R v HC Auckland CRI-2010-404-170
[2010] NZHC 1361
•6 August 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2010-404-170
QUEEN
v
V
Hearing: 4 August 2010
Appearances: S Petricevic for Crown
M Lowe for Respondent
Judgment: 6 August 2010 at 4:30 pm
JUDGMENT OF ASHER J
This judgment was delivered by me on 6 August 2010 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
………………………………………..
Date
Solicitors:
S Petricevic, Meredith Connell, Crown Solicitor, PO Box 2213, Auckland
M Lowe, Barrister, Auckland
R V V HC AK CRI-2010-404-170 6 August 2010
Introduction
[1] This is an application for a suspect compulsion order under s 13 of the Criminal Investigation (Bodily Samples) Act 1995, requiring the respondent, Stephen V , to give a bodily sample.
[2] The application arises out of four charges of burglary, one of unlawful taking and one of theft. The alleged offences took place between 27 September 2007 and
11 September 2008. There are no charges presently outstanding in respect of these offences.
[3] Mr V can be fairly described as a recidivist offender. He has some
14 pages of convictions, of which many involve dishonesty, including unlawfully taking motor vehicles, theft, shoplifting, receiving property and burglary. In August 2009 he was sentenced to prison for one year and one month, and in November 2009 he was separately sentenced to eight months’ imprisonment on various charges.
[4] During the first part of 2008, Mr V was a suspect in relation to the offences committed in late 2007. Between 10 January 2008 and 28 April 2008 the burglary and vehicle scenes were forensically linked to each other by blood found at the scenes, and by corresponding samples being found on the crime sample database. The male DNA profiles all corresponded to each other, indicating that the DNA in each of the blood samples could have come from the same male individual. The male to whom these DNA profiles correspond was Stephen V .
[5] On 25 June 2008 the police requested a voluntary DNA sample from Mr V in relation to the offences. This request was refused. On 26 June 2008 indictable charges were laid in respect of the 2007 offences. On 28 August 2008 at the depositions hearing for those offences, the charges were withdrawn. The reason put forward in the Crown’s submissions, not contested by Ms Lowe for Mr V , was that they were withdrawn because a suspect compulsion order had not yet been sought or obtained in respect of the offences. It has been common ground between
Ms Petrecovic for the Crown and Ms Lowe that the only evidence that the police have linking Mr V to the offences is the DNA evidence.
[6] On 3 September 2008 a Constable Pringle created a suspect compulsion order file in relation to the offences, in order to apply for a sample from Mr V . The file contained an original and an identical copy. It would seem that the procedures required the original to be retained by the officer in charge. However, on this occasion both files were forwarded to Constable Pringle’s superior, a Detective Sergeant who in turn passed it on to another Detective Sergeant. At the same time an application for a suspect compulsion order for Mr V in relation to entirely separate incidents, was forwarded to the same officers by a different constable, a Constable King.
[7] This sequence of events meant that the suspect compulsion order sought by the Constable King was processed, but the one forwarded by Constable Pringle was not. Moreover, Constable Pringle did not keep a copy so it was not apparent to him that there was no action on the file.
[8] Over a year later, in October 2009, Constable Pringle became aware that the file had not been processed and that no application had been made. In December 2009 Constable Pringle prepared a new compulsion order request. The first application was at the same time located on the desk of his superior. That second request was forwarded to the Crown on 21 January 2010 and this application was ultimately filed on 14 May 2010.
[9] The sole ground of objection put forward by Ms Lowe is delay. She submits that the Crown has not established under s 16(1) that an order should be made. She relies in particular on s 16(1)(e), which states that an order may be made if the judge is satisfied that “in all the circumstances, it is reasonable to make the order.”
Section 16(1) issues
[10] Section 16(1) sets out the various matters on which the Court must be satisfied. First, there must be good cause to suspect that the respondent has
committed the relevant offence to which the application relates. Here that requirement is satisfied. The correspondence of the DNA found at the site of the various incidents and Mr V ’s DNA profile held on the National DNA Database, satisfies me that there is good cause to suspect Mr V committed the relevant offences. I respectfully agree with the views expressed in Fitzgerald v M,1 Police v
Penhale,2 and Police v Wells,3 that good cause to suspect may be established where
the only evidence is the match between the crime scene DNA profile and the DNA
profile of the suspect as shown on a sample in the police DNA databank.
[11] The second matter on which the Court must be satisfied is that the material is reasonably believed to be from the body of the person who committed the offence. The evidence is clear that blood samples were taken by the police from the various offence scenes, and I am satisfied on this point.
