Police v District Court at Christchurch
[2024] NZHC 3183
•31 October 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2024-409-460 [2024] NZHC 3183
UNDER the Judicial Review Procedure Act 2016 IN THE MATTER of an application for judicial review
BETWEEN NEW ZEALAND POLICE
Applicant
ANDTHE DISTRICT COURT AT CHRISTCHURCH
First Respondent
AND KINGSTON COWELL
Second Respondent
AND JACKSON MANSON/WHAKATIHI
Third Respondent
Hearing: 10 October 2024
Appearances: W S Taffs and L Fiennes for Applicant
K H Cook and H V Bennett for Second Respondent N R Wham for Third Respondent
Judgment: 31 October 2024
Reissued: 4 August 2025
REASONS JUDGMENT OF EATON J
(application for judicial review)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
POLICE v THE DISTRICT COURT AT CHRISTCHURCH AND OTHERS [2024] NZHC 3183 [31 October 2024]
Introduction
[1] On 8 November 2023, Kingston Cowell, the second respondent, was jointly charged with Jackson Whakatihi, the third respondent, with the aggravated robbery of a residential Christchurch address on 26 February 2023.1 He had been identified as a suspect after Police discovered three firearms at an address with which he was associated. Forensic analysis of swabs taken from each of those firearms identified DNA corresponding to the DNA profile held on the databank for Mr Cowell.
[2] By oral judgment on 14 August 2024, Judge Mill declined an application by the Police for a suspect compulsion order (SCO) against Mr Cowell to give a bodily sample under the Criminal Investigations (Bodily Samples) Act 1995 (CIBSA).2 The Police applied for judicial review of that decision, inviting this Court to quash the decision and grant an SCO.3
[3] The trial was scheduled to commence in the District Court on 26 August 2024. It was adjourned to 21 October 2024 to allow for this proceeding. I heard the application under urgency on 10 October. I delivered a results decision the following day declining the application for judicial review.4 My reasons follow.
Background
[4] Detective Reeves provided two affidavits dated 29 July and 12 September 2024 in support of the SCO application.
[5] The prosecution case is that on 26 February 2023 at approximately 8 pm, two men arrived at a residential address in Northwood, Christchurch. The address was occupied by A, B and their two young children. The offenders entered the property and demanded cash and electronic items. They stole cash, cell phones, jewellery and car keys. The offenders left the address in A’s silver Toyota Corolla.
1 The third respondent was charged as Jackson Manson, but his preferred name is Jackson Whakatihi.
2 R v Cowell [2024] NZDC 19377.
3 Criminal Investigations (Bodily Samples) Act 1995, s 65 prohibits appeals against decisions under that Act.
4 Police v District Court & ors [2024] NZHC 2972.
[6] On 4 March 2023, Police obtained statements from A and B. A described both offenders as wearing gloves and carrying firearms. She described the second male as Māori, stocky and with facial tattoos, wearing a tan hoodie pulled up over his head and big glasses. She said that during the robbery, the second male pulled his hood tighter and asked her if she could see his tattoos. A, familiar with firearms, described the firearm carried by this offender as either a 12 or 16-gauge double-barrelled sawn-off shotgun. B described the second male as having darker skin, possibly Māori, average height, broad shoulders, solid build, wearing a brown hoodie pulled up over his face, and a tattoo across his jawline of possibly linked script writing.
[7] A located her Toyota Corolla the morning after the robbery and discovered electronic items from the vehicle had been stolen. No forensic examination of the vehicle was conducted.
[8] In their statements A and B also provided descriptions of the first male offender and A identified the firearm he was carrying as an older .22 rifle with a narrow sawn-off barrel. A stated a letter had previously arrived at the address intended for a prior tenant that referenced ‘Jackson Whakatihi’. Both A and B identified Mr Whakatihi as ‘Male One’ through a photo montage in early March 2023.
[9] On 28 April 2023, A identified Mr Cowell and one other person through a photo montage as who she thought was ‘Male Two’.
[10] Police obtained CCTV footage from a nearby address that captured a light-coloured SUV arrive and park opposite the Northwood address just after 8 pm on the evening of the robbery. Two males got out of the vehicle and crossed the road. At 8.23 pm, the footage shows A’s Toyota Corolla leave followed by the SUV.
[11] Traffic camera footage obtained in early March 2023 captured an SUV with two males inside travelling towards the Northwood address just before 8 pm on 26 February 2023. That SUV was seen travelling further north with one male inside at 8.26 pm, with the previous passenger of that vehicle parking and getting out of the Toyota Corolla at the nearby address where A had found her vehicle. Mr Whakatihi
was positively identified from the footage as the front passenger of the SUV on 31 October 2023 by Detective Haigh.
[12] The registered owner of the SUV, Ms Berryman, is associated with Mr Cowell. During the execution of a Police search warrant at her address on 15 April 2023, Ms Berryman explained Mr Cowell is friends with her son and is an associate of ‘Jackson’, and described Mr Cowell as having a facial tattoo, ‘Westside’. Ms Berryman told police Mr Cowell used her vehicle in February and March 2023, usually between 3 pm and 8 pm. Messages between Ms Berryman and Mr Cowell record his requests to use the vehicle, including on 24 and 25 February 2023. On 26 February, Mr Cowell asked Ms Berryman to “do the same deal” with a thumbs up emoticon, with no reply.
