Police v N HC Auckland M1554/01

[2001] NZHC 1322

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M1554/01

UNDER the Criminal Investigations (Blood Samples) Act 1995

IN THE MATTER of an application under section 13 for for a suspect compulsion order requiring a person over the age of 17 years, who is suspected of having committed a relevant offence, to give a sample of blood

BETWEEN NEW ZEALAND POLICE
Detective Inspector Stephen John Rutherford
Applicant

AND N of 7 Statesmen Place, Henderson
Respondent

Hearing: 21 December 2001

Judgment: 21 December 2001

Counsel: Phillip Hamlin for applicant in support
Harvey Juran for respondent to oppose

[ORAL] JUDGMENT OF WILLIAMS J
[application under Criminal Investigations (Blood Samples) Act 1995]

Solicitors:
Crown Solicitor, DX CP24063 Auckland

[1] This judgment deals with an application by the Police for a suspect compulsion order under the Criminal Investigations (Blood Samples) Act 1995 to be taken from the respondent, Mr N.

[2] Mr N is currently charged with sexual violation by rape, that alleged to have occurred on 6 February 2000. Because delay is effectively the only ground of opposition, the circumstances in which the matter arose and its progress need to be considered as part of this judgment.

[3] The complainant in this matter lived in a house with her cousin A., her niece G. and her former brother-in-law, Mr N. On the day or days leading up to 6 February 2000, it seems that the complainant and other friends, including A„ consumed a considerable amount of alcohol and possibly also cannabis over an extended period. The complainant arrived home at about 11:00am on 6 February, seemingly in an advanced state of intoxication. She fell asleep on the couch in the lounge. When she awoke she claimed that A. was having intercourse with her in circumstances where it could not have been asserted that the intercourse was consensual. She complained to the Police and in the late afternoon of 6 February the standard medical examination was undertaken including the taking of swabs from the complainant’s genitalia and clothing.

[4] DNA profiling of a cheek swab sample taken from A. and from the complainant indicated he may have been involved in the matter but DNA profiling of vaginal swabs and the complainant’s knickers made it clear that the semen there found could not have come from A. or the complainant’s boyfriend but came from another male, at that stage merely identified as “another A”. That DNA profile was then loaded onto the national DNA databank.

[5] On 14 August 2000 Mr N provided a consensual blood sample and on 19 December 2000 ESR notified the Police that the semen sample from the complainant’s knickers matched the DNA profile of Mr N.

[6] In the meantime A. had been charged with sexual violation by rape of the complainant. He was tried on 5 February 2001 in the District Court at Manukau. Evidence of the other A’s DNA was given as part of that trial. A. was acquitted.

[7] On 2 March 2001 Mr N was interviewed by Police and told of the DNA “hit” in the databank profile obtained some three months previously He acknowledged being at the complainant’s address during the relevant time and of entering her room but denied having sexual intercourse with her on that or any other occasion. In a videotaped interview he was unable to explain the apparent presence of his semen on the complainant’s knickers. He was asked to consent to the provision of another blood sample or an alternative body sample. He exercised his right to decline. He was arrested and charged with sexual violation by rape of the complainant.

[8] Between that date and 15 November 2001, Mr N appeared on about ten occasions in the Manukau District Court. He was initially remanded in custody on 3, 5 and 7 March, but was granted bail on 8 March on stringent conditions, including a 7:00pm-7:00am curfew. Pre-depositions appearances then took place on 28 March and 18 April. He appeared again on 20 June and 4 July. On the latter occasion Clapham DCJ recorded the adjournment he granted that day as a “final adjournment”. The reasons for delay to that point appear to have resulted from requests for disclosure concerning the notes of evidence in A’s trial and questions about the provision of a blood sample, particularly in light of a case then in progress called Shaheed to which reference will later be made.

[9] Mr N again appeared on 16 August when Clapham DCJ said that the adjournment he granted that day would also be on a final basis or he would be minded to dismiss the charge for delays. The adjournment was sought on the basis of the Shaheed matter.

