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

[2010] NZHC 706

This case has been anonymized

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, [email protected]

S Hewson, Wellington, [email protected]