Police v S HC Auckland CRI-2008-404-183

[2008] NZHC 1318

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2008-404-183

NEW ZEALAND POLICE

Applicant

v

S

Respondent

Hearing:         15 August 2008

Appearances: Mr J Shaw for Applicant

Mr T Faleauto for Respondent

Judgment:      21 August 2008

JUDGMENT OF LANG J

[on application for suspect compulsion order]

This judgment was delivered by me on 21 August 2008 at 4.30 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Crown Solicitor, Auckland
Counsel:

Mr T Faleauto, Auckland

NZ POLICE V S HC AK CRI-2008-404-183  21 August 2008

[1]      Mr S   is to stand trial in the District Court on four charges of unlawful sexual connection.     All of the charges relate to unlawful sexual acts that he is alleged to have engaged in with the same complainant in July and August 2007.

[2]      The police now seek an order that Mr S   be required to provide a bodily sample under the Criminal Investigation (Bodily Samples) Act 1995 (“the Act”). Mr S   opposes the application.    He contends that the Court should decline to make such an order because the police have adduced insufficient evidence to justify the order being made.   He also contends that it would be unreasonable for the Court to make the order that the police seek.

[3]      In order to understand the issues that the application raises, it is necessary to briefly set out the factual basis for the application.   This is set out in the affidavit of Detective Inspector Andrew Gallagher.

The factual basis for the application

[4]      The complainant is a 21-year-old woman who at the material time was living in a boarding house in Mangere.    Mr S   was living at the same address at that time

[5]      The charges against Mr S   arise out of two separate incidents.   The first occurred in the early hours of a morning between 14 and 22 July 2007.     The complainant says that on this occasion an intruder came into her bedroom through an insecure window.    The intruder allegedly pulled the complainant to the end of the bed, lifted her legs in the air and put his penis in her vagina.   He then left the room, saying that he would be back.

[6]      The complainant  has  identified  Mr S   as  the  person  who  had  sexual intercourse with her against her will on this occasion.

[7]      The remaining charges arise out of an incident that occurred in the early hours of 1 September 2007.    On the previous evening the complainant, Mr S   and other residents of the boarding house had been drinking together for several

hours.   At about 3am on 1 September the complainant went to her room to feed her child and to go to bed.   Mr S   allegedly entered the room, pulled the complainant to the floor and removed her trousers and underwear.    He inserted his fingers into her vagina and forced his penis into her mouth.    He then put his penis into her vagina and again had sexual intercourse with her against her will.

[8]      The  complainant  once  again  identified  Mr  S    as  being  the  person responsible for these acts.

[9]      The complainant did not contact the police after the first incident.   She did, however, make a complaint to the police very soon after the incident on 1 September

2007.   On the same day she was examined by a forensic medical specialist.   During the examination the specialist took a number of swabs from the complainant.  One of these was a perioral swab that the specialist took from around the outside of the complainant’s mouth.     The swabs were subsequently analysed by a scientist employed by the ESR, and a partial male DNA profile was obtained from the sample taken by the perioral swab.  The scientist obtained this profile using the technique of Y-STR analysis.

[10]     The police believe that the partial profile that the scientist obtained from the perioral swab is likely to have originated from material deposited on the complainant’s face during the incident that occurred on 1 September 2007.   They therefore believe that the profile will belong to Mr S  .  They do not, however, currently hold Mr S  ’s DNA profile on their database.  Moreover, Mr S   has to date declined requests from the police to provide a bodily sample voluntarily.  For this reason they seek an order that Mr S   be required to provide a bodily sample for the purposes of DNA analysis.   The police contend that analysis of that sample would tend  to  prove  or  disprove  Mr  S  ’s  involvement  in  the  incident  on  1

September 2007.

The legislation

[11]     Section 16 of the Act provides the Court with jurisdiction to make an order requiring a suspect to provide a bodily sample if it is satisfied that:

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

…  ; and

(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.

[12]     Section  16(2)  of  the  Act  also  requires  the  Court  to  have  regard  to  the following factors:

(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.

