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High Court of New Zealand Decisions |
Last Updated: 24 June 2015
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV 2006-419-1175
UNDER the Judicature Amendment Act 1972 and the New Zealand Bill of Rights
Act 1990
IN THE MATTER OF a decision by Police to require a DNA
sample from Renick Trevor T
BETWEEN T
Applicant
AND NEW ZEALAND POLICE Respondent
Hearing: 10 November 2006
Appearances: R Ord for the applicant
F Sinclair for the respondent
Judgment: 21 December 2006
JUDGMENT OF STEVENS J
This judgment was delivered by me on 21 December 2006 at 3.45pm pursuant
to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
R Ord, PO Box 9175, Hamilton
F Sinclair, Crown Law Office, PO Box 2858,
Wellington
T V NZ POLICE HC HAM CIV 2006-419-1175 21 December 2006
Introduction
[1] The issue for decision in this case concerns the circumstances in
which the Police can obtain a bodily sample for the DNA
databank under the
Criminal Investigations (Bodily Samples) Act 1995 (the Act). The applicant, Mr
T , filed an application for
judicial review of a decision by a commissioned
officer of the Police to require him to give a bodily sample under the Act on 24
August 2006. There are two questions to be determined on review:
a) Is the discretionary power of a commissioned officer of the Police
to issue a databank compulsion notice in order to obtain
a bodily sample subject
to judicial review?
b) Was the databank compulsion notice requiring the applicant to give
a bodily sample properly issued in this case?
Statutory background
[2] Part 3 of the Act allows the Police to take bodily samples in certain specified situations for use as part of a DNA profile databank maintained by the Police under s
25 of the Act. The databank is used for forensic comparison, which is
defined in s 2 of the Act:
Forensic comparison means the comparison of a DNA profile stored in a DNA
profile databank with another DNA profile, where that comparison
is undertaken
for the purpose of confirming or disproving the involvement of any person in the
commission of an offence
[3] Section 2 defines bodily sample and its component
parts:
bodily sample or sample means a blood sample or a buccal sample blood sample means a fingerprick sample or a venous sample
buccal sample means a sample of epithelial cells from inside the mouth taken by a device, or provided by other means, approved for the purpose under section 4B(1)(b).
[4] A bodily sample for the DNA profile databank may only be taken with
the requisite authority. In this respect, the Act
operates as a code. As a
result of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (the
Amendment Act), the scheme
governing the taking of a bodily sample changed in
April 2004. Section 29 of the Act is the starting point, outlining the
circumstances
in which a bodily sample may be taken:
29 Authority to take bodily sample for DNA profile databank
Subject to section 72 of this Act, a bodily sample may be taken from a person
for the purposes of including that person's DNA profile
on a DNA profile
databank only if—
(a) Either—
(i) That person consents to the taking of that sample in
accordance with section 34 of this Act; or
(ii) the sample is taken pursuant to a databank compulsion notice;
and
(b) The sample is taken in accordance with the procedures set out in
Part 4 of this Act.
[5] Thus a bodily sample may be obtained under s 29(a)(ii) when a
databank compulsion notice is issued. Section 39 of the Act
allows for the
issue and service of a databank compulsion notice requiring a person to give a
bodily sample in certain circumstances:
39 Issue and service of databank compulsion notice
(1) A commissioned officer of the police may issue a databank compulsion
notice requiring a person to give a bodily sample if—
(a) the person has been convicted of a relevant offence; and
(b) the conviction is one to which this Part applies under section
4.
...
[6] The meaning of relevant offence is set out in s 2:
relevant offence means—
(a) an offence against any of the provisions listed in Part 1 of the Schedule;
or
(b) an offence against any of the provisions listed in Part 2 of the Schedule;
or
(c) an attempt to commit an offence against any of the provisions listed in
Part 1 or Part 2 of the Schedule if the offence is not
itself specified as an
attempt; or
(d) conspiring with any person to commit an offence against any of the
provisions listed in Part 1 or Part 2 of the Schedule if
the offence is not
itself specified as a conspiracy; or
(e) an offence punishable by a term of imprisonment of 7 years or more;
or
(f) an attempt to commit an offence of the kind referred to in paragraph (e);
or
(g) conspiring with any person to commit an offence of the kind referred to
in paragraph (e)
[7] The offence relied on in this case is theft. Theft is contained in
Part 2 of the Schedule to the Act. Section 4(3)(a)
of the Act requires that a
conviction for an offence specified in Part 2 of the Schedule must have been
entered after the commencement
of the Amendment Act in order for the
Act to apply. The Amendment Act commenced on 15 April 2004. The
conviction
against Mr T for theft was entered on 2 March 2006. It is
therefore a relevant offence to which the Act applies. This gave the
respondent
the discretionary power to issue a databank compulsion notice, provided it was
within six months of the conviction: s
39C(3)(b).
