no evidence but for this DNA evidence.
Hina Pasha: Not only nothing at all, but highly unlikely, knowing the nature of Mr Jama. There was nothing to suggest that he would even ever travel to Doncaster to go to a nightclub which was an over-28s nightclub; just on that premise alone, some alarm bells should have rung.
Kimani Adil Boden: In fact if I can add to that, in his report Mr Vincent makes it clear that there were strong circumstances which absolutely mitigated against a suggestion that Mr Jama has committed this serious offence. And to add to what Hina has said, quite apart from the fact that he says he's never been to Doncaster, no-one at that premises said that they have seen him there. There was no evidence as to exactly how the alleged rape is said to have occurred. The suggestion that it occurred in a toilet cubicle was rejected by His Honour as something which just beggared belief, and highly unlikely in a club where there's some 800 patrons at any given time. In terms of the particular time it was, it was suggested that Mr Jama drugged this alleged victim and then raped her and dragged her as well to the toilet cubicle, and all of that within half an hour. And he wasn't interrupted or seen by anyone.
Damien Carrick: So on the basis of this DNA evidence, there was a trial.
Kimani Adil Boden: That's correct.
Damien Carrick: Your client was found guilty, he was sentenced I think to six years jail, four years on parole, he served 15 months, but in December lastyear—your firm didn't act for him at the actual defence trial, but you took over the appeal process—last December there was a finding by the Court of Appeal that this evidence was actually contaminated and the conviction was overturned, and your client was released. He served 15 months in jail for an offence that he did not commit. What was that like for him, Hina Pasha?
Hina Pasha: I've spoken to him on several occasions, along with his family. But as far as Mr Jama's concerned, it's my view, in my observation of him, that he's a very, very troubled young man today. As a youngster I think he's trying his best to get back into the swing of things, along with his friends, and the other people his age; but I can see that he's struggling and he's traumatised. He acts in a very paranoid type of a manner, he appears very sorrowful and quiet, you know, when you talk to him. He doesn't really know how to describe what's actually happened to him whilst he was inside jail.
Damien Carrick: Now when the Court of Appeal overturned the conviction last December, this sent shockwaves through the Victorian legal system, and at the time, Victoria Police suspended DNA analysis until they fixed the faults in the system. Now just last Thursday, two reports were released. The first is a report by retired Supreme Court Justice Frank Vincent, and it was an inquiry into the circumstances around your client's case. He made some very strong points. He said 'The DNA evidence appears to have been viewed as possessing an almost mystical infallibility, that enabled its surroundings to be disregarded. The outcome was, in the circumstances, patently absurd.' What recommendations did Justice Vincent make?
Kimani Adil Boden: It's made a total of about 10 recommendations which range from the manner in which rooms are to be prepared where DNA sampling is to be taken; he's made recommendation in regards to cleaning surfaces. He was critical of the fact that Victoria's the only state within Australia where no prepackaged DNA testing kits were used. So that is one implementation recommendation that he's made and I understand is to be adopted.
Damien Carrick: You mean—by pre-packaged, you mean sealed.
Kimani Adil Boden: Sealed and pre-packaged rather than having swabs dry off by air, which was the case in Victoria, and Victoria being the only state where that outdated technique was being adopted. He also made recommendation in regards to training, and I think that is a very important recommendation that he made, recommendation of training all people involved in the legal process, including forensic officers, police, lawyers and prosecutors, with a view of really demystifying, in one sense, the potency with which DNA has always been regarded almost in recent times.
And another suggestion that was made was that there be some streamlined approach in regard to who takes mouth-swabs, DNA samples, rather than having individual police officers from all police stations around the state taking such samples; rather implement some sort of structured process where maybe a special unit is set up for that purpose. He was critical of the fact that there are some six units within the metropolitan area itself, where DNA samples were taken, and he compared it to London, which is a city obviously of many more inhabitants than Melbourne, where there are only four. And his suggestion was rather than having six in Melbourne, two would be sufficient if they're used specifically for the purpose of collection of DNA and no other purpose.
He's made comment on the issue of access to those rooms, and said that that should be only for certain personnel. He suggested the introduction of a log-book as to how and when various units were cleaned, where DNA was to be taken, and in that regard it is noteworthy that on 22nd November last year, I sent a letter to the prosecuting authorities requesting a chain of events in terms of the collection of the DNA, the transportation and so on, some sort of continuity report, and that could not be adequately, or has until this day, not adequately been provided, and one reason for that obviously is that some of those logs which His Honour suggested, weren't in existence.
