It seems that a case will soon be set to make legal history in a New South Wales court. In June last year two young men accompanied by two teenage boys coerced a sixteen year old girl to accompany them into an underground car park in the Sydney suburb of Liverpool. The teenage boys waited outside and one of the young men brutally raped the girl. She managed to call police on her mobile phone and when the police arrived the two young men were arrested - and DNA evidence linked a rapist to the victim.
That is where the investigation faced an impossible situation. The two men were identical twins, and while the DNA match to the crime established that the owner of that DNA was the rapist, the DNA of identical twins - is also identical. At this stage of technology, it is impossible to differentiate which twin raped the girl with any degree of certainty.
If the testimony from the victim establishes that she was raped by only one person, then the prosecution has a dilemma. Obviously the girl can not tell one identical twin from the other and yet the physical evidence clearly proves that both are the guilty party. It would go against all the tenets of both common sense and justice to charge both with this crime, and yet as far as the principles of science indicate, in a biological sense they are one and the same person.
This conundrum has resulted in bail being granted because magistrates are not comfortable with the lack of certainty provided by the prosecutors when it comes to establishing a case for the matter to go to trial. No doubt it is also sending both sides of the legal fraternity scrambling for precedence in the law books. Identical twins have existed for as long as the human race has populated planet earth and it is possible - indeed likely - that some sort of identification issue has vexed the law in the past.
The time factor is now working against a solution. The crime will soon be over a year old and testimony collected at that time would not have concentrated on identification evidence because it would have been assumed that DNA would have proved guilt. The recollection of those present is now unlikely to be sharp or clear, and would most likely be successfully challenged by the defence if presented.
No doubt this matter will have attracted keen interest from the judiciary. Some judges may be keen to sit on such a case and make legal precedent with their decision. Some defence counsel may be equally keen to deliver the sort of summation that goes into the history books - and elevates their standing to bring them both fame and fortune.
Society being what it is, there is an even better chance that this will never grace the inside of a courtroom. It is a subject that will be eagerly devoured by the shock jocks of talkback radio and on Facebook and Twitter. When the public become involved it automatically moves into the political arena - and here we have two conflicting scenarios that seem ripe for political gamesmanship.
On the one hand an innocent young girl has been raped - and is seeking justice. On the other, an innocent young man and a guilty one can not be separated. Unless the prosecution can find some new form of compelling evidence, a fair trial seems impossible.
It may be that society will have to fall back on an old wisdom that is said to be the cornerstone of our justice system. " It is better that a hundred guilty men remain free than one innocent serve imprisonment for a crime he did not commit. " !
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