Police v F HC Wellington CRI 2007-485-69
[2007] NZHC 997
•3 October 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2007-485-69
NEW ZEALAND POLICE
v
F
Hearing: 6 September 2007 (and then on the papers) Appearances: M Anderson for Applicant
D Ewen for Respondent
Judgment: 3 October 2007
JUDGMENT OF SIMON FRANCE J
[1] This is an application under s 13 of the Criminal Investigations (Bodily Samples) Act 1995 for authority to take a DNA sample from Mr F . At issue is whether Mr F is charged with an offence concerning which samples may be ordered.
Facts
[2] On 11 September 2003 a stereo system was stolen from a car. Blood was detected in the car; no DNA “hit” was obtained at the time. However, in November
2006 Mr F provided a DNA sample on unrelated matters. It was placed in the database, and returned a hit in relation to the blood found in the car. The police now
seek a suspect sample to confirm the match.
NEW ZEALAND POLICE V F HC WN CRI 2007-485-69 3 October 2007
[3] As a result of the database hit, Mr F was charged on 24 April 2007 with theft under ss 219 and 227(d) of the Crimes Act 1961. By consent the charge was altered in August 2007 to ss 219 and 227(c).
The issue
[4] Theft was not a listed “relevant offence” in 2003 for the purposes of the Criminal Investigations (Bodily Samples) Act 1995. It was added to the list of relevant offences by a 2003 Amendment Act which came into force on
15 April 2004. Therefore at the time of charging, but not at the time of offending, theft was a relevant offence. Further, the offence of theft existing at the time of the alleged offending has been repealed and replaced by a new theft offence. It is the new offence that is listed as a relevant offence.
Competing submissions
[5] The Crown rely on s 4(1) of the Act which states:
“The Act applies to the investigation of offences committed, or believed to have been committed, before or after the commencement of this Act.”
[6] The Act when initially enacted was made applicable to offences committed prior to its enactment; likewise, it is submitted that the altered list of relevant offences applies to offences committed before or after the adding of the offence to the Schedule.
[7] Mr Ewen submits the amendments are not retrospective. He relies on the wording of the Schedule which, after adding various offences, continues to add more offences in this way:
“Crimes Act 1961 (before commencement of Crimes Amendment Act 2003)
• Being in possession of instruments – s 229
• Being armed with intent to break and enter – s 243
• Arson – s 294
• …”
[8] Mr Ewen submits that this extra list identifies all the pre-2003 Amendment
Act offences that are to apply retrospectively.
[9] Further Mr Ewen submits theft as now defined in s 219 is different from theft as previously defined in s 220. Accordingly they are different offences. Therefore the inclusion, from April 2004, in the Criminal Investigations (Bodily Samples) Act
1995 of theft under s 219 can have no application to a pre-2003 theft.
Decision
[10] It is necessary to begin by reviewing the interconnected history of two 2003 amendments.
(a) Crimes Amendment Act 2003
[11] This Amendment Act repealed all of the existing Part 10 of the Crimes Act
1961 and replaced it with a series of new property offences. Some of these “new” offences re-enact unchanged the previous provisions; others replace the old offences with significantly different offences.
[12] The 2003 Amendment Act contained no transitional provision. The situation is therefore governed by s 19 of the Interpretation Act 1999 which provides:
19 Effect of repeal on prior offences and breaches of enactments
(1) The repeal of an enactment does not affect a liability to a penalty for an offence or for a breach of an enactment committed before the appeal.
(2) A repealed enactment continues to have effect as if it had not been repealed for the purpose of-
(a) Investigating the offence or breach;
(b) Commencing or completing proceedings for the offence or breach; (c) Imposing a penalty for the offence or breach.
[13] The effect of the Crimes Amendment Act 2003 was discussed in R v Sizemore CA 290/05, 5 December 2005. The effect of that decision is that offending committed prior to the Amendment Act coming into force on 1 October
2003 must be charged under the repealed sections.
