Milner v The Queen
[2019] NZHC 1471
•26 June 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2019-409-000012
[2019] NZHC 1471
BETWEEN HELEN ELIZABETH MILNER
Applicant
AND
THE QUEEN
Respondent
Hearing: (Determined on the papers) Counsel:
R G Glover for Applicant
N M Pender for Lee-Anne Cartier
Judgment:
26 June 2019
JUDGMENT OF GENDALL J
Introduction
[1] Ms Helen Milner has applied to this Court for an order that bodily samples taken from Philip Nisbet’s body currently in the possession of the ESR be forwarded to Australian laboratories for testing. It is intended that the results of this testing may support an application to the Governor-General for an exercise of the Royal prerogative of mercy.
[2] Ms Lee-Ann Cartier, sister of Mr Nisbet, opposes Ms Milner’s application for an order removing the bodily samples.
[3] Crown Law was originally notified of Ms Milner’s application and have filed a memorandum stating that if Ms Milner can satisfy the Court that it has jurisdiction to make the order requested, it agrees that the samples should be sent for testing.
MILNER v R [2019] NZHC 1471 [26 June 2019].
[4] This application raises a number of issues. However, I have been asked to look at whether this Court has jurisdiction to make the orders sought, namely whether it has custody of the bodily samples.
Background
[5] Mr Glover for Ms Milner states in his memorandum that in attempting to have the bodily samples tested he has contacted a number of people in an effort to determine who has the power to make a decision in respect of them.
[6] Professor Duflou, who I understand is the expert engaged by Ms Miler here, advised Mr Glover by email on 25 May 2019 that “the tissues were taken under the Coroners Act [2006], not the Human Tissue Act [2008]”. Professor Duflou quoted an email he received from Dr Martin Sage, a forensic pathologist, on 20 November 2017:
…
I put it to Coroner Sue Johnson whose case Nisbet has been, and she has discussed it with Chief Coroner Marshall, who have jointly decided that despite the paragraph above, they will retain jurisdiction over the samples (ESR is holding the liver, hair and a remnant of blood and urine), and if the defence wish to pursue gene testing then they will need to work through Coroner Johnson in the first instance.
[7] Mr Glover then approached Coroner Sue Johnson, but he was told she as Coroner did not have jurisdiction, relying on a legal opinion sought by her and attached to Mr Glover’s memorandum. That opinion concluded that the Court of Appeal had custody of the samples as exhibits in Ms Milner’s trial in the High Court transferred to the Court of Appeal on appeal.
[8] Counsel then approached the Court of Appeal but was advised by a Deputy Registrar of that Court that French J had determined that the Court of Appeal did not have jurisdiction because the samples were not “exhibits” and never in the custody of that Court.
[9] Accordingly, Mr Glover filed an application with this Court on the grounds that it has custody of the blood samples and thus jurisdiction to make the orders sought.
Analysis
Are the blood samples “exhibits”?
[10] It is French J’s provisional view that the Court of Appeal lacks jurisdiction because the relevant samples were never in the custody of that Court as they were not “exhibits” and were thus never transferred to the Court on appeal. Respectfully, I would note that the provision pertaining to the transfer material from a trial court to an appeal court is wider than “exhibits”. Section 324 of the Criminal Procedure Act 2011 provides:
Any documents, exhibits, or other things connected with the trial of any person who, if convicted, is entitled or may be authorised to appeal against conviction or sentence—
(a)must be kept in the custody of the trial court or appeal court, as the case may be…
(Emphasis added)
I am of the view that samples that form the bases for the evidence of expert witnesses who gave evidence at trial would fall into the category of “other things” in the event, as here, those things were not formally produced as exhibits.
Who has custody over the samples?
[11] If the samples are accepted as “other things connected with the trial” for the purposes of s 324, we can then trace the chain of custody from the port-mortem performed for the purposes of the coronial inquiry.
[12] Under s 19 of the Coroners Act 2006, Coroner Johnson had an exclusive right to custody of the body of the deceased from the point in time the death was reported to her as the designated coroner until she authorised the release of the body under s 42. Presumably soon after Coroner Johnson released her findings, namely that she could not find proof of death by suicide, police reopened their homicide inquiry in relation to Mr Nisbet’s death and would have taken custody of the bodily samples and other potentially evidential material. At trial some physical material would have been produced by the Crown as exhibits, but other material would have been merely
referred to in oral evidence without the evidential value of the “thing” actually being put in issue by either party.
[13] Thus, at some point, once criminal proceedings were filed against Ms Milner in the High Court, the bodily samples became “other things connected” with her trial. At this point, the High Court assumed custody over the bodily samples.
[14] Dr Martin Sage, the forensic pathologist who performed the autopsy, gave evidence at trial relating to the autopsy he performed on the deceased.1 He produced the report he had made to Coroner Johnson as an exhibit. Under examination Dr Sage stated: 2
Standard samples were taken for toxicology, so we take blood from the internal iliac vein, urine from the bladder, some liver and some head hair and I sent those to ESR in Wellington for analysis and Dr [Sarah] Russell has reported on those results, and then I complete my report once I’ve seen the microscopic things and once I’ve received the toxicology results back.
Asked to comment on the conclusion he reached as a result of Dr Sarah Russell’s toxicology report, Dr Sage stated the “ingestion of excessive promethazine was the operating cause of death”.3
[15] Dr Russell, a forensic toxicologist of ESR, also gave evidence at trial. She said she received blood, urine, liver and hair samples of the deceased on 13 May 2009 for toxicology analysis. As a result of the analysis of the blood sample, she detected only promethazine.
[16] It is clear then that the evidence of Dr Sage and Dr Russell, critical to establishing that the cause of death was ingestion of excessive promethazine, relies on the samples taken from Mr Nisbet’s body. It must be that while the samples were not produced as exhibits, they were certainly “other things connected with the trial” and thus were at that point in the custody of this Court.
1 NOE, at 825.
2 At 827–828.
3 At 830.
[17] Subsequent to her being found guilty of one charge of attempted murder and one charge of murder, Ms Milner appealed her convictions to the Court of Appeal. At this point, the custody of these bodily samples transferred to the Court of Appeal pursuant to s 324 of the Criminal Procedure Act. The Court of Appeal dismissed the appeal.
[18] Ms Milner then applied for leave to appeal to the Supreme Court. Leave was declined. Thus, custody of the samples never transferred to the Supreme Court, as it was never an “appeal court” in relation to the proceedings against Ms Milner within the meaning of s 324(a).4
[19] There being no legislative provision or rule of court providing for the automatic release or transfer of custody of “documents, exhibits, or other things” at the conclusion of an appeal, it must be presumed, as I see the position, that the appeal court retains custody until some action is taken to release it. In this case, it appears that such action has not been taken by the Court of Appeal. Thus, with due respect to the view taken by French J, in my judgment the Court of Appeal retains custody of the bodily samples that are the subject of Ms Milner’s present application.
[20] That being so, I am of the view that the present matter must be addressed by the Court of Appeal. Previously, what I see as a relatively informal request was made to the Court of Appeal which triggered the “provisional view” of French J which I note at [10] above. The proper course now as I see it, is for the Court of Appeal to reconsider the matter in light of s 324(b) of the Criminal Procedure Act 2011.
...................................................
Gendall J
Solicitors:
Rupert Glover, Barrister, Christchurch Franks Ogilvie, Wellington
4 See Senior Courts Act 2016, s 73(1).
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