R v Toki - [2017] NZCA 513

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA214/2017
[2017] NZCA 513

BETWEEN	THE QUEEN Appellant
AND	IAN OLIVER GRANT TOKI Respondent

Hearing:	25 October 2017
Court:	Kós P, Harrison and Gilbert JJ
Counsel:	C A Brook and R K Thomson for Appellant K H Cook for Respondent
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Toki

Details

AGLC: R v Toki [2017] NZCA 513
Case: [2017] NZCA 513
Decision Date: 14 November 2017 at 11.30 am

CaseChat Overview and Summary

The case of R v Toki involved a challenge by Ian Toki to the admissibility of a DNA sample taken from him in 2011 and stored on the DNA profile databank. The Crown sought leave to appeal a decision by Judge Callaghan of the District Court that the databank sample was unlawfully obtained and inadmissible as evidence at trial. Toki argued that his consent to provide the sample was not informed because he was not properly advised of his right to withdraw the sample from the databank. The key legal issue was whether the breach of Toki's rights was substantial enough to warrant exclusion of the DNA evidence under section 30(2)(b) of the Evidence Act 2006.

The Court of Appeal endorsed Judge Callaghan's finding that the police failed to fully inform Toki of his right to withdraw the sample, which amounted to a substantial breach of his rights. The Court emphasised the importance of strict compliance with the statutory framework governing DNA samples to protect individual privacy. While acknowledging the serious nature of the alleged offending and the quality of the DNA evidence, the Court held that exclusion of the unlawfully obtained evidence would not be disproportionate to the underlying impropriety. The appeal was dismissed and leave to appeal was granted.

The final orders were that the application for leave to appeal was granted and the appeal was dismissed.

Orders