Police v W HC Auckland CRI 2009-404-62
[2009] NZHC 520
•8 May 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2009-404-62
THE POLICE
Applicant
v
W
Respondent
Hearing: 6 May 2009
Appearances: L Marshall for Crown
J Verry for W
Judgment: 8 May 2009
JUDGMENT OF ALLAN J
In accordance with r 11.5 I direct that the Registrar endorse this judgment with the delivery time of 3.00 pm on Friday 8 May 2009
Solicitors:
Crown Solicitor Auckland [email protected]
J Verry, Auckland [email protected]
THE POLICE V W HC AK CRI 2009-404-62 8 May 2009
[1] The police apply for an order pursuant to s 13 of the Criminal Investigation (Bodily Samples) Act 1995 (the Act), requiring the respondent to provide a bodily sample. The application is opposed. The respondent gave an earlier bodily sample by consent, but evidence of the analysis of that sample is inadmissible for procedural reasons. The police accordingly seek a second sample. Mrs Verry for the respondent argues that it would be unreasonable, unfair and contrary to the interests of justice if the respondent was compelled to give a sample.
Jurisdiction
[2] This Court’s jurisdiction to make a Suspect Compulsion Order is derived from s 16 of the Act which 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 any thing 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 any thing 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.
(4) Where the Judge adjourns the hearing of any proceedings on an application for a suspect compulsion order for the purpose of giving the respondent an opportunity to give, by consent, a specimen from his or her body (including 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, the period of the adjournment shall be only for as long as the Judge considers reasonably necessary for the purpose of giving the respondent that opportunity.
[3] There is express provision in s 17 for the making of successive orders:
17 Further applications for suspect compulsion order
(1) Nothing in this Act—
(a)Prohibits the making of an application under section 13 of this Act for a suspect compulsion order in respect of an offence; or
(b)Prohibits a Judge from making a suspect compulsion order in respect of an offence—
merely because such an order has previously been sought or made in respect of that offence, whether or not the previous application or order related to the same person.
(2) Notwithstanding anything in this section or in section 16 of this Act, where a further application for a suspect compulsion order is made under section 13 of this Act in respect of an offence in relation to which a previous application under section 13 of this Act has been made, the Judge may refuse to make the order sought if he or she is satisfied that the further application is vexatious or an abuse of the process of the court.
Factual background
[4] In February 2008 there was a burglary at 52A Roberts Road, Te Atatu South. At that time a building was under construction on the site. The police case is that the offender entered the dwelling through the front door and removed a number of items awaiting installation, including a hot water cylinder, toilet, bathroom vanity unit and a shower tray.
[5] Mr W was subsequently interviewed by the police. Initially he denied having been on the property but subsequently conceded that he had earlier been employed for one day there, during which he undertook gib stopping work. On the police case, the burglary occurred during the following weeks.
[6] On 13 February 2008 the police conducted a forensic examination at 52A Roberts Road. They found what was thought to be a bloodstain on the outer surface of cylinder casing which had been cut open, but which formerly housed a hot water cylinder. A swab of this stain was taken for forensic examination. Wet and dry swabs were also taken from rubber handles of a set of tin snips found at the scene.
[7] The respondent originally provided a voluntary DNA sample. That sample was erroneously given an incorrect file number, so rendering it inadmissible in evidence. The respondent refuses to provide another sample. The samples taken from the swabs at the scene of the alleged offending match the DNA profile of the respondent, stored on the National DNA Database, but evidence of that match is not admissible at trial: s 71 of the Act. The match must be confirmed by way of comparison with another bodily sample taken from the respondent, if the match is to be given in evidence.
[8] Mr W faces burglary charges in the Waitakere District Court on
29 May. The police seek a Suspect Compulsion Order with a view to producing
DNA evidence at that hearing, of a match with the DNA material found at the scene.
Discussion
[9] There is no doubt that the Court has jurisdiction to make successive Suspect Compulsion Orders in relation to the same offence, and in relation to the same person. The Court may refuse to make the order sought if satisfied that the further application is vexatious or an abuse of the Court’s process. But that is not asserted here. Mrs Verry expressly disavows any criticism of the police. Earlier procedural mistakes made in good faith will not amount to an abuse of process: R v T [1999] 2
NZLR 602 at 614 (CA).
