Police v Reekers HC Auckland CRI 2008-404-0221

[2008] NZHC 2686

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0221

NEW ZEALAND POLICE (DETECTIVE INSPECTOR S M WOOD)

Applicant

v

JOSEPH MARTIN REEKERS

Respondent

Hearing:         30 September 2008 Appearances: K Glubb for the Applicant

B Hart and H Lawry for the Respondent Judgment:     8 October 2008

JUDGMENT OF WOODHOUSE J

(suspect compulsion order)

This judgment was delivered by me on 8 October 2008 at 10:00 a.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr K Glubb, Meredith Connell, Office of the Crown Solicitor, Auckland Mr B Hart, Barrister, Auckland

NEW ZEALAND POLICE V REEKERS HC AK CRI 2008-404-0221 [8 October 2008]

[1]    On 25 June 2008 the respondent was arrested and charged with the rape and murder of Marie Jamieson on or about 10 February 2001. The Police seek an order under the Criminal Investigations (Bodily Samples) Act 1995 (“the Act”) that the respondent provide a bodily sample for DNA comparison. The application is opposed.

[2]    The grounds on which an order may be made are set out in s 16 of the Act. The provisions relevant to this application are as follows:

16       Judge may authorise [bodily] sample to be taken

(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 bodily sample 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, or genetically traceable to, the body of a person who committed the offence has been found or is available—

(i)at the scene of the offence; or

(ii)on the victim of the offence; or

…

(iv)on any thing reasonably believed to have been worn  or carried by the victim when the offence was committed; or

…

(c)There are reasonable grounds to believe that analysis of a bodily 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 bodily 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 bodily sample from the respondent; and

d)        Any other matter that the Judge considers relevant.

The Police evidence

[3]    Because of the matters specified in paras (a)-(c) of s 16(1), and one of the arguments for the respondent, it is necessary to set out in reasonable detail the evidence relied on by the Police. The Police evidence is contained in an annexure to an affidavit sworn by Detective Inspector Wood, the applicant and the officer with ultimate responsibility for the Police investigation. The annexure to the affidavit includes the following, with some names omitted or changed to initials:

1.Ms Jamieson was 23 years old and had been living in an alcohol rehabilitation house at 91 Methuen Road, Avondale. She was reported missing to Police on 23 February 2001 after failing to return home on the night of 10 February 2001.

2.Ms Jamieson had left the Tonic Bar, corner of Symonds Street and Newton Road, Auckland City at about 8:45 p.m. on 10 February 2001 to catch a bus home. She purchased a bottle of KGB pre-mix  at Hentys Bar in New North Road at 8:52 p.m. and was seen walking along New North Road towards Avondale.

3.Video surveillance at the Gull Service Station at 384 New North Road, Kingsland shows Jamieson walking alone on the edge of the forecourt at 9:17 p.m. This is the last confirmed sighting of Ms Jamieson alive.

4.On 19 February 2001 the naked body of a female was found behind a factory at 22C Mihini Road, Ranui. The body was subsequently identified as that of Marie Jamieson, a 23 year old who had been reported missing to the Police on 12 February 2001.

5.The post-mortem examination established that Ms Jamieson had been murdered. She had sustained three stab wounds to the chest. Extensive decomposition of her neck area indicated possible further

injury  to  the neck area.   The cause of death was determined as “multiple stab wounds of left chest”.

6.Ms Jamieson’s skirt, t-shirt, underpants and shoes had been dumped beside her body.

7.A scene examination by Police and ESR scientists indicated that Ms Jamieson had been murdered at a different location, and her body had been brought to this site to be dumped. The forensic  entomology report stated the body had been at the rear of the factory for five to six days.

8.ESR scientists examined Ms Jamieson’s clothing from the scene. A mixture of DNA was located in the crotch of Ms Jamieson’s underpants. Some of this mixture of DNA corresponded to that of her boyfriend …, with whom she had consensual sex that morning.