[13] On 8 April 2023, Police attended a family harm incident in Bryndwr, Christchurch. The constable who informed the Police to attend the incident heard the female involved refer to the male as ‘Taha’, a known alias of Mr Cowell. On 30 March 2023, Mr Cowell had provided the Bryndwr address for an infringement notice to be sent to because he had no fixed address and stayed at the Bryndwr address often.
[14] At the Bryndwr address, Police located three firearms — a pump action shotgun on the driveway, and a double-barrelled sawn-off shotgun and a black pistol inside. Later forensic analysis identified Mr Cowell’s thumb print on the pump action shotgun and DNA on the two other firearms corresponding to the DNA profile held on the databank for Mr Cowell.
[15] Mr Cowell was charged with aggravated robbery and unlawfully taking a motor vehicle on 8 November 2023.
[16] On 1 March 2024, A was shown the firearms discovered at the Bryndwr address and identified the sawn-off shotgun as the one used by ‘Male Two’ in the aggravated robbery. B identified that firearm as one that looked like the one used during the offending.
Legislative scheme
[17]The SCO application was made under s 13 of the CIBSA, which provides:
13 Application for order authorising taking of bodily sample
(1)An application may be made in accordance with this section to a District Court Judge or a High Court Judge for an order requiring a suspect who is of or over the age of 18 years to give a bodily sample in any case where—
(a)there is good cause to suspect that the suspect has committed an imprisonable offence or offence against any of the provisions listed in Part 3 of Schedule 1; and
(b)the suspect has refused to consent to the taking of a bodily sample in response to a suspect request made in respect of that offence, or a related offence.
(2)Every application under subsection (1) shall be made by a constable who is of or above the level of position of inspector, in writing and on oath, and shall set out the following particulars:
(a)the facts relied on to show that there is good cause to suspect that the respondent has committed an imprisonable offence or offence against any of the provisions listed in Part 3 of Schedule 1:
(b)the reasons why it is considered necessary to obtain a suspect compulsion order in relation to the respondent, including the facts relied on to show that there are reasonable grounds to believe that analysis of a bodily sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the commission of the offence:
(c)where possible, the type of analysis that is likely to be required in respect of the bodily sample sought from the respondent, having regard to the nature of the material (being material of the kind referred to in paragraph (b) of section 16(1)) found in any of the circumstances referred to in that paragraph.
(3)Subject to section 15, where an application is made under this section,—
(a)the applicant shall serve notice of the application on the respondent; and
(b)both the applicant and the respondent are entitled to appear and to adduce evidence at the hearing of the application.
(4)In considering an application made under this section, the Judge may take into account any oral or documentary material that the Judge
considers relevant, whether or not it would be admissible in a court of law.
[18]Section 16 provides:
16 Judge may authorise bodily sample to be taken
(1)On the hearing of an application for a suspect compulsion order, a District Court Judge or a High Court Judge may make an order requiring the respondent to give a bodily sample if the Judge is satisfied that—
(a)there is good cause to suspect that the respondent (being a person who is of or over the age of 18 years) has committed the offence to which the application relates; and
(b)material reasonably believed to be from, or genetically traceable to, the body of a person who committed the offence has been found or is available—
(i)at the scene of the offence; or
(ii)on the victim of the offence; or
(iii)from within the body or from any thing coming from within the body of the victim of the offence that is reasonably believed to be associated with, or having resulted from, the commission of the offence; or
(iv)on any thing reasonably believed to have been worn or carried by the victim when the offence was committed; or
(v)on any person or thing reasonably believed to have been associated with the commission of the offence; and
(c)there are reasonable grounds to believe that analysis of a bodily sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the commission of the offence; and
(d)the respondent has refused to consent to the taking of a bodily sample in response to a suspect request made in respect of the offence, or a related offence; and
(e)in all the circumstances, it is reasonable to make the order.
(2)In considering whether or not to make a suspect compulsion order, the Judge shall have regard to—
(a)the nature and seriousness of the offence to which the application relates; and
(b)any reasons given by the respondent for opposing the making of the order sought; and
(c)any evidence regarding the importance, to the investigation of the offence, of obtaining a bodily sample from the respondent; and
(d)any other matter that the Judge considers relevant.
(3)Without limiting the generality of subsection (2), in considering whether or not to make a suspect compulsion order, the Judge shall also have regard to the following matters:
(a)whether or not the respondent has offered, or been given an opportunity, to give a specimen from his or her body (other than a bodily sample) from which a DNA profile may be obtained for the purpose of confirming or disproving the respondent’s involvement in the commission of the offence to which the application relates, or a related offence:
(b)if such an offer has been made, or such an opportunity has been given, whether or not the respondent has given such a specimen:
(c)if the respondent has given such a specimen, whether or not a suitable DNA profile has been obtained from that specimen for the purpose referred to in paragraph (a).
