King v Attorney-General
[2022] NZHC 695
•7 April 2022
SUPPRESSION ORDERS IN ACCORDANCE WITH PARAGRAPHS [10] TO [13] OF THIS JUDGMENT IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE
CIV-2016-441-69
[2022] NZHC 695
BETWEEN ZION HIONA KING
Plaintiff
AND
THE ATTORNEY-GENERAL
Defendant
Hearing: 26 July–2 August 2021 Counsel:
R E Harrison QC and H Phillips-Williams for Plaintiff
A M Powell, J B Watson and R M McMenamin for Defendant
Judgment:
7 April 2022
JUDGMENT OF ELLIS J
Table of Contents
Paragraph
INTRODUCTION [1]
Some preliminary matters [3]
The development of the claim: what is not now in issue [3]
Presumption of innocence [8]
Suppression [10]
BACKGROUND [14]
Ms Maihi-Carroll’s death [14]
The Police investigation [16]
Mr King [18]
Michael and Eddie Nathan [27]
KING v ATTORNEY-GENERAL [2022] NZHC 695 [7April 2022]
The Hatuma inquiries [35]
The Criminal Investigations (Bodily Samples) Act 1995 [54]
The DNA analysis in this case [62]
The relevant samples [62]
ESR staff [66]
The testing done [68]
Depositions [80]
Laying the indictment [83]
The trial approaches [88]
Mr Williams QC takes over [103]
The first s 347 application [107]
More ESR testing and reporting [115]
The trial begins—and ends; second s 347 application [124]
Updated ESR reports [135]
Further developments [138]
The review by the Crown Solicitor and the third s 347 application [141] Mr King’s attempt to obtain ex gratia compensation [147]
MR KING’S CLAIMS [149]
Evidence called by Mr King [151]
BREACH OF FAIR TRIAL RIGHTS [154]
The relevant rights [154]
The alleged breaches [166]
Criminal disclosure in New Zealand: the relevant rules [169]
The Criminal Disclosure Act [169]
The position before the CDA [172]
The 1992 Prosecution Guidelines [173]
What was the obligation here? [176]
Whose obligation was it? [178]
Discussion [182]
Y-STR comparison [183]
The ashtray [195]
Did the prosecutor intentionally withhold this information? [199]
Did the prosecutor know or ought the prosecutor reasonably
to have known that this information was material to the defence? [201]
Did withholding the information violate Mr King’s rights under
ss 24(d) and 25(a) of NZBORA? [202]
Has Mr King suffered harm as a result? [203]
Conclusion [204]
ARBITRARY DETENTION [205]
Scope of the claim (non-disclosure) [206]
Arbitrary detention: some general principles [208]
Judicial scrutiny of prosecutorial decisions [214]
The relevant guidelines [222]
Discussion [223]
CONCLUSION [231]
INTRODUCTION
[1] On 26 March 2008, Zion King was charged with the murder of his neighbour, Chattrice Maihi-Carroll, whose body had been found at her home in Napier some two months before. Following depositions, Mr King was indicted. But in February 2010, at the commencement of his trial, the Crown Solicitor and the High Court agreed with Mr King’s lawyer that the charge should be dismissed.1 By that time, Mr King had spent around 16 and a half months (489 days) in custody (either on remand or serving out the balance of a previous sentence, following recall) and a further six and a half months on bail.
1 The charge was dismissed under what was then s 347 of the Crimes Act 1961. Such a dismissal is deemed to be an acquittal.
[2] Mr King now seeks $300,000 by way of Baigent damages to compensate him for the harm occasioned “as a result of his being charged, arrested, and subjected to an ongoing prosecution … for the murder”.2 In particular, Mr King says that:
(a)“the Crown” did not adequately disclose information relating to DNA testing conducted after Mr King was arrested, and that formal statements made by scientists at the Institute of Environmental Science and Research (ESR) were misleading because they did not refer to certain relevant forensic testing that had been undertaken; and
(b)the Crown Solicitor should have appreciated the evidential deficiencies in the prosecution case and sought to have the charge against Mr King dismissed at a much earlier point in time.
Some preliminary matters
The development of the claim: what is not now in issue
[3] The proceedings were originally filed in 2016 but a claim alleging negligence during the Police investigation prior to Mr King being charged was struck out by Associate Judge Smith in 2017.3 The Associate Judge accepted, however, that a claim for negligent prosecution could not be said to be similarly hopeless; he permitted Mr King to replead.
[4] Following a change of counsel, Mr King filed an amended statement of claim in September 2019. As well as pleading negligent prosecution, an alternative claim for compensation or damages for breach of ss 22, 24(a), 24(d), 25(a), 25(e), 25(f) and 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA) was included.
[5] In the Crown’s first amended statement of defence of 20 February 2020, a limitation defence was pleaded in response to Mr King’s negligence cause of action, on the basis that the relevant cause of action accrued (at the latest) on 9 February 2010, the day following Mr King’s discharge without conviction. Mr Harrison QC, who was
2 A greater sum was initially sought, but Mr Harrison accepted that the sums specified in the scheme established by Cabinet in 1998 for the compensation of persons who have been wrongly convicted and imprisoned provided an appropriate benchmark for the claim.
3 King v Attorney-General [2017] NZHC 1696.
by then instructed for Mr King, formed the view that there were no grounds on which to support an extension of time for limitation purposes and he confirmed to me that the action in negligence is not now pursued.
[6] The NZBORA cause of action is, however, maintained and, in summary, involves claims that:
(a)as a result of the deficiencies in disclosure, certain of his fair trial rights (under ss 24 and 25 of the NZBORA) were breached;
(b)as a result of alleged prosecutorial failings (in relation to both disclosure and the assessment of evidential sufficiency) Mr King’s pre- trial detention was arbitrary, contrary to s 22 of the NZBORA; and
(c)he was the victim of a breach of natural justice, contrary to s 27 of the NZBORA.
[7] Mr Harrison ultimately made no submissions on the alleged breach of natural justice (s 27 of the NZBORA) and in my view it adds nothing to the core claims just summarised. I do not propose to consider that aspect of the claim further.
Presumption of innocence
[8] Because Mr King’s challenge focuses (at least in part) on what he says was the delay in dropping the murder charge, it will be necessary in this judgment to go into the nature, and development, of the Crown case against him in some detail. There is an unavoidable risk that such a review gives further oxygen to the theory that Mr King was, in fact, responsible for Ms Maihi-Carroll’s death.
[9] So, as Mr Powell for the Crown very properly recognised, it is important to reiterate at the outset not only that Mr King has effectively been acquitted of Ms Maihi-Carroll’s murder but also that the presumption of innocence continues to apply to him.
Suppression
[10] For reasons that I do not need to go into here, the name of a “special visitor” Ms Maihi-Carroll had told her daughter she was expecting on the night she was killed (but who was soon established to have no involvement whatsoever in the matter, or with Ms Maihi-Carroll) was suppressed at the time of the criminal proceedings. There is no dispute that his name should continue to be suppressed in these proceedings and I make that order accordingly.
[11] As well, the Crown asked me to suppress the names of other members of the public interviewed by Police and other persons upon whom suspicion fell during the investigation into Ms Maihi-Carroll’s death, essentially for privacy reasons. While acknowledging the importance of open justice and the legitimate public interest in this case, Mr Powell said there is little or no legitimate public interest in knowing the identity of those people some 14 years later and that suppression of their names and identifying particulars will not impede fair and accurate reporting of these proceedings. Suppression of the names of those involved in the case in a professional capacity (members of Police, ESR and the Crown Solicitor) was not sought.
[12] In general terms I agree with the Crown that the Court should exercise its inherent jurisdiction to make the orders in relation to members of the public who were involved in the case. I did not understand Mr Harrison to oppose such orders. The only exceptions will be three individuals whose names are already in the public domain in relation to this case: 4
(a)Ms Maihi-Carroll’s neighbours Edward (Eddie) and Michael Nathan, who were persons of interest in the inquiry; and
(b)Barry Taukamo, a sex offender who had previously lived in Ms Maihi- Carroll’s house and was serving a sentence of preventive detention at the time of her murder.
4 By way of example only, there is a 2013 Metro article titled “A Stab in the Dark” and a 2016 episode of the TVNZ show Sensing Murder about the case. Both refer to the Nathans and Mr Taukamo by name and are still readily available online.
[13] I therefore make orders that the names, images or other identifying particulars of any persons referred to during the hearing of this matter other than the plaintiff, the three persons named in the preceding paragraph and any persons involved in the case in an official capacity may not be published without prior permission of the Court.
BACKGROUND
Ms Maihi-Carroll’s death
[14] At 11.20 am on Monday 21 January 2008 Ms Maihi-Carroll was found by family members, dead on her living room floor. She was lying face down and it appeared from her injuries that she had been stabbed; there was also a carving knife found nearby. ESR officers subsequently examined the scene and (among other things) took swabs from Ms Maihi-Carroll’s body.
[15] The provisional autopsy report advised that Ms Maihi-Carroll had likely died quickly and in the place where she was found. The cause of death was stab wounds to her chest and abdomen.5 The tissue around both her eyes were swollen and bruised. There were no defence wounds, suggesting that Ms Maihi-Carroll had probably been knocked unconscious before being stabbed. Her time of death was estimated as being on the evening of Saturday 19 January. This was consistent with a statement made by a neighbour, Michael Nathan, who said he had seen her talking to someone at around 11 pm that night.6
The Police investigation
[16] Although the focus of these proceedings is on post-charging events—the ESR processes and the realisation that the murder charge could not safely stand—those matters cannot properly be understood without first canvassing parts of the Police investigation. That said, what follows should not be taken as either a full or complete account. Rather, the focus will be on the investigation as it pertained to Mr King and, in particular, those parts of it that later played out in the Crown Solicitor’s decision- making and the ESR analyses.
5 She had been stabbed five times in the chest and once in the upper abdomen.
6 NS also recounted seeing a person’s leg going through Ms Maihi-Carroll’s front door at around
the same time Michael Nathan saw a person talking to her.
[17] Early in the investigation, Police spoke to all Ms Maihi-Carroll’s immediate neighbours, including Mr King, Michael Nathan and his father Eddie Nathan, and NS.7 From more or less the beginning, Mr King and both Nathans were “persons of interest” in the inquiry.8
Mr King
[18] A Police search of Mr King’s Criminal and Traffic History revealed that he had a history of theft and violent offending (including family violence offending against his former partner). In 2003, he had been sentenced to six years’ imprisonment on charges of aggravated robbery.9 On 19 July 2006 he was released from prison on parole. Although, by July 2007, he had completed his release conditions, he remained on parole at the time of Ms Maihi-Carroll’s murder.
[19] Mr King’s home at 44 Cottrell Crescent was directly adjacent to Ms Maihi- Carroll’s flat, which was at number 46.10 He had been residing there for just under a month at the time of her death. He lived there with his pit-bull. In January 2008 Mr King had started working at the Hatuma Foods processing plant.
[20] Police first spoke (briefly) to Mr King outside his home at approximately 2 pm on the day Ms Maihi-Carroll’s body was found. They spoke twice to him again later that afternoon, and an informal statement was taken and signed by Mr King that day. A formal written statement was taken three days later at the Napier Police Station.
