Manoah v The Queen
[2020] NZCA 121
•28 April 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA31/2020 [2020] NZCA 121 |
| BETWEEN | KANE JOSEPH MANOAH |
| AND | THE QUEEN |
| Court: | Goddard, Mallon and Thomas JJ |
Counsel: | W C Pyke for Applicant |
Judgment: | 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 criminal proceeding.[7] It was therefore necessary to obtain a suspect compulsion order.
[7]Criminal Investigations (Bodily Samples) Act 1995, s 71.
On 13 June 2018 a suspect compulsion order was made in the District Court. The buccal sample obtained was not determinative when analysed. The Institute of Environmental Science and Research (ESR) recorded the reason for the failure as unknown. This was discussed in the District Court — the police said that Mr Manoah actively obstructed them and used another person’s toothbrush immediately prior to the mouth swab being taken.[8]
[8]Pre-trial ruling, above n 5, at [10].
On 6 August 2018 the police made another application for a suspect compulsion order. The District Court granted this on 9 August 2018.[9] The order specified that the bodily sample was to be taken at the Mount Eden Remand Centre within 14 days of the order being made (that is, by 23 August 2018).
[9]Police v Manoah [2018] NZDC 16558 [Ruling No 1 of Judge Glubb].
The sample was obtained on 31 August 2018. By this time Mr Manoah was at Auckland’s Paremoremo Prison. In attendance were two police officers (Constables Kane and Robinson), a police doctor and Mr Manoah’s then counsel, Dr Kidd. Members of the prison’s riot squad were also present. This was because Mr Manoah had a history of violence towards police and had been involved in a scuffle when the earlier sample was obtained.
Constable Kane was aware the order had expired. He was unaware the police could obtain a further order or a variation of the date from the Court. He had liaised with Dr Kidd and believed the date could be extended by consent. He provided transport for Dr Kidd to attend the prison. Constable Kane’s notebook recorded that “Dr Kidd advised Manoah to comply and stop delaying the process”. According to affidavits filed in the High Court, Dr Kidd explained to Mr Manoah that he should not delay the process because the police would be able to obtain another suspect compulsion order. Dr Kidd’s notes recorded that Mr Manoah gave the sample voluntarily.
On 3 August 2018 Mr Manoah had sent a letter to Legal Aid Services seeking to change his legal counsel. Dr Kidd was unaware of this when he attended the prison on 31 August 2018. Mr Manoah did not tell him or the police officers of this letter nor indicate to them that Dr Kidd was no longer his counsel. New counsel was not assigned until 12 October 2018.
The sample was obtained from a finger prick. Analysis of the sample provided “extremely strong” scientific support for a match with the blood sample from the tool. The District Court Judge determined this evidence was admissible. Mr Manoah was convicted on the burglary charge, and sentenced to 16 months’ imprisonment on this charge and three charges of stealing petrol with a total value of $190.[10]
The High Court decision
[10]Police v Manoah [2019] NZDC 5828 [Sentencing notes].
Mr Manoah appealed his conviction on the basis that the profile evidence should not have been admitted under the s 30 test.[11] The Judge noted that s 45AA of the Criminal Investigations (Bodily Samples) Act required strict compliance with time limits. She noted the sample was taken out of time, no arrest warrant was issued and the date had not been varied by a Judge. No issue was taken with the variation to the place at which the sample was taken.
[11]Applications for leave to appeal out of time and to file affidavit evidence were granted.
The Judge turned to the test under s 30. As to the relevant 30(3) factors, the Judge’s views were as follows:
(a)Mr Manoah did not have an absolute right to the protection of bodily integrity since blood samples can be compelled by a statutory process. A blood sample had been authorised here.
(b)The impropriety was limited to a failure to comply with the time limit. In the Judge’s view the police had not acted in bad faith. Nor had they been reckless. The police had involved Mr Manoah’s legal counsel and the sample had been taken after advice from his counsel. While the sight of corrections officers in riot gear could have been intimidating, Mr Manoah did not say that he had been intimidated despite having had the opportunity to give evidence to this effect. Having officers present in riot gear was reasonable given the scuffle on the earlier occasion.
(c)The nature and quality of the evidence strongly favoured admissibility. It was reliable, scientific evidence providing extremely strong evidence linking Mr Manoah to the burglary.