[8] A databank compulsion notice may be challenged in the first
instance by way of databank compulsion notice hearing, under
s 41 of the Act.
However, that section only allows for such a hearing on certain, specified
grounds:
41 Databank compulsion notice hearing may be requested on certain
grounds
(1) A person served with a databank compulsion notice or required to be
served with a databank compulsion notice under section 39(2)
may, before the
date specified in the notice as the date on which the person to whom the notice
relates is to attend to give a bodily
sample, request a member of the police to
arrange a databank compulsion notice hearing before a Judge of the appropriate
court.
(2) A databank compulsion notice hearing may only be requested on 1 or more of the following grounds:
(a) that—
(i) the offence in relation to which the databank compulsion notice has been issued is not a relevant offence; or
(ii) the conviction for the relevant offence in relation to which the
databank compulsion notice has been issued is not a conviction
to which this
Part applies:
(b) that the conviction for the relevant offence in relation to which the databank compulsion notice has been issued—
(i) was quashed before the notice was issued; or
(ii) was quashed after the notice was issued but before the sample
was taken and the police have not notified the person that the notice is of
no effect under section 40(2):
(c) that all 3 methods available for the taking of a bodily sample will
cause serious harm to the person's health on the date specified
in the databank
compulsion notice as the date on which the person to whom the notice relates is
to attend to give a bodily sample:
(d) that the date specified in the databank compulsion notice as the date
on which the person to whom the notice relates is to attend
to give a bodily
sample is a date on or before the date that is 14 days after the date on which
the notice was served:
(e) that the date specified in the databank compulsion notice as the date on which the person to whom the notice relates is to attend to give a bodily sample is,—
(i) if the person is not detained under a sentence of imprisonment for the relevant offence in relation to which the notice is issued at the time the notice is served, a date that is on or after the date 6 months after the date the person's conviction for the relevant offence was entered; or
(ii) if the person is detained under a sentence of imprisonment for the relevant offence in relation to which the notice is issued at the time the notice is served, a date that is on or after the later of the 2 following dates:
(A) the date the person is to be released from being detained under a
sentence of imprisonment for the relevant offence; or (B)
the date 6 months
after the date the person's conviction for the relevant offence was
entered:
(f) that the person to whom the databank compulsion notice relates was not
served with the notice:
(g) if the person in relation to whom the databank compulsion notice has been issued is under the age of 17 years,—
(i) that person was not served with the notice; or
(ii) that all reasonable steps have not been taken to serve the parent or other person having the care of the person with a copy of the notice.
...
[9] While awaiting a databank compulsion notice hearing, s 41A(2) requires that the Police are not to take a bodily sample from the person the subject of the notice.
Sections 42 to 43B outline the powers possessed by a Judge
presiding over a databank compulsion notice hearing, including
the power
to declare that the databank compulsion notice is of no effect, and the power
to vary or impose conditions on the
order. Generally, the role of the Judge at
a databank compulsion notice hearing is to ensure that there has been compliance
with
the requirements of s 41(2) dealing with specified grounds and s 39C(3) and
(4) relating to the date and place for taking the sample.
[10] Importantly, none of the grounds specified by s 41(2), upon which a
databank compulsion notice may be challenged, relate
to the exercise of the
discretionary power of the Police to issue a databank compulsion notice once it
is established that there
was a relevant offence to which Part 3 of the Act
applies.
Factual background
[11] On 2 March 2006, the applicant was convicted of theft under $500
under ss 219 and 223(d) of the Crimes Act 1961, for shoplifting
groceries
totalling $11.90. On 6 March 2006, Acting Detective Sergeant Davenport of the
Auckland DNA Squad reviewed the applicant’s
file in order to determine
whether he should be required to give a bodily sample under the
Act.
