R v Toki
[2017] NZCA 513
•14 November 2017 at 11.30 am
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA214/2017 [2017] NZCA 513 |
| BETWEEN | THE QUEEN |
| AND | IAN OLIVER GRANT TOKI |
| Hearing: | 25 October 2017 |
Court: | Kós P, Harrison and Gilbert JJ |
Counsel: | C A Brook and R K Thomson for Appellant |
Judgment: | 14 November 2017 at 11.30 am |
JUDGMENT OF THE COURT
AThe application for leave to appeal is granted.
B The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Harrison J)
Introduction
In 2011 Ian Toki consented to a police request to provide a bodily sample for storage on the DNA profile databank. When making the request, the police officer gave Mr Toki a written notice purporting to set out his statutory rights and obligations. The officer also gave him verbal advice mirroring the terms of the written notice. The Crown accepts that the notice and subsequent advice were deficient in a number of respects and that therefore the databank sample was unlawfully obtained.
In 2016 the Crown sought a suspect compulsion order from the District Court at Christchurch admitting Mr Toki’s databank sample in evidence at trial on charges of aggravated robbery, assault with intent to injure, assault with a weapon and common assault.[1] DNA on a bottle found at the scene of the offending matched Mr Toki’s 2011 databank sample. Judge Brian Callaghan upheld Mr Toki’s opposition and ruled that his databank sample was inadmissible.[2] The Crown applies for leave to appeal against that pre-trial decision.[3] Leave is granted in the absence of opposition and in view of the public importance of the issue.
Statutory framework
[1]The information stored on the DNA profile databank is not admissible as evidence in criminal proceedings unless the Crown first obtains a compulsion order: Criminal Investigations (Bodily Samples) Act 1995, s 71.
[2]R v Toki [2017] NZDC 5146 [Pre-trial decision].
[3]Criminal Procedure Act 2011, s 217(2)(b).
Section 29 of the Criminal Investigations (Bodily Samples) Act 1995 permits the police to take a bodily sample for the DNA profile databank “only if” consent is given in accordance with the statutory provisions. By s 30 the police are required to give a person certain information when requesting a voluntary bodily sample. The requesting officer must hand the person a written notice in the prescribed form containing 12 separate particulars, including “a summary of the provisions of section 36 relating to the removal of information from a DNA profile databank”.[4]
[4]Criminal Investigations (Bodily Samples) Act, s 31(b)(x).
The requesting officer is required to inform the person “in a manner and in language that the person is likely to understand” that “except in certain circumstances, the person may at any time withdraw that person’s consent to the use of the bodily sample”.[5]
[5]Section 30(2)(b)(vi).
The written notice to be signed by the suspect must be in the prescribed form set out in the Schedule to the Regulations,[6] which “must be used in respect of the matters under the Act to which those forms relate”.[7]
[6]Section 31(a).
[7]Criminal Investigations (Bodily Samples) Regulations 2004, reg 4(1).
At the relevant time s 36 allowed a person from whom a bodily sample is taken to withdraw that consent to its use at any time by written notice to the Commissioner of Police. In that event the sample and every record of it must be destroyed. However, that right will be lost whenever the person is convicted of certain offences including burglary.
The Criminal Investigation (Bodily Samples) Regulations 2004 require the notice to be given in accordance with Form 6 in the attached schedule, entitled “Notice of request to give bodily sample for DNA profile databank (for person of or over the age of 17 years)”. However, in 2011 the police were not using Form 6. Instead, and for unexplained reasons, they were using their own template form called POL 788. POL 788 omitted the following information from Form 6 which was required expressly by the Act and Regulations:
…
What information will I get about the analysis done on behalf of the Police?
When the bodily sample has been analysed on behalf of the Police, a copy of the record of that analysis will be made available to you or your lawyer.
Can I withdraw my consent to the use of the bodily sample?
You may generally withdraw your consent to the use of the bodily sample at any time. To do this simply notify the Commissioner of Police in writing of your decision to withdraw your consent. The Police are then obliged to destroy the sample, every record of any analysis of the sample, all information about the sample, and all information linking you with the sample.
