Police v M HC Wellington CRI-2007-485-131

[2008] NZHC 241

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-131

NEW ZEALAND POLICE

v

M

Hearing:         29 February 2008

Counsel:         M W Snape for Crown

J K W Blathwayt for respondent

Judgment:      4 March 2008

JUDGMENT OF DOBSON J

[1]      This  is  an  application  by  the  Police  pursuant  to  s 13  of  the  Criminal Investigations (Bodily Samples) Act 1995 (“the Act”) for a suspect compulsion order requiring the respondent, being a person of or over the age of 17 years who is suspected of having committed a relevant offence, to give a bodily sample.

[2]      The offence which the Police suspect the respondent of having committed is a relevant offence, namely arson.

NEW ZEALAND POLICE V M HC WN CRI-2007-485-131  4 March 2008

Factual background

[3]      Very early in the morning of Friday, 14 April 2006 a Mr Alec Akurangi was severely assaulted at 8 Clyde Street, Masterton.  Although Police attended at 8 Clyde Street  at  that  time,  Mr  Akurangi  declined  to  lay  a  complaint.     The  Police subsequently persuaded Mr Akurangi to attend hospital.

[4]      Later that day the Police received reports of intimidatory behaviour aimed at the occupants of 8 Clyde Street.

[5]      The same day three people, including Henare Namana - the respondent’s sister’s de facto partner - were arrested in connection with that assault.

[6]      The Police point to further intimidatory behaviour occurring on Saturday,

15 April aimed at the occupants of 8 Clyde Street by associates of those arrested. That night, two Molotov cocktails were thrown at 8 Clyde Street.

[7]      The Molotov cocktails were made with Jim Beam bottles, using a purple fabric as wicks.

[8]      On 16 April, Police searched Henare Namana’s residence at 150 Church Street and located two Jim Beam bottle tops.  However, no Jim Beam bottles were found at 150 Church Street.

[9]      On 17 April, the Police were advised by a resident of 20 Cockburn Street that he had found a plastic shopping bag containing two yellow rubber Latex gloves, a maroon coloured cut off T-shirt and other items of clothing.  The bottom half of the T-shirt had been cut off.  The application also suggested that the gloves smelled of a petrol-type accelerant, but Mr Snape accepted on objection that there was in fact no evidence on this point.

[10]     Subsequent ESR analysis shows that:

(a)       the two bottle tops found at 150 Church Street, Mr Namana’s address, could have come from the bottles used as Molotov cocktails;

(b)the wicks in the Molotov cocktails came from the T-shirt found in the plastic bag at 20 Cockburn Street; and

(c)       a  DNA  sample  found  on  the  plastic  gloves  corresponded  with  a sample provided by the respondent in 2002.

[11]     20  Cockburn  Street  backs  on  to  19  Taranaki  Street.    The  respondent’s de facto partner, and the occupier of 19 Taranaki Street, have confirmed that the respondent has been at 19 Taranaki Street in the past.  The application indicated he has previously denied this, but Mr Blathwayt accepted that the respondent had been to the address.

[12]     The Police have charged the respondent with arson and doing a threatening act relating to the Molotov cocktail attack on 8 Clyde Street on 16 April 2006.

[13]     The  matter  put  in  issue  by  the  respondent’s  notice  of  opposition  to  the Police’s application for a suspect compulsion order is whether the Police have good cause to suspect the respondent of this arson.

[14]     A major focus of the hearing was  whether  the  applicant  was  entitled  to include, in the grounds advanced for having good cause to suspect, the DNA match on the gloves described in [10](c) above.

[15]     The 2002 DNA sample had been taken in the course of inquiries into an alleged assault or fighting by the respondent, and a wounding of him by another with a knife.  Detective Sergeant Neil Foote conducted the 2002 interview (then being a Detective Constable in Masterton) which included processing Mr McRae’s consent to provide a DNA sample.

[16]     Mr McRae claimed unfairness in any reliance being placed on the 2002 sample.  He says it was given in circumstances where the Police were threatening him with a charge of threatening to kill unless he co-operated, and was given on the

basis that the sample would be destroyed as soon as the relevant inquiry was concluded.

[17]     Notwithstanding that good grounds to suspect on such applications do not have  to  be  confined  to  admissible  evidence,  Mr  Blathwayt  argued  that,  on Mr McRae’s version of events, there had been serious unfairness sufficient on the basis of Shaheed (R v Shaheed [2002] 2 NZLR 377) to require its exclusion. It would follow that without the DNA match connecting Mr McRae to the gloves, and thereby to the other items found in the bag at 20 Cockburn Street, good grounds to suspect could not be made out.

[18]     Both Detective Foote and Mr McRae had sworn affidavits describing the circumstances in which the DNA sample had been provided.  Evidence was led from both  of  them  on  the  events,  and  they  were  cross-examined.    Detective  Foote produced notes of the prior stages of his interview with Mr McRae, which the latter had read at the time and confirmed were an accurate record of what had transpired. The notes recorded that Mr McRae was being interviewed as a possible offender.

[19]     Detective Foote also produced the printed Police forms used when a DNA sample is requested.  Whilst Mr Blathwayt placed some emphasis on the absence of any other contemporary note taken by the officer to corroborate his recollection of the circumstances in which the forms were completed, that is an unrealistic expectation when the forms themselves are designed to create a record of just that matter.