[10] Mr N appeared further on 3 October and then at depositions on 15 November. In the judgment delivered that day, Jaine DCJ reviewed the facts and in particular noted that the Police were unable to adduce evidence of Mr N’s DNA databank samples which suggested correspondence with the DNA profiling from the complainant’s knickers by reason of s 71 of the Act which renders databank DNA profiles inadmissible in criminal proceedings. Without that, the learned District Court Judge held the evidence was insufficient to put Mr N on trial notwithstanding evidential matters and the weight of evidence which he discussed in his judgment. He accordingly discharged Mr N. The count of sexual violation by rape has, however, now been relaid as pursuant to the Summary Proceedings Act 1957 s 167. A refusal to commit a defendant for trial in those circumstances does not amount to an acquittal and the charge may be laid again (Daemar v Gilliand [1981] 1 NZLR 61).

[11] In the meantime, three other matters had been proceeding largely in parallel. The first was a complaint by a woman R. supported by evidence from a man who was declared a hostile witness at the depositions hearing against Mr N, which suggested that Mr N had, at a time proximate to that in relation to the other complaint, been involved in sexual intercourse with Ms R. without her consent. Mr N was subsequently charged in respect of that matter and is still awaiting trial in relation to that.

[12] The second matter which arose is that on 22 June 2001 the Police received a complaint from the original complainant’s niece, one G., a complaint which, at least in the evidence adduced in support of this application, again suggested that Mr N had engaged in sexual intercourse with G. without her consent at much the same time as the other matters. Mr N has not been charged with that.

[13] The third and much the most important circumstance as far as the current application is concerned, however, is the progress of the case of R v Shaheed. Mr Shaheed is another person whose possible involvement in sexual violation matters arises out of a DNA databank “hit”. An application was made for a suspect compulsion order in his case and an order was made by Chambers J. In the run-up to Mr Shaheed’s trial an application was made for a ruling as to the admissibility of the evidence under the Crimes Act 1961 s 344A and that ruling has now been appealed to the Court of Appeal.

[14] Of significance in Mr N’s matter is that the Shaheed fixture in the Court of Appeal was adjourned on some four occasions between 1 March 2001 until it was actually heard on 12 November. It was a seven-Judge Court which heard the matter, the decision has been reserved and is not expected to be delivered until early 2002. Because the Shaheed decision plainly may affect the ultimate outcome of Mr N’s matter, as earlier noted the Police on at least two occasions obtained adjournments of Mr N’s case in the District Court in the hope that the Shaheed case would both be heard and determined before Mr N’s matter came back before the Court. That has not occurred.

[15] The position currently, as far as Mr N’s matter is concerned therefore, is that he has again been charged with sexual violation by rape. That matter has been called in the Manukau District Court at a pre-deposition hearing this week and adjourned to 16 January whilst this application for a suspect compulsion order filed on 5 October 2001 is heard and determined.

[16] The statutory basis for the making of a suspect compulsion order appears in the 1995 Act s 16 which reads:

“16(1) On the hearing of an application for a suspect compulsion order, a High Court Judge may make an order requiring the respondent to give a sample of the respondent’s blood if the Judge is satisfied that -

(a) There is good cause to suspect that the respondent (being a person who is of or over the age of 17 years) has committed the relevant offence to which the application relates; and

(b) Material reasonably believed to be from the body of a person who committed the offence has been found -

(i) At the scene of the offence; or

(ii) On the victim of the offence or on anything reasonably believed to have been worn or carried by the victim when the offence was committed; or

(iii) On any person or thing reasonably believed to have been associated with the commission of the offence; and

(c) There are reasonable grounds to believe that analysis of a blood sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the commission of the offence; and

(d) The respondent has refused to consent to the taking of a blood sample in response to a suspect request made in respect of the offence, or a related offence; and

(e) In all the circumstances, it is reasonable to make the order.

(2) In considering whether or not to make a suspect compulsion order, the Judge shall have regard to -

(a) The nature and seriousness of the offence to which the application relates; and

(b) Any reasons given by the respondent for opposing the making of the order sought; and

(c) Any evidence regarding the importance, to the investigation of the offence, of obtaining a blood sample from the respondent; and

(d) Any other matter that the Judge considers relevant.”