9.Another part of this mixture of DNA from the crotch of Ms Jamieson’s underpants originated from an unknown male designated as ‘Male A’. This ‘Male A’ DNA profile was also detected on Ms Jamieson’s skirt.

10.Police DNA screening during the murder investigation failed to identify the ‘Male A’ sample, despite extensive numbers of witnesses being interviewed and suspects being nominated from a number of sources including the Criminal Profiling Team.

11.In February 2008 ESR scientists carried out a familial search of the National DNA Databank in respect of the unidentified ‘Male A’ DNA profile. The purpose of this search was to identify possible relatives of ‘Male A’ by comparison to DNA profiles held on the National DNA Databank.

12.This search of the New Zealand DNA Databank produced a ranked list of 49 individuals which was provided to Police as the basis for further investigation work.

13.The highest ranked person on the list, due to her correspondence in DNA characteristics, was Ms [B].

14.ESR scientists calculated a Likelihood Ratio for the hypothesis that the ‘Male A’ DNA had originated from a sibling (brother) of Ms [B] as opposed to it being from another unrelated member of the New Zealand population., The Likelihood Ratio of over 1,760,000 provided extremely strong scientific support for the proposition that the DNA could have originated from a brother of Ms [B].

15.On the basis of this, Police enquiries were carried out to identify Ms [B]’s brothers.

16.Ms [B]’s only brother is Joseph Martin Reekers (date of birth 22 December 1956) of 88A Borich Road, Sunnyvale. He was living in Tui Glen Motor Camp in February 2001. Mr Reekers has an extensive criminal history which includes rape in 1978.

17.Enquiries show that Mr Reekers was in Auckland at the time Ms Jamieson disappeared. He and an associate Raymond Edward Smith were spoken to by Police the night before Ms Jamieson went missing.

18.Mr Reekers’ co-offender in the 1978 offence was Peter Thomas Stephens.

19.Mr Reekers’ DNA profile was loaded to the National DNA Databank, pursuant to a compulsion notice following conviction for shoplifting in April 2008.

20.The ‘Male A’ DNA profile obtained from Ms Jamieson’s underpants and skirt corresponds to the DNA profile of Mr Reekers at the relevant DNA profiling sites.

21.The Police have obtained information indicating that Mr Reekers raped and murdered Ms Jamieson by stabbing her.

22.During the surveillance phase there has been multiple contact between Mr Reekers and Mr Stephens, and Mr Reekers and Mr Smith.

23.Police have monitored the telephone conversations of Mr Reekers and Mr Stephens. Audio devices were also installed in their respective addresses and Mr Reekers’ car.

[4]    The Police contend that there are strong grounds for suspecting that the respondent raped and murdered Ms Jamieson. The principal categories of evidence are the DNA evidence referred to above and what is outlined in the following paragraphs.

[5]    In February 2001, when the crimes were committed, the respondent was living at a motor camp in Henderson approximately 3 kilometres from where Ms Jamieson’s body was found.

[6]    The factory behind which Ms Jamieson’s body was dumped is one at which the respondent worked in 1986-1987.

[7]    On 23 June 2008 the respondent admitted to police officers that he had met Ms Jamieson in Kingsland. As noted in the Police summary (para [3] 3.) the Police traced Ms Jamieson’s movements on the night of 10 February 2001 through Kingsland where she was last seen leaving a service station at 9:17 p.m. This statement to the Police should also be related to an intercepted statement, referred to

next, allegedly made by the respondent to Mr Stephens that the respondent picked Ms Jamieson up in Kingsland.

[8]    Between 5 June and 26 June 2008, Police recorded a number of conversations said to be between the respondent and his associate, Mr Stephens, who was convicted as a co-offender with the respondent for the 1978 rape. No evidence was put before me of a recorded admission by the respondent to Mr Stephens, but there is a conversation which refers by name to Ms Jamieson and the need for the respondent to contact his lawyer, Mr Hart.

