Police v R HC Wellington CRI-2007-485-53

[2007] NZHC 1831

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-53

UNDER  the Criminal Investigations (Bodily

Samples) Act 1995

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

BETWEEN  NEW ZEALAND POLICE Applicant

AND  R

Respondent

Hearing:         12 June 2007

Appearances: M Anderson for Applicant

M Bott for Respondent

Judgment:      12 June 2007

ORAL JUDGMENT OF RANDERSON J

[1]      The police have applied for a suspect compulsion order under s13 of the

Criminal Investigations (Bodily Samples) Act 1995.

[2]      Detective Sergeant S D Cotter has filed a formal application and affidavit in support.  There is an affidavit of service on file, although Mr R   as respondent has appeared this morning, and is represented by Mr Bott.  The Court has been informed by Mr Bott that Mr R   regards the matter as serious but effectively abides the

decision of the Court.

NEW ZEALAND POLICE V R HC WN CRI-2007-485-53  12 June 2007

[3]      I  have  examined  the  application  which  relates  to  alleged  offending  by Mr R   on 6 July 2006 in respect of an electronics retail store in Featherston Street, Wellington.  The allegation is that Mr R   drove a vehicle into the front window of the store causing damage to a plate glass window.   Various electronic items were taken  to  a  value  of  between  $5,000-6,000.    The  attending  constable  observed droplets of blood on the footpath immediately outside the area of entry and exit to the premises.  Swabs were taken and there is evidence from ESR matching the DNA profiles to that of the respondent.

[4]      In terms of s16(1) of the Act I am satisfied that all the relevant criteria have been shown to apply in this case.   First, there is good cause to suspect that the respondent has committed the relevant offence, having regard to the blood matching information;  second, I am satisfied there is material which is reasonably believed to be from, or genetically traced to the respondent, which has been found or is available at the scene of the offence;   third, there are reasonable grounds to  believe that analysis of a bodily sample taken from the respondent would tend to confirm or disprove his involvement in the commission of the offence;  fourth, the respondent has refused to consent to the taking of the bodily sample in response to a suspect request  made  in  respect  of  the  offence  and  the  relevant  documentation  and procedures have been completed in that respect;  and finally, in all the circumstances I am satisfied that it is reasonable to make the order.

[5]      I also record that I am satisfied  in relation to  s16(2) that the nature and seriousness of the offence is such that it is proper to grant the application;  I have had regard to the reasons given by the respondent for opposing the making of the order (there were none in this case);  and I have considered the importance of the evidence and  I  am  satisfied  that  obtaining  a  bodily  sample  will  be  important  to  the investigation of the offence.

[6]      Accordingly I make the order sought on the basis that the sample is to be taken from the respondent at the Upper Hutt Police Station on 20 June 2007 between the hours of 9.00am and 5.00pm.

[7]      I direct that the Registry make available to the police the form of order I have made in accordance with Form 3 Regulation 4 of the Criminal Investigations (Bodily Samples) Regulations 2004.

……………………………….. Randerson J

Chief High Court Judge

Solicitors:

Crown Solicitor, Wellington for Applicant