Police v A HC Wellington CRI-2006-485-145

[2006] NZHC 1503

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-145

UNDER  The Criminal Investigations (Bodily

Samples) Act 1995

IN THE MATTER OF     an application under Section 13 for a Suspect Compulsion Order requiring a person of or over the age of 17 years, who

is suspected of having committed a relevant offence, to give a bodily sample

BETWEEN  NEW ZEALAND POLICE Applicant

AND  A

Respondent

Hearing:         5 December 2006

Appearances: D La Hood for Applicant

C Ross for Respondent

Judgment:      5 December 2006

ORAL JUDGMENT OF GENDALL J

[1]      This is an application by the police for a Suspect Compulsion Order under s13 of the Criminal Investigations (Bodily Samples) Act 1995 which is opposed by the respondent.

[2]      The essential relevant  facts for the purpose of this application are that  a burglary occurred in the afternoon of 1 May 2006 at an apartment complex in Vivian Street, Wellington.   Two persons were seen leaving the premises shortly after the burglary, they having been disturbed by persons returning to the apartment.   The evidence at the moment is that the two persons were pursued during which chase one

of  them  was  seen  to  drop  or  lose  sunglasses  that  he  was  then  wearing.    The

NEW ZEALAND POLICE V A HC WN CRI-2006-485-145  5 December 2006

sunglasses were picked up by one of the pursuers and the two men were able to make good their escape and not located.  Later analysis of the sunglasses revealed a DNA match from the National DNA Database with the respondent Mr A  .

[3]      On this basis the police applied for a Suspect Compulsion Order contending that in terms of s13 there is good cause to suspect that the respondent has committed, and was a party to, the relevant offence namely burglary, he having been requested to provide a bodily sample but declined his consent.

[4]      On behalf of Mr A   Ms Ross submitted that there was not good cause to suspect, because the only possible connection between the respondent and the crime were the sunglasses and the police were reliant upon witnesses who picked them up. There was no description from those witnesses of the alleged offenders, and the link if any between the offence and the respondent was so tenuous as to not provide sufficient basis for there to be good cause to suspect in terms of s13.  She submitted that the police case depended on an identification of the offenders and that there is no identification evidence of any weight which would implicate Mr A  .

[5]      The test in terms of s13, insofar as this application is concerned, is that there be good cause to suspect that the respondent committed a relevant offence.   That simply  means  no  more  than  a  reasonable  ground  of  suspicion  upon  which  a reasonable person may act.  There must be a state of affairs which exists that points to the realistic possibility that the respondent has committed a relevance offence.

[6]      Identification can be proved in many ways.  It is not necessarily dependent upon eye witness identification, and in many cases it is not.  It may be proven by a multiplicity of circumstantial evidence which, when taken together, leads to a compelling inference.  Identification can arise through DNA analysis and in today’s world that is frequently the case.  The murder of Theresa Cormack was only solved

17 years later because of DNA analysis identified her killer.

[7]      The issue is whether the evidence presently obtained by the police from the swab of the sunglasses is sufficient to provide reasonable grounds to suspect that the respondent  was  the  offender  wearing  those  glasses  at  the time  the  two  alleged

offenders or offenders were pursued and whether it was he who lost them.  That is a matter for trial not for determination at this stage.   There may be all manner of explanations in evidence and argument as to how the alleged offender came to be wearing those sunglasses.  But as matters now stand there is more than sufficient to provide on an objective assessment  by this Court that  the grounds of suspicion provide good cause to suspect.  It is a matter of fact objectively determined by this Court and the DNA that exists existed on the sunglasses that fell from the head of the alleged offender links in a strong way those glasses to the respondent.

[8]      It follows that the grounds have been made out and the police are entitled to the suspect compulsion order pursuant to s13 that they seek.  Accordingly, there will be an order as moved and the respondent is required to attend at the Wellington Central Police Station at 2.15pm on Wednesday 6 December 2006 for the purpose of providing such bodily sample in the form of a mouth swab.

………………………………… J W Gendall J

Solicitors:

Crown Solicitor, Wellington for Applicant

John Miller Law, Wellington for Respondent