When can’t I withdraw my consent to the use of the bodily sample?
In certain circumstances you may not withdraw your consent to the use of your bodily sample and the resulting data will remain on the databank.
You may not withdraw your consent if, after the sample is taken, you are convicted of a relevant offence (as defined in section 2(1) of the Criminal Investigations (Bodily Samples) Act 1995), unless that conviction is later quashed.
If you give a sample for a DNA profile databank, you may at the same time agree to let the Police use the sample in the investigation of a specific offence. In that case, you may withdraw your consent to the use of the sample for DNA databank purposes, but the police may continue to use the sample for the purposes of that investigation.
At the time you withdraw your consent, the Police may be taking, or may want to take, steps to obtain from you another bodily sample for use in the investigation of a specific offence. In that case, the bodily sample you gave for the DNA profile databank, and the DNA profile obtained from it, may be retained until those steps have been taken.
…
Background
Constable Judith van de Lande interviewed Mr Toki at the Kerikeri Police Station in August 2011. He was then 17 years old. He had just been charged with burglary and released on bail. The officer’s interview related to a charge of unlawfully taking a motor vehicle. She requested Mr Toki to supply a bodily sample and provided him with a copy of POL 788. He initialled each page as evidence that he understood his rights. Following the interview Mr Toki took a buccal swab himself under the officer’s supervision.
Ms Brook for the Crown emphasises that Constable van de Lande did advise Mr Toki verbally that (a) his sample would be stored on a DNA profile databank and could be used by police to investigate future criminal offences; (b) he was under no obligation to give the sample and could withdraw his consent before giving it; (c) he could consult a lawyer before deciding whether or not to give the sample; (d) the sample would be analysed and the analysis might result in his being charged with a criminal offence; and (e) he could withdraw his consent to police using the sample at any time except in certain circumstances. However, Ms Brook accepts that Mr Toki was not specifically informed of how he might withdraw his voluntary bodily sample from the databank after it was given or of the circumstances which would extinguish that right.
On 3 February 2012 Mr Toki was convicted of the burglary for which he was arrested in August 2011. By s 36(2) that conviction extinguished his right to withdraw his consent to his bodily sample remaining on the database. Since then Mr Toki has been convicted of a further eight offences — for driving while disqualified and for breaches of community work and conditions of supervision — but none of these offences was scheduled as a “relevant offence” as defined at the relevant times by s 2 for the purposes of s 36(2). However, the latter five offences occurred after s 36(2) was amended on 5 December 2013 by s 6 of the Criminal Investigations (Bodily Samples) Amendment Act 2013, which replaced “relevant offence” with “imprisonable offence”. We will return to this point.[8]
[8]See [16]–[17] of this judgment.
The current charges arose from an incident in Christchurch in April 2015. Two men allegedly forced entry into a house by using a tomahawk. They were looking to buy cannabis, which they were refused. They destroyed a table with another hatchet and stole cellphones. The principal offender assaulted three of the occupants with varying degrees of severity. Apart from punching them, he struck one in the head with a frying pan.
Witnesses identified the principal offender as drinking from a beer bottle which he left on the doorstep of the house. The police matched DNA from that bottle with Mr Toki’s databank profile. Mr Toki’s image was later included in a photo montage from which two occupants identified him as one of the offenders.[9] His consent to a suspect compulsion order to obtain evidence of the databank sample was subject to the right to object to the admissibility of any evidence subsequently obtained. He objected on the basis he did not give his informed consent to providing the bodily sample in 2011.
District Court
[9]The parties agree that our decision on the Crown’s application will also be decisive of a challenge to the admissibility of Mr Toki’s identification from a subsequent photo montage, which was provided in reliance on evidence of his databank sample.