Damien Carrick: Kimani Adil Boden, you're talking there about the science and the way the information is collected. What about the prosecution process, the way the police informants and the prosecutors worked? This was a prosecution where there was only one piece of evidence.
Kimani Adil Boden: Well absolutely. I mean what's important to note is that the informant seems to have not done such a bad job, in the sense that she actually queried whether or not the possibility of contamination existed. Unfortunately, she didn't properly follow up that request, and it's just compounding errors therefrom. As I said, she said well look, the other aspects to the case, features of the case which make it maybe unlikely that this offence was committed, she's put in a request to her superiors who authorised the brief, the request was then made to the Biological Science Department who said, 'No, our testing is perfect', and it went from there. And even the prosecutor themselves, in fact there's a special unit within the Office of Public Prosecutions in Victoria which deals with sexual assault matters, they considered that this particular case was the only case which was proceeded on, on the basis of DNA evidence only. And it's noteworthy that the Deputy Chief Commissioner of Police of Victoria has stated that in the United Kingdom where he is from, no cases are prosecuted solely on the basis of DNA, but that there has to be some other corroborating factor, which was absent in this case.
Damien Carrick: And what did Frank Vincent have to say about how trials should proceed in the future?
Kimani Adil Boden: Well what he said for a start, as I understand it, that clearly he was critical that no proper legal research had been done. If it would have been realised that—and it was realised in this case, that only DNA was the sole basis for a prosecution, clearly further steps should have been taken, and ultimately decisions should have been made not to prosecute solely on that basis.
Hina Pasha: If I might just add to that, I think the underlying theme of the report is that commonsense didn't prevail at any stage. And I think this case serves as a reminder that in any prosecution commonsense should prevail.
Damien Carrick: Now what's the current practice in Victoria as a result of this debacle? Is DNA evidence currently being used in Victorian trials?
Kimani Adil Boden: Well my understanding is that it is being used, that there was a short period during which it was suspended.
Damien Carrick: Following the December Court of Appeal decision?
Kimani Adil Boden: Correct. But my understanding—and really there I'm referring to what I've read in the newspapers, as every other Victorian—that that sort of evidence has been allowed again. But certainly I would expect that some closer scrutiny is being applied by police and I guess everyone involved in the legal justice system.
Damien Carrick: Hina Pasha, coming back to your client. He spent 15 months in jail for a crime he did not commit, that's something we can all be very, very, certain of. Has he received any compensation, financial compensation for his ordeal?
Hina Pasha: He has not received any financial compensation, and we are having discussions with him and his family in that regard.
Damien Carrick: And with the state of Victoria?
Hina Pasha: We have corresponded with the state of Victoria and Kimani and I and Mr Jama would hope that we reach a satisfactory conclusion for Mr Jama so that he can put all of this behind him. But that particular matter has not yet been determined.
Damien Carrick: If you don't get any satisfaction, would you commence legal action?
Hina Pasha: I believe so.
Damien Carrick: Now you are the lawyers for this man who was wrongly convicted. Of course there's another person here who we haven't really been talking about, a woman who went to a hospital, who was told that she had been the victim of a sexual assault, because of this DNA evidence. It would now appear that she was not the victim of a sexual assault, and I can imagine that that would have been terribly traumatic for her.
Hina Pasha: Well this is something that occurred to me, being a woman myself, and Mr Jama has obviously received a lot of big attention in light of this particular matter. But in terms of what the complainant herself has been through, to have been told that 'You have been raped or interfered with whilst you've been unconscious and you were potentially drugged', to then be told some time later that it was your medication that has interfered with your alcohol intake that's caused you to become unconscious and you may not have been raped at all. During that time where she was of the belief that she'd been raped, Lord knows what changes that made to her psyche and to her family, perhaps a boyfriend, who knows what that's been like for her? And I think it's an aspect that should be looked at.
Damien Carrick: And perhaps there's been damage, and perhaps compensation?
Hina Pasha: It's not something I personally have investigated, but I believe that it's a question that needs to be answered.
Damien Carrick: Hina Pasha and Kimani Adil Boden, thank you both very much for speaking to the Law Report.
Both: Thank you.
Damien Carrick: Husband and wife and partners in law firm Pasha Boden.
The Victorian Attorney-General, Rob Hulls, has accepted every recommendation of the Vincent Report."
The link to the transcript can be found at:
http://www.abc.net.au/rn/lawreport/stories/2010/2895256.htm
Harold Levy...hlevy15@gmail.com;