Police v Moananui HC Palmerston North CRI 2010-454-35

[2010] NZHC 2433

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-454-35

NEW ZEALAND POLICE

v

QUENTIN JOSEPH MOANANUI

Hearing:         14 December 2010

Counsel:         B D Vanderkolk for Crown

S N Hewson for Accused

Judgment:      14 December 2010

JUDGMENT OF SIMON FRANCE J

[1]      The police have made application for a suspect compulsion order requiring

Mr Moananui to give a bodily sample.

[2]      On 13 November 2009 a group of men believed to be associated with the Mongrel Mob broke into a house in Palmerston North.  The occupants of the house were young persons aged between 16 and 20.  The occupants described one of the intruders as being a Maori man with relatively light skin, about 6 feet tall and of solid build.  He was wearing a plain sweatshirt with a red shirt underneath and was

referred to by the other men as “Speedy”.

NEW ZEALAND POLICE V QUENTIN JOSEPH MOANANUI HC PMN CRI 2010-454-35  14 December

2010

[3]      Two of the occupants retreated to a sleep out on the property.  They locked the doors.   The man called “Speedy” barged through the sleep out door.   He was holding a Bourbon bottle and demanded their wallets.   One of the occupants was struck on the forehead.  The intruders ransacked a house and took various items of property.   They also left various items at the scene including alcohol bottles and cigarette butts.

[4]      The offending occurred in the early hours of the morning.  A short time after the alleged offence occurred, a police officer spotted a number of Mongrel Mob members and associates on the lawn of a house with which the Mongrel Mob is said to be connected.  Mr Moananui was present.  He was wearing a red and black long sleeved t-shirt.

[5]      The following night, a day later, the same officer again went to the same address.  Again Mr Moananui was there.

[6]      Returning to the scene of the offending, the officer in charge visited the address some four days after the incident.  At the address she spoke to two of the occupants of the house who took her through the house and pointed out various areas.  In the kitchen area, one of the occupants pointed to a green plastic recycling bin which had a number of items in it.   The occupant advised the officer that the three Lager bottles that were in the bin had been found in the lounge of the address following the incident.   He had put them in the recycling bin, but they were not associated with the occupants of the house.   The police took possession of those items and sent them for analysis.  DNA was taken from one of the bottles, and that DNA has matched a sample attributed to Mr Moananui on the database.

[7]      Mr Moananui is charged with aggravated robbery, assault with intent to rob, and theft.   This application proceeds by consent on the basis that the Crown has evidence that shows Mr Moananui is known by the name “Speedy”.  This concession is limited to this application.

Opposition

[8]      On behalf of Mr Moananui, Mr Hewson opposes the making of the order. Addressing the circumstances of the offending, he notes that the occupants of the address were at the time consuming alcohol.

[9]      Mr Hewson notes that the witness who says it was “Speedy” who kicked the door in, did not identify Mr Moananui from a photograph montage.   The other person in the sleep out does not appear to have been invited to complete a formal identification process.  The situation, therefore, is that neither of the occupants of the sleep out can identify Mr Moananui as the offender.  Further, the Bourbon bottle was discovered, but again seems to have yielded no further evidence.

[10]     Mr Hewson submits that the most that the DNA evidence would achieve is to place Mr Moananui at the address.   It does not advance the case against him in relation to the sleep out offending.  He notes also that some of the stolen items have been recovered, and none have been attached by finger prints to Mr Moananui.

Decision

[11]     It is integral to the theft charge, which I understand includes an allegation under s 66(2) of the Crimes Act 1961, that Mr Moananui be present at the scene of the intrusion.   It is essential, but not in any way determinative, in relation to the aggravated robbery and assault with intent to commit aggravated robbery charges that Mr Moananui be at the scene of this offending.

[12]     In the absence of a formal admission from Mr Moananui that he was one of the persons who broke into the house and was part of the group, it seems to me indisputable that this evidence is probative of an important aspect of the prosecution. In terms of s 16(1)(c) of the Criminal Investigations (Bodily Samples) Act 1995, the evidence tends to confirm the respondent’s involvement in the commission of the offences.   I do not consider that the section can be read literally to mean that it confirms all the elements of the offences.   Presence at the scene is a necessary ingredient of the prosecution and the DNA evidence would prove that.

[13]     In terms of the tests under s 16(2) and (3) of the Act, I have had regard to the nature  and  seriousness  of  the  offence  (very),  the  submissions  advanced  by Mr Hewson on behalf of his client for opposing the order, and the importance of the sample to the investigation.   Bearing these matters in mind, I consider that it is reasonable in the circumstances to make the order, which I now do.

[14]     Mr Moananui is presently in custody at Manawatu Prison.  I confirm that on a nominated day and time the sample may be taken at the prison.  If a court order is required confirming the exact time and date then the matter may be referred to the

Duty Judge in Wellington for such an order.

Solicitors:

B D Vanderkolk, Ben Vanderkolk & Associates, PO Box 31, Palmerston North email:  [email protected]

S N Hewson, Ord Legal, Barristers & Solicitors, PO Box 10 909, Wellington

Simon France J