Milner v The Queen - [2019] NZHC 1471

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…

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 Milner v The Queen

Details

AGLC: Milner v The Queen [2019] NZHC 1471
Case: [2019] NZHC 1471
Decision Date: 26 June 2019

CaseChat Overview and Summary

In Milner v The Queen, Helen Elizabeth Milner applied to the High Court of New Zealand 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. This was to support an application to the Governor-General for an exercise of the Royal prerogative of mercy. Ms Lee-Ann Cartier, the sister of Mr Nisbet, opposed Milner's application for an order removing the bodily samples. Crown Law, initially notified of Milner's application, stated that if Milner could satisfy the Court that it had jurisdiction to make the order requested, it agreed that the samples should be sent for testing.

The central issue before the court was whether it had jurisdiction to make the orders sought, specifically whether it had custody of the bodily samples. The court had to determine whether the samples were "exhibits" and who had custody over them. The court had to trace the chain of custody from the post-mortem performed for the purposes of the coronial inquiry. The court had to determine if the samples were "other things connected with the trial" for the purposes of s 324 of the Criminal Procedure Act 2011. If they were, the High Court assumed custody over the bodily samples once criminal proceedings were filed against Milner in the High Court.

The court held that the samples were "other things connected with the trial" and thus were in the custody of the High Court. The court held that the Court of Appeal retained custody of the bodily samples until some action was taken to release it. The court held that the present matter must be addressed by the Court of Appeal, which should reconsider the matter in light of s 324(b) of the Criminal Procedure Act 2011. The court dismissed Milner's application and noted that the matter should be addressed by the Court of Appeal.

Orders