[21] Mr King told Police he had only met Ms Maihi-Carroll for the first time the previous Thursday (17 January), when he had a day off from work. He said when he
7 NS, who had lived across the road from Ms Maihi-Carroll for about 6 years, was on friendly but not close terms with her. He was 65 years old and had no criminal record. NS cooperated fully with Police and was never considered a realistic suspect.
8 As a result of information received from Ms Maihi-Carroll’s family, Police also investigated the possibility of Ms Maihi-Carroll receiving a visit from a “mystery guest” on the night she died but that possibility was later completely ruled out and is not discussed further in this judgment.
9 He was convicted of breaching a protection order in late 2007 (while on parole) and sentenced to come up if called upon.
10 Ms Maihi-Carroll’s unit was joined to the neighbouring ones at the ceiling line with a small alley between them, separated by a block wall. The rear of the units were accessed by a driveway which was common to all the units and a small back yard which led to a walkway between the two middle units. The backyards were separated by a wooden fence.
had introduced himself, Ms Maihi-Carroll responded, “Love you”. Mr King then said, “Love you too”.11
[22] On the evening of Saturday 19 January, Mr King said he was at a party on Curling Crescent. He said he left the party at around 10 pm and got up to go to work early the next day.12 Mr King specifically remembered taking some food scraps home from work for his dog that Sunday and seeing Ms Maihi-Carroll standing at her window and waving. Such a sighting was inconsistent with what Police by then believed to be Ms Maihi-Carroll’s time of death. If accurate, however, it made Mr King the last person to see her alive.13
[23] Mr King said that on Monday 21 January, he left for work at 5.30 am as usual (the day shift normally ran 6 am to 6 pm). He said he took his lunchbreak at around 2 pm and went home. The Police were there and it was then he first learned Ms Maihi- Carroll was dead. That Mr King had returned home and spoken to Police a little after 2 pm was consistent with the Police’s own records.
[24] Ms Maihi-Carroll’s daughter told Police that her mother had told her she was unhappy about Mr King having a dog and that she had been planning to speak to him about it.
[25] On 24 January, Mr King consented to Police and ESR searching/examining his home, although luminol testing (for blood) was not done at that time.
[26] At a very early point in their investigation Police also obtained other information that (in their view) added to their grounds for suspecting Mr King. None of that information is now relied on as supporting the decision to charge and prosecute him and is not relevant to these proceedings so I do not detail it here.
11 Although on its face this exchange seems unusual, it seems that it was genuinely reflective of Ms Maihi-Carroll’s interactions with others, more generally.
12 Another partygoer placed him as leaving the party at around 10.30 pm.
13 The Police investigation did not locate anyone who had seen or heard from Ms Maihi-Carroll on Sunday 20 January.
Michael and Eddie Nathan
[27] The Nathans lived at 14 Venables Street, in a flat that also adjoined Ms Maihi- Carroll’s.
[28] At the time of Ms Maihi-Carroll’s death, Michael Nathan was serving a sentence of home detention for burglary and so was wearing a GPS monitored ankle bracelet. While he had a history of violence-related offending, the fact his movements were being electronically monitored made it most unlikely he could have gone to Ms Maihi-Carroll’s home without attracting the attention of the authorities.
[29] Ms Maihi-Carroll’s whānau told Police that Michael often asked to use Ms Maihi-Carroll’s home phone, which she found annoying. Michael would call out from the boundary of his property and ask if he could use the phone, which Ms Maihi- Carroll would bring to him.
[30] On 24 January 2008 Michael volunteered to undergo a medical examination and provide a suspect DNA sample for the purposes of the Criminal Investigations (Bodily Samples) Act 1995 (the CIBSA). I return to discuss the operation of this legislation later in this judgment.
[31] Eddie Nathan was a friend of Ms Maihi-Carroll’s. They would regularly spend time with each other at each other’s houses, and drink together. Ms Maihi-Carroll’s ex-husband said that in early December 2007, Ms Maihi-Carroll told him Eddie had sought a sexual relationship with her.
[32] The Nathans told Police that on the evenings of 19 and 20 January 2008 they were both at home. They said Michael’s son and partner were also there on 20 January.
[33] Police say that Eddie Nathan also cooperated fully with the investigation. He, too, provided a voluntary DNA sample and offered to undergo a medical examination. The medical examiner did not note anything unusual about him; there were no signs of injury to his hands or face.
[34]The Nathans also agreed to have their home examined by Police and ESR.
The Hatuma inquiries
[35] As part of Police inquiries into Mr King’s account of events there were interviews with his colleagues at the Hatuma Foods factory.
[36] Initially, inquiries focused on Mr King’s statement that he had taken food scraps home from work for his dog prior to seeing Ms Maihi-Carroll on the Sunday. Police were interested to ascertain whether Mr King might have been mistaken about the timing of that sighting.
[37]So in late January, Police began speaking to some of Mr King’s co-workers.
[38] The Operations Manager at Hatuma (SC) was spoken to on 25 January 2008 and 28 January 2008. She confirmed that, for quite unrelated reasons, the Hatuma Factory was closed down and its staff were laid off the day after the discovery of Ms Maihi-Carroll’s body. She provided Police with the timesheets for Mr King and his daughter, who also worked at the factory, from 14 January onwards. As well:
(a)The shift supervisor, KB, was spoken to on 25 January. She told Police Mr King had gone home during his tea-break on Monday 21 January 2008.
(b)HA was spoken to on 26 January 2008 about the dog scraps.
(c)Mr King’s daughter (P) was asked on 28 January about her relationship with her father and the dog scraps.
[39] Another co-worker—and personal friend—of Mr King’s, LS, was interviewed by Police on 2 February 2008. He said Mr King had not mentioned Ms Maihi-Carroll at all to him until Monday 21 January. LS said that Mr King had left work that morning, and when he came back had told him there had been a murder or a killing next door, and that he had seen Ms Maihi-Carroll just the night before waving to him. LS said that Mr King left the Hatuma factory because the police had telephoned him at work.
[40] That Mr King had left the factory on the morning of Monday 21 January 2008, and that Police had called him at the factory, was new information. Police determined to look into it further.
[41] LS was interviewed again on 12 February. He was asked whether Mr King had a mobile phone and whether there were telephones in the Hatuma Factory. LS reiterated that Mr King had told him he had been called at the factory and that the call was the reason he had to leave.
[42] HA was also spoken to by Police again on 12 February. She told them that during the morning of 21 January 2008 Mr King left the factory, just before or just after smoko. She said she had asked P where Mr King had gone, and that P’s response was that Police wanted to interview him because his neighbour had been murdered. P was also spoken to by Police on 12 February 2008. She recounted that on Monday 21 January 2008, her father had told her he had to go to the Police Station because his neighbour “got murdered”.
[43] The next day (13 February) Police spoke again to KB. KB said that at around 6 am on 21 January Mr King had approached her and her husband, asking if he could leave at 8.30 am to pick his dog up from the pound. KB said she had queried this, because Mr King had asked if he could have time off the previous Monday for the same reason. Mr King responded that he had not had enough money to get the dog out the previous Monday. KB also said that on Sunday 20 January Mr King snapped at her, which was out of character. She said she was sure the reason Mr King had left early in the afternoon of 21 January (at around 2 pm) was to see the Police because his neighbour had been murdered.
[44]KB’s husband was spoken to the same day. He corroborated his wife’s account.
[45]Further Police inquiries revealed:
(a)Police had not phoned the Hatuma factory on 21 January 2008;
(b)Police had not phoned Mr King’s cell-phone that day; and
(c)Mr King’s dog had been impounded on 11 January 2008 and returned to him on 17 January 2008.
[46] Based on this information—and the interviews with Hatuma staff—it appeared to Police that Mr King had told at least two lies to his colleagues on the morning the body was discovered. This intensified the inquiry’s focus upon him.
[47] On 16 February there was a Police directive issued listing questions to be asked of staff who worked at Hatuma Foods. Those questions formed the basis of a questionnaire distributed to all staff. A total of 44 staff filled out the questionnaire. Those 12 who had worked with Mr King on 20 or 21 January were interviewed—or in some cases re-interviewed—in late February. Several of them appeared to say or confirm that Mr King had told them on the morning of 21 January that he had to go home to speak to Police because his neighbour had died. This was before he could have known from any official source about Ms Maihi-Carroll’s death. More specifically:
(a)MW said Mr King had told her at 6 am on 21 January that he had to go to the Police Station that afternoon;
(b)JH said Mr King mentioned the murders to him early on Monday morning—either before 6 am or after the first smoko break, which was usually around 8 am;
(c)KB repeated that Mr King had left work at about 2 pm and that she was sure the reason he gave was that his neighbour had been murdered and that he had been the last one to have seen her alive;
(d)P said her father had told her his neighbour had been murdered at either the morning or afternoon smoko break;
(e)SJ said she remembered P coming out of the smoko room at around 10 am and saying Mr King’s neighbour had been murdered;
(f)SK also said she recalled Mr King coming into the smoko room and telling a group of staff his neighbour had just been murdered; and
(g)TP said Mr King had told him that Monday that he had to see the supervisors, that he had a bad feeling and had gone home to find that his neighbour had been murdered and that Police were there.
[48] A Police officer then constructed a timeline setting out events that could be checked against Hatuma factory logs (by reference to the records of processing times and machinery breakdowns) as a form of cross-check against the statements they had taken from employees.14 The investigative team formed the view that this timeline showed Mr King had been talking about the murder before he could have known about it from any official sources. This was seen as a breakthrough in the investigation.
[49] At the behest of Police, Mr King’s co-worker MW telephoned him on 4 March 2008. The object of the call was apparently to elicit admissions from him. But Mr King made no such admissions. Rather, he maintained to MW that he had no involvement in Ms Maihi-Carroll’s death.
[50] In mid to late March there were further interviews of some of the Hatuma staff. They had, if anything, become more adamant about timings. Thus:
(a)MW (who was interviewed three times in March) again said Mr King had told her on the morning of 21 January that his neighbour had died;
(b)JH said Mr King told him before 6 am that his neighbour had “got wasted”;
(c)KB said Mr King had asked at around 1.30 pm to go home because his
neighbour had been killed;
14 Police considered that the closure of the factory on 22 January 2008 meant the witnesses had a very good reference point in terms of remembering the day on which the conversations they were describing occurred.
(d)TP said Mr King had told him at some time between 9 and 10 am that his neighbour had been murdered;
(e)TN said Mr King told him after the 8.45 am meeting that his neighbour had been murdered;
(f)RD (who was interviewed twice in March 2008) said in both interviews Mr King approached him between 10 am and 12 pm to say he needed to take some time off to speak with Police because his neighbour had been killed; and
(g)AF recalled a discussion around late morning on 21 January 2008 about
Mr King’s neighbour having died.
[51] On 26 March, Police interviewed Mr King again. He again denied any involvement in Ms Maihi-Carroll’s death. He was then arrested, charged with murder and remanded in custody.