(d)The offending was moderately serious.
(e)The Criminal Investigations (Bodily Samples) Act permits the date for taking the sample to be varied by a Judge.[12] It also permits a further application for a suspect compulsion order to be made for the same offence.[13] Either method would have allowed the police to obtain the sample after the second order had expired. Constable Kane should have known this, but it was understandable that he thought consent from Mr Manoah was sufficient. This was therefore a neutral factor.
(f)There was no urgency.
[12]Criminal Investigations (Bodily Samples) Act, s 47(1) and (3).
[13]Section 17.
Turning to whether the exclusion of the evidence would be disproportionate to the impropriety, the Judge accepted that an important right was involved and there was no urgency. However, balanced against those factors were the following:[14]
(a) the impropriety was modest given the invasion of Mr Manoah’s rights had been authorised by Judge Glubb, the police were transparent with him and facilitated his legal advice. While Mr Beach says Mr Manoah was intimidated, Mr Manoah himself has not provided any evidence he was.
(b) the nature and quality of the evidence favours admission and the evidence is central to the police case;
(c) the charge of burglary is a moderately serious offence, favouring admission.
[14]Manoah v Police, above n 1, at [35].
Agreeing with the District Court, the Judge concluded that exclusion of the evidence would be disproportionate to the impropriety. The appeal against conviction was dismissed.
The intended appeal grounds
Mr Manoah says the High Court erred in its assessment of the degree of impropriety involved in obtaining the DNA sample. He submits the impropriety was serious because:
(a)The police officer was grossly reckless in not reading and obeying the terms of the order, which specified the date by which the sample had to be obtained, and in being “ignorant” of the legislation. This legislation requires scrupulous compliance.
(b)The impropriety was aggravated by the officer using Dr Kidd to facilitate taking the sample unlawfully. Dr Kidd was second guessing what a later Court might do when faced with a third application on a matter that was much delayed. His advice put improper pressure to bear on Mr Manoah at a time that he was being housed in New Zealand’s maximum security prison. Moreover, the High Court found that Mr Manoah accepted Dr Kidd’s advice when this was not supported by the evidence.
(c)The right to protection of bodily integrity is important. Taking a sample without lawful authority was an affront to Mr Manoah’s personal integrity and dignity and it was therefore serious.
Mr Manoah submits that the factors favouring admitting the evidence do not outweigh the impropriety when that is correctly assessed. He therefore contends that the evidence should have been excluded and a miscarriage of justice has occurred. He also says an issue of general and public importance arises because the credibility of the protections provided under the Criminal Investigations (Bodily Samples) Act are undermined if the non-compliance in this case is excused under s 30 of the Evidence Act.
Our assessment
We are not satisfied there is a risk of a miscarriage of justice. The balancing of factors under s 30 is fact-specific. The District and High Courts reached the same conclusion on those facts, namely that exclusion would be disproportionate to the impropriety.
We do not agree that the High Court Judge underweighted the impropriety. We agree 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. However, we agree with the High Court Judge that the officer was not acting in bad faith or reckless in circumstances where he had raised the issue with Mr Manoah’s counsel and facilitated counsel providing advice to Mr Manoah about it. Counsel was right to point out to Mr Manoah that, if he refused the sample, in all likelihood he would just be delaying matters. We consider it was virtually inevitable that a variation to the date of the second order would have been given against the background of the difficulties with the first sample, and the short period between the expiry of the second order and the date when the sample was to be taken.
We also do not agree that the Judge underweighted the importance of the right at stake. There is no doubt that the right to protection of bodily integrity is of high importance. As we have said, however, strict adherence to the statutory regime would not have assisted Mr Manoah. The legislation allows suspect compulsion orders to be made. The police had strong grounds for suspecting that Mr Manoah’s DNA was on the hand saw because of the match with his profile on the databank. The legislation permits variations to be made to the date in the order. It also permits further applications to be made in relation to the same offence. While the police should have utilised either of these methods before obtaining Mr Manoah’s sample, the outcome for Mr Manoah would have been the same.
We agree that scrupulous compliance with the legislation is important. But that is not to say that the evidence invariably must be ruled inadmissible when this does not occur. Section 30 requires a fact-specific evaluation and that is what occurred in the two lower courts. No matter of general or public importance arises.
Result
The application for leave to bring a second appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for the Respondent
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