…
[19] Pursuant to s 68, any question of fact to be determined on an application made under the CIBSA shall be determined on the balance of probabilities.5
[20] The Judge hearing an application for an SCO may therefore only make an order requiring a respondent to give a bodily sample if satisfied on the balance of probabilities of the matters under s 16(1). Subsection (2) provides factors the Judge must consider in determining whether to make the order, having mandatory consideration to the matters in subs (3). Pursuant to s 13(4), the Judge is not bound by the rules of evidence and is authorised to take into account any relevant material
5 R v Robinson HC Auckland CRI-2004-004-10413, 16 June 2006 at [32].
regardless of its admissibility.6 The Judge’s function is not to weigh conflicting evidence or reach definitive findings of fact, but to assess information.7
Judge Crosbie’s admissibility rulings
[21] Relevant to the decision under review are the pre-trial admissibility rulings of Judge Crosbie on 6 June 2024.8
[22] The Judge granted the Crown’s application to adduce Mr Cowell’s previous convictions for aggravated robbery in 2013 and demanding with menaces in 2022 as propensity evidence,9 but ruled A’s visual identification evidence of Mr Cowell inadmissible because it was resemblance evidence, and the risk of unfair prejudice outweighed its probative value.10
[23] The Judge ruled B’s and A’s identification of the sawn-off shotgun inadmissible due to reliability concerns and the elapse of time between the offending and the identification,11 but determined that A’s description of the firearm in her formal written statement was admissible.12 The Judge stated:
[112] These observations [in A’s formal written statement] can be conveyed to the jury alongside evidence about the discovery of [the firearms], and the DNA evidence linking Mr Cowell to [the sawn off shotgun]. The jury can be invited to draw the conclusion that [the double-barrelled sawn off shotgun] is the same firearm which A saw being carried by male two.
(footnote omitted and emphasis added)
[24] The Judge went on to decline Mr Cowell’s application to dismiss the charges under s 147 of the Criminal Procedure Act 2011.13 The Judge considered the combined
6 Doyle v M HC Christchurch M743/97, 12 December 1997; Police v Cao HC Auckland T98/98, 18 August 1998; and Police v C HC Auckland CRI-2008-404-346, 10 November 2008. See also, Police v Suspect (M201/00) (2006) 6 HRNZ 325 (HC) at [20] and [25] where Chambers J accepted the discretion under s 13(4) may be exercised to not take into account evidence obtained as a result of serious police misconduct.
7 See, Police v Suspect, above n 6. At [24], Chambers J observed the effect of s 13(4) suggests cross-examination will rarely be appropriate on a s 13 application because that is only appropriate where the decision-maker’s task is to weigh evidence.
8 Police v Manson [2024] NZDC 12791.
9 At [70]-[77].
10 At [80]-[83] and [88]-[93].
11 At [104-[115].
12 At [111].
13 At [120]-[122].
circumstantial evidence against Mr Cowell, comprising the complainants’ description of ‘Male Two’, the discovery of a firearm matching A’s description of the one used by ‘Male Two’ five weeks later at an address linked to Mr Cowell, the CCTV footage and the strength of the evidence against Mr Whakatihi, would permit a properly directed jury to reasonably convict.14 In outlining the firearm evidence in that assessment, the Judge noted, “it also had his DNA on it”.15
[25] The Judge did not make a formal ruling regarding the admissibility of the firearms nor the DNA evidence linking Mr Cowell to the sawn-off shotgun.
The decision under review
[26] Judge Mill heard the SCO application to formalise the results of Mr Cowell’s DNA databank match on the firearm on 14 August 2024.16 That application was opposed.
[27] The Judge was satisfied the criteria under s 16(1)(a) and s 16(1)(b) of the CIBSA were satisfied:17
[43] I accept that, for example, under [s 16(1)(a)] there is good cause to suspect the respondent has committed the offence to which the application applies, and that there has been genetically traceable material found as is evidenced in the ESR report on analysis of the weapons. That came from a person believed to be associated with the commission of the offence.
[28] The Judge turned his focus to s 16(1)(c). The Judge described the rulings of Judge Crosbie that A’s visual identification evidence of Mr Cowell and the firearm identification evidence were inadmissible to be “of direct relevance”. 18 The Judge described the case against Mr Cowell as dependent upon the successful identification of him as ‘Male Two’ and that the firearm he used during the offending was the weapon found at the Bryndwr address with which he allegedly had an association. The Judge considered:
14 Police v Manson, above n 8, at [120].
15 At [120(b)].
16 DNA samples from the DNA profile databank are not admissible in criminal proceedings: Criminal Investigations (Bodily Samples) Act, s 71.
17 R v Cowell, above n 2.
18 At [12].
[46] Both of those items on their own do not have substantial probative value, and they were as described by Judge Crosbie as such. That evidence was not excluded on a technicality but on the basis of relevance and prejudice and the exclusion of opinion.