[12] The third matter is that there must be 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. For the reasons already set out I am satisfied that there are such reasonable grounds.
[13] The fourth matter is that the respondent has refused to consent to the taking of the bodily sample, and it is common ground that that is so.
[14] Thus, I am satisfied on the first four matters set out in s 16(1). The final matter on which I must be satisfied is that it is reasonable to make the order. This is where I must consider Ms Lowe’s submission that there has been undue delay.
[15] Ms Lowe’s submission is in essence that the delay here is very long, and due to police error. Her client still has not had charges laid against him, but is now facing the prospect that two-and-a-half years after the events in question, he may face charges. The Crown, while accepting that there has been delay due to police error, submits that the delay was not unconscionable or due to any misconduct or bad
1 Fitzgerald v M HC Christchurch CRI-2008-409-95, 28 July 2008.
2 Police v Penhale HC Wellington CRI-2010-485-04, 25 February 2010.
3 Police v Wells HC Palmerston North CRI-2010-454-2, 9 March 2010.
faith on the part of the police. It is submitted that given that factor and the seriousness of the offences, it is reasonable for an order to be made.
Cases referred to
[16] Ms Lowe has placed particular emphasis on the decision of Police v Snell.4
In that case where there had been some 33 months’ delay, Andrews J declined the application. She noted that the delay was as a consequence of police error and she expressed sympathy to the police’ position. However, her concluding remarks were as follows:5
In the circumstances, I consider that this delay is a factor that I should take into account in deciding whether to exercise my discretion to make a suspect compulsion order. I consider that the delay, although explained by a lack of resources and a significant workload, was excessive and that it is inappropriate to make the order sought. That view is supported by the reservations I have as to whether there is good cause to suspect that Mr Snell has been involved in the commission of an offence and whether the evidence to be obtained from the DNA analysis would tend to confirm or disprove his involvement in the offence.
It is relevant to note that the learned Judge in reaching her decision supported her view by reference to the Crown’s failure to show good cause to suspect.
[17] The Crown in turn relied on a number of cases where there had been delay as a consequence of police error, but applications had been allowed. Reference was made to Police v Warena6 (nine month delay) and Police v Black7 (14 months delay) where the applications were granted. I was also referred to Denby v Tooman,8 where the application was declined, but the Judge found as another reason that the evidence was in fact irrelevant, as the respondent’s involvement in the act, the subject of the
prosecution, was admitted.
[18] Along with the cases referred to, I have found the decision of Doyle v M9 of assistance. The charges there were historic sex cases that had occurred some nine
4 Police v Snell HC Auckland CRI-2007-404-231, 19 December 2007 per Andrews J.
5 At [30].
6 Police v Warena HC Auckland CRI-2006-404-443, 8 March 2007.
7 Police v Black HC Auckland CRI-2009-404-97, 9 July 2009.
8 Denby v Tooman HC Hamilton M281/00, 3 November 2000.
9 Doyle v M HC Christchurch M743/97, 12 December 1997.
years earlier. The Judge was not comfortable with the idea that he should determine that the hypothetical prosecution would be an abuse of process or a breach of the New Zealand Bill of Rights Act 1990 on the basis of delay. He noted that the abuse of process argument could only conclusively be dealt with by the court whose process was said to be abused; that, secondly, issues relating to the delay could be dealt with by way of a reduction in sentence, and, thirdly, that the Criminal Investigations (Bodily Samples) Act 1995 was aimed at facilitating criminal investigations and that prosecutions are only a by-product. He noted that the clearance of serious and still unsolved offences was a legitimate end itself, as were the legitimate expectations of the complainants and the public.
Section 16(2) factors
[19] In addition to considering the s 16(1) factors, I must have regard to the four factors set out in s 16(2). Section 16(2) provides that 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.
[20] In relation to the first factor, these offences must be regarded as moderately serious, particularly when considered against Mr V ’s record. If he is convicted of all charges, taking into account his record, a lengthy sentence of imprisonment is likely to result. There is, therefore, a strong public interest in the police resolving the offences, and to establish whether Mr V may be the perpetrator, or to clear Mr V of any involvement.
Delay
[21] I turn to the second factor, the reasons given by Mr V for opposing the making of the order sought, namely the delay.
[22] There is a statement from Constable Pringle explaining how the mix-up occurred. It is clear that an innocent mistake was made due to an unfortunate sequence of events which meant that the application was initiated but not actioned as intended. This was not noticed. Undoubtedly if the police had had better systems, this would not have happened. Given that the forensic investigation into the offences concluded at the end of April 2008 and the voluntary DNA sample was refused on
25 June 2008, with this application being made on 14 May 2010, I consider it fair to describe the delay as a delay caused by police error of 24 months.