[52] On 2 April the Probation service lodged an application under s 60 of the Parole Act 2002 to have Mr King recalled to prison on the grounds that he had committed an offence punishable by imprisonment. An interim order for recall was made and Mr King was sent to Paremoremo.15
[53]And lastly:
(a)SC (the Hatuma Operations Manager who had been interviewed in January about other matters) was interviewed about timings on 16 April 2008. She said she was told before 10 am on 21 January by other Hatuma staff that Mr King’s neighbour had been murdered; and
(b)TP (who was interviewed in early July 2008) said Mr King had told him his neighbour had died sometime on the morning of 21 January 2008.
15 A final order recalling Mr King to prison was made by the Parole Board on 5 November 2008.
The Criminal Investigations (Bodily Samples) Act 1995
[54] Before turning to describe the specific ESR processes that are the focus of Mr King’s present challenge it is useful to say something more about the CIBSA. Its operation in this case has some bearing on the way in which relevant events unfolded.
[55] The principal purposes of the CIBSA are set out in the preamble to the Act. They are:
(a)to make provision for the taking of bodily samples for use in criminal investigations; and
(b)to authorise—
(i)the establishment of a databank of information derived from the analysis of bodily samples taken from certain persons; and
(ii)the use of information from that databank in criminal investigations …
[56] In terms of the first (sampling) purpose, the CIBSA prescribes the process whereby Police can obtain a DNA sample from a person suspected of committing a certain type of offence and then use that sample in criminal investigations to confirm or disprove that person’s involvement. Such a reference sample can only be obtained voluntarily (with the suspect’s informed and recorded consent) or, if consent is refused, with judicial authority.
[57] In terms of the second (databank) purpose, the CIBSA authorises the establishment and maintenance, by or on behalf of the Police, of a national database of DNA profiles derived from bodily samples obtained under the Act. In practice, this database is kept and maintained by the ESR, which is a Crown entity.
[58] The CIBSA imposes strict limitations on access to, and disclosure of, information stored on the database. Information from the database that identifies any person can only be accessed and disclosed “for the purpose of forensic comparison in the course of a criminal investigation by the Police” and for limited other (not
presently relevant) purposes, set out in s 27(1). The term “forensic comparison” is defined to mean:16
… the comparison of a DNA profile stored in a DNA profile databank with another DNA profile, where that comparison is undertaken for the purpose of confirming or disproving the involvement of any person in the commission of an offence.
[59] Although s 27 is broad enough to permit access to the databank for the purpose of forensic comparison during a Police investigation, there are statutory constraints on any further use of that information. Of particular relevance is s 71 of the CIBSA, which provides:
(1)Subject to subsections (2) to (4), no DNA profile that is—
(a)derived from any bodily sample taken pursuant to this Act from any person; and
(b)stored on a DNA profile databank—
shall be admissible against that person in any criminal proceedings. (1A) Subject to subsection (4), no DNA profile that is derived from a bodily
sample taken under Part 2B is admissible against any person in any criminal proceedings.
(2)Where a bodily sample is taken pursuant to Part 2, nothing in subsection (1) applies in respect of any proceedings for the offence in respect of which the sample was taken or for any related offence.
(3)Nothing in subsection (1) applies in respect of any proceedings on any application for a compulsion order.17
(4)Nothing in subsection (1) or (1A) affects the admissibility of any evidence (other than a DNA profile) relating to the use of any DNA profile in the course of any criminal investigation, if that evidence would otherwise be admissible.18
[60] As Mr Powell for the Crown submitted, this section has been interpreted to mean that evidence of a match between a crime scene sample and a person’s DNA
16 Criminal Investigations (Bodily Samples) Act 1995, s 2.
17 Relatedly, s 13(4) provides that a court considering a suspect compulsion order may take into account any oral or documentary material the Judge considers relevant, whether or not it would be admissible in a court of law.
18 The effect of this subsection is that the fact databank profiles were used in the course of an investigation may be admissible, for instance to explain why a suspect sample had been sought and obtained from the accused.
profile already on the databank is not admissible in other criminal proceedings in which that person is a defendant. For example:
(a)In Manoah v R, a crime scene sample was compared against the database during a criminal investigation. A profile corresponding to Mr Manoah was already on the database. Referring to s 71, the Court of Appeal said:19
[e]vidence of a match with a profile on a DNA databank is not admissible against a defendant in a criminal proceeding. It was therefore necessary to obtain a suspect compulsion order.
(b)In Police v Westall, the suspect had already provided a sample by consent, but the sample had mistakenly been given an incorrect file number and so was inadmissible. The suspect then refused to provide another sample. The High Court applied s 71 and held:20
[t]he samples taken from the swabs at the scene of the alleged offending match the DNA profile of the respondent, stored on the National DNA Database, but evidence of that match is not admissible at trial ... The match must be confirmed by way of comparison with another bodily sample taken from the respondent, if the match is to be given in evidence.
[61]I will return to the ambit of the prohibition in s 71(1) later in this judgment.
The DNA analysis in this case
The relevant samples
[62] As would be expected, many swabs were taken from the scene (and objects found at the scene) of Ms Maihi-Carroll’s murder for the purposes of future forensic analysis. Of some relevance here are a blue glass found on the kitchen bench, an overturned ashtray and blood specks found on a sheet on Ms Maihi-Carroll’s bed.
[63] Swabs were also taken from Ms Maihi-Carroll’s body prior to autopsy. But while the post-mortem was in progress it became apparent to Police that Ms Maihi-
19 Manoah v R [2020] NZCA 121 at [5].
20 Police v Westall HC Auckland CRI-2009-404-62, 8 May 2009 at [7].
Carroll had suffered facial injuries during the fatal attack and that swabs from that area should also have been taken. By the time this omission was identified, however, Ms Maihi-Carroll’s body was being washed down. Wet and dry swabs were nonetheless then taken from her left eye-cheek and right eye-cheek.21
[64] Shortly after Mr King’s arrest, ESR officers examined his home. A small amount of blood was located on a hot tap in his kitchen and a sample was taken for testing.
[65] As noted earlier, Police had voluntary reference samples of DNA provided by Edward and Michael Nathan from early on in the investigation. No sample was obtained from Mr King. There was, however, an existing sample attributed to Mr King already on the CIBSA databank, voluntarily provided by him in 2001, in the context of a different investigation. It is not entirely clear to me at what point the existence of this sample became known to Police.
ESR staff
[66] The ESR staff principally involved in the relevant testing and analysis in this case were:
(a)Dr Stephen Cordiner, who is a forensic scientist at ESR;
(b)Ms Heidi Baker, who is a forensic biologist at ESR; and
(c)Ms Susan Vintiner, who is also a forensic biologist at ESR.
[67]All three gave evidence at the hearing before me.
21 The swabs from her left eye and cheek were given exhibit numbers 91012 and 91013. The swabs from her right eye and cheek were given exhibit numbers 91014 and 91015.
The testing done
[68] As just noted, swabs from Ms Maihi-Carroll’s eye-cheeks were taken shortly after the autopsy. These were sent by Police to ESR for standard DNA testing, which was done on 22 February 2008.
[69] The results of this testing (obtained on 4 March) indicated—not unexpectedly—that the DNA could have originated from Ms Maihi-Carroll. That same day, an ESR scientist made a request that “Y STR” DNA analysis be performed on the samples. This is a test that specifically targets male DNA.
[70] On 13 May DNA testing of drops of blood found on Ms Maihi-Carroll’s pillowcase were found to match the DNA extracted from the sample voluntarily provided by Edward Nathan. A variety of “innocent” ways in which it could have got there were posited.
[71] On 19 May ESR reported in writing to Police that the Y-STR testing had revealed male DNA on both eye-cheek samples, but in trace quantity only—a single allele in each case. The allele on the right eye-cheek was present in 14 per cent of New Zealand males. The allele on the left eye-cheek was present in 39 per cent of New Zealand males. ESR’s view was that this rendered the samples useless for positive identification purposes but that they might potentially be used for the purpose of eliminating a suspect.
[72] This information prompted a CIB officer to email the Officer in Charge, saying:
I’m assuming we should go ahead and run KING’s profile against these. I don’t know how much evidential value it would have however we would probably be criticised if we don’t.
[73] The Officer in Charge confirmed his agreement with this suggestion on 26 May and on 30 May Dr Cordiner emailed Ms Baker, saying:
Police have authorised Y-STR on ref sample from Eddie Nathan22 and Zion King. King is only on the Databank, not a suspect sample. Can his Databank sample be upgraded or will you require a suspect sample?
[74]That same day, Ms Baker replied to Dr Cordiner:
We are unable to use the database sample of Zion King for Y-STR so require a suspect sample from him.
…
I’ll set the wheels in motion to obtain the Y-STR profile of Mr Nathan and await the remaining samples.
[75] On 5 June Ms Vintiner and Ms Baker sent a letter to Dr Cordiner with an updated summary of DNA results thus far, including (among other things) that:
(a)the bloodstain from the pillowcase could have come from Eddie Nathan;
(b)the swabs taken from the hot tap (the tap in Mr King’s kitchen) could have come from an unknown man, referred to as “Male G”; and
(c)the Y-STR testing on the left and right eye-cheek swabs taken from Ms Maihi-Carroll’s face had yielded only “One Y-STR DNA component” that was “suitable for exclusionary purposes only”.
[76]The letter also asked:
Please advise Sue [Vintiner] if you require the profile obtained from the combined swabs of the hot tap in the kitchen of 44 Cottrell Crescent … and described as originating from Male G, to be submitted to the Crime Sample Database.
[77] Soon after this Ms Vintiner loaded Male G’s DNA profile (derived from the hot tap sample) onto the Crime Sample Database. The profile was found to correspond with a profile on the National DNA Database held under the name of Mr King. Ms Vintiner advised Dr Cordiner of this on 11 June and it was formally recorded by her in her report dated 16 June. That report contained the express caveat:
22 ESR’s advice was that the Y-STR testing done would not be able to distinguish between Eddie Nathan and his son Michael.
This result should not be assumed to be a unique identifier. This report is not admissible in criminal proceedings against the person named from the National DNA Database. To proceed, an evidential blood sample or a buccal swab sample must be obtained from the individual on the National DNA Database in accordance with the Criminal Investigations (Bodily Samples) Act 1995. An evidential sample must be accompanied by a completed POL143 detailing the case(s) DocLoc and/or ESR reference numbers for which consent has been obtained.
[78] At a meeting between Police and ESR on 18 June 2008, Police requested (amongst other things) that Y-STR testing be undertaken on the hot tap (Male G) sample. There was also a discussion about the need for DNA testing on the ashtray found at the scene. But because there was a concern that previous fingerprinting of the ashtray might have caused contamination, that task was put on hold.
[79] The request for Y-STR testing of the hot tap sample was actioned by Ms Baker. The testing work was complete by 3 September 2008, but the results were not at that point interpreted or compared with the Y-STR DNA obtained from the eye-cheek samples. Ms Baker’s evidence was that she was awaiting—and expecting—a further (admissible) reference sample from Mr King before she undertook that work.