…
[48] A positive outcome that correlates to the sample found on the sawn-off shotgun assists in so far as adding to the evidence whereby an inference can be drawn that he had had some association with the weapon found. That of course would be in conjunction with what appears to be three other persons whose DNA was found on the weapon, but not in sufficient quantities to be analysed.
…
[50] What seems to me to be of vital importance is that assuming that it is the defendant’s DNA that has been deposited on the rifle, there is no way of knowing when or how that occurred. It could have been before the offending and it could have been indeed, in the five weeks following the offending. The source of the DNA may remain unexplained, that is where on the body it was likely to come from.
[51] What is in my view a vital piece of evidence is that the witness, A, says that the person carrying the shotgun was wearing gloves at the time of the offending. In my view, it is highly unlikely that the DNA was deposited on the weapon at the time of offending. That is to assume that indeed this is the weapon that was used.
[52] It seems to me that, notwithstanding DNA evidence that the Crown would hope would be produced from the sample, the Crown case is advanced in a very minimal way.
[53] The DNA on the weapon does not put the weapon at the scene. It does not put the defendant at the scene. It tends to suggest that he had something to do with the weapon, but it is to do with a weapon that has not been shown to be the weapon used. In my view, the Crown case remains that a person resembling Mr Cowell brandishing a weapon similar to one that he may have had control or possession of at some stage, either before or after, was in fact Mr Cowell.
[29]The Judge declined the SCO application and ultimately held:
[54] The DNA evidence does have some relevance in supporting the claim that he had some association with the one found, strengthening that, but in my view, given what I consider to be the low probative value so far as his involvement in the offences concerned and what I consider to be the rather prejudicial value of this evidence in the minds of the jury, being scientific evidence with no doubt large probabilities, that it may assume an importance it simply does not have, and on those grounds alone, I would decline the application.
[30] Finally, the Judge expressed concern as to whether it would otherwise be fair to grant the SCO given the “inordinate delay” in filing the SCO application and the prospect of the DNA evidence only being available on the first day of trial if the application was granted. His Honour did not reach a definitive finding on these issues because “the DNA evidence is of low probative value in any event”.19
The grounds for review
[31] The applicant’s statement of claim alleges error of law/illegality as the first ground of review. More particularly, the applicant contends that the Judge applied the incorrect legal test under s 16 of the CIBSA; failed to take into account relevant considerations, being the prior admissibility rulings of Judge Crosbie; and failed to take into account relevant considerations when applying s 16(2).
[32] The second ground of review alleges unreasonableness. The applicant says the Judge placed undue weight on the circumstantial nature of the Crown’s case and that the decision that the criteria in s 16(1)(c) of the CIBSA had not been met was unreasonable in all the circumstances.
Applicant submissions
[33] Ms Fiennes, for the applicant, submitted the Judge made a material error of law by misconstruing the test under s 16(1)(c) of the CIBSA and applying the test under ss 7 and 8 of the Evidence Act 2006. Ms Fiennes submitted prejudicial effect is irrelevant in assessing s 16(1)(c) and that the Judge’s finding the DNA evidence has low probative value means the threshold of “tending to confirm” is met. Ms Fiennes submitted the higher threshold of ss 7 and 8 means the Judge further erred by failing to consider Judge Crosbie had ruled both A’s description of the firearm and the discovery of the firearms admissible and, had those rulings been considered, the Judge must have found s 16(1)(c) was satisfied.
[34] Ms Fiennes argued the undue weight placed on the circumstantial nature of the Crown case, particularly that it had not been shown the firearm was the one used
19 R v Cowell, above n 2, at [59].
during the offending, was unreasonable and in turn, so was the Judge’s ultimate finding based on that circumstantial evidence that s 16(1)(c) was not met given other sufficient material to meet that test.
[35] Ms Fiennes challenged the Judge’s comments under s 16(2), contending he failed to take into account the nature and seriousness of the offending and the investigational importance of the DNA evidence, did not consider the explanation for delay in filing the SCO application, and placed undue weight on the possible adjournment of the trial.
Respondent submissions
[36] Mr Cook, for Mr Cowell, submitted this Court ought to be circumspect in considering an application to judicially review the decision of a lower court judge in relation to criminal proceedings. He says the Judge did not make a substantive error of law. He acknowledged that the Judge did not undertake a discrete analysis of whether the DNA firearm could be reasonably believed to be associated with the commission of the offence under s 16(1)(b)(v) of the CIBSA. He argued that this was not fatal to the overall analysis because the factors the Judge considered under s 16(1)(c) were essential considerations relevant to the s 16(1)(b)(v) requirement. Mr Cook submitted that, read as a whole, the Judge found that the applicant had failed to satisfy s 16(1)(b), albeit the decision is expressed as turning on s 16(1)(c).
[37] Mr Cook observed that because the SCO application was filed so late in the day, the Judge was compelled to give an urgent oral decision in relation to complex legislation.
[38] Mr Cook emphasised the Judge took into account A’s description of the firearm used in the offending and that Mr Cowell’s DNA evidence was found on a firearm that resembles that one. He submitted the Judge’s conclusion that it was unknown when the DNA was deposited on the firearm nor that it was the same firearm used in the offending was reasonable given the circumstantial nature of the Crown case that was open to the Judge to consider.
