T (SC 52/2016) v The Queen

[2016] NZSC 76

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.  PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS OF APPLICANTS PROHIBITED BY S 201

OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE SUPREME COURT OF NEW ZEALAND

SC 52/2016 [2016] NZSC 76

BETWEEN

T (SC 52/2016)

Applicant

AND

THE QUEEN Respondent

SC 53/2016

BETWEEN  N (SC 53/2016) Applicant

ANDTHE QUEEN Respondent

Court:	Elias CJ, William Young and O'Regan JJ
Counsel:	N P Chisnall and M A Stevens for Applicants I R Murray for Respondent
Judgment:	21 June 2016

JUDGMENT OF THE COURT

The applications for leave to appeal are dismissed.

T (SC 52/2016) v R [2016] NZSC 76 [21 June 2016]

REASONS

[1]      The applicants are charged with committing incest.  The applicant T is the father  of  the  applicant  N.    They  first  met  each  other  as  adults  and  a  sexual relationship developed  between  them.   They had a daughter in 2011,  following which they were charged with, and pleaded guilty to, incest in August 2012.   In August 2013, the police were called to their home and found that there were two children, the daughter and an infant boy.  Subsequently the infant boy died.

[2]      The  Coroner  requested  that  a  post  mortem  examination  be  undertaken. During the post mortem examination, a blood sample was taken from the body of the infant boy at the request of the police because of their suspicion that the infant boy was  also  the result  of the incestuous  relationship between T and  N.   T and  N consented to the post mortem examination, but were unaware of the request for the blood sample to be taken.  The Crown wishes to adduce evidence at trial that DNA obtained from the blood sample establishes that the infant boy is the child of T and N.

[3]      T and N challenged the admissibility of this evidence.  The challenge failed in  the  District  Court,  the  Judge  finding  that  the  evidence  was  not  improperly obtained and that, in any event, exclusion of the evidence under s 30 of the Evidence Act 2006 would be disproportionate to any impropriety.1     T and N appealed unsuccessfully to the High Court.   The High Court found that the evidence was unlawfully obtained but also came to the view that excluding the evidence obtained would be disproportionate to the impropriety and therefore dismissed the appeal.2

[4]      A further appeal to the Court of Appeal also failed.3     The Crown did not contest the High Court’s finding that the evidence was unlawfully obtained, so the Court of Appeal decision is confined to the application of s 30 of the Evidence Act. Again, the Court found that exclusion of the evidence would be disproportionate to

the gravity of the breach.

1      R v [T] [2015] NZDC 4740 (Judge Crosbie).

2      R v [T] [2015] NZHC 1588 (Gendall J).

3      T (CA438/2015) v R [2016] NZCA 148 (Randerson, Stevens and Miller JJ).

[5]      The applicants wish to argue on appeal that the Court of Appeal erred in its assessment  of  some  of  the  factors  set  out  in  s 30(3)  of  the  Evidence Act.    In particular, they wish to argue that the Court of Appeal underestimated the importance of the right  breached  by the taking of the blood  sample and  the nature of the impropriety.   They argue that there are points of public interest arising under the Human  Tissues Act  2008,  the  Coroners Act  2006,  the  Search  and  Surveillance Act 2012 and the New Zealand Bill of Rights Act 1990 in relation to those issues.

[6]      We do not consider that leave is appropriate in this case.  The Courts below have uniformly concluded that the s 30 balancing exercise favours the admission of the evidence.  The issues the applicants seek to raise are specific to the unusual facts of this case and even if decided in their favour are unlikely to alter the overall outcome.  Nor do we see any risk of a substantial miscarriage of justice occurring if leave is not granted.

[7]      We therefore dismiss the applications for leave to appeal.

Solicitors:

Public Defence Service, Wellington for Applicants

Crown Law Office, Wellington for Respondent