[9]    Following from this are intercepted communications said to be between Mr Stephens and Mr Jamie Kapa. The annexure to the affidavit of Detective Inspector Wood includes the following:

Police have recorded conversations involving Mr Stephens where he tells associates including Mr Jamie Kapa, that Mr Reekers had confessed to him that he raped and murdered Ms Marie Jamieson.

[10]   A transcript was produced. It includes the following statements said to have been made by Mr Stephens to Mr Kapa. This was on 27 June 2008, two days after the respondent’s arrest:

There’s two days that the cops reckon she was missing, she was there the whole time, he took her straight there, you know why, because he used to work there mate, he used to work at that building …

Yeah, nah, hey mate this is what happened, this is, this is the truth cos that’s what he told me, she was there right from the start, because think about it Jamie, if he had two days to get rid of her would he take her somewhere like that? Would have got rid of her straight away, and that’s  where, that’s  where he dumped her.

…

Who knows? Who knows mate eh?  Well he said I grabbed her and raped  her …

Yeah, he was out of it, he reckons he was out of it, he told me how he killed her …

Um, she was, he got her at the top of New North Road you know where the old fire station is in Kingsland, you go, you go through Kingsland, it’s up the hill there’s a boarding house on the left, an old fire station, that’s where he picked her up just …

It used to be a fire station, yeah that’s where he got her, just past the fire station, he picked her up, she was hitch hiking, he saw her driving along and stopped.

[11]   Mr Stephens was interviewed by a police officer on 8 July 2008. Detective Inspector Wood said that Mr Stephens refused to make a formal statement, but acknowledged what he had been recorded as saying to Mr Kapa and admitted that he had learned it from the respondent. Mr Stephens is alleged to have said that he was told by the respondent that the respondent killed Ms Jamieson by cutting her throat, raped Ms Jamieson in his car and subsequently dumped her body.

[12]   There are intercepted communications allegedly between the respondent and others.  On the present state of the evidence these statements are also incriminating.  I will refer to two communications only, being the first two in the transcript, on 13 June 2008. On 13 June 2008 a bodily sample was taken from the respondent pursuant to a compulsion order following his conviction for shoplifting in April 2008 (see para [3] 19. and 20.). The communications were intercepted later that day.  From the transcripts the person said to be the respondent appears to be referring to the fact that the sample was taken. The alleged statements of the respondent include:

It’s the final fucken nail in the coffin for me fella.

Later that day:

I’m in deep shit. With no paddle.

[13]   The final piece of evidence relied on by the Police as establishing good grounds to suspect the respondent is evidence that, on service of the DNA compulsion order on him, he left his address in Auckland.

The respondent’s grounds for opposition

[14]The respondent advanced three grounds in opposition to the application:

a)The Police were not entitled to undertake a comparison between the ‘Male A’ DNA and the DNA of the respondent’s sister stored on the

DNA Profile Databank. This is what led the Police to the respondent so that all evidence subsequently obtained is tainted.

b)There was a breach of the respondent’s rights under ss 21 and 23 of the New Zealand Bill of Rights Act when the bodily sample was taken from the respondent on 13 June 2008 pursuant to the DNA Databank compulsion notice following the conviction for theft. Section 21  of the Bill of Rights Act sets out the right to be secure against unreasonable search or seizure. Section 23 sets out the rights of persons arrested or detained, including the right to be informed of the right to consult and instruct a lawyer. The consequence is said to be the same as for the first ground – tainting of evidence subsequently obtained.

c)The third ground is that the criteria in s 16(1)(a)-(c) are not made out; in particular, there are no reasonable grounds to believe that analysis of a body sample taken from the respondent would tend to confirm or disprove the respondent’s involvement in the rape or murder of Ms Jamieson.