[39] Ms Wham, for the third respondent, Mr Whakatihi, supported Mr Cook’s submissions. The first respondent abides the decision of this Court.
Analysis
Did the Judge make a reviewable error of law by applying the incorrect test under s 16(1)(c)?
[40] In Astrazeneca Ltd v Pharmaceutical Management Agency, Kós J referred with approval to the summary of “error of law” as a ground for judicial review in the New Zealand Judicial Review Handbook:20
A decision can be invalidated and set aside if it is tainted by an error of law. Common errors of law include situations where a decision-maker has asked itself the wrong question, or where it has misconstrued or disregarded the law it has been entrusted to apply. Errors of this nature may be more likely to arise where a decision-maker has “glossed” a statutory test, or it has too narrowly or too broadly construed wording which does not permit such a construction.
[41] Judge Mill declined the SCO application under s 16(1)(c) because he considered the DNA evidence may “assume an importance it simply does not have” giving rise to a prejudicial effect that outweighed its “low probative value” that advanced the Crown case “in a very minimal way”.21 I agree with Ms Fiennes, and Mr Cook responsibly acknowledged, that the language the Judge used reflects an analysis under s 8(1) of the Evidence Act that provides for the exclusion of evidence “if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect”.
[42] The CIBSA does not govern the admissibility of evidence at trial.22 Admissibility is determined under the Evidence Act in the event the Crown seek to offer at trial evidence obtained via an SCO. The s 16(1)(c) test is whether the evidence “tends to confirm or disprove the respondent’s involvement in the commission of the offence”. To “tend to confirm or disprove” is akin to the s 7 relevance test23 and means
20 Astrazeneca Ltd v Pharmaceutical Management Agency HC Wellington CIV-2011-485-2314, 22 December 2011 at [71], citing Matthew Smith New Zealand Judicial Review Handbook (Brookers Ltd, Wellington, 2011) at 709.
21 R v Cowell, above n 2, at [52] and [54].
22 See, Christopher Corns The Law of Criminal Investigation in New Zealand (online ed, Thomson Reuters) at [7.7.7], where the author explains that the strict rules of evidence do not apply as the judge is not determining the guilt or innocence of the respondent.
23 Gaskin v McRoberts (1999) 16 CRNZ 371 (CA) at 374.
evidence which has a disposition to advance or attain to some quality or state.24 Prejudicial effect is an irrelevant consideration.
[43] The Judge assessed the DNA evidence as having low probative value. That must equate to a finding or relevance. Therefore, on the Judge’s analysis of the DNA evidence, s 16(1)(c) was satisfied. By extension, it was an error of law that the Judge declined the SCO application on the basis s 16(1)(c) was not satisfied.
[44] However, that does not determine this application. That is because an error of law may only invalidate a decision if it is a material error, being one that “may well have altered the ultimate decision made”.25 As was observed by the Court of Appeal in Bulk Gas Users Group v Attorney General:26
… there are cases in which an error of law by an administrative tribunal is not significant enough in the context of the tribunal’s reasoning as a whole to lead a reviewing Court to intervene.
[45] The Judge did rather gloss over the s 16(1)(b) criteria. The critical subsection at issue was s 16(1)(b)(v) that required the Judge to be satisfied that DNA from the offender had been found on anything reasonably believed to have been associated with the commission of the offence. On the facts, that required the Judge to reasonably believe the firearm on which Mr Cowell’s DNA had been found was the firearm used during the aggravated robbery.
[46]In considering s 16(1)(b), the Judge was satisfied:27
…that there has been genetically traceable material reasonably found as is evidence in the ESR report on analysis of the weapons. That came from a person believed to be associated with the commission of the offence.
[47] The Judge did not then consider, before turning his focus to s 16(1)(c), whether he reasonably believed the firearm was associated with the commission of the offence as required by sub-para (v).
24 R v Dadzie HC Auckland CRI-2003-404-385, 10 February 2004 at [17].
25 Astrazeneca Ltd v Pharmaceutical Management Agency, above n 20, at [73].
26 Bulk Gas Users Group v Attorney General [1983] NZLR 129 at [136].
27 R v Cowell, above n 2, at [43].
[48] But a reading of the whole of the Judge’s s 16(1)(c) analysis, in my view, demonstrates that he did in fact address the factors relevant to s 16(1)(b)(v):28
[44] …[the Crown case] also depends on the Crown showing that the weapon this person has was the weapon found at the address allegedly associated with the defendant.
[45] …At this point, the evidence at its highest is that the offender is a person resembling the general characteristics as described by the two victims has the same appearance or similar appearance to that of the defendant. Secondly, that this person was carrying a sawn-off shotgun similar to a sawn-off shotgun found, which it may be inferred he had some possession or control of at some point.
…
[48] A positive outcome that correlates to the sample found on the sawn-off shotgun assists in so far as adding to the evidence whereby an inference can be drawn that he had had some association with the weapon found. That of course would be in conjunction with what appears to be three other persons whose DNA was found on the weapon, but not in sufficient quantities to be analysed.
