Police v Manu HC Blenheim CRI-2011-406-19

[2011] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2011-406-19

BETWEEN  NEW ZEALAND POLICE Applicant

ANDMAKETI MANU Respondent

Hearing:         5 December 2011

Counsel:         M A O'Donoghue for Applicant

B A Millar for Respondent

Judgment:      5 December 2011

ORAL JUDGMENT OF MILLER J

[1]      The Police seek a suspect compulsion order against Mr Manu.  He opposes. These applications  are  rarely opposed  these days;  usually the DNA comparison supplies potent evidence that the offender was at the scene, and it sometimes is the only real evidence linking the two.  In such cases the statutory test is readily met.

[2]      Mr Manu is suspected of committing a string of more than nine burglaries in

2008 and 2009.  The issue is identity.  On the sixth occasion the offender was seen by an occupant, who described him as a short and stocky male with close cropped hair, a description which fits Mr Manu, and the police were called. A dog tracked the offender.   He was seen at one point, and described as a Pacific Islander of solid build, aged 35-40 years, wearing dark trousers.  That description also fits Mr Manu. The  offender  discarded  his  clothes  and  entered  a  river,  making  his  escape. Mr Manu’s  DNA  was  found  on  one  item  of  clothing,  a  pair  of  jeans.    The circumstantial evidence invites the inference that the jeans were worn by the fleeing

burglar. A palm print was also found at the address; it is said to be his.

NEW ZEALAND POLICE V MAKETI MANU HC BLE CRI-2011-406-19 5 December 2011

[3]      One item of stolen property was recovered from Mr Manu’s address; it came from the fourth burglary.  His fingerprints have been found on property stolen in yet another burglary, in 2011.

[4]      Many if not all of the burglaries are said to share a similar method, and there is in some cases at least circumstantial evidence placing Mr Manu in the area; in one case he lived nearby at the time, for example.  The offender was also seen on other occasions and the descriptions were broadly consistent with Mr Manu’s appearance. On one occasion there was a struggle with the homeowner, and the offender spoke in another language using a Pacific Island accent.  Mr Manu is Tongan and has little English.

[5]      Mr Manu has no burglary convictions in New Zealand, but many in Tonga. A list of convictions has been produced.  The modus operandi of his Tongan offences is said to be similar.

[6]      Mr Manu has sworn an affidavit in which he asserts that the DNA sample obtained from the jeans is inconclusive, that the jeans were found some distance from the burglary, and that there is no evidence at all connecting him to most of the burglaries.  He has an alibi for the fourth burglary.  He disputes that the palm print is his, and disputes the fingerprint evidence for the 2011 burglary.   There is no distinctive modus operandi for the burglaries.  The latter evidence is a statement of opinion, although he admits to no expertise in the field.  He deposes that his “only previous conviction” is for breach of a liquor ban, evidently having forgotten his Tongan convictions.

[7]      Burglary is a qualifying offence, and on one occasion he is also said to have assaulted the homeowners, a serious aggravating feature.

[8]      The first question is whether there is good cause to suspect Mr Manu of committing at least the sixth burglary.  The police need only point to a reasonable ground of suspicion on which a reasonable person may act.  Unquestionably that test is met here.   The jeans are clearly enough linked to the burglar, and contrary to

Mr Manu’s assertion the expert evidence establishes that the DNA is reliably his.

The palm print is said to be his.

[9]      The next question is whether the DNA is reasonably believed to be that of Mr Manu.  As noted, it was a partial sample, but the ESR evidence will be that it provides extremely strong support for the proposition that it came from Mr Manu.

[10]     In the circumstances the evidential value of a DNA sample is extremely high. The Crown case hinges on identity, and this evidence tends strongly to connect him to one burglary.   The jury being satisfied of that, circumstantial evidence may sufficiently link him to the others, which share certain characteristics.  I appreciate that the palm print also links him to the sixth burglary, but he does not accept that it is his; he is instructing his own expert.  He takes the same stance in relation to the fingerprint found at the later burglary scene.   That simply confirms the probative value of the DNA evidence.

[11]     Mr Manu has refused to give a sample.

[12]     In the round, this is one of the strongest cases for a suspect compulsion order that I have seen.  The offending is serious, amply justifying the compulsion inherent in the order. The application is granted.

[13]     Mr Manu is in custody and the sample can be taken at Christchurch prison under s 54 of the Act.

Miller J

Solicitors:

Crown Solicitor’s Office, Nelson for Applicant