[14] Mr F is therefore presently wrongly charged under s 219 of the current Act, rather than as he should be under s 220 of the Act as it was worded at the time of the alleged offence. I will proceed as if that were the charge, and return to this aspect if it becomes necessary to do so.
(b) Criminal Investigations (Bodily Samples) Amendment Act 2003
[15] The Amendment Act significantly broadened the 1995 Act by, inter alia, expanding the range of relevant offences concerning which suspect samples, and databank samples, could be obtained.
[16] The Bill was introduced in 2002. It was significantly altered by the Select Committee and reported back in June 2003. One of the changes made by the Select Committee was to add a considerable number of offences to the Schedule. The current structure of the Schedule, however, is due to a subsequent Supplementary Order Paper (no 159, 21 October 2003). The Amendments in the SOP established the present wording of the Schedule. The changes are explained in the Explanatory Note to the SOP as:
“– updating the list of relevant offences in Schedule 1A of the Bill in light of the amendments made to the Crimes Act 1961 by the Crimes Amendment Act 2003; and
– the inclusion of all theft offences provided for in Part 10 of the Crimes
Act 1961 (as amended by the Crimes Amendment Act 2003).”
[17] A feature of the Criminal Investigations (Bodily Samples) Act 1995 is the capacity to require persons convicted of “relevant offences” to provide DNA samples for storage on a database. During the passage of the 2003 Amendment Act it was decided that the new added offences would not apply retrospectively – it was only if one was convicted of the added offences subsequent to the Act coming into
force that a sample could be taken. This is the reason why the Schedule is now in two parts – Part 2 contains the new offences to which the databank sample provisions were only to apply prospectively. The retrospectivity decision was effected by an amendment to the existing s 4 by adding a new subsection:
“4(3): Despite subsection (2), nothing in Part 3 [databank samples] applies to any conviction entered before the commencement of … the Amendment Act 2003 for any offence … listed in Part 2 of the Schedule …”
(c) Analysis
[18] The starting point must be that s 220 of the Crimes Act 1961, as it existed prior to the Crimes Amendment Act 2003 and which is the proper charge against Mr F , was neither listed at the time of the offence, nor has it been added. The applicant must therefore show that it is somehow added by the inclusion in Part 2 of the Schedule of the new s 219 offence of theft or stealing. The applicability of s 4, the retrospectivity provision on which the applicant relies, does not arise for consideration unless the reference to s 219 in Part 2 is taken to include to include a reference to the now repealed s 220.
[19] The structure of the Schedule tells against such a proposition. As well as listing the Amendment Act 2003 offences which are to be added, the Schedule specifically lists some repealed pre-2003 offences that are also added. It is difficult to discern a rationale behind which pre-2003 offences have been chosen. Some are offences that have no specific post-2003 equivalent, having been incorporated with a new more broadly drafted offence. Others, though, appear to be essentially unchanged; for example it is difficult to see a difference between the old s 248(1)(a) which is in the pre-2003 list, and the new intentional damage offence (s 269) which is listed amongst the Amendment Act 2003 relevant offences.
[20] One can speculate that the pre-2003 list concerns offences thought to have differed in their essential elements from their new embodiment, but it would only be speculation, and the replication of the intentional damage offences is a contrary example. There is also room for debate, as Mr Ewen submits, as to whether the new s 219 theft offence is the same as the old s 220 offence. The issue was expressly left
open in R v Sizemore (above) and the view I take means it is unnecessary to undertake that analysis.
[21] The old s 219 is repealed. It remains the proper charge in this case by virtue of s 19 of the Interpretation Act 2000. If Parliament intended the offences listed in the new Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act
1995 to apply to their repealed equivalents, it needed to expressly say so. Arguably it has indeed done so by listing some pre-2003 offences. I am not convinced that is the rationale of that list, but in the absence of any clearer indicia it is not appropriate to extend the operation of Part 2 to other repealed offences that are not listed.
[22] The application for a suspect compulsion order is declined.
Simon France J
Solicitors:
M Anderson, Luke Cunningham & Clere, Wellington for the Applicant
D Ewen, Wellington for the Respondent
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