[10] But Mrs Verry nevertheless submits that an order ought not to be made. Her first argument focuses on s 16(1)(a) and 16(1)(c). She argues that the fact that the respondent’s DNA was found on the galvanised steel casing and on the metal tin snips does not give rise to “good cause to suspect that the respondent … has committed the relevant offence”. Nor, she says, does it tend to confirm his involvement in the commission of the offence. All that the DNA evidence might demonstrate is that, at some point, the respondent’s DNA was transferred onto the relevant items. The respondent admits having been on the premises for a legitimate purpose, and so there are other possible reasons, she argues, for the respondent’s DNA being found on the items concerned.
[11] I do not accept that submission. On the evidence as it stands it is an available, and indeed logical, inference that the respondent’s DNA was transferred to the metal cylinder casing and to the tin snips in the course of the removal of the hot water cylinder from the garage of the house at 52A Roberts Road, where the cylinder had been stored awaiting installation. The police case is that the tin snips were used to remove the casing, in order to facilitate the ultimate removal of the hot water cylinder from the premises.
[12] The mere fact that the respondent may have been on the premises legitimately for one day, in his capacity as an employed gib stopper, constitutes too flimsy a foundation for the argument that there is no good cause to suspect the respondent of the burglary. It is simply part of the matrix of facts against which the case will eventually be determined. Indeed, it might be thought that Mr W ’s prior knowledge of the house, and of the items taken in the burglary, is evidence that helps to give rise to “good cause to suspect”. I am satisfied that there is good cause to suspect Mr W of having committed the burglary.
[13] I am satisfied also that there are reasonable grounds to believe that the DNA sample sought by the police would tend to confirm or disprove the respondent’s involvement in the commission of the alleged offence.
[14] This first argument is perhaps a little surprising, given that Mr W gave a voluntary sample in the early stages of the criminal proceedings against him. It might be thought that the giving a sample would then have been resisted, as it is now, if the respondent thought that the police had no good cause to suspect him. But I note that Mr W did not have legal advice at the time.
[15] I turn to the remaining points made by Mrs Verry. She accepts that burglary is a serious offence (albeit not among the most serious offences) for the purposes of s
16(2)(a), and that the police case will be weakened if no sample is available: s
16(2)(c). On the other hand, Ms Marshall for the police submits that there will be insufficient evidence to proceed against the respondent if the present application is not granted.
[16] In my view, both the seriousness of the alleged offending and the importance of the proposed evidence to the police case suggest that the application ought to be granted.
[17] Section 16(3) directs the Court to have regard to the fact that the respondent has previously agreed to give a specimen, and of course a specimen was obtained in this case But as I have earlier observed, the fact that the specimen has become inadmissible is not of itself a reason to decline the order now sought.
[18] Mr Verry submits that in terms of s 16(1)(e) it is not, in all the circumstances, reasonable to make the order. She says:
The respondent does not deny being at the address. He has co-operated with the police by providing a full interview and consenting to a voluntary DNA sample. The fact that there has been an error in the handling of his sample by either the police or ESR should not then mean that the respondent has to face a further intrusive bodily sample being taken from him. He is not responsible for the handling of the sample once he has given it. An error by the police or ESR should not have further consequences for him. It would be unfair and contrary to the interests of justice if the respondent was compelled to give another sample.
[19] While I am sympathetic to the respondent, who having voluntarily given an earlier sample is now required to provide a second, the scheme of the legislation does not, in my view, render it unreasonable for the police to seek an order. Section
17 expressly contemplates the possibility that an earlier sample may become inadmissible or otherwise unusable, and provides for the provision of successive samples.
[20] The police say that the first sample became inadmissible by virtue of an administrative error. There is no suggestion that the police have acted in a manner that deserves condemnation, or that an order ought to be refused for disciplinary reasons. This is simply a straight forward case of a police request for a second sample, where they have become unable to rely on the first.
[21] The making of an order would neither be unreasonable nor contrary to the interests of justice.
Result
[22] There will accordingly be an order directing that the respondent give a buccal sample to the police. He is to attend for that purpose at the Henderson police station during ordinary business hours on or before Thursday 21 May 2009, by arrangement with the Officer in Charge.
C J Allan J
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