Depositions
[80] The depositions hearing took place between 29 September and 3 October 2008. As was usual in cases involving a murder charge, the hearing was conducted for the prosecution by the local Crown Solicitor. Oral evidence was given by Eddie and Michael Nathan and by a number of Mr King’s co-workers at Hatuma Foods. Of particular note in that regard was:
(a)RD’s evidence describing a conversation with Mr King in which Mr King said he had to leave the plant to make a statement to Police as his neighbour had been found dead. He put the time of that conversation as just almost immediately after a staff meeting which had finished at 9 am, although in cross examination he conceded it could have been after midday. Under re-examination he said that it could not have been as late as 2 pm.
(b)The evidence of P about a similar conversation with her father after the staff meeting, although she could not recall what time of day it had taken place.
(c)HA’s evidence that she had learned of the death of Ms Maihi-Carroll from P and another employee on the morning of 21 January, which (if true) meant that the conversation between Mr King and his daughter had been in the morning.
(d)SC’s evidence that she had also heard the news that Mr King’s neighbour was dead on the morning of 21 January.
[81] Reports by Ms Vintiner and Dr Cordiner were also before the JPs. Those reports noted that:
(a)a DNA sample from Mr King was not available for reference purposes;
(b)the left and right eye-cheek swabs were still in the process of being further tested by Y-STR analysis in an attempt to determine whether any male DNA was present in the samples; and
(c)the hot tap samples taken from 44 Cottrell Crescent did not match the profiles of any of the men who had provided reference samples (including Eddie Nathan) and had originated from an unknown man, who, as before, was referred to as “Male G”.
[82]The JPs committed Mr King for trial.
Laying the indictment
[83] The then Crown Solicitor, Mr Russell Collins, was then required to decide whether to lay an indictment. His decision was guided by reference to the Solicitor- General’s Prosecution Guidelines 1992.23 Under those Guidelines there were two key
23 These Guidelines were updated in 2010 and then replaced in 2013.
matters for consideration: evidential sufficiency and whether the prosecution is in the public interest. As Mr Collins explained at the hearing before me, where the charge is one of murder, it would be unusual for the public interest to militate against prosecution, if the evidential sufficiency criterion is met.
[84] The evidential inquiry under the Guidelines involved consideration, first, of the existence of admissible and reliable evidence and then of the sufficiency of that evidence. Sufficiency was defined by reference to a prima facie case: the question was whether, if the evidence was accepted as credible and reliable, a properly instructed jury could find guilt was proved beyond reasonable doubt.
[85] After reviewing the evidence (with which he was already familiar due to his involvement in the depositions process) the Crown Solicitor formed the view that if the evidence about Mr King telling some of his co-workers of Ms Maihi-Carroll’s death on the morning of 21 January—which was prior to the time he could innocently have known about her death, following his return home at a little after 2 pm—was accepted by a jury as credible and reliable, then that was evidence upon which the charge of murder could be found proved against him. DNA evidence formed no part of his analysis.
[86]In evidence before me, Mr Collins said:
It could be described in one sense as not a strong case because there was only one strand of proof but there was sufficient evidence to put the plaintiff on trial. My responsibility as Crown Solicitor was to lay an indictment for murder unless there was a public interest in not doing so. I was satisfied that the public interest lay firmly in having a jury determine whether the charge was proven.
[87] Mr Collins filed an indictment charging Mr King with the murder of Ms Maihi- Carroll.
The trial approaches
[88] On 16 October 2008 Ms Baker completed a written statement, forwarded to Police, in which she recorded that she had been asked to analyse certain samples and
determine whether any male DNA present could have originated from Mr Edward Nathan. She advised that:
(a)the DNA samples from the hot tap could not have originated from Mr Nathan;
(b)as a result of Y-STR testing, a trace of male DNA had been found in the eye-cheek swabs; and
(c)Mr Nathan could be excluded as the source of that DNA.
[89] On 4 November 2008 a tentative trial date of 16 February 2009 was allocated. Although counsel advised the High Court Judge that disclosure was complete, Mr King’s then lawyer was doubtful that the February date would be achievable.
[90] On 11 November Police emailed Dr Cordiner seeking clarification of Ms Baker’s statement and querying the omission of any reference to Mr King, writing: “From memory we were trying to eliminate Edward NATHAN and identify Zion KING.”
[91] Dr Cordiner emailed Ms Baker on 13 November asking her to contact Police directly. He said:
I have spoken to [the Police officer] about the need for a ref sample from Mr King. He wants to know about the comparison with the Male G profile that corresponded with King in relation to the swabs from the face and how that can be reported.
[92] Ms Baker left a telephone message with Police advising that without a new reference sample from Mr King no comparison was possible. The next day she wrote to them explaining why. She said:
Following on from our discussion yesterday, we have not received a reference sample from Mr King, therefore it has not been possible to compare his DNA profile to any autosomal or Y-STR profiles obtained in this case.
…
It is not possible to load the trace male DNA components from the left and right eye/cheek swabs from the deceased to the Crime Sample Database, as
this database does not accept DNA profiles obtained using Y-STR DNA analysis. ·
It is therefore also not possible to compare these traces of male DNA to the autosomal DNA profile of Mr King held on the National DNA Database (which was obtained using autosomal DNA analysis).
We would therefore require a ‘new’ reference sample from Mr King for direct comparison using Y-STR DNA analysis.
[93] Ms Baker then went on to address the likely evidential value of any comparison with the eye-cheek samples. She said:
The Y-STR profiles obtained from each of the left and right eye/cheek samples consisted of a single DNA component out of a possible twelve. These single components detected in each profile are at different DNA sites and as the samples were taken from separate areas of the deceased’s body, it is not appropriate to ‘combine’ these two results.
It is possible to exclude a male as being the source of these two traces of male DNA, however should a male correspond to one or both of these trace DNA components, then in my opinion this correspondence is of extremely low evidential value. This is because these components are likely to be common in the male New Zealand population.
I should also like to note that it is not possible to determine from what bodyfluid or cell type these traces of male DNA have originated, nor how or when they were deposited (either by primary or additional transfer mechanisms).
[94] Ms Baker concluded by advising that, in light of the Police wish to pursue comparisons of “these traces of male DNA”, she had instigated a comparison with the DNA of any men within ESR who might have handled these samples. Then, she said:
Should these ESR staff be excluded, we can then look at other male individuals known to have contact with the deceased and/or the scene.
[95] Ms Baker ended by advising that the cost of Y-Str analysis, per reference sample, was $600.
[96] After receiving this advice Police turned their minds to whether it was desirable to try and obtain a new sample from Mr King by applying for a suspect compulsion order under the CIBSA. They noted that the expert advice received that, even if subsequent analysis showed that Mr King could not be excluded as the source of the eye-cheek DNA, it would have very low evidential value. Another problematic matter
raised and discussed was the fact that Ms Maihi-Carroll’s body had been washed down before the eye-cheek samples were taken.
[97] Police replied to Ms Baker’s 14 November email on 26 November. They advised that analysis of elimination samples from the nine male ESR staff who might have contaminated the eye-cheek samples had been approved and that once that had been done consideration would be given to obtaining a compulsion order in relation to Mr King. He also noted:
I consider the results are low because the swabs were only taken by Police as an after thought at the Post Mortem after her body was washed down.
[98] Ms Baker said in evidence before me, and I have no hesitation in accepting, that this was the first time anyone at ESR had been made aware that Ms Maihi- Carroll’s body had been washed before the eye-cheek samples were taken. She said as much in her reply email to Police:
I was not aware that the samples were taken after the body had been washed down. If you could provide further information as to this process (For example is a hose and sponge used? Are they cleaned thoroughly before use?) It may assist in determining how meaningful the results from testing these elimination samples are, and could potentially present another mechanism of DNA transfer.
[99] Ms Baker also advised that five of the male ESR staff who might have come into contact with the swabs shared the same DNA component found in the left eye- cheek swabs. The DNA yielded by the swabs taken from the right eye-cheek did not correspond with that of any of the ESR staff.
[100] On 27 November there was a teleconference involving Police, ESR staff and the Crown Solicitor. Ms Baker’s handwritten notes of the meetings record that it was agreed that—despite the result either way not being likely to be “probative or meaningful”—testing should be offered to Mr King, because it might exclude him as a possible source of the eye-cheek DNA. Ms Baker’s notes also record that:
(a)the Y-STR DNA profile obtained from the left eye-cheek swabs (which matched seven out of 10 ESR staff) did not match the Y-STR DNA profile obtained in September from the hot tap sample; but
(b)the Y-STR DNA profile obtained from right eye-cheek swabs (which matched none of the ESR staff) corresponded with the Y-STR profile obtained from the hot tap sample.24
[101] In her evidence before me Ms Baker said (as her notes in fact indicate) that these “matches” were not discussed with the others during the call. Rather, they recorded the results of a comparison that she had herself performed during the call and were for her own future reference.
[102] A short time after the meeting, DS Smith emailed ESR thanking them for the call and advising that Police had decided not to do any further testing in relation to the eye-cheek swabs for the reasons that had been discussed. He said:
Our situation is that we have a very good circumstantial case in relation to admissions the accused has made prior to victims [sic] body being discovered.25
Mr Williams QC takes over
[103] In January 2009, Mr King instructed the late Peter Williams QC and Heeni Phillips to represent him at trial, which had by then been scheduled for 8 June that year.
[104] Mr Williams immediately filed an application under s 347 of the Crimes Act 1961 (as it then was) to have the murder charge dismissed.
[105] Mr Williams also immediately sought further disclosure from Police. On 2 March 2009 he wrote to the Crown Solicitor asking that copies of the working files belonging to Dr Cordiner, Ms Baker and Ms Vintiner (among other things) be sent to the expert instructed by the defence, Dr Arie Geursen. Mr Collins immediately passed the request on to Police who, in turn passed it on to Dr Cordiner. In doing so, Police noted:
24 The hot tap sample was mistakenly referred to in Ms Baker’s notes as being from “Male A”, rather than “Male G”.
25 The “admissions” referred to here are the statements that some of the Hatuma witnesses reported Mr King making to them on the morning of 21 January.
It is obviously material that they are entitled to these days. There appears not to be an issue with disclosing it as we do not have any forensic case against King as yet (unless you have something you haven’t told me?).
[106] Dr Cordiner promptly passed the request on to his ESR colleagues. After a short delay due to the need to collate and copy the material, it was couriered to Dr Geursen. The material formed the basis of Dr Geursen’s affidavit in support of the s 347 application, dated 25 March 2009. In it, he deposed:
12.I conclude that there is no forensic evidence to implicate Zion King.
13.On the contrary, it would be my opinion, that in the circumstances in which the victim died, the absence of such incriminating forensic evidence does lend weight to the proposition that Zion King may not be involved at all.
14.So far as the victim's house is concerned, the crime scene. That has been thoroughly examined, swabbed and tested for the presence of DNA using a combination of the most sensitive tests available and there is nothing to suggest the accused was there.
15.This is further supported by the absence of any hair or fibre evidence.
16.There is however, forensic evidence of other males having been at the scene at some time. There was blood consistent with that of Mr Michael [sic] Nathan found on the pillowcase on the bed (S105).
