Police v T HC Wellington CRI-2007-485-13

[2007] NZHC 139

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2007-485-13

UNDER  the Criminal Investigations (Bodily

Samples) Act 1995

IN THE MATTER OF     an application under Section 13 for a suspect compulsion order requiring 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 T

Respondent

Hearing:         13 March 2007

Appearances: S Barr for Applicant

C Stevenson for Respondent

Judgment:      13 March 2007

ORAL JUDGMENT OF GENDALL J

[1]      This is an application under s13 for a suspect compulsion order brought by the police in respect of the respondent Mr T  .  He is presently facing a charge of aggravated burglary and a preliminary hearing has taken place where it was accepted that a prima face existed and so he has been committed for trial.

[2]      Mr Stevenson on behalf of Mr T   neither consents nor actively opposes the application but as I observed to him the Court has to be satisfied in terms of s13 that Mr T   is over the age of 13 years, has refused to consent to the taking of a

bodily sample in respect of a suspect request made of him and there is good cause to

NEW ZEALAND POLICE V T HC WN CRI-2007-485-13  13 March 2007

suspect that he has committed a relevant offence.  Aggravated burglary is a relevant offence.

[3]      One of the critical issues in this case will be whether Mr T   is identified as one of two persons who in the early hours of the morning on 23 July 2006 broke into the complainant’s home in the course of which shattering a kitchen window. The evidence before me is that blood samples were taken from a glass shard outside the address but more particularly from the driveway and footpath at the address. This latter sample matched the DNA databank profile of the respondent Mr T  . There  is  other  identification  evidence  which  was  given,  namely  a  physical description given by the complainant to the police.  There was other circumstantial evidence, namely that a police constable observed two males one of whom was Mr T   in the vicinity in the early hours of the morning in Lower Hutt and further police video surveillance footage of the city area showed two males, one matching the description of the suspect Mr T  .

[4]      The test is whether there is good cause to suspect which means no more than a reasonable ground of suspicion upon which a reasonable person can act in it.  It is not a matter necessarily for the police to have good cause (although they say they do) but whether the Court, objectively viewing all the evidence which is legally admissible, comes to the view that such a pre-requisite exists.  I am satisfied that it does and that this is a proper case for a suspect compulsion order to be made and accordingly the application is granted.  Mr T   is required to attend at the Lower Hutt Police Station between the hours of 2.00pm and 4.00pm on Friday 16 March

2007 to provide a buccal swab sample to enable such to be compared with the DNA ascertained from the bloodstained swab from blood located at the scene of 28H Leighton Avenue, Lower Hutt.

…………………………………..

J W Gendall J

Solicitors:

Crown Solicitor, Wellington for Applicant

C Stevenson, Wellington for Respondent