Browsing by Author "McDonald, Elisabeth"

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Improving the Use of DNA Evidence in the Malaysian Criminal Justice Process: Learning From International Experience
(Te Herenga Waka—Victoria University of Wellington, 2016) Muhamad, Mohd Munzil Bin; McDonald, Elisabeth; Tinsley, Yvette
DNA evidence is a significant tool in the criminal justice process. Its significance derives from the presumed reliability of the techniques used in DNA analysis, which has been regarded by scientists as the “gold standard” of forensic science, and because of the various roles it plays in the criminal justice process. DNA evidence can be used to identify crime perpetrators, exonerate the innocent and is also arguably an effective crime prevention tool. Despite its significance, international experience demonstrates that there are many issues in relation to the reliance on DNA evidence in the criminal justice process. This thesis critically analyses the use of DNA evidence in the Malaysian criminal justice process. It argues that the current law and practice has failed to address five main issues: (1) the legislation for DNA collection and retention gives a very wide power, which may be abused, to the law enforcement authorities; (2) the law and practice with regard to the pre-trial and the trial process, particularly the law and practice related to the use of DNA evidence, is not able to ensure the reliability of the evidence when used during trials; (3) prosecution experts fail to correctly present DNA evidence during trials, particularly on the significance of a DNA match, which means their testimony has been biased towards the prosecution; (4) the lack of understanding of DNA evidence by the parties who are involved in the criminal justice process; (5) Malaysia does not utilise the potential of DNA evidence to rectify miscarriages of justice suffered by those who have been wrongly convicted. This thesis proposes practical reforms based on international experience to address these issues in order to ensure that DNA evidence will be used fairly and appropriately in the criminal justice process in Malaysia.
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LAWS380: Law: Evidence
(Victoria University of Wellington, 2013) McDonald, Elisabeth
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The Umpire Judge vs the Judge as Inquisitor: The Role of the Judge in New Zealand's Criminal Justice System and Room for Improvement?
(Te Herenga Waka—Victoria University of Wellington, 2011) Everitt, Frances; McDonald, Elisabeth
While it is clear that the Judge is an integral “player” in the “game” of criminal justice in New Zealand, what do we precisely expect the Judge’s role in such proceedings to be? New Zealand employs an adversary criminal justice system where the Judge is traditionally viewed as an umpire; a neutral, disinterested and unbiased figure, which allows the parties to lead the proceedings, determine the issues of the case and decide which witnesses will be put forward. This conception of the Judge is a foundational aspect of our criminal justice system and defines the powers relations and roles of other key players including the parties and the jury. The rules of the game are clearly stated and the role of the Judge may seem to be clearly defined, but the question of how much judicial intervention in a trial is too much, remains open. Some Judges may be quicker to intervene than others, and this raises the question: how exactly can the role of the Judge in New Zealand be characterised? The purpose of this paper is to compare the traditional conception of the umpire Judge in New Zealand with the activist Judge in inquisitorial models. In particular, three key questions will be explored: what exactly does the role of the “umpire” Judge entail and how does this compare with the inquisitorial Judge? What are the concerns or limitations of the umpire role? And, could the Judge’s role be broadened in order to address these concerns? ...