17.Also, there was semen consistent with that of a Mr Barry Taukamo on the carpet (S012) as well as DNA belonging to an unidentified male on a glass on the kitchen bench (S016).26
18.The residence, vehicle, and belongings of Zion King were also extensively searched, swabbed and tested for the presence of hair, fibres, blood and DNA that may have originated from the victim, none was found.
19.I note that it is suggested by the Crown that the forensic evidence tends to exclude Mr Edward Nathan. From the forensic evidence that has been made available to me to date I do not accept this proposition.
The first s 347 application
[107] The Crown’s submissions in opposition to the discharge application observed that the overwhelming weight of evidence was that Ms Maihi-Carroll had been killed on the night of 19/20 January and that—on Mr King’s own account—he was the last person to have seen Ms Maihi-Carroll alive. The Crown also advised:
26 Mr Taukamo was a convicted sex offender who had lived at the house some years before.
There is no DNA evidence to include or exclude this accused. There is DNA evidence which tends to exclude Edward Nathan.
[108] The remainder of the submissions largely focused on the evidence that Mr King had reported the murder to a number of work colleagues before Ms Maihi-Carroll’s body had been discovered. Reliance was placed in particular on Mr King’s “effective admissions” to RD, SC, P , KB and HA, although reference was made to the briefs of a number of witnesses not called at depositions said to support that evidence. As well, the Crown submitted that Mr King had lied about seeing Ms Maihi-Carroll on the Sunday, because he had no alibi for the Saturday night.
[109]The gist of the arguments made in response on Mr King’s behalf was that:
(a)the absence of DNA evidence putting Mr King at the scene tended to exclude him as the perpetrator;
(b)there were other viable suspects who could not be discounted;
(c)Michael Nathan’s proposed evidence suggested that he might have told Mr King about Ms Maihi-Carroll’s death sometime between 12.20 and
12.30 on the Monday morning;
(d)the proposed evidence of those Hatuma witnesses who said that Mr King had told them during the morning about the murder was inconsistent (as between each other), unreliable and (in two cases) motivated by some kind of animus towards Mr King;
(e)the evidence of other Hatuma witnesses confirmed Mr King’s account;
(f)Mr King had given a number of generally consistent accounts of events; and
(g)some of the interviews of Mr King had been undertaken in a way that was contrary to his rights under the NZBORA.
[110] The application was heard in the High Court on 1 April 2009. Although not entirely clear from the record, it appears further submissions may have been filed by the Crown on 30 April and by Mr Williams on 2 May27. The further Crown submissions contained an appendix with a more detailed summary of the evidence to be given by the 15 Hatuma workers. It appears the defence submissions contained a refutation by reference to a closer and more critical analysis of the evidence of those witnesses contained in a “defence chart” which, it seems, has since been lost.
[111] The further defence submissions also addressed the question of the DNA found on the glass in Ms Maihi-Carroll’s kitchen. Mr Williams noted that the DNA was from an identified male who (testing had established) could not have been Mr King. Mr Williams submitted that, “It is logical therefore on the balance of probabilities that this DNA evidence clears Zion King as being the killer”.
[112]MacKenzie J delivered his decision on 11 May 2009.28 Early on, he noted:
[4] Extensive forensic testing, including fingerprint and DNA sampling, work was conducted at the scene and on the deceased’s body. Two items of DNA evidence need to be mentioned in the present context. A small speck of blood identified [as] being that of a neighbour, Mr Edward Nathan, was found on a pillowcase in the deceased’s flat. A mixed DNA sample was found on a glass in the kitchen at the flat. That was partly the deceased, and partly that from an unidentified male. The accused has been excluded as being that male.
[113] The Judge then turned to the Hatuma witnesses. He referred to the proposed evidence of 11 of them in some detail but noted that there were potential admissibility (hearsay) issues in relation to the remaining four. Then, he reasoned:
[29] It would be essential to a verdict of guilty that the jury draw two conclusions from the evidence which I have described. First, that there was no reasonable possibility that the various discussions took place after the accused had spoken to Mr Nathan and Detective Constable Burrell and second, that it was a reasonable inference from his prior knowledge of the deceased’s death that he was the person who had killed her. In relation to the evidence of the DNA on the cup, the jury would have to be satisfied that there was no reasonable possibility that that had been left by the killer. Some reliance is placed by the Crown on some other possible strands of circumstantial evidence. The first strand is a number of statements by the accused to the effect that he last saw the deceased alive on the Sunday evening, and that he was the last person to see her alive. There is also some evidence, from the accused’s statement, of use of a term of
27 It seems these submissions are mistakenly dated 2 April.
28 R v King HC Napier CRI 2008-041-001027, 11 May 2009. The decision also dealt with an unrelated admissibility issue.
endearment by the deceased to the accused, and evidence that the use of that term of endearment by the deceased was common. Some reliance is also placed on the evidence as to the accused’s statement about the deceased having suffered an epileptic fit.
[30] My assessment is that each of the potential strands of circumstantial evidence is weak, and that, put together, they do not make for a strong Crown case. However, I must not substitute my view of the facts for the assessment which a jury, properly directed, might make. The essential question is whether the reasonable possibility that the statement by the accused to the various witnesses took place after the conversations with Mr Nathan and Detective Constable Burrell can be excluded. That assessment is one which can only properly be determined after the Crown evidence has been given, and tested by cross-examination. If it were accepted by the jury, the evidence of at least some of those witnesses might exclude that possibility. That evidence might, if accepted, lead to an inference that the only means by which the accused could have known that his neighbour was dead was if he were the person who had killed her. The inference is not one which would necessarily follow, but it is not so tenuous it is possible to say that, taking the view of the evidence most favourable to the Crown, no reasonable jury could draw it. If that inference were drawn, that might lead a jury to draw an inference that the DNA on the cup was not connected with the killer. That would mean that the Crown case, although not strong, would not be so weak that a jury properly directed could not reasonably hold it proved. The Crown case, at its highest, does potentially reach a level where a guilty verdict could not be said to be unreasonable.
[114]The Judge declined the application for discharge, accordingly.
More ESR testing and reporting
[115] In response to a query from Ms Vintiner on 8 May 2009, Police asked her to test the ashtray for DNA, on 11 May.
[116] Ms Vintiner also began preparing a formal written statement at around this time.
[117] On 27 May 2009 Ms Vintiner emailed Police with the provisional results of the testing on the ashtray. She advised:29
The provisional results from the ashtray (unpeerchecked) indicate a mix of DNA. Majority of DNA corresponds to the deceased’s profile, which is not unexpected. The remaining component consists of one DNA result, which is not sufficient for comparison to include a person as a contributor, given a large proportion of the population would be expected to share this DNA result. However, it can exclude people of interest. I’ve not discussed in the statement, given we do not have a reference DNA sample from Mr King but we do have
29 Emphasis added.
intelligence information from the DB, and Male G does not have this DNA characteristic and so he is excluded as the source of the foreign DNA.
[118] On 29 May 2009, Ms Vintiner provided Police and defence counsel with her formal written statement. In it, she summarised all the DNA testing that had been done in relation to the case. At an early point in the statement (after noting her understanding that Mr King was “a suspect in this matter”) she recorded:
A reference DNA sample was obtained from Ms Maihi-Carroll for comparison purposes. A reference DNA sample was not available from Mr King for comparison.
Reference DNA samples were also provided from a number of other individuals. It is my understanding that these samples, with the exception of a sample from Mr Edward Nathan, had been provided for elimination purposes. I have now been advised that Mr Edward Nathan, who provided a suspect reference sample in this investigation, is no longer regarded by the Police as a suspect in this matter.
[119] As regards the DNA found on the glass on the kitchen bench, she recorded that the testing indicated that the majority could have originated from Ms Maihi-Carroll, or from another female who shares the same DNA profile as Ms Maihi-Carroll. Then, she said:
A partial male DNA profile was determined from the remaining DNA component in this sample. This male profile did not correspond to any of the male reference profiles submitted for comparison, nor did it correspond to any of the profiles from other males identified during this investigation. This DNA has originated from another unknown male, whom I will refer to as Male F. It is not possible to say whether or not the DNA from Male F was deposited at the same time as the DNA that corresponded to Ms Maihi-Carrol’s DNA profile. However, it is likely that the DNA from both contributors was deposited at any time after the glass was last washed.
[120] And as regards the ashtray, she noted that a mixed DNA profile had been obtained from the swabs taken from the rim. Then she said:
From a comparison of the DNA profiling results obtained it was determined that the majority of the DNA detected could have originated from Ms Maihi- Carroll, with an additional DNA component consisting of one DNA result. It was not possible to determine the gender of the individual who had contributed this additional DNA. Furthermore, the single DNA result present in this additional component is not sufficient for meaningful comparison to reference profiles for inclusionary purposes, given a large proportion of the population would also be expected to share this result.
[121] Under the heading “samples collected from 44 Cottrell Crescent” (Mr King’s home) Ms Vintner said:
The male DNA profiling results obtained from the following samples indicated that the DNA in these samples could not have originated from any of the males who provided reference samples for comparison or from any of the other males identified during this investigation. This DNA has originated from an unknown male, whom I will refer to as Male G:
…
·combined swabs of hot tap in kitchen, item 96202, WSC08307/103.
Furthermore, the combined swabs of the hot tap in the kitchen, item 96202, WSC08307/103, are being tested by Y STR analysis in an attempt to obtain a Y STR profile suitable for comparison purposes.
[122]Later, on 11 June, Ms Vintiner emailed the Crown Solicitor advising that:
I have considered the trace profile (one allele) of the additional contribution of DNA to the ashtray sample, that is foreign to Ms Maihi-Carroll, and have considered the profiles of all the reference samples and unknown profiles encountered during this investigation and can advise that the following can be excluded as contributors, as they do not have this allele -
…
·Male G (NDD link to Mr King)
…
[123] Ms Vintiner also advised that Edward Nathan (amongst a number of other individuals) could not be excluded as a source of the ashtray DNA.
The trial begins—and ends; second s 347 application
[124]As noted earlier, Mr King’s trial was due to start on 8 June, before Clifford J.
[125] In terms of the ESR/DNA evidence, the Crown Solicitor’s position (as he described it in evidence before me) was that:
I did not focus on the DNA evidence. There was no forensic evidence linking the plaintiff to the crime scene in this case. The Crown had nothing to lead in the case against him as far as forensic evidence was concerned.
The cheek samples were minute and were not necessarily left by the killer and were not necessarily left by the same person.
…
It was up to Mr Williams QC what he made of this as far as the defence case was concerned. As far as I was concerned it said nothing about either guilt or innocence.
[126] On 4 June, the Crown Solicitor wrote to Mr Williams about “DNA issues” and, in particular, the potential for a serious injustice being done to Mr King, if the defence called no evidence of an analysis of Mr King’s DNA. He said:
This is a case where the ESR scientist Susan Vintiner gives evidence of various crime scene samples and from whom those samples could have come. We have samples which are described as coming from Male B, Male C and Male F. The samples relevant to Males B and C are likely mixtures of blood and semen in the lounge carpet and the sample relevant to Male F is a mixed sample from the glass in the kitchen. By reference to the DNA databank we know none of those samples could have originated from the accused. Unless you are in a position to lead evidence of independent defence analysis excluding the accused the evidence from the databank is inadmissible in anyone’s hands at trial, both Crown and defence. Likewise the match of Male C to the previous tenant Barry Taukamo was via the databank. I have arranged for a voluntary sample to be taken from him today so that by the time Susan Vintner gives evidence the semen staining can be linked to him and his activities. Taukamo is a prolific sex offender with young males who is currently sentenced to preventive detention. Therefore the potential problem the Crown faces can be remedied and I have put those steps in place.