[17] Section 16(1) (a) and (d) reflect the statutory precursors to an application by the Police appearing in s 13(1)(a) and (b). It is of importance in relation to this matter to note that Mr Juran, counsel for Mr N, responsibly conceded that all the grounds appearing in s 16 had been made out other than s 16(1)(e), and that his opposition to the reasonableness of the making of an order was almost entirely based on the chronology of this matter and on particular delays on the part of the Police in seeking a suspect compulsion order since Mr N declined to provide a sample in early March. No question of non-compliance with the New Zealand Bill of Rights Act 1990, bar of course s 25(b), is raised nor is the privilege against self-incrimination.

[18] Before considering the matter it is of importance to note, as Mr Hamlin submitted, that all that is sought at this stage is the making of a suspect compulsion order. If the order is made and, as might be expected, the DNA profiling from the sample matches the DNA profiling from the complainant’s knickers - a conclusion which is not unreasonable based on the databank profile - then that is not the end of the matter. Mr N, through counsel, would still have the right in the run-up to the trial to oppose any application for an order under s 344A that the evidence was admissible.

[19] Counsel helpfully referred the Court to a considerable number of authorities on the 1995 Act and in particular on s 16. It is unnecessary to note them all. However, in Police v Cao & Ors (HC Auckland T.98/98 18 August 1998) this Court endeavoured to summarise the then status of the authorities in granting a suspect compulsion order. The principal basis for granting the application was that it would be of assistance in conducting the investigation.

[20] It is also of some importance to note the observations of Paterson J in Police v L (HC Auckland T 277/97 12 February 1998). That was a case where an application for a suspect compulsion order was made after acquittal but some months before trial and where it was opposed on the basis of delays by the Police in applying amounting to an abuse of process. The facts were that a sample had earlier been taken but was inadmissible through procedural defects. It is of interest to note that at p 7 of the judgment the learned Judge, in commenting on that aspect of the matter and in particular on s 17 empowering a second application for suspect compulsion orders, that -

“It is therefore difficult to see any valid policy reason which would prevent an order being made in a case where a sample has previously been taken by consent. If the Court can on more than one occasion order that a sample be taken from the same suspect for the same offence, it would in my view be a strange result if the Court had no power to make an order that a sample be taken where a previous sample has been taken by consent.”

[21] Some observations to similar effect were also made by Chambers J in Police v Suspect (M.201/00) (HC Auckland M 201/00 31 August 2000) - which was in fact the Shaheed case - paras 22-24 p 8. The Police also directed the Court’s attention to the decision of Anderson J in R v V (HC New Plymouth T.8/96 16 August 1996) where the importance of DNA testing to an ongoing investigation was emphasised and in particular its possible impact on trial date.

[22] In support of the opposition based on delay, Mr Juran drew the Court’s attention to the decision in Martin v Tauranga District Court [1995] 2 NZLR 419. That was a case where informations were dismissed through prosecutorial misconduct leading to substantial delay. There can be no valid comparison with the course of this matter.

[23] Mr Juran did, however, place considerable reliance on the decision of Hammond J in Denby v Tooman (HC Hamilton M281/00 3 November 2000) where the learned Judge declined to make a suspect compulsion order. However, the chronology of that matter is of importance. Mr Tooman was also charged with sexual violation but the application for a suspect compulsion order was only made on 27 October 2000 and heard on an urgent basis on 1 November against a trial date for 4 December 2000. A further distinction is that as the learned Judge makes clear during the course of his judgment, that was a case where sexual intercourse between complainant and accused was acknowledged and the only issue was whether it was consensual or the intercourse was based on reasonable apprehension of consent.

[24] Whilst it is true that counsel for the accused in that case was also critical of the delay in applying, and the criticism was given some weight by the learned Judge in the circumstances just discussed, the nub of the decision appears, with respect, to be in the following passages (at paras [18]-[20] pp 5, 6):

“[18] First, this proceeding has long since passed the “investigative” phase. It is now the eve of trial. Whilst that may not be fatal in cases, and I do not give a definitive ruling, it must be the case that an application for a sample of this kind should be made timeously, and as part of the investigation of the offence. That is implicit, if not explicit in s 16(2)(c).

[19] This conclusion is reinforced by the observation that the Crown is perfectly able to establish the fact of intercourse by other means. . . .