[20]     Detective Foote’s evidence was that he first read to Mr McRae a printed form, coded POL788, detailing the process and consequences.   The terms of that form included:

•   The purpose of this request is to obtain information that will be stored on a DNA profile databank and that may be used by the Police in investigation of criminal offences.

•    You do not have to give a blood sample if you do not wish to.

…

•    The results of the analysis will be stored on a DNA profile databank maintained by the Police…

•    If you give your consent to the taking of a blood sample, you may withdraw your consent at any time before the sample is taken…

•    If you give a blood sample, you may generally withdraw your consent to the use of that sample at any time…

•    You may wish to consult a lawyer –

ƒbefore deciding whether or not to consent to the taking of a blood sample:

ƒ   if there is anything you do not understand about this request.

[21]     Detective Foote recorded in a second form that the request was made at

1450 hours, and consent given at 1455 hours.  His evidence was that the five minutes were taken up with reading the first form to Mr McRae.  Mr McRae denied the form had been read to him, saying that Detective Foote described the forms he signed as papers that he did not have to read.  He accepted it was his signature at the foot of the   first   form   which   recorded   his   consent,   and   also   on   a   separate   form acknowledging that rights under s 50 of the Act had been notified to him.  Detective Foote was identified at the top of that form as “Name of Person Reading Form”.

[22]     Detective Foote was not shaken, despite extensive questioning, on how the consent was procured.  In addition, some corroboration of the circumstances can be taken from the further form signed by the doctor who took the sample.  He was not called to give evidence, but Detective Foote did produce a form which he verified as having been signed by the doctor, and by him at the time.  It was cast as a statement from the doctor including:

I was advised by the person providing the sample that they wished it to be by way of a venous sample.

The person providing the sample consented to the procedure.

[23]     The latter statement had a printed option for the doctor to indicate that the person providing the sample had “declined to consent” to the procedure.

[24]     I am satisfied that the procedures for taking the DNA sample were complied with, and reject Mr McRae’s claim that he gave the sample under false pretences, or

because of coercion.   It seems most likely that  he  did  not  focus  on  the  future consequences of voluntarily giving the sample at the time, but that cannot amount to unfairness in circumstances where the procedures were complied with.

[25]     Accordingly, the basis for assessing good cause to suspect includes the earlier DNA sample connecting Mr McRae to the gloves, and thereby to the rest of the items in the bag.

[26]     “Good cause to suspect” was considered by Harrison J in Police v Enoki HC AK CRI-2006-404-103 6 June 2006.   His Honour held that the meaning of those words was plain on their face.   He said that the interpretation of good cause to suspect had been authoritatively defined in Police v Anderson [1972] NZLR 233 as “a reasonable ground of suspicion upon a which a reasonable [person] may act”. Harrison J emphasised that proof of belief was unnecessary; suspicion alone was sufficient provided it met the epithet of good.

[27]     The Police say they have good cause to suspect the respondent because:

(a)      the respondent is closely associated personally with at least one of the persons arrested in connection with the assault on Mr Akurangi;

(b)the respondent has a connection with the property adjacent to which the plastic bag containing the T-shirt and gloves was found, and those items are clearly linked to the arson;

(c)       the respondent’s DNA has been found on the gloves.

[28]     For the respondent, Mr Blathwayt submitted that even if the DNA sample could be included in the material considered, then:

(a)      Whilst the application stated that the DNA had been found on the inside of one of the gloves, the evidence of the DNA expert witness was that DNA on one of the gloves had come from two different people, one of whom corresponded with the respondent.   It was not

possible, however, to tell whether that DNA was from the inside or the outside of the glove.

(b)The connections sought to be drawn between the items found and the respondent were too tenuous to be relied on.

(c)      The associations drawn between the respondent and others implicated in  the  alleged  arson  did  not  add  to  the  basis  for  suspecting involvement by the respondent.

[29]     Mr Blathwayt’s further submission on (a) was that the scientific evidence went no further than tending to show that a glove may have been touched by the respondent or by someone who has had recent physical contact with the respondent. He said this was insufficient evidence to sustain the proposition that there was good cause to suspect.

[30]     However:

•     the respondent’s DNA was on the gloves, those gloves being in a plastic bag containing the T-shirt from which the wick material was taken;

•    the respondent is associated with those accused of a connected assault;

•     the bottle caps were found at an address to which he had at least indirect connections.

Cumulatively, these points meet the test of a good cause to suspect.  All that is required is a suspicion; belief or reasonable grounds for belief in guilt are not necessary.

[31]     On that basis, I find the Police do have good cause to suspect the respondent.

[32]     Furthermore, the finding of rubber gloves together with the material from which the wicks were made in my view satisfies the requirement for a reasonable belief that those gloves were associated with the commission of the offence.   The

finding of genetic material on those gloves satisfies the further requirement for a reasonable belief that material traceable to the body of a person who committed the offence has also been found.

[33]     There will be a suspect compulsion order as requested by the Police.

Dobson J

Solicitors:

Luke Cunningham & Clere, Wellington for New Zealand Police

WCM Legal, Carterton for respondent