Respondent’s first ground : comparison with sister’s DNA profile

[15]   The submission for the respondent turns on s 27 of the Act, which limits access to information stored on a DNA profile databank, and the definitions of “DNA profile” and “forensic comparison”.

[16]The relevant provisions of s 27 are as follows:

27       Access to and disclosure of information on DNA profile databank

(1)Subject to subsections (2) to (4) of this section, no person may have access to any information stored on a DNA profile databank, and no person shall disclose any such information, except for one or more  of the following purposes:

(a)For the purpose of forensic comparison in the course of a criminal investigation by the Police:

…

(4)Nothing in this section prohibits access to, or the disclosure of, any information for the purposes of—

(a)Any application for a compulsion order; or

…

[17]“DNA profile” and “forensic comparison” are defined as follows:

DNA profile, in relation to any person, means information derived from an analysis of a sample of genetic material obtained from that person, being information—

(a)That is clearly identifiable as relating to that person; and

(b)That is able to be compared with information obtained from an analysis (using the same technique) of another sample of genetic material for the purpose of determining, with reasonable certainty, whether or not the other sample is from that person:

Forensic comparison means the comparison of a DNA profile stored in a DNA profile databank with another DNA profile, where that comparison is undertaken for the purpose of confirming or disproving the involvement of any person in the commission of an offence:

[18]   The submission in respect of the definition of “DNA profile” was that it does not apply because of the words in paragraph (b) of the definition. The point was that the sister’s DNA profile was not being compared with the Male A DNA for the purpose of determining whether or not the Male A DNA was from the sister. The accuracy of the statement of fact contained in the submission is obvious. But this does not appear to bear on whether s 27 is applicable in this case. The words in paragraph (b) of the definition of DNA profile are merely part of the definition and descriptive of the manner in which the stored DNA profile is capable of being used. The DNA sample was certainly “able” to be used in the manner set out in (b). But the definition does not restrict its use to that purpose. Restrictions on use are found  in s 27.

[19]   The issue under s 27 is whether the exception in s 27(1)(a) applies. This requires consideration of the definition of “forensic comparison”. Applying that definition to s 27(1)(a), I am satisfied that the disclosure of the sister’s DNA profile to the Police, and the use the Police made of it, was for the purpose of forensic

comparison. There is nothing in the definition of forensic comparison  which restricts the purpose to comparison of the DNA profile in the databank to determining whether another sample came from the person who supplied the databank profile. The relevant “purpose” is that contained in the definition of forensic comparison – “the purpose of confirming or disproving the involvement of any person in the commission of an offence”. That is exactly why the Police undertook the familial search described by Detective Inspector Wood (para [3] 11.- 14.).

[20]   If I am wrong in that conclusion, there is then a question whether the unauthorised use of the sister’s DNA profile means that the application for the suspect compulsion order should not be made. It does not appear to me that, on this premise, there would be grounds for declining the application. If the submission for the appellant is correct, then the consequence will be that the evidence may be inadmissible, pursuant to s 30 of the Evidence Act 2006. But an argument of inadmissibility is of no avail to the respondent on the present application under the Criminal Investigation (Bodily Samples) Act because of s 13(4) which provides:

(4)In considering an application made under this section, the Judge may take into account any oral or documentary material that the Judge considers relevant, whether or not it would be admissible in a court of law.

[21]   On this point see Police v Suspect (2000) 6 HRNZ 325 at [22]. I note that in Police v Suspect there was, initially, a contention of serious Police misconduct. Chambers J held that that could constitute grounds for declining an order and adjourned the matter for affidavit evidence to be filed. The question was not further pursued on the further hearing. There is no allegation of Police misconduct in this case.

[22]I therefore find against the respondent on the first ground.

Respondent’s second ground : NZ Bill of Rights Act ss 21 and 23

[23]   This submission was directed to the sample taken from the respondent on 13 June 2008, pursuant to the compulsion notice following his conviction for theft.

