Police v S HC Hamilton CRI 2010-419-55

[2010] NZHC 1222

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2010-419-55

NEW ZEALAND POLICE

Applicant

v

S

Respondent

Hearing:         8 July 2010

Appearances: J Foster for the Applicant

P J O'Sullivan for the Respondent

Judgment:      12 July 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 12 July 2010

At 4.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:      Almao Douch, Crown Solicitors, PO Box 19173, Hamilton 3244

P J O’Sullivan, Old Taupiri Road, RD 2, Taupiri 3792

POLICE V S HC HAM CRI 2010-419-55  12 July 2010

[1]      The police have applied for a suspect compulsion order under s 13 of the Criminal Investigations (Bodily Samples) Act 1995 requiring Mrs S   to give a DNA sample by means of a buccal swab.  Mrs S   is presently facing a charge of perjury, which is a “relevant offence” by virtue of paragraph (e) of the definition in s 2 of the Act.

[2]      The facts giving rise to the application were fully set out in a supporting affidavit  from  Detective  Le  Prou.    No  evidence  was  filed  by  or  on  behalf  of Mrs S  .

[3]      The matter began in 2001 when Mrs S   was first involved in Family Court proceedings with her former partner (Mr Jones) over custody and access rights in relation to their son Jayden Headley S  .

[4]      In the course of the Family Court litigation a two day fixture had been schedule to commence on 31 May 2006.  At that time Mrs S   had the day to day care of Jayden.  The fixture was the result of a series of breaches by Mrs S   of the court order permitting Mr Jones substantial contact.

[5]      On the morning of 31 May 2006 Mrs S   filed in the Family Court at Hamilton an application for the proceedings to be dismissed.  An affidavit filed in support and sworn by Mrs S   alleged:

a)        That Mr Jones was not Jayden’s father;

b)That DNA testing had been undertaken with Mrs S  , her then husband (Mr S  ) and Jayden each providing samples; and

c)        The result of the DNA tests was that Jayden was shown to be the biological son of Mr S  , not Mr Jones.

[6]      Attached as an exhibit to the affidavit was a fax from DNA Solutions Pty Limited, a Melbourne laboratory offering “do it yourself” paternity testing.  That fax recorded the following:

a)       Mrs  S    had  supplied  DNA  Solutions  with  DNA  samples labelled:   Father:   Brett   S  ,   Son:   Jayden   Headley   S  , Mother: Kay S  ;

b)The DNA from the sample labelled ‘Brett S  ’ matched regions of the DNA obtained from the sample labelled ‘Jayden Headley S  ’ in all regions of DNA testing.  Likewise, matching regions were found between samples labelled ‘Kay S  ’ and ‘Jayden Headley S  ’; and

c)       The  results  of  the  testing  indicated  with  99.9%  accuracy that  the person whose sample was labelled ‘Brett S  ’ was the biological father of the person whose sample was labelled ‘Jayden Headley S  ’.

[7]      Mrs S   also gave oral evidence on oath at the hearing on 31 May 2006. She confirmed the content of her affidavit and explained that she had personally obtained the buccal swab samples that were subsequently sent to DNA Solutions. She detailed the steps taken by her to obtain swabs from herself, Mr S   and Jayden.

[8]      The Family Court Judge declined to dismiss the proceedings on the basis of the DNA Solutions test results.   An independent second test was ordered by the Court.

[9]      On 13 June 2006 buccal swabs were taken from Mr Jones and Jayden in accordance with the Court order.  The samples were collected by Medlab Laboratory in Hamilton and forwarded for testing to DNA Diagnostics Limited in Auckland.

[10]     The results of the analysis conducted by DNA Diagnostics led the Family Court Judge to determine that Mr Jones’ paternity of Jayden was conclusively established.  The Judge accordingly discounted the DNA Solutions’ results provided by Mrs S   on the basis that the analysis was false.  On 22 June 2006 an interim parenting order was made in favour of Mr Jones.

[11]     As is well known, in August 2006 Mrs S   and her father, with the assistance of another person, abducted Jayden from the Hamilton Public Library. Jayden  was  kept  at  a  remote  Northland  location  for  over  five  months  by Mrs S  ’s father.   He was returned to the Hamilton Central Police Station in January 2007.  Mrs S   and her father ultimately pleaded guilty to a charge of abduction in November 2008.

