Police v P HC Wellington CRI-2009-485-163

[2009] NZHC 2325

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-163

NEW ZEALAND POLICE

Applicant

v

P 

Respondent

Hearing:         18 December 2009

Appearances: J M Webber for Applicant

W M Johnson for Respondent

Judgment:      18 December 2009

ORAL JUDGMENT OF MACKENZIE J

[1]      This  is  an  application  for  a  suspect  compulsion  order  under  s 16  of  the Criminal Investigations (Bodily Samples) Act 1995.  The circumstances are that the respondent faces charges involving drug offending and the application is made for the purpose of obtaining a sample which will enable evidence to be obtained, if the application is granted, which will be relevant at that trial.

[2]      There are two key aspects of the opposition to the taking of the sample.  The first  relates  to  whether  there  is  good  cause  of  suspect  that  the  respondent  has

committed the alleged offences.  The second is whether there are reasonable grounds

NEW ZEALAND POLICE V P   HC WN CRI-2009-485-163  18 December 2009

to believe that analysis of the sample would tend to confirm or disprove the respondent’s involvement in the offences.

[3]      I deal first with the question of whether there is good cause to suspect.  The respondent was stopped, for other reasons, on 23 August 2009.  He was found then to be in breach of bail conditions and he was arrested for that.  A search, pursuant to that arrest, brought to light a capsule which is said to contain cannabis oil.   The constable, with another constable, then executed powers under s 18 of the Misuse of Drugs Act 1975 to search the vehicle and the remaining passenger.   Further items were discovered.  These included a small black bag which was in the front passenger foot well of the vehicle and I will need to come back to the contents of that in a moment but it contained other suspected drugs which are alleged to be cannabis oil and LSD.

[4]      I consider that those circumstances do give good cause to suspect that the suspect that the suspect has committed an offence against the Misuse of Drugs Act. Mr Johnson submits that the samples have not been analysed.  That is the case but it is not necessary at this stage that the prosecution establish to the extent that will be necessary at trial that an offence has been committed.  The question is whether there is good cause to suspect the commission of an offence.   I consider that the circumstances in which the items were found are such as to give cause to suspect that the  respondent  was  in  possession  of  those  items  and  the  nature  of  the  items, including the respondent’s own admission in respect of the item found on his person, is sufficient to give good cause to suspect, but not of at this stage to prove, that the items are as alleged.  So I consider that the threshold requirement in s 13 of the Act, that there be good cause to suspect that the respondent has committed the alleged offence, is made out.

[5]      The next question then is whether there are reasonable grounds to believe that analysis of a sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the commission of the offence.

[6]      I have earlier mentioned the bag that was found in the vehicle.  One of the items in that bag was a toothbrush.  That was sent for analysis to ESR.  A mixed

DNA profile was obtained from it.   That originated from at least two individuals. The partial minor component was of insufficient quality for entry into the crime sample database but the partial major component was entered onto the database. That was compared with a profile from the respondent which is held on the database and ESR said:   “We cannot exclude [the respondent] as being the possible major contributor to this mixed DNA profile”.  The purpose of the application for an order is that a sample be obtained so that the respondent’s DNA will be available in a legally admissible form at trial.  I assume, for present purposes, that the outcome of that  will  be  that  the  ESR  will  reach  the  same  conclusion  with  respect  to  the admissible sample as they have reached in respect of the presently inadmissible sample in the database.

[7]      On that assumption the DNA evidence cannot be categorised as particularly strong.  Its assessment, however, will be a matter for trial.  At this stage my task is to consider whether there are reasonable grounds to believe that the sample would tend to confirm or disprove the respondent’s involvement in the offence.  The tendency to confirm or disprove has an echo of the language in s 7 of the Evidence Act 2006 under which evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.  I consider that the evidence that the respondent cannot be excluded as a possible major contributor is evidence which may have a tendency to prove his involvement.   It would not of itself be sufficient and it would, of course, depend highly upon the other evidence adduced.  But at this stage the test is simply whether it would tend to confirm or disprove the involvement and I consider that it meets that threshold test. Absent an order, that evidence could not go before the trier of fact at trial.  The effect of making an order is that that order will be able to be adduced at trial.  I consider that that threshold has been met and that the order should accordingly be made.

[8]      There will be an order in terms of the draft order submitted by counsel for the applicant.  In terms of the draft order submitted by the applicant in paragraphs 3(b) and (d) the reference will be to 12 January 2010 at 11am in each case.  That may be varied by the Police.

“A D MacKenzie J”

Solicitors:         Crown Solicitor, Wellington for Applicant

W M Johnson, Wellington for Respondent