Manoah v The Queen - [2020] NZCA 121

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA31/2020
[2020] NZCA 121

BETWEEN	KANE JOSEPH MANOAH Applicant
AND	THE QUEEN Respondent

Court:	Goddard, Mallon and Thomas JJ
Counsel:	W C Pyke for Applicant A Markham for Respondent
Judgment: (On the papers)	28 April 2020 at 9.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

Mr Manoah was convicted of burglary at a Judge-alone trial in the Waitakere District Court. An appeal against his conviction was dismissed by the High Court.[1] He seeks leave to bring a second appeal.[2] Leave can be granted only if this Court is satisfied that Mr Manoah’s appeal involves a matter of general or public importance or that a miscarriage of justice may occur or may have occurred unless the appeal is heard.[3] This sets a high threshold.[4]
[1]Manoah v Police [2019] NZHC 3404.
[2]His application has been heard on the papers pursuant to an earlier direction of this Court in a Minute by Courtney J: Manoah v R CA31/2020, 10 February 2020.
[3]Criminal Procedure Act 2011, s 237(2).
[4]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
The issue in the High Court was whether DNA profile evidence obtained via a suspect compulsion order was admissible at his trial. This profile matched a blood sample taken from a tool at the crime scene. The profile was obtained eight days after the expiry of the order in breach of s 45AA(1) of the Criminal Investigations (Bodily Samples) Act 1995. The District Court ruled that the profile was admissible evidence, despite this breach, under the balancing test set out in s 30 of the Evidence Act 2006.[5] The High Court upheld that decision.[6]
[5]Police v Manoah [2018] NZDC 27523 [Pre-trial ruling].
[6]Manoah v Police, above n 1.
Mr Manoah contends the DNA profile evidence ought to have been excluded. He submits the High Court erred in its assessment of the degree of impropriety involved when carrying out the s 30 balancing test, and this gave rise to a miscarriage of justice. He also contends the Court’s decision undermines the legislative regime for taking bodily samples and this raises a matter of general or public importance.

Background

The burglary charge arose out of events on 13 November 2017. The police alleged Mr Manoah jemmied open the garage at a residential address and stole a Yamaha dirt bike valued at $8,000. The police conducted a forensic examination at the address on 15 November 2017. A blood-like substance was found on a hand saw believed to have been used to open the garage. A swab of the substance was taken and analysed.
The DNA profile from the swab corresponded to Mr Manoah’s DNA profile on the DNA databank. Evidence of a match with a profile on a DNA databank is not admissible against a defendant in a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Manoah v The Queen

Details

AGLC: Manoah v The Queen [2020] NZCA 121
Case: [2020] NZCA 121
Decision Date: 28 April 2020 at 9.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand was asked to decide whether Kane Joseph Manoah could bring a second appeal against his conviction for burglary. The Court was required to decide whether Mr Manoah's appeal involved a matter of general or public importance or whether a miscarriage of justice may occur or has occurred unless the appeal is heard. Mr Manoah's first appeal to the High Court was dismissed, and he now seeks leave to bring a second appeal. Mr Manoah argues that the High Court erred in its assessment of the degree of impropriety involved when carrying out the balancing test set out in s 30 of the Evidence Act 2006, and this gave rise to a miscarriage of justice. He also contends that the Court’s decision undermines the legislative regime for taking bodily samples and this raises a matter of general or public importance.

The Court of Appeal dismissed Mr Manoah's application for leave to bring a second appeal. The Court found that there was no risk of a miscarriage of justice and that no matter of general or public importance arises. The Court agreed with the High Court's assessment that exclusion of the evidence would be disproportionate to the impropriety. The Court found that the officer ought to have known that a variation of the order or a new order was necessary once the date in the order had passed, but the officer was not acting in bad faith or recklessly in circumstances where he had raised the issue with Mr Manoah's counsel and facilitated counsel providing advice to Mr Manoah about it. The Court also found that the importance of the right at stake was not underweighted by the High Court Judge. While the police should have utilised either of the methods available to them before obtaining Mr Manoah's sample, the outcome for Mr Manoah would have been the same.

The Court of Appeal dismissed Mr Manoah's application for leave to bring a second appeal. The Court found that there was no risk of a miscarriage of justice and that no matter of general or public importance arises. The Court agreed with the High Court's assessment that exclusion of the evidence would be disproportionate to the impropriety. The Court found that the officer ought to have known that a variation of the order or a new order was necessary once the date in the order had passed, but the officer was not acting in bad faith or recklessly in circumstances where he had raised the issue with Mr Manoah's counsel and facilitated counsel providing advice to Mr Manoah about it. The Court also found that the importance of the right at stake was not underweighted by the High Court Judge. While the police should have utilised either of the methods available to them before obtaining Mr Manoah's sample, the outcome for Mr Manoah would have been the same.

Orders