[12] As a result of Acting Detective Sergeant Davenport’s review, a
Detective Inspector issued a databank compulsion notice
on 15 March 2006. That
notice was served on the applicant on 27 April 2005, and required the applicant
to give a bodily sample at
Hamilton Police station on 15 May 2006. The
applicant did not attend on that date.
[13] There followed discussions between the Police and counsel for the applicant. As a result, a databank compulsion notice hearing was held in the District Court at Papakura on 4 July 2006. On 13 July 2006, the Court issued an order under the Act requiring the applicant to give a bodily sample. The sample, by the terms of the order, was to be taken on 28 August 2006.
[14] However, on 24 August 2006, the applicant made an application for
judicial review of the decision of the commissioned officer
of Police to issue a
databank compulsion notice. He also applied for interim relief
pursuant to s 8 of the Judicature
Amendment Act 1972 to prevent the bodily
sample being taken. The parties subsequently conferred, with the result that
the applicant
has given the Police a bodily sample on the condition that the
sample will be held pending the outcome of this proceeding. The
respondent has
agreed that the sample be destroyed, in the event that the proceeding is
determined in the applicant’s favour.
The police review process
[15] Evidence regarding the decision making process was received at the
hearing, in the form of an affidavit from Acting Detective
Sergeant Davenport.
He is the supervisor of the DNA Squad for the Auckland Metropolitan Region,
having held that position for over
15 months. He has the responsibility for
initiating DNA sampling under the Act in that region.
[16] Acting Detective Sergeant Davenport deposed as to the process he
follows when assessing whether to issue a databank compulsion
notice. There are
no formal guidelines in place for this process. Moreover, there is no policy
requiring automatic testing for
all people in a certain category. For each file
involving a conviction for a relevant offence under the Act, Acting
Detective
Sergeant Davenport makes an assessment of whether a bodily sample
should be required. He considers:
b) Any information about their associates; and
c) Whether there are any alerts on the Police intelligence system; and d) The offender’s age; and
e) The nature of the charge; and
f) The circumstances behind the charge.
[17] By way of an example of the application of such factors, Acting
Detective Sergeant Davenport referred to the situation of
a guilty plea for
being unlawfully on premises. In some circumstances, such a plea might mean
that the person convicted has avoided
a conviction for burglary and the case
would be assessed in that light. Similarly, if a notorious rapist did not have a
sample in
the DNA profile databank because the offending pre-dated the
legislation, consideration would be given to requiring that person to
give a
bodily sample, if such person were convicted of a relevant offence, even if of a
minor nature.
Applicant’s submissions
Is this a matter for review?
[18] This application for judicial review was filed under
the Judicature Amendment Act 1972 and the common law.
Counsel for the
applicant submitted that the High Court has the jurisdiction to judicially
review the Police power to issue a
databank compulsion notice because it
is an administrative decision, citing Down v Van de Wetering [1999] 2
NZLR 631. Various grounds were advanced as a basis for such review.
Was the discretion correctly exercised?
[19] In summary, the grounds for review were that the decision to require
a bodily sample from the applicant was:
a) Improperly considered:
i) Irrelevant considerations were taken into account:
− a perception that the applicant’s DNA might fortuitously match up with DNA taken from scenes of serious offences;
− the lack of difference in the anonymity rights held by someone not charged with an offence versus an alleged offender charged with an indictable offence;
− the applicant’s historic, minor offending which does not contain relevant offences in itself;
ii) There was a failure to take into account relevant considerations;
− the number of similar offenders who will not have a DNA
sample taken;
− the de minimis nature of the offending;
b) Unreasonable:
i) No reasonable databank collector, collecting DNA from known serious offenders, would require DNA from citizens guilty of low level offences;
ii) No reasonable databank collector would see a link between serious offending and shoplifting;
c) Predetermined:
i) There was a predetermination to collect the DNA from all offenders of relevant offences regardless of the nature of the offending;
d) In breach of legitimate expectations; and e) An error of law:
i) There was an error of law in that the Police failed to properly interpret the Act (as amended) from its text in the light of its purpose and in light of the New Zealand Bill of Rights Act
1990;
ii) To be non-discriminatory the Police would be required to
sample every convicted shoplifter in 2003.