However in the absence of independent defence analysis of the accused’s DNA there is no admissible evidence which can be put before the jury excluding the accused as Male D, C or F. The absence of that evidence would cause a serious injustice to Mr King. You may have the situation covered. I do not know. You may have been lulled into a false sense of security. If that is the case the only way to remedy the situation is by way of a set of agreed facts pursuant to s 9 of the Evidence Act.
(my emphases)
[127] It appears there was then some discussion between counsel about the suggested s 9 statement. In that context, Mr Williams emailed the Crown Solicitor on 5 June, asking:
Are these agreed facts to substitute for the oral evidence of Sue Vintiner?
Is it necessary to call ESR evidence which has no probative value which includes all Susan Vintiner’s evidence except reference to Eddie Nathan's blood on pillow slip and the unidentified blood [sic] on blue glass.
Am I right in presuming that Heidi Bakers evidence will proceed with an attempt to exclude Eddie Nathan?
[128] After the jury had been empanelled, and counsel had made their opening addresses, Mr Williams made a further application under s 347. There was also a hearsay objection by the Crown to Mr Williams’ reference in his opening to the statement reportedly made by Ms Maihi-Carroll to her daughter just before her death about her expected “mystery visitor”.
[129] The memorandum filed by Mr Williams in support of his s 347 application focused squarely on the DNA evidence. It recorded:
1.This application is made on the basis that the case against the accused has already been described as weak or not strong by Justice MacKenzie at paragraph 30 in his reserved judgement dated 11th May 2009 following the first application herein for a discharge pursuant to s 347. And in conjunction with this it is now revealed that the ESR have compared the DNA taken from the left cheek of the deceased with the DNA from the accused and found that the results are discordant.
2.In the last two days the Crown and the defence have endeavoured to reach consensus in respect of the forensic evidence. This has involved a further review by the defence of the proofs put forward by the ESR scientists and in particular the detailed results of the scientific analysis of samples recovered from the scene and other places, in particular the samples taken from the face of the deceased.
3.The ESR evidence as mentioned above has clearly demonstrated that the ESR scientists have been able to exclude the DNA of Mr King from such items as the blue glass found on the kitchen bench at the unit of the deceased.
4.The ESR have carried out further tests using a very sensitive technique to identify male DNA obtained from samples taken from the left and right cheeks of the deceased.
5.The ESR also have been provided with a DNA sample taken from a former suspect namely Edward Nathan and a comparison has been made between this DNA profile of Mr Nathan with the material obtained from the left and right cheeks of the deceased.
6.The ESR scientist Heidi Baker tested the DNA from the swab taken from the left cheek and using the sophisticated chemistry referred to detected male DNA.
7.In both the samples from the left and right cheeks she found one peak that was inconsistent with the DNA of Mr Nathan and on the basis of that finding she excluded him from being the source of that DNA. The pragmatic effect is that he could not have been the person who punched the deceased and therefore cannot be the person who murdered her.
…
9.What Heidi Baker’s evidence does not state however is whether or not a similar test was made to exclude the Applicant on the same basis upon which Edward Nathan was cleared.
10.It is now revealed however that forensic tests carried out by the ESR did exclude the Applicant from being the person who punched the deceased upon her left cheek.
11.As the Crown case against the Applicant is based on the proposition that he acted alone in the commission of this crime it is logical that if he did not punch the deceased on her left cheek then he could not have been the author of the series of aggressive acts that were involved in the commission of this crime.
12.On page 199 of Heidi Baker’s working notes she records working on DNA extracted from the hot tap in Zion King’s unit. This sample is identified by ESR Sue Vintiner as belonging to Male G (Male G is identified as Zion King - see letter from ESR scientist Steven Cordiner dated 18th August 2008 attached).
13.The DNA of Male G (identified as Zion King) provides a full profile (i.e. 12 peaks).
14.Using the same process as Heidi Baker has used, to exclude Eddie Nathan from being a suspect, the working notes of the ESR exclude Mr King from being the author of the blow on the deceased’s left cheek and fail to positively identify him as being the author of the blow on the right cheek.
…
17.Zion King must be excluded as being the author of the DNA extracted from the left cheek on the same basis on which Eddie Nathan has been excluded …
18.It is submitted with respect that the weakness of the Crown case as acknowledged by MacKenzie J has now been further demonstrated by the exposure of the ESR material set out above.
(my emphases)
[130] Clifford J declined the s 347 application on 9 June. He gave his reasons the following day.30 While the Judge acknowledged that “the [DNA] evidence had a clear exclusionary effect”, he noted Mr Williams had accepted that:
30 R v King HC Napier CRI 2008-041-001027, 9-10 June 2009.
(a)because DNA analysis of only one of the eye-cheek samples excluded Mr King, his position “was not as strong as it was in the case of Mr Nathan”; and
(b)forensic difficulties had been caused by Ms Maihi-Carroll’s body having been washed down before the eye-cheek samples were obtained, raising the risk of contamination (and the risk that the male DNA found had not been left by the killer at all).
[131]The Judge recorded the Crown position on the DNA evidence as follows:
[6] For the Crown Mr Collins explained that, from the Crown’s perspective, when it was realised that the samples were not capable of providing any probative identification, they had not been taken further. Mr Collins then commented on the significance of the analysis DNA material found on the deceased’s left and right cheeks. He acknowledged that, perhaps a little inaccurately, he had submitted to MacKenzie J that that material excluded Mr Nathan, whereas the exclusionary value of that material was not, by reason of the possibility of contamination, conclusive. Furthermore, it was his submission that the Police had excluded Mr Nathan for a variety of reasons. Similarly therefore this DNA evidence could not be regarded as being conclusively exclusionary of the accused, not only by reason of the fact that he was only excluded from one sample, but also by reason - from the Crown’s point of view - of the possibility that: the material should be attributed to contamination, rather than having been left by the person who assaulted and killed the deceased.
[132] The Judge said that he did not consider that the DNA evidence relied on by defence counsel was so compelling as to alter the conclusion previously reached by MacKenzie J. He nonetheless recorded:
[12] I indicated, however, that I considered that that DNA evidence was not without significance. As I stated:
(a)The logic of that evidence was that if the person responsible for Ms Maihi-Carroll’s death left that sample, then the accused cannot be that person.
(b)Therefore, if the jury was satisfied - notwithstanding the Crown’s position as to the possibility of contamination - with the integrity of the sample, then the Crown would need to satisfy the jury that there was not a reasonable possibility that the sample was left by the person who assaulted and then killed the deceased. In other words, if the jury could not be so satisfied, they would have to be directed to acquit the accused.
[133] The Judge also recorded that the Crown had acknowledged those propositions, and had indicated that it would need to give further consideration to the significance of the DNA issues raised by defence counsel and the way in which they would be dealt with at trial.31
[134] For reasons related to defence counsel’s opening statement, the Judge also declared a mistrial. He directed that a new trial date be set. He also raised the question of EM bail for Mr King, if an appropriate address could be found.
Updated ESR reports
[135] As I understand it, Police then asked ESR to provide another statement addressing the matters specifically raised by Mr Williams in his memorandum in support of the s 347 application. That statement was prepared by Ms Baker and is dated 23 June 2009. She began by noting:32
A Y-STR DNA profile was determined from the swabs from the hot tap in the kitchen … I understand this Y-STR DNA result is accepted to represent the putative Y-STR DNA profile of Mr Zion King …
It is usual and indeed preferable to obtain a reference DNA sample from an individual for direct comparison, rather than the use of a putative DNA result.
… no reference DNA sample from Mr King has been made available to me for DNA analysis and subsequent comparison.
A trace of male DNA was detected in the combined swabs from the left eye- cheek …
By trace I mean only a single DNA result out of a possible twelve was obtained. The donor of male DNA on the hot tap (putatively Mr King) can be excluded as a source of this trace of male DNA.
A trace of male DNA was detected in the combined swabs from the right eye- cheek … I am unable to exclude the donor of the male DNA on the hot tap (putatively Mr King) as a source of this trace of male DNA.
[136] Ms Baker observed that care needed to be exercised when interpreting any analysis involving the eye-cheek samples, in light of the risk of contamination, the fact that Y-STR analysis is silent as to how the alleles on the eye-cheek were deposited there, and in light of how common the components of male DNA on the eye-cheeks
31 At [13] and [49].
32 Emphasis in original.
were in the general population. She also expressly recorded that had ESR known the eye-cheek samples were taken after the body being washed down by a mortuary cloth, she would not have recommended Y-STR analysis be attempted on these samples.
[137] On 11 August 2009 Ms Vintiner also signed a revised version of her earlier statement. It did not, however, differ in any material respect from her May statement.
[186] To the extent it is suggested that this final step in the comparative process should have been undertaken earlier by Ms Baker, I reject that. The focus of the work done by ESR was, necessarily, responding to requests by Police and helping them with their investigation. There was no wider duty that required them to perform tasks that were not requested by Police or to turn their minds to what further work they could do that might or might not be useful to the defence. Rather, what was required was disclosure by Police to Mr King of relevant information obtained from ESR in the course of the work done for them on the case. Here, that information would include the match between Mr King’s database sample and the hot tap sample, and the Y-STR DNA profiles derived from the eye-cheek swabs—at which point Mr King could, if he wished, submit to a DNA test and, if any subsequent comparison proved exculpatory, lead that evidence at trial. This obligation on Police to disclose does not, however, translate to an obligation on ESR to take further investigatory steps actively to assist the defence. Nor does it require ESR to include in their formal statements information that would be inadmissible in Court.
48 In the context of her statement about the comparison done between the DNA obtained from the eye-cheek samples and Edward Nathan’s suspect sample.
[187] As far as this last point is concerned, Ms Baker knew—and had said to Police on numerous occasions—that without a new reference sample from Mr King, the results of any comparison between the hot tap and eye-cheek samples would not be admissible in Court. In that regard I do not accept Mr Harrison’s submission that the proscription on the admissibility of a DNA profile derived from a person’s pre-existing database sample “against that person” in s 71(2) of the CIBSA does not apply when the DNA profile evidence would be exculpatory. As Mr Powell submitted, there are a number of reasons—both practical and legal—why that must be so.
[188] On a practical level, the ordinary operation of the disclosure rules would see the base information provided to Mr King in the usual way, as it was here—in March 2009. At that point a decision could be made by the defence team about whether to pursue the question of a further DNA test for the purposes of admissible comparison. Accordingly, s 71(2) does not need to be interpreted in the way suggested by Mr Harrison to secure fairness for Mr King.