[49] The fact that DNA is found on the weapon in conjunction with others may in fact be a matter that actually assists the defence rather than the prosecution on one view of the matter…
[50] What seems to me to be of vital importance is that assuming that it is the defendant’s DNA that has been deposited on the rifle, there is no way of knowing when or how that occurred. It could have been before the offending and it could have been, indeed, in the five weeks following the offending. The source of the DNA may remain unexplained, that is where on the body it was likely to come from.
[51] What is in my view a vital piece of evidence is that the witness, A, says that the person carrying the shotgun was wearing gloves at the time of the offending. In my view, it is highly unlikely that the DNA was deposited on the weapon at the time of offending. That is to assume that indeed this is the weapon that was used.
…
[53] The DNA on the weapon does not put the weapon at the scene. It does not put the defendant at the scene. It tends to suggest that he had something to do with the weapon, but it is to do with a weapon that has not been shown to be the weapon used. In my view, the Crown case remains that a person resembling Mr Cowell brandishing a weapon similar to one that he may have had control or possession of at some stage, either before or after, was in fact Mr Cowell.
(emphasis added)
28 R v Cowell, above n 2.
[49] With reliance on that reasoning, the Judge concluded in the succeeding paragraph that the s 16(1)(c) requirement was not satisfied.
[50] There is no dispute that the threshold under s 16(1)(b)(v) of “reasonable belief” requires an objective and credible basis to hold the view that the state of affairs the applicant is suggesting exists,29 and there must be more than surmise or suspicion that something is inherently likely.30
[51] In my view, it is quite evident from the Judge’s analysis above that he did not reasonably believe, that is, have an objective and credible basis to hold, that the firearm on which Mr Cowell’s DNA was discovered was associated with the commission of the aggravated robbery. It was that conclusion that led the Judge to decline the SCO application, albeit under the guise of s 16(1)(c).
[52] Although the Judge made an error in assessing s 16(1)(b)(v) under the heading of s 16(1)(c), I consider this to be an error in form, not substance. I am satisfied that error is not significant in the context of the reasoning as a whole. Had the Judge articulated the separate subsection requirements of s 16, the SCO application would have instead failed at the stage of s 16(1)(b)(v), rather than at s16(1)(c). While the Judge conflated subss (1)(b)(v) and (1)(c), he did not apply the wrong test under s 16 overall. In the context of delivering an urgent oral decision the day of the hearing due to the impending trial date, the erroneous structuring of the Judge’s reasons is explicable.
[53] I accept the Judge erred in engaging in an analysis under s 8(1) of the Evidence Act. However, that error is again one of form. The Judge’s analysis at [44]-[53], particularly the conclusion at [53] that the DNA is “to do with a weapon that has not been shown to be the weapon used”, means the Judge determined s 16(1)(b)(v) was not satisfied. It is that conclusion which informed the Judge’s subsequent finding the prejudicial effect of the DNA evidence outweighed its low
29 R v Sanders [1994] 3 NZLR 450 (CA); R v Williams [2007] 3 NZLR 207 at [213]; and Schaafe v
Police [2019] NZHC 176 at [16].
30 R v Laugalis (1993) 10 CRNZ 350 (CA).
probative value. Because of the failure to meet the s 16(1)(b)(v) threshold, that subsequent finding did not alter the ultimate conclusion made.
[54] The essence of the Judge’s decision is that he did not reasonably believe the firearm the DNA evidence was located on was the same firearm associated with the commission of the aggravated robbery. That finding was open to the Judge and is determinative. It is not for the Court to review the merits of the decision.
[55] I am not satisfied the Judge made a reviewable error of law by applying the incorrect test under s 16(1)(c) of the CIBSA.
Did the Judge make a reviewable error of law by failing to take into account a relevant consideration?
[56] A decision may be invalid if the decision-maker fails to take into account relevant considerations, or a discretionary relevant factor if the reason for excluding it involves an error of law.31 The approach on review is to determine whether the factor in question is relevant and whether failing to consider it influenced the decision.32 Again, the error, if one is found to have been made, must be material:33
[35] The effect of a finding that a decision-maker considered an irrelevant factor or failed to consider a relevant factor does not automatically invalidate the challenged decision. The test is whether the decision maker would have acted that way but for having considered the irrelevant factor, or have failed to consider the relevant factor.34
[57] Ms Fiennes submitted Judge Mill erred by not taking into account Judge Crosbie’s ruling that the firearm identification evidence in A’s formal statement on 4 March 2023 and the discovery of the firearms with DNA attributed to Mr Cowell was admissible.
31 Shi v Chief Executive of the Ministry of Business, Innovation and Employment [2014] NZHC 1217 at [34], citing Philip Joseph Constitutional and Administrative Law in New Zealand (4th ed, Brookers, Wellington, 2014) at [23.2.3(1)] and Graham Taylor Judicial Review A New Zealand Perspective (3rd ed, LexisNexis, Wellington, 2015) at [15.42].