[20] The counsel’s pleading initially characterised point (e) as
unfairness, but counsel subsequently referred to it as
an error of
law.
[21] Essentially, the main thrust of the submissions was that Parliament only intended to require bodily samples from people convicted of serious crimes, and the
inclusion of theft was intended to capture those who had committed
serious offending punishable by over seven years’
imprisonment. The
Police should in this case have looked harder at the relevant offence than the
applicant’s criminal history.
Counsel described the offending as de
minimis and further submitted that it was not a relevant offence within the
meaning of the Act.
[22] In the application for review, the applicant stated that the police
discretion to issue a databank compulsion notice
should be read
consistently with the New Zealand Bill of Rights Act 1990. Specifically, the
right that the applicant referred
to was s 21, which provides:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure,
whether of the person, property, or correspondence or
otherwise.
[23] The applicant’s submission was essentially that the right to
be secure against unreasonable search and seizure could
only be balanced against
the right to take a bodily sample in cases of serious indictable offending.
Generally, there was
a consistent theme in the applicant’s submissions
that the discretionary power in s 39 of the Act could only be exercised
by a
commissioned officer in the case of serious examples of the relevant offence
concerned.
Respondent’s submissions
Is the power reviewable?
[24] Counsel for the respondent outlined the conflicting authority of Down v Van de Wetering and Police v Nahi (1997) 15 CRNZ 300 on the point of whether the discretionary power to issue a databank compulsion notice is a statutory power of decision pursuant to s 3 of the Judicature Amendment Act 1972. The current position was said to be arguable, particularly in light of the recent amendments to the Act, which came into effect after both Van de Wetering and Nahi.
[25] Counsel for the respondent emphasised the traditional
approach to discretionary Police powers, submitting
that the exercise of this
power was close to the operational choices on the part of the Police, in respect
of which the Court has
traditionally been reluctant to interfere. In R
v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2
QB 118 at 136, Lord Denning remarked:
Although the chief officers of police are answerable to the law, there are
many fields in which they have a discretion with which
the law will not
interfere. For instance, it is for the Commissioner of Police of the
Metropolis, or the chief constable,
as the case may be, to decide in any
particular case whether inquiries should be pursued, or whether an arrest should
be made, or
a prosecution brought. It must be for him to decide on the
disposition of his force and the concentration of his resources on any
particular crime or area. No court can or should give him direction on such a
matter. He can also make policy decisions and give
effect to them, as, for
instance, was often done when prosecutions were not brought for attempted
suicide. But there are some policy
decisions with which, I think, the courts in
a case can, if necessary, interfere. Suppose a chief constable were to issue a
directive
to his men that no person should be prosecuted for stealing any goods
less than £100 in value. I should have thought that the
court could
countermand it. He would be failing in his duty to enforce the law.
Was the discretion correctly exercised?
[26] Counsel submitted that, even if the power were reviewable, no
grounds for review have been made out. The discretionary
power was
not constrained by internal policy, nor was it made in bad faith. It cannot be
described as a decision that no reasonable
Police officer could have made. The
discretion was characterised by the respondent as involving “subtle
judgements”,
for which “crude” categories such as sampling
only those responsible for serious offences would prove to be too broad
an
approach. Moreover, the approach to the decision-making task in this case had
not been shown to have involved any irrelevant
considerations, a failure to
consider relevant factors, unreasonableness, pre-determination or
unlawfulness.
[27] The respondent argued that the “serious indictable crime” test propounded by the applicant in terms of consistency with the s 21 NZBORA right to be secure against unreasonable search and seizure did not accord with the clear and unambiguous terms of the statute. The respondent further submitted that the ability to take samples from offenders convicted of minor theft was a clear and unambiguous addition to the Act made in 2004 by Parliament. In those
circumstances, there was no room to read the Act consistently with s 21 of
the
NZBORA.
[28] It was the respondent’s submission that, in any case,
sampling minor offenders did not constitute an unreasonable
limit on the right
protected by s 21. This submission was based on a comparison with the broad
sampling scheme carried out in the
United Kingdom under the Criminal Justice and
Public Order Act 1994, which allowed bodily samples to be taken in a wide range
of
circumstances. The respondent suggested that in the United Kingdom, the
occasions on which the Police may take a bodily sample
are roughly equivalent
with the circumstances in which a fingerprint may be taken. By comparison, the
New Zealand system of bodily
sampling as described by Acting Detective Sergeant
Davenport is restrained and protective of the rights of individuals against
unreasonable
search and seizure, as well as protective of their
privacy.