When determining the Crown’s pre-trial application, Judge Callaghan heard competing evidence from Mr Toki and Constable van de Lande about events at the Kerikeri Police Station in August 2011. He made these material factual findings:
(a)He rejected Mr Toki’s assertion that he did not give the sample voluntarily and only signed the POL 788 because he was acting under the officer’s direction.[10] While Mr Toki would not likely have comprehended all the detail conveyed to him, being only 17 years old, the state of his language skills did not render him unable to follow what was occurring when interviewed by Constable van de Lande.[11] She impressed as a precise officer who complied with her assigned duties. She explained each of the elements of the notice to Mr Toki before he signed, confirmed by ticking an appropriate box on the sheet.
(b)Mr Toki was aware in general terms that he was consenting to giving a bodily sample but he assumed it was linked to the burglary charge he was facing. Also, he was advised that “except in certain circumstances” he may at any time withdraw his consent to using the bodily sample.[12]
(c)However, the circumstances in which Mr Toki could not effect withdrawal were not specified, nor was the process by which he could effect withdrawal.[13] In particular he was not advised of the effect of conviction for a relevant offence, as required by ss 30(2)(b)(vi) and 31(b)(x).[14] It followed that Mr Toki’s consent to giving a voluntary bodily sample was not fully informed.[15]
(d)This was “far more than a minimal breach” of Mr Toki’s rights and it was not possible to conclude whether he would have continued with the process of taking a voluntary bodily sample if he had been properly advised of them.[16]
[10]Pre-trial decision, above n 2, at [19]–[21].
[11]At [23]–[25].
[12]At [30].
[13]At [31].
[14]At [32].
[15]At [36].
[16]At [38] and [42].
Judge Callaghan was satisfied that the police failure to adequately inform Mr Toki of his right to withdraw the voluntary bodily sample was a substantial statutory breach.[17] The evidence was unlawfully obtained. The Judge then undertook the evaluative balancing exercise by inquiring whether its exclusion would be disproportionate to the impropriety.[18] He concluded:
[45] … I have found the breach of the defendant’s right is a significant one. It cannot be remedied in any effective way if the evidence is ruled admissible. The police were careless to a high degree. The legislation is specific as to what a defendant must be told and given. It is not an attractive option for the defendant to escape conviction on serious charges because the evidence is inadmissible. But if he is to be convicted, which he may well be, there will always be a question that his self-incrimination arose from an unlawfulness. I consider that given the resources the police had, and the meticulous requirements required to obtain a consent that an effective and credible system of justice requires a defendant’s self-incrimination via a DNA sample to be restricted to the statutory permissible captures of the sample, or at the least, to a reasonable compliance to what is required, which was not the case here.
Decision
[17]At [42].
[18]Evidence Act 2006, s 30(3).
Our starting point is to endorse Judge Callaghan’s finding of a substantial breach of Mr Toki’s rights. Parliament has provided a comprehensive and prescriptive regime for obtaining a person’s informed consent to giving a bodily sample regardless of its nature, whether blood or buccal. Its mandate of scrupulous compliance recognises the substantial intrusion into an individual’s privacy inherent in exercising the power.[19] The express limitation imposed by s 29 on taking a sample “only if” informed consent is given underscores the clear legislative message.
[19]R v T [1999] 2 NZLR 602 (CA) at 613; and R v Shaheed [2002] 2 NZLR 377 (CA) at [166].
The Crown accepts the Judge’s finding of a substantial breach of Mr Toki’s rights. But in Ms Brook’s submission its effect is minimised by reference to subsequent events — she says the breach is attenuated. The only substantial right of which Mr Toki was not fully informed was the right to withdraw his voluntary bodily sample from the databank. There was only a five-month window within which he could have exercised that right. The police could have issued a databank compulsion notice once he was convicted of burglary in February 2012 or when he was convicted of five later offences.
Ms Brook’s argument assumes that the conditions of Mr Toki’s 2011 consent were altered retrospectively by the 2013 amendments to the principal Act such that the latter five convictions, relating to minor offences which nonetheless can result in imprisonment, would have disqualified Mr Toki from withdrawing his sample from the DNA databank. We have doubts about the soundness of that assumption. However, we did not hear argument on this point and, for reasons which follow, its resolution is immaterial to our determination of the Crown’s appeal.