32 Shi v Chief Executive of the Ministry of Business, Innovation and Employment, above n 28, at [34].
33 At [35].
34 Attorney-General v Ireland [2002] 2 NZLR 220 (CA).
[58] A closer reading of Judge Crosbie’s rulings confirms that the Judge did not make formal rulings that the discovery of the firearms nor the DNA evidence found on them was admissible. Formal rulings were made as regards the admissibility of Mr Cowell’s past convictions as propensity evidence, the inadmissibility of A’s visual identification of him as ‘Male Two’ and the 1 March 2024 identification of the sawn-off shotgun by both complainants as the weapon used by that offender, and declining Mr Cowell’s s 147 application.
[59]Judge Crosbie did, however, observe:35
[112] [A’s observations of the firearm in her formal written statement] can be conveyed to the jury alongside evidence about the discovery of [the firearms], and the DNA evidence linking Mr Cowell to [the sawn off shotgun]. The jury can be invited to draw the conclusion that [the double-barrelled sawn off shotgun] is the same firearm which A saw being carried by male two.
(emphasis added)
[60] Further, the Judge declined Mr Cowell’s s 147 application with reliance in part on A’s evidence Male 2’s firearm matched the sawn-off shotgun discovered at the Bryndwr address linked to Mr Cowell that “also had his DNA on it”.36
[61] Ms Fiennes tells me the Crown had sought an admissibility ruling in relation to the DNA evidence and, although a formal ruling was not made, the Crown had understood that in light of the references above, the Judge considered the DNA evidence to be admissible. While I agree that seems right, without a formal ruling, it remains open to Mr Cowell to challenge admissibility.
[62] Moreover, even if Judge Crosbie had ruled the discovery of the firearms and DNA evidence admissible, that decision would not have bound Judge Mill in determining the SCO application, the Crown having accepted in the proceedings before Judge Crosbie that the admissibility of the DNA evidence would be subject to a successful SCO application. As I have observed, s 16 of the CIBSA is not an admissibility test. To the extent s 16 engages a s 7 Evidence Act analysis, evidence that has satisfied the s 7 relevance threshold will almost inevitably satisfy the threshold
35 R v Cowell, above n 2.
36 At [120(b)].
of “tending to confirm” the respondent’s involvement in the offending under s 16(1)(c), the latter being “akin” to the former.37 Section 16(1)(b)(v), however, is a distinct and separate consideration: it requires a narrower focus on the item on which the genetic material was identified on and the higher threshold of reasonable belief that the item was associated with the offending. An admissibility ruling could not determine the SCO application.
[63] In any event, I agree with Mr Cook that Judge Mill did take into account the evidence relating to the firearms. This is evident in the Judge’s analysis:38
[44] …the Crown case… depends on the Crown showing that the weapon this person has was the weapon found at the address allegedly associated with the defendant.
[45] …At this point, the evidence at its highest is that the offender is a person resembling the general characteristics as described by the two victims has the same appearance or similar appearance to that of the defendant. Secondly, that this person was carrying a sawn-off shotgun similar to a sawn-off shotgun found, which it may be inferred he had some possession or control of at some point.
(emphasis added)
[64] Further on in his analysis, the Judge acknowledged the DNA found on the firearm discovered at the Bryndwr address “similar to” the one used by the second male during the offending “tends to suggest that [Mr Cowell] had something to do with the weapon”.39
[65] That Judge Mill ultimately determined the circumstantial evidence was insufficient to satisfy s 16 of the CIBSA is not the issue on this ground of review. As long as the Judge did not overlook a relevant matter, there is no error of law.40 What weight is to be given to the relevant facts is for the Judge.41 I am satisfied the Judge took into account all relevant considerations in determining the SCO application and therefore made no error of law.
37 Gaskin v McRoberts, above n 23, at 374.
38 R v Cowell, above n 2.
39 At [53].
40 Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25].
41 At [25].
Did the Judge reach an unreasonable decision?
[66] The final ground advanced on review is unreasonableness, that is, that the Judge’s decision the circumstantial evidence did not satisfy the requirements of s 16 of the CIBSA was unreasonable.
[67] Judicial review enables challenges to public decisions largely on procedural grounds, however, courts also sustain substantive challenges to the merits of decisions where the conclusion reached is unreasonable. Initially expressed as a decision “so outrageous in defiance of logic that no sensible person who had applied his mind to the question to be decided could have arrived at it”,42 and “something so absurd that no sensible person could ever dream it lay within the powers of the authority”,43 courts have subsequently adopted a “somewhat lower standard of unreasonableness than ‘irrationality’ in the strict sense”.44 But the threshold remains a “very high hurdle”, requiring circumstances where the conclusion reached:45
…[is] so insupportable — so clearly untenable — as to amount to an error of law, because proper application of the law requires a different answer. That will be the position only in the rare case in which there has been, in the well-known words of Lord Radcliffe in Edwards v Bairstow, a state of affairs “in which there is no evidence to support the determination” or “one in which the evidence is inconsistent with and contradictory of the determination” or “one in which the true and only reasonable conclusion contradicts the determination”.46
[68] Where the decision subject to review is that of a lower court’s, the appropriate principles for intervention on judicial review are on cases:47
[I]nvolving clear errors of law of a jurisdictional nature where the intervention of the High Court is imperative. Accordingly, a reviewing court ought to exercise restraint when considering the reasonableness or fairness of an inferior court’s decisions; the focus is whether the decision was on that was open to be reached, rather than whether it was the most reasonable approach and decision in the circumstances.
