Police investigating the rape and murder of a young girl nearly 43 years ago want to try a controversial DNA tool never used before in New Zealand to solve the baffling cold case.
Law enforcement agencies overseas have had success comparing the DNA of unidentified suspects with genetic profiles uploaded to popular genealogy websites, most famously leading the FBI to catch the so-called “Golden State Killer”.
Detectives investigating the unsolved murder of Alicia O’Reilly are hoping relatives of her killer have uploaded their DNA to websites like ancestry.com, and that genetic genealogy testing could draw a family tree that leads to identifying the offender.
New Zealand’s outdated laws give no guidance on using the technology in a criminal investigation and police are waiting for expert advice on the complex privacy and legal considerations.
But the 18-month delay has frustrated her mother, who has now laid a complaint with the Independent Police Conduct Authority.
“If a six-year-old girl was murdered in her bed today, and police found a DNA profile of the offender, they’d be pulling out all the stops,” Nancye O’Reilly told the Weekend Herald.
“But I feel like her case is just languishing on a desk somewhere, there seems to be a lack of interest. Being in limbo like this is mentally and emotionally exhausting, I’m 70 years old and the stress is damaging my health.
“I would just like someone to make a decision, either way, because at the moment it feels like Alicia has been forgotten again.”
Alicia O’Reilly, 6, was found dead in her bed in the Auckland suburb of Avondale in August 1980, while her sister Juliet, 8, slept just metres away in the same room.
The horrendous crime shocked the country and hundreds of suspects were questioned in the homicide investigation, but Alicia’s killer was never found.
Detectives working on the case decades later believed that forensic evidence — hair and semen left by the killer — had been inexplicably destroyed during the original investigation.
But in a stunning twist three years ago, some unmarked samples were found in archives and scientists from ESR, the Crown research institute, were able to extract a full DNA profile of the perpetrator.
The startling breakthrough in August 2020 gave renewed hope to Alicia’s mother, Nancye O’Reilly, and the police inquiry team, Operation Sturbridge, that her killer would be identified.
But no DNA match has been found so far.
This is despite the genetic code being compared against hundreds of thousands of profiles, collected from criminals or crime scenes since the mid-1990s, held in DNA databanks in New Zealand and Australia.
Another 193 suspects have been ruled out so far after giving voluntary DNA samples.
So after hitting a dead end, Operation Sturbridge requested permission from Police National Headquarters in November 2021 to try a novel avenue — investigative genetic genealogy.
This new technique has been made possible by the growth of databases overseas, such as ancestry.com or FamilyTreeDNA, where individuals can research their heritage by uploading their DNA profile.
While investigations in New Zealand regularly compare DNA left at crime scenes with profiles held on the databanks, looking for either a direct match or a close relative, genetic genealogy allows police to cast the net much wider.
Tens of millions of people worldwide have shared their profiles on these popular websites, meaning the likelihood of law enforcement finding a genetic relative to a suspect has vastly improved.
Detectives can then use the results of a genetic genealogy search alongside other records to construct a family tree, to then identify the most likely suspects for further investigation.
The technique has been used with dramatic success to solve cold cases overseas, most notably the capture of the “Golden State Killer” who committed at least 13 murders and 51 rapes between 1974 and 1986.
His identity remained unknown until the FBI uploaded the suspect’s DNA profile to several genealogy websites, which identified a close relative and led to former police officer Joseph James DeAngelo being arrested in 2018.
While the potential of genetic genealogy for criminal investigations is obvious, the technique is not without controversy; not least the concerns of private citizens voluntarily giving their DNA to a private company for one purpose, only for the state to use it for a very different one.
For this reason, New Zealand Police says “extreme due diligence” is required before the technique is potentially used for the first time.
“The use of genetic genealogy in investigations is a complex issue. Police are continuing to work through various factors, including technical, cultural, privacy and other legal considerations,” Detective Inspector Scott Beard, who is overseeing Operation Sturbridge, said in a statement.
“All dimensions are being worked through internally with the police legal section as well as external partners including the Office of the Privacy Commissioner, ESR and genealogy groups to ensure that this technique can be done safely and with good guard rails and oversight.”
Operation Sturbridge was waiting for a report from the National Forensic Service, although the final decision would be made by a police governance group in Police National Headquarters in Wellington.
“We remain committed to ensure we make every effort to understand new investigative techniques and the implications before trialling or adopting it, alongside the active homicide investigation to seek answers for the O’Reilly family,” Beard said.
However, more than 18 months have passed since the potential of genetic genealogy was first raised with PNHQ.
Adding another layer of complexity to whether genetic genealogy can be used to find Alicia O’Reilly’s killer, is that the law governing the use of DNA in criminal investigations needs to be overhauled.
A review by the Law Commission, published in November 2020, found the Criminal Investigations (Bodily Samples) Act, was “no longer fit for purpose” and made 193 recommendations for change.
Given the significant privacy concerns around turning users of ancestry websites into unwitting “genetic informants” against their relatives, the Law Commission said any new legislation needed appropriate safeguards for police to use genetic genealogy.
One of the Law Commission recommendations was that police should be required to obtain a warrant from a judge that should be granted only if searching the law enforcement database failed to generate a match.
“Our view is that genetic genealogy searching should be used as a last resort and only in relation to offending that, when considered in its full context, is sufficiently serious to warrant the use of such an intrusive investigative technique.”
In response, the Labour government accepted the Law Commission findings in early 2021 and agreed to its recommendations in principle.
However, at the time the government warned that “reform of the DNA regime will require a considerable amount of work”.
In a statement this week, Justice Minister Kiri Allan said the scope and timing of this work had not yet been set as the “Government is focused on other criminal justice priorities currently”.
This might take several years, said Allan, because of the wide consultation needed to establish a new governance structure and oversight body.
“I’m aware of the many legal and ethical issues the use of DNA in criminal investigations raises,” Allan said.
“In the context of rapidly evolving scientific ability, any new law should support the value of DNA technology in the context of law enforcement, while also addressing the significant privacy, cultural and human rights concerns that arise through its use.”
They allege the Crown ignored Treaty obligations by not engaging with them.