In R v Kuru this Court rejected a similar argument where the police had obtained a blood sample unlawfully without informed consent.[20] The Crown argued that the police could lawfully have obtained another sample when Mr Kuru was arrested on subsequent occasions. The Court made the point that the police chose not to take that step but were content instead to rely upon the original sample, thereby running the risk that it was not validly obtained.[21] The police were responsible for their own failure to audit their records.
[20]R v Kuru [2015] NZCA 414.
[21]At [53]–[55].
Ms Brook accepted there is no evidence that the police decided not to apply for a databank compulsion order in reliance on the validity of the 2011 sample. Mr Toki’s subsequent offending was relatively minor, stemming from driving infractions. He was sentenced to community work and supervision. It is speculative to conclude the police would have compelled Mr Toki to provide another sample if they had known the original databank sample would be unavailable. Furthermore, the police must have known since at least early 2015 that the 2011 sample was taken unlawfully due to their own systemic failings: the District Court had by then ruled evidence inadmissible on the ground that a bodily sample taken for the DNA profile databank was obtained using the faulty consent form.[22] Mr Toki was not convicted and sentenced on the latest charges of driving while disqualified and breach of community work until August 2015.
[22]R v Taylor [2015] NZDC 3258; and Police v Leith DC Manukau CRI-2014-092-3746, 3 February 2015.
Ms Brook advances a related submission. She says that, in contrast to cases such as R v T,[23] Mr Toki was informed of his right to withdraw his consent at any time. The only substantive breach was that he was not informed of what circumstances would extinguish his right to withdraw or how he could effect his withdrawal. The prejudice was limited to the loss of a chance to withdraw his sample in the five months before his burglary conviction. There was, in Ms Brook’s submission, no causative link between the breach and provision of the sample.
[23]R v T, above n 19.
Ms Brook relies upon this Court’s decision in R v Hanna, where the police obtained a databank compulsion order and a consequential sample.[24] In breach of the statutory requirement, the defendant’s lawyer was not present when the police took the sample. In upholding the High Court’s decision on admissibility, this Court was satisfied that the deviation from the statutory procedure was “not in any relevant sense causative of the blood sample being taken”.[25] Exclusion of the evidence in this context, simply because of a defective procedure, would be “highly destructive of the utility of the databank as a whole”.[26] Moreover, even if the police had complied with the statutory procedures to the letter, a blood sample would plainly have been taken.[27]
[24]R v Hanna [2004] 2 NZLR 301 (CA).
[25]At [37].
[26]At [35].
[27]At [37].
We agree with Mr Cook for Mr Toki that Hanna is factually distinguishable. In that case there was no tenable causative link between the breach and the consequences. The lawyer’s presence was inconsequential to whether the databank sample was taken. By contrast, Judge Callaghan was not satisfied that Mr Toki would have consented if he had been fully informed of his rights. To conclude otherwise would have been speculative. The defect here was substantive, not procedural as it was in Hanna.
Ms Brook also emphasises that the physical intrusion on Mr Toki was minimal: it was merely a mouth swab which he administered himself. However, we agree with Mr Cook that this case constituted a breach of Mr Toki’s right to be secure against unreasonable search or seizure.[28] As Elias CJ said in Hamed v R: “The right protects privacy but, more fundamentally, it holds a constitutional balance between the State and citizen by preserving space for individual freedom and protection against unlawful and arbitrary intrusion by State agents.”[29] The seriousness of the violation to Mr Toki’s person does not consist solely in a discrete instance of physical contact. It extends to denying him the opportunity to consent properly to a procedure which enables the state to conduct ongoing surveillance of his behaviour with molecular precision.
[28]New Zealand Bill of Rights Act 1990, s 21.
[29]Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [10].