[189] On a legal level, the most fundamental point is that obtaining a bodily sample from an individual necessarily involves a search of a relatively intimate kind. While the search may be consensual, if a prior Court order is required it will not be. Moreover, a DNA profile derived from such a sample contains intensely personal and private information (such as information about heredity and medical conditions) about the donor. It is for that reason that the usual rule—that personal information collected and stored by a state agency about individual citizens can only be used for the purpose for which it was obtained—applies with acute force to samples held on the database.
[190] Moreover, the differential interpretation advanced on behalf of Mr King would be:
(a)inconsistent with the principle that—generally speaking—evidence of a defendant’s previous conviction is not admissible in criminal proceedings;49
49 Law Commission The Use of DNA in Criminal Investigations / Te Whakamahi i te Ira Tangata i ngā Mātai Taihara (NZLC R144, 2020) at [8.22]: “[R]elying on a databank match as evidence in court would be inconsistent with the established principle that evidence of a previous conviction is not admissible in criminal proceedings. This was noted by the Select Committee in 2002 when
(b)unworkable, because it would require ESR to make a potentially fine judgment as to whether reference to the databank outweighed any prejudicial impact of disclosing that the defendant’s sample was in the databank;
(c)inconsistent with good scientific practice, because:
(i)As the Law Commission noted:50
… to be a valid forensic comparison, two DNA profiles need to be analysed under the same laboratory conditions using the most up to-date analysis kits. For example, a DNA profile that was generated in the early days of the CIBS Act would have been analysed with a kit that only tested six loci (specific areas or sites on a chromosome), whereas a crime scene sample analysed today would be tested at 19 loci and a known person sample at 21 loci.
(ii)The databank information might not be accurate (for example if the donor used an alias when providing the databank sample, or if there has been an error in terms of the data entry).
[191] As regards the last point, the evidence before me was that ESR scientists are trained specifically not to report databank matches in statements intended to be admitted as evidence, which is why the need for a new reference sample from Mr King was raised by ESR a number of times with Police in this case.51 It is also why ESR’s link reports expressly state that the result “should not be assumed to be a unique identifier” and why the ESR witnesses would go no further than to accept that Male G was “putatively” Mr King. It is for that reason that Ms Baker’s 8 October report (which was plainly intended to form the basis of her evidence at trial) would not— even if she had by then done the comparison with the hot tap sample—have referred to it. She could not have done so without referring to Mr King’s database sample,
reporting back on proposed amendments to the Act. See Criminal Investigations (Bodily Samples) Amendment Bill 2002 (221-2) (select committee report) at 5 ... : ‘There is no basis for departing from [this] general principle in relation to DNA evidence. Should the fact of a databank match be made available to the jury, this may indicate a person has a prior criminal conviction.’”
50 At [8.22].
51 This is also why ESR’s link reports in this case (and all cases) expressly state that the result “should not be assumed to be a unique identifier” and why the ESR witnesses would only accept that Male G was “putatively” Mr King.
contrary to the prohibition in s 71(2). Referring to a comparison done on the basis of the recent sample voluntarily provided by Mr Nathan presented no such difficulty.
[192] In my view, her approach (and ESR’s approach) is entirely proper and consistent with my view of the law.
[193] In any event—and putting s 71 to one side—the disclosure obligation here did not reside with ESR, but with Police, as I have said. As I have said, Police could only disclose material that was in their possession or that they knew about. There is no documentary evidence that suggests Police were told about the comparison Ms Baker had done. Indeed, Ms Baker’s own evidence was that she did not tell the other participants in the telephone conference on 27 November 2008 about the results of her comparison. And her instructions from Police very shortly afterwards were to do no further testing in relation to the eye-cheek samples at all. That was plainly because the Police case against Mr King had never been a forensic one; the realisation that those samples were effectively worthless from an evidential perspective was only the icing on that particular cake.
[194] Of course, by April 2009 the entirety of Ms Baker’s file (which I assume contained her record of the 27 November meeting and the results of her comparison) had been provided—at the request of Police—to the defence expert, Dr Geursen. The rejection by Dr Geursen in his March 2009 affidavit of the Crown’s proposition that the forensic evidence tended to exclude Edward Nathan strongly suggests that he would have been similarly dismissive of there being forensic value in any exclusionary comparison between the DNA obtained from the eye-cheek samples and Mr King’s DNA.52
The ashtray
[195] There is no dispute that Ms Vintiner’s 29 May report (provided on or about that day to defence counsel) did not refer—as she had in an email to Police two days earlier—to the exclusion of “Male G” as a potential source of the male DNA found on
52 Because the forensic evidence relied on by the Crown as excluding Mr Nathan included the comparison done between of the eye cheek DNA samples and Mr Nathan’s suspect DNA sample.
the ashtray. But the reason for that (referred to by Ms Vintiner in her email) was the legal one already discussed. Ms Vintiner’s report was to be—or was to be included in—her evidence in Court.
[196] She also expressly stated in her report that a suspect reference sample was not available from Mr King. So while she could, perhaps, have referred to the exclusion of “Male G” as the source of the DNA on the ashtray (and on the blue glass) she could not have made any express link between “Male G” and Mr King because that could only be done by referring to his historic databank sample.
[197] In any event—and as with Ms Baker’s notes—it must be assumed (there being no evidence to the contrary) that the information about the link was included in the disclosure of the ESR materials made by Police in March 2009. That defence counsel became aware of it around then can, I think, fairly be inferred from Mr Williams’ memorandum of 8 June 2009,53 where he refers to having conducted “a further review
… of the proofs put forward by the ESR scientists and in particular the detailed results of the scientific analysis of samples recovered from the scene …” and that this review had “clearly demonstrated that the ESR scientists have been able to exclude the DNA of Mr King from such items as the blue glass found on the kitchen bench”.
[198] With all these general observations in mind, it seems useful now to assess this aspect of Mr King’s claim by reference to the framework suggested in the Canadian case of Henry.54
Did the prosecutor intentionally withhold this information?
[199]It is my clear view that the answer to this question is no. By way of summary:
(a)the “prosecutor” here was Police, not ESR;
(b)there was no separate obligation on ESR to make disclosure independently or to perform tests or comparisons other than those requested by Police;
53 Set out at [130] above.
54 Set out at [162] above.
(c)the alleged failure of ESR to “join the dots” in their formal statements (both in relation to the Y-STR comparison and the ashtray) was—in any event—a function of their (correct) view of the operation of s 71 of the CIBSA and could not in any event amount to material non-disclosure;
(d)the statement made by Mr Collins in March 2009 that there was no DNA evidence to exclude Mr King was, in my view, a simple mistake, potentially explicable by the fact that such exclusionary DNA evidence as did exist was of marginal probative value and, in the absence of a further suspect sample, inadmissible;
(e)the relevant material (the ESR files) was in fact disclosed at the direction of Police well before trial and as soon as Mr Williams asked for it;
(f)the fact that the files were not disclosed until they were sought was a function of the disclosure regime in operation at the relevant time. It was not pleaded or argued that the regime itself operated inconsistently with a defendant’s fair trial rights (either generally or specifically); and
(g)it appears to have been the Crown Prosecutor who drew the defence’s attention to the potential prejudice to Mr King from not calling his own DNA evidence and it seems to have been the Crown Prosecutor’s suggestion that the prejudice could be avoided by use of a s 9 agreed statement.
[200] Because I consider that the relevant disclosure was made here, there is strictly no need to consider the remainder of the Henry questions. I nonetheless do my best to do so for completeness, and in case my primary conclusion is wrong.
Did the prosecutor know or ought the prosecutor reasonably to have known that this information was material to the defence?
[201] Once Police were aware that a comparison between the Y-STR DNA on the hot tap and the eye-cheek and ashtray DNA tended to (or did) exclude the person identified
on the databank as Mr King, they should or would have known that this information would be material to the defence. As far as the eye-cheek comparison was concerned, however, their view of its materiality would reasonably have been significantly affected by the advice they had received (in late November 2008) that the poor quality, and likely contamination, of the samples made the comparison all but worthless from an evidentiary point of view.
Did withholding the information violate Mr King’s rights under ss 24(d) and 25(a) of NZBORA?
[202]The information was not withheld.
Has Mr King suffered harm as a result?
[203] Mr King spent a considerable time incarcerated in circumstances where the Crown case against him was ultimately found unsafe. That aspect of the claim will be addressed shortly, below. But the DNA evidence formed no part of that finding. Moreover, given that a s 347 application based (amongst other things) on the information said to have been (earlier) withheld did not succeed, it is impossible to discern how there could be a causal link between the alleged non-disclosure and any harm suffered.
Conclusion
[204]I am not satisfied there was any relevant non-disclosure here.
ARBITRARY DETENTION
[205] Section 22 of the NZBORA provides: “Everyone has the right not to be arbitrarily arrested or detained.”
Scope of the claim (non-disclosure)
[206] I have noted earlier in this judgment the view expressed by the Canadian Supreme Court that non-disclosure can potentially found a claim of arbitrary detention. But to the extent the present claim for breach of s 22 is based on alleged non-disclosure, it must fail for the reasons already given. Not only am I not satisfied
that there was any material non-disclosure here, but it also cannot in my view fairly be said that earlier knowledge by the defence team about either the Y-STR results or the ashtray would have meant that Mr King would—or might—have been released earlier. On the contrary, Clifford J’s s 347 decision strongly suggests otherwise.
[207] So, the focus of this part of this judgment must be on the alleged failure of the Crown Solicitor to analyse the Hatuma evidence and recognise that a conviction based upon it would be unsafe earlier.
Arbitrary detention: some general principles
[208] There is, of course, no dispute in this case that Mr King was detained for a considerable period awaiting trial. In part that was a consequence of the fact that he continued to be subject to an existing sentence at the time of his arrest, although his detention continued beyond his statutory release date. In any event, it is not likely that he would have been granted bail following his arrest for murder.
[209] Nor could there be a challenge to the legality of his detention, which was at all times pursuant to a lawful Court order. The only question is whether that detention might, nonetheless, be said to be arbitrary.
[210] The leading statement on what “arbitrary” means in the context of the NZBORA remains that of Richardson P in Nielsen v Attorney-General:55
Whether detention or an arrest is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures …
[211] An unlawful detention will generally be arbitrary. This is because the statutory framework of a particular arrest or detention power reflects Parliament’s balance of where the balance lies between the interest of the state and freedom of the individual.
55 Nielsen v Attorney-General [2001] 3 NZLR 433, (2001) 6 HRNZ 334 at [34].
[212] Lawful detention may nonetheless be arbitrary if it exhibits elements of inappropriateness, injustice, or lack of predictability or proportionality. But detention is unlikely to be arbitrary where there is certainty around the circumstances in which the power is exercised, and the detention can, in all the circumstances, be objectively said to be justifiable. As a general principle a detention will not be arbitrary where it accords with a sentence imposed by a judicial authority and the required public safety assessments have been carried out by the Parole Board in a way which accords with the parole legislation.
[213] There may be circumstances where, despite being initially lawful, a detention becomes unlawful or arbitrary because the conditions originally justifying detention no longer subsist. A detention is unlikely to be arbitrary in circumstances where: the detention was authorised by statute and/or by the courts; there is a thorough and mandatory system for regularly reviewing the need for the continued detention; the detention has in fact been regularly and systematically reviewed; and the person detained can challenge the outcomes of those reviews which they have exercised.