Issues

[13]     In the present case there is no dispute that Mr S   is over 17 years of age and that he has been charged with “relevant offences” in terms of the Act.   The fact that the complainant knows Mr S   and that she has identified him as the person

who committed the offences means also that there is good cause to suspect that he committed them.   Further, there is no dispute that Mr S   has refused thus far to agree to the requests that the police have made for him to voluntarily provide a bodily sample.

[14]     The first issue, therefore, is whether there is sufficient evidence to permit the Court to reasonably believe that material from, or genetically traceable to, the offender was found on the complainant.   Next, the Court must decide whether there are reasonable grounds to believe that analysis of a bodily sample taken from Mr S   would tend to confirm or disprove his involvement in the offending.   Allied to this issue is the question of whether it is reasonable in all the circumstances to make the order that the police seek.

(i)       Is the evidence sufficient to give rise to a reasonable belief that material from the offender was found on the complainant?

[15]     The  only evidence in  support  of  the  application  is  that  contained  in  the affidavit of Detective Inspector Gallagher.   That affidavit does not exhibit a copy of the complainant’s brief of evidence, so it is not possible to determine how much detail she can provide regarding the incident on 1 September 2007.  In considering the present application I am therefore constrained by the bounds of Detective Inspector Gallagher’s evidence.

[16]     Detective Inspector Gallagher deposes only that the offender placed his penis in the complainant’s mouth.    He does not say that the offender rubbed his penis around her mouth or that he ejaculated around her mouth.   He does not say, either, that the offender kissed the complainant in the area of her mouth, or that he engaged in  any other  activity with  the  complainant  that  may have  caused  DNA-bearing material to have been deposited on the area around her mouth.

[17]     I  have  concluded  that  the  evidence  of  the  Detective  Inspector  does  not provide a sufficient evidential basis to enable me to reasonably believe that material from the offender was deposited on the area around the complainant’s mouth. Although I accept that the evidential threshold is relatively low, it is still incumbent

on the applicant to adduce sufficient evidence to enable the Court to reach a state of belief, on a reasoned basis, that that occurred.    There is no evidence, however, to show  how  that  may have  occurred  during  the  incident  that  Detective  Inspector Gallagher describes.  The evidence goes no further than to establish that the offender placed his penis inside the complainant’s mouth.   It would require guesswork to reach the conclusion that that act somehow caused material to have been deposited on the complainant’s face in the vicinity of her mouth.

[18]     My conclusion is reinforced by the fact that the complainant and Mr S   were living in the same boarding house at the material time.   Moreover, they and others were drinking together for a considerable period immediately prior to the incident that is said to have occurred in the complainant’s bedroom on 1 September

2007.    Ms McGovern, the ESR scientist who analysed the perioral swab, cannot exclude the possibility that material from a male person was transferred to the area of the complainant’s mouth during the hours prior to the incident.    This could have occurred, for example, if the complainant had drunk from a glass that had earlier been used by another person.    If this occurred, there is the possibility that saliva from the person who used the glass earlier was transferred to the area around the complainant’s mouth.   Alternatively, the material may have been deposited there as a result of physical contact between the complainant and another male at the address during the course of the evening.

[19]     For these reasons I find myself unable to form a reasonable belief that the partial DNA profile is likely to have originated from material left by the offender during the incident on 1 September 2007.   The applicant has therefore failed to establish the necessary evidential basis to justify the making of the order that it seeks.

(ii)      The other issues

[20]     As a result of my conclusion in relation to the first issue it is not necessary for me to consider the remaining issues.  These arise as a result of the fact that the scientist  acknowledged  that  the  Y-STR  profiling  process  produced  a  result  that would be of very limited evidential value.  It is distinctly arguable that the result is of

such limited value, in fact, that it does not meet the threshold of tending to prove or disprove that Mr S   committed the offences on 1 September 2007.  It could also be relevant to the issue of whether it would be reasonable in all the circumstances to require Mr S   to provide a bodily sample.

[21]     If I was to express my opinion in relation to these issues my comments would necessarily be obiter.  I am also conscious that s 17 of the Act permits the police to make an application for orders under the Act notwithstanding the fact that an earlier application may have been declined.  In the present case the police may be able to remedy the evidential defects in the present application so as to enable a fresh application to be made.  For that reason I would prefer to leave these issues open so that, if necessary, they can be revisited in the future.

Result

[22]     The application is dismissed.

Lang J