[24]   The compulsion notice had been served on the respondent on 6 May 2008. It required him to provide a DNA sample on 22 May 2008 at the Henderson Police Station. He had not done so and a warrant to arrest had been issued under the Act. On 13 June a police constable, acting pursuant to the warrant and the underlying compulsion notice, spoke to the respondent at his home, and the sampling process was then completed.

[25]   There was no evidence before me to indicate that there was a reasonable basis for an argument that there had been breach of the right under s 21 to be secure against unreasonable search or seizure. The police constable was exercising a power carefully prescribed in the Act and no argument was developed for the respondent as to how this constituted breach of s 21.

[26]   Section 23, in relation to the submission for the respondent, is concerned with the right of a person who has been arrested or detained to be informed of the right to consult and instruct a lawyer. This right is in fact set out in s 50 of the Act, albeit in  a manner tailored to the nature of the procedure being undertaken. Section 50(1) provides:

50       Person giving sample entitled to have certain other persons present

(1)A person from whom a bodily sample is taken is entitled to have the following persons present during the taking of the sample:

(a)a lawyer, or another person, of the person's choice; and

(b)in the case of a person under the age of 17 years, a parent or other person who has the care of that person.

[27]   Section 50(2) requires the responsible police officer to ascertain from the person concerned whether that person wishes to exercise the right conferred by        s 50(1). The police constable’s jobsheet was produced during the hearing  and records the following:

I told REEKERS that under section 50 of the Criminal Investigations (Bodily Samples) Act 1995, he was entitled to have a friend, family or lawyer present when he gave the sample to which he declined.

[28]   At this stage of the proceeding, it would not be appropriate for me to express any concluded view as to whether there was sufficient compliance with the relevant provisions of the Act and of the New Zealand Bill of Rights Act. On the present  state of the evidence I am not persuaded that there is anything that would warrant my exercising the discretion I have under s 16 to decline to make the order. Further, there is the point already made in relation to the respondent’s first ground – the underlying argument for the respondent is admissibility of evidence and s 13(4) of the Act is an answer to that on this application.

[29]I therefore find against the respondent on the second ground.

Respondent’s third ground : s 16(1)(a)-(c) (not made out)

[30]   The main thrust of this ground was that s 16(1)(c) had not been made out. The essence of the submission was that, even if it is established that the respondent’s DNA is the same as the Male A DNA, this will not “tend to confirm or disprove the respondent’s involvement in the commission of” either of the offences. It was submitted that the only thing it would confirm would be that the respondent’s DNA had by some means found its way on to the clothing of Ms Jamieson, but how that occurred would be pure speculation and fall well short of confirming the respondent’s involvement in either alleged offence. It was further submitted that the DNA analysis could not tend to confirm that rape had occurred at all.

[31]   The submission was developed in a number of other ways, but to the same general effect. It is unnecessary to discuss the detail of the submissions. I am satisfied that all of the grounds specified in s 16(1)(a)-(e) are made out. This third ground of opposition for the respondent is, in a broad sense, concerned with the present evidence relied on by the Police, and this is what paras (a)-(c) of s 16(1) are concerned with in different ways. The detailed summary of the evidence presently relied on by the Police, and all of which is admissible on the present application, provides ample grounds for my being satisfied of the relevant matters. The submissions for the respondent require this evidence to be ignored in large measure, and that attention be confined to the direct conclusion that would be drawn from a

positive  match.     That is not a legitimate approach to s 16(1)(a)-(c), or to the assessment of evidence generally.

[32]   I have also had regard to the particular factors required to be taken into account under s 16(2). None of these would warrant declining the order. And a number add weight to my conclusion under s 16(1)(e) that, in all the circumstances, it is reasonable to make the order.

Result

[33]   There will be an order in terms of the application. Leave is reserved to the applicant, on notice to the respondent, to seek further directions if required.

Peter Woodhouse J