Judicial scrutiny of prosecutorial decisions
[214] Because it is alleged failures by the Crown Solicitor that are said to have rendered Mr King’s detention arbitrary, it is necessary also to make some general and preliminary observations on the approach the Courts have taken to claims engaging with the exercise of prosecutorial discretion and decision-making.
[215] Judicial scrutiny of prosecutorial decisions has traditionally been the subject of restraint, for policy reasons. In Moevao v Department of Labour, Richmond P noted with approval Lord Salmon’s observation in R v Humphrys that:56
[A] judge has not and should not appear to have any responsibility for the institution of prosecutions; nor has he any power to refuse to allow a prosecution to proceed merely because he considers that, as a matter of policy, it ought not to have been brought. It is only if the prosecution amounts to an abuse of the process of the court and is oppressive and vexatious that the judge has the power to intervene.
56 Moevao v Department of Labour [1980] 1 NZLR 464 (CA), citing R v Humphrys [1977] AC 1, [1976] 2 All ER 497 (HL) at 527–528; emphasis added.
Fortunately, such prosecutions are hardly ever brought but the power of the court to prevent them is, in my view, of great constitutional importance and should be jealously preserved.
[216]In the same case, Richardson J said:57
It is not the purpose of the criminal law to punish the guilty at all costs. It is not that that end may justify whatever means may have been adopted. There are two related aspects of the public interest which bear on this. The first is that the public interest in the due administration of justice necessarily extends to ensuring that the Court's processes are used fairly by State and citizen alike. And the due administration of justice is a continuous process, not confined to the determination of the particular case. It follows that in exercising its inherent jurisdiction the Court is protecting its ability to function as a Court of law in the future as in the case before it. This leads on to the second aspect of the public interest which is in the maintenance of public confidence in the administration of justice. It is contrary to the public interest to allow that confidence to be eroded by a concern that the Court's processes may lend themselves to oppression and injustice.
…
… The concern is with conduct on the part of a litigant in relation to the case which unchecked would strike at the public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. As it was put by Frankfurter J in Sherman v United States 356 US 369, 380 (1958): “Public confidence in the fair and honourable administration of justice, upon which ultimately depends the rule of law, is the transcending value at stake”.
[217]More recently, the Court of Appeal observed in Fox v Attorney-General that:58
[30] A decision by a public official to prosecute in any case involves the exercise of a discretionary public power … When considering whether to prosecute, para 3 of the Law Commission paper states “there are two major factors to be considered: evidential sufficiency and the public interest”. The latter aspect requires consideration of “whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed”.
[31] The Courts traditionally have been reluctant to interfere with decisions to initiate and continue prosecutions. In part this is because of the high content of judgment and discretion in the decisions that must be reached. But perhaps even more so it also reflects constitutional sensitivities in light of the Court’s own function of responsibility for conduct of criminal trials.
[218] Elsewhere, slightly different rationales for the Courts’ orthodox restraint have been articulated. The first relates to the separation of powers. As the Canadian
57 At 481–482.
58 Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [30]-[31].
Supreme Court has observed, the fundamental importance of protecting prosecutorial discretion is:59
… not in protecting the interests of individual Crown attorneys, but in advancing the public interest by enabling prosecutors to make discretionary decisions in fulfilment of their professional obligations without fear of judicial or political interference.
[219] The second rationale is that official decision-making regarding prosecutions is typically “polycentric” in character, given the policy and public interest considerations at stake, and therefore not usually within the practical competence of the Courts.60
[220] But the fact that the judiciary traditionally exercises restraint with regards prosecutorial decisions by Crown Solicitors does not mean that discretion is immune from review. The issue was left open by the Court of Appeal in Moevao,61 and Richmond P’s approving reference to Lord Salmon’s observation in Humphrys indicates support for the principle that a Court may intervene where there has been an abuse of process, which is properly a matter of judicial concern and (potentially) intervention.62 That has been confirmed (for example) in Canada, where in R v Anderson Moldaver J held for a unanimous Supreme Court that, “exercises of prosecutorial discretion are only reviewable for abuse of process.”63
[221] I also note that in the unique case of R (on the application of E and others) v Director of Public Prosecutions), the English and Welsh High Court was prepared to entertain more orthodox judicial review proceedings based on serious alleged failings by the Crown Prosecutor, including amongst other things, failure to comply with the relevant prosecution guidelines, when electing to prosecute a vulnerable young person.64
59 Miazga v Kvello Estate, 2009 SCC 51, [2009] 3 S.C.R. 339 at [47].
60 R (on the application of E and others) v Director of Public Prosecutions [2011] EWHC 1465 at [38], citing Lord Bingham of Cornhill in R (Corner House Research and another) v Director of the Serious Fraud Office [2008] UKHL 60, [2009] 1 AC 756.
61 Moevao v Department of Labour, above n 57, at 471.
62 R v Humphrys, above n 57, at 527-528;
63 R v Anderson [2014] 2 R.C.S. at [26].
64 R (on the application of E and others) v Director of Public Prosecutions [2011] EWHC 1465.
The relevant guidelines
[222] I have mentioned the 1992 Prosecution Guidelines earlier. They gave guidance to Crown Solicitors on decisions to prosecute in the following terms:
3.The Decision to Prosecute
In making the decision to initiate a prosecution there are two major factors to be considered; evidential sufficiency and the public interest.
3.1Evidential Sufficiency
The first question always to be considered under this head is whether the prosecutor is satisfied that there is admissible and reliable evidence that an offence has been committed by an identifiable person.
The second question is whether that evidence is sufficiently strong to establish a prima facie case; that is, if that evidence is accepted as credible by a properly directed jury it could find guilt proved beyond reasonable doubt.
3.3The Public Interest
3.3.1The second major consideration is whether, given that an evidential basis for the prosecution exists, the public interest requires the prosecution to proceed. Factors which can lead to a decision to prosecute or not, will vary infinitely and from case to case. Generally, the more serious the charge and the stronger the evidence to support it, the less likely it will be that it can properly be disposed of other than by prosecution. A dominant factor is that ordinarily the public interest will not require a prosecution to proceed unless it is more likely than not that it will result in a conviction. This assessment will often be a difficult one to make and in some cases it may not be possible to say with any confidence that either a conviction or an acquittal is the more likely result. In cases of such doubt it may be appropriate to proceed with the prosecution as, if the balance is so even, it could probably be said that the final arbiter should be a Court. It needs to be said also that the public interest may indicate that some classes of offending, eg driving with excess breath or blood alcohol levels, may require that prosecution will almost invariably follow if the necessary evidence is available.
Discussion
[223]There are several matters that tell against Mr King’s claim here.
[224] First, the Police decision to charge Mr King with murder cannot be and is not under attack in this case. The challenge must therefore be to the decision to maintain
the prosecution (or, alternatively, not to review critically the evidential basis for it) from the laying of the indictment in late 2008 until the day the charge was dismissed, in February 2010. Mr Harrison rightly says that there was no material change to the Hatuma witnesses’ evidence during that period; everything uncovered by the Crown Solicitor’s later review had existed throughout.
[225] Secondly, the attack here is focused on the “evidential sufficiency” limb rather than the “public interest” limb of the Crown Solicitor’s decision to prosecute (or to maintain the prosecution). That distinguishes it from R (on the application of E and others) v Director of Public Prosecutions), which was very much about the public interest aspect of the impugned decision. So in my view the threshold that must be met here is abuse of process. In other words, Mr King must establish that it was an abuse of process for the Crown Prosecutor to continue with the prosecution which, on the facts of this case, can only involve the failure to interrogate the Hatuma evidence sooner.
[226] I referred to how some of the authorities have defined ‘abuse of process’ in this context earlier: conduct that, if unchecked, would strike at public confidence in the Court’s processes and so diminish the Court’s ability to fulfil its function as a Court of law. It might, conceivably, involve prosecutorial (mis)conduct that materially affects the fairness of the trial or there might also be a type of conduct that, for other reasons “contravenes fundamental notions of justice and thus undermines the integrity of the judicial process”.65 Examples from the cases include:
(a)a prosecution that places a defendant in double jeopardy;66
(b)a prosecution following an unlawful extradition;67
(c)entrapment;68 and
65 R v Nixon (2011) SCC 34, [2011] 2 S.C.R. 566, quoting R v O’Connor, [1995] 4 S.C.R. 411, at
[73].
66 Connolly v DPP [1964] AC 1254.
67 Bennett v Horseferry Road Magistrates Court [1993] 3 All ER 138, R v Hartley [1978] 2 NZLR 119.
68 R v Loosely [2001] 4 All ER 897.
(d)breach of a promise not to prosecute that the defendant has acted on to his detriment.69
[227] But what happened here does not come near to meeting the abuse of process threshold. There is no suggestion whatsoever of prosecutorial dishonesty or some other form of impropriety. Rather, the opposite is the case: Mr King did not suffer an unfair trial precisely because of the Crown Prosecutor’s actions.
[228] Although—as the Guidelines make clear—an assessment of evidential sufficiency is part of a Crown Solicitor’s job, questions of witness reliability (and credibility) are ordinarily regarded as quintessential jury questions requiring a “hands off” approach from both the Crown Solicitor and (later) the Judge. So, as the Crown Solicitor rightly said, the orthodox starting point was that if the Hatuma witnesses who made statements that Mr King had told them about the murder during the morning of 21 January 2008 were accepted by the jury as credible and reliable then there was sufficient evidence reasonably to convict him of Ms Maihi-Carroll’s murder.
[229] While there may be instances where a more rigorous approach is warranted (such as witnesses with clear reasons to lie, cell mate confessions, or “Mr Big” scenarios), this is not one of those obvious cases. Notably there is objective support for the decision to lay the indictment and to persist with the prosecution. The fact that the prosecution case passed through the depositions threshold is evidence of the first. The fact that it survived two applications for discharge—declined by two different High Court judges—is evidence of the second. Importantly, at least one of those discharge applications was squarely focused on an attack on the reliability of the Hatuma witnesses.
[230] Given my clear view that there has been no abuse of process here, it is not necessary to go further and consider the question of whether there was a breach of s 22. As noted, it is not disputed that Mr King’s detention was lawful and, absent any finding of abuse of process, there can be no possibility that it was arbitrary.
69 R v Croydon Justices ex p Dean [1993] 3 All ER 129.
CONCLUSION
[231] It is difficult not to have sympathy for Mr King and the position he found himself in following the death of Ms Maihi-Carroll. But for the reasons I have given I am unable to conclude that what happened in this case is inconsistent with any of his pleaded NZBORA rights. On the contrary, this appears to me to be an example of the criminal justice process working as it should. The claim for NZBORA compensation and/or declarations is dismissed, accordingly.
[232] I did not hear from the parties on costs, though I note that Mr King is legally aided. If some issue nonetheless exists and agreement cannot be reached, brief memoranda may be filed.
Rebecca Ellis J
Solicitors:
Tucker & Co, Auckland for Plaintiff
Crown Law, Wellington for Defendant
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