The course of the argument
[29] As submissions developed at the hearing, the applicant’s case
came down to several main points. First, the applicant’s
counsel sought
to emphasise that Parliament’s intent, as demonstrated by excerpts from
Hansard, was that the bodily samples
regime was only intended to cover
those who had committed “serious offences”. The
applicant’s submission
was that this was not a ground taken into account
by the Police when making the decision to require a bodily sample from him under
s 39 of the Act.
[30] Furthermore, the applicant’s counsel submitted that Police had, by their own admission, considered the applicant’s prior convictions, which were irrelevant. The other irrelevant consideration alleged by the applicant to have been taken into account included the fact that in the past, less serious offences have been linked to serious offending. This was irrelevant because there was no demonstrable link between serious offending and minor theft, besides which “serious offending” was undefined.
After the hearing
[31] I invited counsel to submit a memorandum on a number of points subsequent to the hearing. Counsel for the respondent helpfully submitted a number of cases in which R v Commissioner of Police of the Metropolis; ex parte Blackburn has been applied in New Zealand, in order to illustrate what types of decisions the Court will not generally interfere with. These cases, Thompson v Attorney-General (2000) 17
CRNZ 628 and Bow & Anor v Police & Anor [1989] NZHC 980; (1989) 5 CRNZ 276,
usefully outline the scope of the prosecutorial discretion, which is an area of
discretion in which the Courts
will not interfere.
[32] Counsel for the applicant added a further analogy to his original
submissions, based on the notion that taking a DNA sample
is analogous to police
surveillance. Relying on the United States authorities Berger v New York
[1967] USSC 157; 388 US 41 (1967) and Commonwealth v Ricci 440 Mass. 1106 (2003), the
applicant’s counsel submitted that in surveillance situations the Police
have a duty to minimise
their eavesdropping in respect of
‘non-pertinent’ material. This raises a further question for the
Court, it was submitted:
is this surveillance through DNA based on
“pertinent” evidence of appropriate criminality?
A reviewable power?
[33] Is the discretionary power of a commissioned officer to issue a
databank compulsion order under s 39 of the Act a decision
that is amenable to
judicial review? Section 4 of the Judicature Amendment Act 1972
establishes which decisions are able
to be reviewed:
4 Application for review
(1) On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.
(2) Where on an application for review the applicant is entitled to an
order declaring that a decision made in the exercise
of a statutory
power of decision is unauthorised or otherwise invalid, the Court may,
instead of making such a declaration,
set aside the decision.
...
[34] Statutory power (and statutory power of decision) are defined by s 3
of the
Judicature Amendment Act 1972:
Statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate—
(a) to make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or
(b) to exercise a statutory power of decision; or
(c) to require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or
(d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or
(e) to make any investigation or inquiry into the rights, powers, privileges,
immunities, duties, or liabilities of any person:
Statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting—
(a) The rights, powers, privileges, immunities, duties, or liabilities of any person; or
(b) The eligibility of any person to receive, or to continue to receive, a
benefit or licence, whether he is legally entitled to
it or not.
[35] Prior to the amendments to the Act in 2003, the Police needed to
obtain judicial authority for the databank compulsion notice
in the form of the
databank compulsion order. Section 40 of the Act relevantly provided:
40 Judge to authorise blood sample to be taken
(1) On the hearing of an application for a databank compulsion order, the Judge shall make an order requiring the respondent to give a sample of the respondent's blood if the Judge is satisfied—
(a) That the respondent has been convicted of the relevant offence to which the application relates; and
(b) That the conviction has not been quashed.
...
[36] Post 2004, the Police are able themselves to require a person to give a bodily sample by issuing a databank compulsion notice, under the amended version of s 39.
A judicial databank compulsion order is no longer required. In Police
v Nahi, Anderson J held that a decision made under s 39(1) to apply for a
databank compulsion order under the then applicable statutory
scheme did not
involve the exercise of a statutory power or a statutory power of decision.
Rather, he characterised it at 302 as
a “statutory entitlement”, and
further said that whether that entitlement is availed of is a matter of
administrative
decision. As a result, the decision of the Police was not
considered amenable to judicial review as a decision constrained by public
law
principles.