[23] I have no evidence from Mr V concerning the effects of the delay on him. There is nothing to indicate any specific prejudice to him. Ms Lowe submitted that the fact that more than two years have been allowed to go by, and that Mr V might well have thought that he was no longer in danger of being charged, in itself constitutes prejudice. However, Mr V has been in prison for a good part of that period of delay and there is nothing before me to indicate any hardship to him arising from the delay. There is no medical or other specific reason put forward as to why the wait has disadvantaged him.
[24] I was referred by the Crown to the decision of Williams v R,10 where the Supreme Court dismissed an appeal based on undue delay. The case is not directly on point as it concerned an application to stay charges, and the delay in question was post-charge delay, rather than pre-charge delay of the type that has arisen here. There are different policy and practical circumstances that arise in relation to delays after charges are laid, in particular the prejudice arising from restrictions on liberty as a consequence of bail, and the stress and time involved in pending proceedings. These considerations do not arise in relation to pre-charge delay, although there can be other policy and practical factors that arise. The consequences of delay in relation to a fair hearing, which can include the fading of memories have rightly not being raised by Ms Lowe, as this is not a stay application of pending charges. The prejudice must be measured in relation to the taking of the bodily sample, rather than consequences arising from the facing of any charges that may follow.
10 Williams v R [2009] NZSC 41, [2009] 2 NZLR 750.
[25] The delay must be considered against the third factor referred to in s 16(2), namely the importance to the investigation of the offence, of obtaining a bodily sample from the respondent. It is common ground that the obtaining of the bodily sample is critical to whether the Crown can prove that Mr V was involved in the offences. Without a further bodily sample which links Mr V to the offences, charges will not be laid.
[26] There are no specific “other factors” under s 16(2). Therefore, I look at matters on an overview and come back to whether under s 16(1) it is reasonable for an order to be made. I do so bearing in mind the approach of the court to undue delay in Williams v R. It was observed there,11 that staying the proceedings was likely to be the correct remedy only if the delay had been egregious or there had been prosecutorial misconduct, or where a sanction was required because of a failure to
observe court directions. While Williams v R was a stay application in very different circumstances, the cautious approach of the Supreme Court to responses to delay which result in the police efforts to bring perpetrators to trial being ended, is of relevance. A court should not be too ready to dismiss an application such as this, in the absence of prejudice or any police misconduct.
[27] A balancing of factors is required akin to that carried out under s 30(2) of the Evidence Act 2006. There has been a considerable delay resulting from a police error. Certainly the delay is a factor weighing against the making of the order, if for no other reason that it is desirable that there be some sanction if there is police error, to ensure that standards are maintained or improved. I recognise that any delay of an invasive medical procedure might involve some hardship. Against the delay must be weighed the interest of the complainants who have suffered the burglaries and thefts, and the public interest in the clearing of offences and bringing perpetrators to justice. As observed these are serious charges and the DNA evidence is critical. If indeed Mr V was the perpetrator of the crimes, and if his application was refused, the crimes will remain unsolved and the perpetrator will go free. Any inconvenience to Mr V as a consequence of delay must be balanced against the public interest in offences being cleared, and suspects prosecuted or cleared, as the case may be. It remains open to Mr V , if charges are laid, to seek a stay, or to object to the
admissibility of the evidence, in which case a wider range of considerations could be referred to. Although in saying this, I am not suggesting that such applications necessarily would be successful.
[28] I do not consider that allowing this application will be inconsistent with Police v Snell. There the delay was longer (33 months), and the Judge formed the view that there was no admissible evidence of good cause to suspect. The decision was not followed on this aspect in Police v Penhale and Police v Wells (referred to in [10]), but I have no doubt that the Judge’s conclusion that there was no good cause to suspect contributed to the ultimate decision to decline the application. In this application I have found that there is a good cause to suspect.
Conclusion
[29] The delay has been a consequence of an explained error rather than bad faith or abuse of process, and the length of the delay while long has not been as long as that in some other cases. Given the seriousness of the charges, the lack of specific prejudice, the importance to the investigation of obtaining the bodily sample, and the legitimate expectations of complainants and the public, I am satisfied that it is reasonable to make the order.
Result
[30] The application is granted. An order under s 13 of the Criminal Investigation (Bodily Samples) Act 1995 is made requiring Stephen V to give a bodily sample.
………………………………… Asher J
11 At [18].
0