The enduring ability for the state’s law enforcement agencies to identify Mr Toki’s presence at a particular place raises issues about self‑incrimination if the initial bodily sample was tainted by lack of consent. Moreover, it is trite that DNA is not a mere fingerprint: it contains a wealth of genetic information about a person with unlimited future utility. The one-off intrusion of the procedure thus permanently erodes Mr Toki’s privacy and freedom, which would usually remain beyond the reach of the state apparatus. Without Mr Toki’s informed consent, the bodily sample now stored on the DNA profile databank was obtained in serious, permanent and ongoing breach of his rights.
Ms Brook rightly emphasises that Mr Toki’s alleged offending is serious and that the DNA match is the only route to identifying him as the offender. She describes the breach as inadvertent. However, the only available inference is that the police made a conscious decision not to comply with a statutory obligation to use the prescribed form. They elected without explanation to adopt a defective procedure. They must accept the consequences. Ms Brook was right to acknowledge that the sampling process constituted gross carelessness. As this Court stated in R v Shaheed:[30]
[148] Exclusion will often be the only appropriate response where a serious breach has been committed deliberately when reckless disregard of the accused’s rights or where the police conduct in relation to that breach has been grossly careless. A system of justice which readily condones such conduct on the part of law enforcement officers will not command the respect of the community. A guilty verdict based on evidence obtained in this manner may lack moral authority. Society’s longer term interests will be better served by ruling out such evidence. …
[30]R v Shaheed, above n 19.
To similar effect was this Court’s statement in R v Hoare:[31]
[42] Plainly, however, the other breaches … are of more moment; sufficient in our judgment to require the DNA evidence to be excluded. The obtaining of evidence by way of bodily samples, in particular blood, has been closely regulated by legislation whether for DNA analysis or in respect of road safety measures. Such regulation involves an acknowledgement of the privacy intrusion involved in the process. Even where a suspect or other person actually consents to the taking of a sample for DNA purposes, the statutory regime applies. This must be to ensure that private rights are not or do not become suborned [sic] to public interest considerations without adequate restraints on Police powers. The result is that if the Police wish to avail themselves of the process they must stick to the rules. To allow evidence to be given in circumstances where the rules are broken will not encourage adequate training of and appreciation by Police officers of the constraints on them and of the rights of suspects. In this case the public and private interest in vindicating the right not to be unreasonably searched outweighs the public interest in the admission of the evidence.
[31]R v Hoare CA310/04, 21 April 2005.
Finally, we emphasise that Mr Toki was only 17 years old when the bodily sample was taken; and that his knowledge and comprehension of English was limited.[32] Parliament has provided expressly that no person under the age of 17 years is capable of consenting to the taking of a bodily sample for the DNA profile databank.[33] Mr Toki’s capacity to consent lawfully was very much at the margin even if the police had informed him properly of all his statutory rights. This factor supports a strict adherence to Parliament’s express limitation on the power given to the police to take bodily samples “only if” they comply with the statutory requirements.
[32]Pre-trial decision, above n 2, at [20].
[33]Criminal Investigations (Bodily Samples) Act, s 32.
In undertaking the mandatory balancing test,[34] we acknowledge that the alleged offending is serious, the evidence is of a high quality, and that the prosecution will likely fail without Mr Toki’s 2011 bodily sample.[35] However, the substantial breach of Mr Toki’s rights cannot be rectified by distorting the balancing exercise to allow the unlawful means to justify the end of admission.[36] An effective and credible system of justice will not tolerate lightly the reliance of the police on the DNA profile databank if the underlying sample was taken contrary to clear legislative prescriptions and in abrogation of the person’s rights. In our judgment, exclusion of the unlawfully obtained evidence would not be disproportionate to the underlying impropriety. We are satisfied Judge Callaghan did not err in reaching the same conclusion.
Result
[34]Evidence Act, s 30(2)(b).
[35]Section 30(3)(c)–(d).
[36]Section 30(3)(a)–(b). The remaining statutory factors are either neutral or irrelevant.
The application for leave to appeal is granted.
The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Appellant
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