[12]     On 13 August 2007 the buccal swab samples sent to DNA Solutions by Mrs S   were seized by Australian police pursuant to a search warrant.   They were then forwarded to the Institute of Environmental Science and Research (ESR) in New Zealand for analysis.

[13]     The results of that analysis were that the DNA result from the sample labelled

‘Jayden Headley S  ’ was statistically three million times more likely to have originated from a son of the individuals whose samples were labelled ‘Kay S  ’ and ‘Brett S  ’, than from an unknown man, unrelated to them, selected at random from the general New Zealand population.

[14]     On 5 October 2007 Police received further buccal swab DNA samples from both Mr Jones and Jayden.  Those samples were forwarded to ESR for analysis.  The results of that analysis were that:

a)        The sample labelled ‘Jayden S  ’ that had been seized from DNA

solutions in Australia was not that of Jayden S  ;

b)        The sample labelled ‘Kay S  ’ uplifted from DNA Solutions in

Australia was not that of the biological mother of (the real) Jayden.

[15]     As a result of further analysis of the DNA results undertaken by the ESR on

17 May 2010 it was concluded that the DNA results from the samples labelled

‘Brett S  ’ and ‘Kay S  ’ are statistically 500 times more likely to have originated from Jayden’s grandparents, rather than from another pair of unrelated individuals, selected at random from the general New Zealand population.

[16]     The Police consider that in all the circumstances described above, there are good grounds to believe that the samples sent by Mrs S   to DNA Solutions were taken from Mrs S  ’s parents and her brother.

[17]     Mrs S   has been charged with perjury in relation to her evidence on

31 May  2006.    Her  trial  is  to  commence  in  the  District  Court  at  Hamilton  on

21 July 2010.

[18]     The Police now seek the buccal swab from Mrs S   for the purpose of confirming or disproving that the samples provided to DNA Solutions were obtained by  Mrs  S    from  her  parents.    Mrs  S    has  confirmed  to  me  through Mr O’Sullivan that she declines to give such a sample voluntarily.   The question accordingly is whether she should be ordered to provide a sample by this Court.

Discussion

[19]     Section  16  of  the  Criminal  Investigations  (Bodily  Samples)  Act  1995 provides:

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

(iii) from within the body or from anything coming from within the  body  of  the  victim of  the  offence  that  is  reasonably believed to be associated with, or having resulted from, the commission of the offence; or

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

(v)   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 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.

(3)Without limiting the generality of subsection (2) of this section, in considering whether or not to make a suspect compulsion order, the Judge shall also have regard to the following matters:

(a)   Whether or not the respondent has offered, or been given an opportunity, to give a specimen from his or her body (other than a bodily sample) from which a DNA profile may be obtained for the purpose of confirming or disproving the respondent's involvement in the commission of the offence to which the application relates, or a related offence:

(b)   If such an offer has been made, or such an opportunity has been given, whether or not the respondent has given such a specimen:

(c)   If the respondent has given such a specimen, whether or not a suitable DNA profile has been obtained from that specimen for the purpose referred to in paragraph (a) of this subsection.

[20]     In terms of the matters of which I must be satisfied under s 16(1) there is no issue as to (a), (c), and (d).

[21]     In relation to s 16(1)(b), the central question is whether the DNA on the swabs sent by Mrs S   to Australia that is now thought by Police to have

originated from her parents can properly be said to be “material reasonably believed to be … genetically traceable to” Mrs S  ’s body.  I am prepared to accept that, if so, the second part of the provision is satisfied in that it can be said that the DNA “has been found … on any … thing reasonably associated with the commission of the [perjury] offence”, namely the swabs that were tested in Australia that were then the subject of Mrs S  ’s sworn (and allegedly perjured) evidence.

[22]     The Police submission essentially is that because the DNA on the swabs is reasonably believed to be that of Mrs S  ’s biological parents, it is (as a matter of scientific fact) believed to be “genetically traceable to” Mrs S  .  It seems to me that that interpretation depends on effectively ignoring the preposition “to” in that phrase and rendering genetic “traceability” synonymous with mere genetic connection or linkage.