[37] Nahi was followed by Down v Van de Wetering. That case also involved an application to review a decision made by the Police under the then applicable s
39(1). However, at the hearing the Crown conceded that the decision was in
fact a statutory power of decision within the meaning
of the Judicature Act
1972, meaning that the approach in Nahi could not be applied. Eichelbaum
CJ went on to say at 635 that:
...the legislature does not appear to have given the Court any discretion to
reject an application [by the Police for a databank compulsion
order], once the
conditions precedent are established. This is an additional reason for
declining to construe the statute as ousting
judicial review in respect of the
applicant officer’s discretion to apply, see in this respect
Police v Hita [1997] DCR 30.
In Hita at 36, Judge Doogue determined that the District Court had no
discretion to decide whether or not to grant a databank compulsion order
under s
40 of the Act as it was then (see [34]), where the discretionary decision to
apply had already been made by the Police.
[38] The question is now whether, following the 2004 amendment to s 39 of the Act, the power of a commissioned officer of Police to issue a databank compulsion notice is reviewable. On a basic interpretation of s 4 of the Judicature Amendment Act 1972, this discretionary power appears to be a decision that is a statutory power of decision: it is a power or right conferred under s 39 of the Act affecting the rights of a person, namely the applicant. It is also noted that the appeal or review rights (as provided by the Act) from this decision have been exhausted. As outlined above, a databank compulsion order hearing having been held in the District Court at Papakura.
[39] While Nahi states that the old power of requesting the issue
of a databank compulsion order under s 39(1) is a statutory entitlement, this
section
has since changed. In any case, Van de Wetering cast doubt on
Nahi by pointing out that the District Court had no power other than to
grant the application. While there is now an opportunity to challenge
the
databank compulsion notice through the databank compulsion notice hearing, the
District Court has no power to address any of
the factors involved in the
exercise of the discretion to issue any such notice. The District Court is
constrained by the restricted
grounds for requesting a hearing as outlined in s
41 which, as mentioned at [10] above, do not relate to the discretionary aspect
of a databank compulsion notice. As a result, if the statutory procedure has
been followed correctly and there is, for example,
no risk of harm to the
person’s health, the Court is essentially still in a position to do
little, other than allow the databank
compulsion notice to continue in
force.
[40] There has been a trend over recent years to allow increased access to judicial review. In this context, questions have arisen whether the distinction between purely administrative decisions (decisions that are a “statutory entitlement”) and statutory powers still exists: see for example McGechan on Procedure at JA3.05.02. The rights affected by the statutory power under s 39 plainly affect the privacy rights of the subject. The interests of the individual concerned are finely balanced with the role of the Police and the State in the detection and prevention crime in our society. Accordingly, I conclude that the type of statutory power of decision embodied in s
39 of the Act is such it could be expected to be amenable to judicial
review.
Does the nature of the decision preclude review?
[41] The respondent submitted that, even if this discretionary power were held to be a statutory power of decision subject to judicial review, it was not in fact reviewable because of its nature. Lord Denning recognised in Blackburn that the Police make some discretionary decisions with which the law will not interfere. He gave the examples, at 136, of decisions to pursue enquiries, to make an arrest or to bring a prosecution. These types of matters were conveniently referred to as “operational decisions” by counsel for the respondent, in an attempt to characterise
the decision to take a bodily sample as similarly operational. In support
of this proposition, the respondent relied on the case
of Thompson v
AG.
[42] In Thompson, the Police declined to grant diversion to a
young first offender, in circumstances that, according to Panckhurst J at 632,
would
probably have warranted diversion. However, the decision was not
reviewable, as it was not a statutory power of decision as required
by the
Judicature Amendment Act 1972. Even if it had been, Panckhurst J found
that the nature of the decision itself
precluded review, as it was a
decision intimately bound up with the decision to prosecute, as in
Blackburn.
[43] The other case relied on by the respondent was that of Bow &
Anor v Police
& Anor. It involved a Police decision to prosecute two officers
for assault. Again, the decision was not reviewable because it was within
the
prosecutorial discretion of the Police.