(emphasis added)
42 Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 (CA) at 234.
43 Short v Poole Corporation [1926] Ch. 66, 90 at 91.
44 Watson v Chief Executive of the Department of Corrections [2015] NZHC 1227 at [26], citing
Electoral Commission v Cameron [1997] 2 NZLR 421 (CA) at 433.
45 Bryson v Three Foot Six Ltd, above n 40, at [26]-[27].
46 Edwards v Bairstow [1956] AC 14, 36.
47 N R v District Court at Auckland [2014] 1919 at [8].
[69] The Judge declined the SCO application because he did not reasonably believe the firearm found at the Bryndwr address was the same firearm used during the aggravated robbery. To find that decision was unreasonable, I must be satisfied that the evidence in support of the SCO application was such that the only decision open to the Judge was to find the threshold under s 16(1)(b)(v) was met and consequently grant the application.
[70] The Crown case against Mr Cowell is circumstantial. The Crown point to evidence that Mr Cowell resembled the complainants’ description of ‘Male Two’ and the sawn-off shotgun A described as the one carried by that offender matched the firearm found at an address associated with Mr Cowell. As well, Mr Cowell knows the owner of the vehicle used to commit the aggravated robbery and had requested to use the vehicle in close proximity to the offending.
[71] Against that evidence, the Judge considered the complainants’ visual identification evidence and A’s 2024 firearm evidence had been ruled inadmissible. The Judge also considered the five-week window between the aggravated robbery and the discovery of the firearm meant it was unknown when the DNA was deposited on the firearm. That, paired with the complainants’ description of the offenders wearing gloves making it “highly unlikely that the DNA was deposited on the weapon at the time of offending”,48 were of “vital” importance.49 These factors led to the Judge finding the firearm “has not been shown to be the weapon used”.50
[72] In my view, it was open to the Judge to reasonably find that s 16(1)(b)(v) was not satisfied. Another Judge might well have reasonably found otherwise. Whilst that might mean one Judge was right and the other wrong, the concept of wrongness must be distinguished from unreasonableness.51 The Judge’s decision was supported by a reasoned justification.52 Having considered all relevant material, it was for the Judge to weigh that material.53 The weight the Judge placed on the circumstantial nature of
48 R v Cowell, above n 2, at [51].
49 At [50] and [51].
50 At [53].
51 Waitakere City Council v Lovelock [1997] 2 NZLR 385 (CA) at [412].
52 Watson v Chief Executive of the Department of Corrections, above n 44, at [26], citing C v Medical Council of New Zealand [2013] NZHC 825, [2013] NZAR 712.
53 Bryson v Three Foot Six Ltd, above n 40, at [25].
the Crown case and to the doubts that arise having regard to the elapsed time between the offending and discovery of the firearms was not disproportionate so as to make the final decision unreasonable.54
[73] Ms Fiennes submitted the importance of DNA evidence derived from an SCO further demonstrates the unreasonableness of the Judge’s decision. This submission does not carry great weight. The admissibility test under ss 7 and 8 of the Evidence Act requires only relevance and any unfair prejudicial effect not outweighing the probative value. On the facts of this case, that is a lower threshold than required by s 16(1)(b)(v) of the CIBSA. The circumstantial evidence outlined above will be before the judge on any hearing to determine the admissibility of the firearms. Regardless, that the Judge’s decision to decline the SCO application may impact on later pre-trial admissibility rulings is a peripheral consideration.
[74] An error of law does not occur where the decision-maker has merely applied the law, correctly understood, to the facts of the individual case.55 This is what the Judge did. The bar for supervisory intervention on the grounds of unreasonableness is a very high one, and one that is not reached in this case. This ground of review fails.
Other arguments
[75] Because I am not satisfied any of the grounds raised relating to the Judge’s decision to decline the application under s 16(1)(c) of the CIBSA have been made out, I do not need to consider the Crown’s further arguments relating to matters under s 16(2) nor the appropriate remedy.
Result
[76] For those reasons I dismissed the application for judicial review of Judge Mill’s decision.
54 Watson v Chief Executive of the Department of Corrections, above n 44, at [26], citing Shaw v Attorney-General (No 2) [2003] NZAR 216 (HC).
55 Bryson v Three Foot Six Ltd, above n 40, at [25].
[77] I understand the first and second respondents are legally aided. They are entitled to costs. If costs are sought and cannot be agreed, memoranda, no more than three pages, are to be filed within 10 working days.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Prime Legal Limited, Christchurch
Counsel:
K H Cook, Barrister, Christchurch H V Bennett, Barrister, Christchurch
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