Police v W HC Palmerston North CRI-2010-454-2

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IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-2

NEW ZEALAND POLICE

v

W

Hearing: 13 May 2010

Appearances: Mr Vanderkolk for New Zealand Police
Mr Hewson for Mr W

Judgment: 13 May 2010

JUDGMENT OF MALLON J

[1] The respondent faces an indictment on counts of sexual violation. The alleged offending occurred in March 2003. At that time the police obtained swabs from the complainant and other exhibits from the scene. Testing of the swabs resulted in a partial match with the accused’s DNA profile held on the national database. The police applied for a suspect compulsion order. This application came before Williams J. At this time the accused was represented by Mr Hewson. Mr Hewson sought an adjournment on the basis that he required disclosure, particularly in relation to the reasons for a partial match. The adjournment was granted on the basis that further information about the partial match would be
obtained.

NEW ZEALAND POLICE V W HC PMN CRI-2010-454-2 13 May 2010

[2] After this new counsel for the accused became involved. A report was obtained from ESR providing further information about the partial match. An affidavit with the report was sworn on 8 March 2010 and filed and served. The application for the suspect compulsion order came before MacKenzie J on 9 March
2010. The accused’s counsel opposed the application. One of the grounds of opposition was that there was not good cause to suspect because of the issue with the partial sample. In a judgment given that day MacKenzie J rejected this point and another point on which the application was opposed.

[3] The sample was to have been taken from the accused on 16 March 2010. However counsel for the police advise that the order was not served in a timely fashion and as a result the sample was not taken. As a result the police have made a fresh application for an order, on the same grounds as already considered and accepted by MacKenzie J, but with the sample to now be taken on Friday 28 May
2010 between 9 and 11am (at Manawatu Prison, Linton).

[4] Meantime the accused has changed his counsel back to Mr Hewson. Mr Hewson says that the accused has told him that the application had not been opposed and that is why he changed his counsel back to Mr Hewson. As set out above, the information that the application was not opposed is incorrect. Mr Hewson opposes the application on the basis that he seeks further disclosure from ESR regarding the partial match. However, this issue has already been raised on behalf of the accused and rejected by the Court. (The issue may remain relevant to admissibility issues but in the context of the suspect compulsion order it has been considered.)

[5] This being the only opposition raised, the fresh application is granted. The order is to be submitted to the Court today.

Mallon J

Solicitors:
B Vanderkolk & Associates, Palmerston North, ben@bvalaw.co.nz
S Hewson, Wellington, letizea@ordlegal.co.nz

CaseChat Overview and Summary

In the High Court of New Zealand, the respondent, W, faces charges of sexual violation stemming from an incident in March 2003. The case, CRI-2010-454-2, involves a partial match of the respondent’s DNA profile with samples collected from the complainant and the crime scene. The New Zealand Police applied for a suspect compulsion order to obtain a DNA sample from the respondent. This application was initially made before Williams J and subsequently considered by MacKenzie J, who granted the application on 9 March 2010. However, due to a delay in serving the order, the sample was not collected. The police subsequently made a fresh application for the same order, with a revised time and date for the sample collection.

The primary legal issue the court had to address was whether there was sufficient cause to compel the respondent to provide a DNA sample despite the partial match issue. The respondent's counsel, initially Mr Hewson, argued for further disclosure regarding the partial match, which was rejected by the Court. The new counsel for the respondent, who initially opposed the application, later stated that the application had not been opposed. However, the record indicated that Mr Hewson still opposed the application seeking additional disclosure from the Environmental Science and Research (ESR) regarding the partial match. The Court needed to determine whether this opposition was valid and if it warranted a denial of the police application.

The Court, presided over by Mallon J, considered the arguments and concluded that the opposition based on the partial match had already been thoroughly examined and rejected by MacKenzie J. The Court found that the only remaining opposition was the request for additional disclosure from ESR, which had no bearing on the validity of the police application for the compulsion order. Given that the partial match issue had already been considered and dismissed, and no other valid grounds for opposition were presented, the Court granted the fresh application for the suspect compulsion order. The order was to be submitted to the Court on the same day.

The Court made a final order granting the application for a suspect compulsion order. The respondent was to provide a DNA sample on Friday 28 May 2010, between 9 and 11 am, at Manawatu Prison, Linton. The order was to be submitted to the Court on the day of the judgment.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

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Legal Principle Established