[23]     The contrary argument is that the requirement for a belief that the DNA is genetically “traceable to the body of” Mrs S   means that the DNA must somehow have some or all of its origins in Mrs S  ’s body.   That narrower interpretation is in my view more consistent with the ordinary meaning of the words “traceable to” which I consider connote a linear and backward looking process, namely a process whereby the relevant material (here, the DNA on the swabs sent to Australia) is “traced” to one or more sources.  I find support for this interpretation in the Catherine Soames and Angus Stevenson Concise Oxford English Dictionary

(11th ed, Oxford University Press, Oxford, 2006) which relevantly defines the verb

“to trace” as to “find or describe the origin or development of”.

[24]     In the present case, it cannot as a matter of biological reality be said that the DNA on the swabs can be traced back or sourced to, or that they have their origins in, Mrs S  ’s body.  Rather, it is Mrs S  ’s own DNA that could be sourced, or is traceable (back) to the DNA on the swabs (if the indications so far are correct and that DNA belongs to her own biological parents).  It appears to me that this state of affairs is the opposite of what is required by s 16(1)(b).

[25]     In my view it is this latter interpretation that fits more clearly within the plain words of s 16(1)(b), essentially for the reasons I have already given.  To the extent

that  conclusion  is  debatable,  and  the  provision  can  genuinely  be  said  to  be ambiguous, however, it seems that the narrower interpretation is also consistent with the Parliamentary purpose in adding the words “or genetically traceable to” in 2004.

[26]     More particularly, as Ms Foster helpfully pointed out, the 2004 amendment to s 16(1)(b) was designed to address a very specific problem that had been highlighted by an earlier Court decision.  The nature of the particular difficulty was referred to in the Explanatory Note to the Criminal Investigations (Bodily Samples) Bill 2003 as follows:

The words “genetically traceable” have been included to cover a situation where a sexual violation results in a pregnancy.     In the case of R v T (CA 302/98), the Court of Appeal commented, after considering an affidavit from a forensic scientist, that, in relation to foetal material of 19 to 20 weeks gestation, “it seemed to be accepted that by this stage anything that could possibly be described as original material from the father was not present. There was only material the origin of which can be genetically traced to him”.

[27]     Although the relevant part of the Explanatory Note stops at this point, in fact the quotation from the Court of Appeal decision in R v T [1999] 2 NZLR 602 then continued (at 613) as follows:

As at present advised, we would not regard this as falling within the description of material from the body of the father (the offender), which seems  to encompass  only the same  material  which was  once  physically present in  or  on the  offender.  It  is inappropriate to  adopt  an  expansive construction of a statute that encroaches in a substantial way on fundamental personal rights.

[28]     Two important points emerge.  First, the Parliamentary focus in enacting the amendment was on traceability back to the suspect (the subject of the compulsion order) from some other material (such as DNA obtained from a foetus).  Secondly, as the conclusion of the second part of the quotation from the Court of Appeal makes clear, it is not appropriate to adopt a liberal interpretation of a statutory provision such as this because its operation impinges on important rights and freedoms.

[29]     As regards the latter point, I accept that R v T was concerned with the taking of a blood sample, which is necessarily more intrusive than the taking of a buccal swab  (as  is  proposed  in  the  present  case).    But  it  is  not  simply  those  rights

concerning consent to medical and scientific procedures that are confronted by the Act.   In my view the taking of a swab in the circumstances of the present case necessarily  involves  interference  with  the  right  of  Mrs  S    to  refrain  from making a statement and her right not to be compelled to be a witness.   It is not only proper, but necessary, that the Court only authorize such interference where there is clear and unequivocal legislative authority for doing so.   For the reasons I have already given I do not consider that such authority exists in this case.

[30]     In light of the conclusion I have reached in relation to s 16(1)(b) it is not strictly necessary to also consider s 16(1)(c) or the matters relevant to the exercise of the Court’s discretion.   I simply record, without determining the matter, that I did have reservations about the applicability of paragraph (c) in this case, although the issue is less clear-cut than I have found in relation to paragraph (b).

[31]     In terms of the matters relevant to the exercise of discretion, the issue of the importance of the proposed sample to the investigation may well have given me pause;  even  without  it,  it  seems  to  me  that  the  Police  may  already  have  a considerable body of evidence against Mrs S  .

[32]     In any event, and for the reasons I have given, I have formed the view that the  present  application  for  a  suspect  compulsion  order  does  not  meet  the requirements of s 16(1)(b) of the Criminal Investigations (Bodily Samples) Act 1995

and must be declined.

Rebecca Ellis J