Police v J HC Greymouth CRI 2009-418-4

[2009] NZHC 1435

This case has been anonymized

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI 2009-418-000004

UNDER  the Criminal Investigations (Bodily

Samples) Act 1995

IN THE MATTER OF     an application under s.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

ANDJ

Respondent

Hearing:         15 October 2009

Appearances: Kathleen Bell for Applicant

Respondent in person

Judgment:      15 October 2009

JUDGMENT OF HARRISON J

SOLICITORS

Raymond Donnelly & Co (Christchurch) for Applicant

POLICE V J HC GRY CRI 2009-418-000004  15 October 2009

[1]      The  New Zealand  Police  applies  for  a  suspect  compulsion  order  against Mr Brent J   under s 13 Criminal Investigations (Bodily Samples) Act 1995.  The ground for the application is that Mr J   is suspected of committing a relevant offence.  The nominated offence is of sexual conduct with a young person under 16: s 134(2) Crimes Act 1961.

[2]      Mr J   opposes the application.  He has travelled from Greymouth today to represent himself.   He has been unable to persuade his counsel, a Mr Taffs, to appear.   Nevertheless, Mr J   has made a brief but directed submission to the effect that there is no proper evidential basis for the complaint giving rise to the current investigation.

[3]     In essence the complainant alleges that she was indecently assaulted at Greymouth on 12 October 2008.  She has made a full statement to the police.  She alleges that Mr J   was the person who assaulted her.   She had known him for about 12 months.  The statement gives full details of the allegations.

[4]      Mr J   denies the contents of the statement.   He says that they are  a fabrication.  It is not for me to determine whether or not he is correct.  I must simply determine whether or not the police, based on the evidence available to them, have good cause to suspect.  They rely on two grounds: first, that Mr J   is known to the complainant and, second, that a forensic analysis has confirmed there was semen on the front of a pink t-shirt from which a DNA profile has been extracted.  The t- shirt was allegedly worn by the complainant before, during and after the incident.

[5]      The police say that an order is necessary to allow for an evidential DNA sample  from  Mr J    to  be  compared  with  the  DNA  extracted  from  the complainant’s t-shirt.  The police case is that a positive test will provide evidence that Mr J   ejaculated over the complainant; that Mr J   does not have a DNA databank; and that a comparison of Mr J  ’ DNA profile and that from the t-shirt will, if matched, likely lead to a conviction.  Mr J   is aware, of course, that if a sample of his DNA does not match that on the t-shirt it will provide a strong, if not absolute, defence to any charge based upon the complainant’s statement.

[6]      I repeat that it is not for me to determine whether or not the complainant is telling the truth.   The only issue is whether or not, on the evidence available, the police have good cause to suspect in terms of the statute.   I am satisfied that the police have made out the necessary evidential basis for the application.  Accordingly I order Mr J   to present himself to the Police Station in Greymouth at 10 am

on 29 October 2009 for the provision of a bodily sample by buccal swab.

Rhys Harrison J