[20] Second, the question must always be asked, what is the evidence designed to do? To what is it relevant? It cannot be relevant to the fact of intercourse, which is common ground as between the parties. And it could not possibly be probative of “consent”.”

With respect, whilst the decision in that case is readily understandable, the circumstances are so markedly different that it is of no major assistance in deciding this question.

[25] In returning therefore to the question of the reasonableness of whether to make an order against the delays which have occurred, in this Court’s view it would plainly have been preferable had the application for the suspect compulsion order been made at an earlier stage so that, if granted, the sample could have been processed and the evidence available during the initial charge brought against Mr N.

[26] However, given what would appear to be the comparability between the Shaheed case and this case, and the unexpectedly large number of adjournments preparatory to the Court of Appeal hearing in Shaheed, the delay is understandable. Even now and even if an order is made in this case, it may require to be revisited once the decision in Shaheed is delivered.

[27] The Court also accepts Mr Juran’s submissions on Mr N’s part that he is prejudiced by the delay through having the initial charge and now the renewed charge hanging over his head, plus the period that he was in custody and the strict terms of bail under which he has been at liberty over the past months.

[28] On the other hand, this is still an area where, as the review of the authorities and the Shaheed case show, Courts, Police and Crown and defence counsel are still coming to terms with aspects of the application of the 1995 Act. At least until the Shaheed decision is delivered there can be legitimate differences in applications made to Courts and in Courts’ decisions on the topic. There is some force in Mr Hamlin’s submission that as a result of the Shaheed matter Mr N’s position is somewhat akin to the way in which a large number of breath and blood-alcohol prosecutions were held up whilst matters as to the admissibility of manufacturers’ manuals were authoritatively settled. It is perhaps unfortunate that where the law is being clarified - where there exists what one poet has called the “fleeting vision of the law” is solidified - that there can be disadvantage for litigants involved in cases raising the same point of law.

[29] However, in this case, Mr N’s consensual sample entered in the DNA profile databank is rendered inadmissible, not through procedural error or for any other reason such as that raised in earlier cases, but solely because s 71 of the Act makes it inadmissible in criminal proceedings. In that regard, however, it is to be noted that the Long Title to the Act provides for “the establishment of a databank of information derived from an analysis of blood samples taken from certain persons”, and then goes on to provide that the statute will also authorize the use of information from that databank in criminal investigations.

[30] In this Court’s view it is clear that the investigation relating to Mr N is still ongoing. It is clear too from the definition of “suspect” in s 2 of the Act that an application for a suspect compulsion order can be made at any stage of the investigatory process including before and after charge. Section 71(3) specifically provides that the inadmissibility in criminal proceedings of DNA databank profiles is not to apply in respect of applications for a compulsion order defined as including suspect compulsion orders. In this Court’s view one of the underlying reasons for the setting up of the DNA profile databank was to provide an initial match of identity between profiles in the databank and profiles found on the investigation of crime scenes. In that light, it must have been expected and intended by Parliament that once that initial match had been made it would then be open for prosecuting authorities to apply for suspect compulsion orders. Those whose profiles appear in the databank then have the protection of their rights appearing in ss 13 and 16 but it must certainly have been within contemplation that DNA databank “hits” would be followed by suspect compulsion applications and orders. Therefore, in this case, where inadmissibility only arises through statutory prohibition, there seems no particular reason to decline the Police application. There is, of course, as earlier noted, some force in Mr Juran’s submission that the application could well have been made at an earlier stage, but the progress of the Shaheed matter considerably diminishes the force of that submission.

[31] In all those circumstances, both on the facts of this matter and having regard to the authorities discussed, this Court reaches the view that the delays in application and in processing this matter have not reached the stage where it would be unreasonable to make an order for a suspect compulsion order and the Police application in that regard will be granted accordingly. The sample is to be taken on Monday 7 January 2002 at 11:00am at the Henderson Police Station, that is the time and place agreed between counsel in the event the application was granted.

[32] The Court concludes this judgment by observing that even though the order has been made and the sample will be taken and analysed, it may yet turn out to be the case that the whole question including the admissibility of any subsequent DNA analysis may need to be reconsidered in the light of the Court of Appeal’s decision in Shaheed. If necessary leave will be reserved to the parties to make application in that regard following delivery of that judgment.