[44] Both cases noted that, if for example a blanket policy were
used when making a decision, then it may be reviewable
on the grounds that no
decision had actually been made. In Hallett v AG (No 2) [1989] NZHC 3; [1989] 2 NZLR 96
at 102, the Court of Appeal, relying upon the authority of Blackburn,
said that the application of a blanket policy would mean that there was a
failure to consider the prosecution question
at all.
Reviewability of the power
[45] In my judgment, the discretionary power of a commissioned officer of Police in s 39 of the Act is reviewable because it is not in the nature of a decision to prosecute. The scope of the prosecutorial discretion is reasonably well defined, and revolves around the initiation of prosecutorial action. Tompkins J noted in Bow at
280 that these decisions are akin to prerogative powers, which are not
reviewable:
Prichard J [in Saywell v AG [1982] 2 NZLR 97] pointed out that the right exercised by the Crown in presenting an indictment, even though it be the exercise of a statutory power is a power of a very special kind not to be equated in any way with those decisions and actions of officials and statutory bodies whose exercise of their statute-given power is commonly
subject to review. He adopted what was said by Wilson J in Barton v R
[1980] HCA 48; (1980) 32 ALR 449, 470, when he described the presentment of an
indictment as:
“...a very distinctive type of a statutory power retaining its
relationship to the process of criminal justice something
of the nature
of a prerogative power. As such it is a power which does not lend itself to
supervision by the Courts, including
those Courts whose jurisdiction
related to the trial of proceedings so initiated.”
[46] Whilst counsel for the respondent sought to persuade the Court that
all police “operational decisions” are exempt
from judicial review,
no authority was cited other than those regarding the scope of the prosecutorial
discretion. Therefore, I
conclude that there is no basis for a broader category
of “operational” decision including the exercise of the power
under
s 39 of the Act, which is immune from judicial review.
[47] The decision to require a sample for the DNA database may eventually
result in a decision to prosecute, if the DNA matches
any from the scene of any
offence. But in and of itself, it is not a decision to prosecute. Whilst the
existence of a DNA profile
databank is undoubtedly important in the detection
and prosecution of offenders, it is in my view more difficult to characterise
it
as an investigation tool in a traditional sense. The step of requiring a
person to give a bodily sample is not being used for
the purpose of any
particular investigation: rather, it is for the purpose of adding to the data in
the DNA profile databank. As
a result, I consider that the discretionary power
to issue a databank compulsion notice under s 39 of the Act is a reviewable
statutory
power of decision.
Discussion
Irrelevant considerations
[48] At the hearing, the applicant’s submissions raised two irrelevant considerations which had allegedly been taken into account by the Police in this case. The first of these was that the prior convictions of the appellant should not have been taken into account. It was not contested that this was a ground on which the Police based the decision to issue a databank compulsion notice. Indeed, it appears from the evidence of Acting Detective Sergeant Davenport that this was one
of the central considerations, even tipping the balance in this case towards
issuing a databank compulsion notice. As stated in the
affidavit at paragraph
17:
Renick Trevor T was on the cusp of being passed over for a sample request,
but I considered there was sufficient in his previous
history of
convictions to warrant a sample being taken.
[49] The other alleged irrelevant consideration was the notion that the
applicant’s DNA would match up with a DNA profile
from the scene of a
serious offence. Again, it seems that this was in the Acting Detective
Sergeant’s mind when he made the
decision to issue a databank compulsion
notice. As noted in paragraph 17 of his affidavit:
I am aware of occasions when people tested for less serious offending have
been linked to serious crimes.
[50] Even though these were pleaded as two separate irrelevant
considerations, they appear to be closely connected. To determine
whether such
considerations are irrelevant in determining whether to issue a databank
compulsion notice, it is helpful to consider
what factors determine the
scope of relevant considerations in a particular statute. Professor
Joseph, in Constitutional and Administrative Law in New Zealand (2ed
2001), at 21.2 states:
Where criteria are not exhaustive, or where none is specified, considerations
relevant to the exercise of the discretion must be construed
from the subject
matter, scope and purpose of the Act. The inference is to be drawn having
regard to the objects of the Act “as
ascertained from the whole of its
provisions”: Keam v Minister of Works v Development [1982] 1 NZLR
319 at 327 (CA).
[51] The Act itself contains no express provision outlining its purpose or function. In R v T [1999] 2 NZLR 602 (CA) Blanchard J, giving the judgment of the Court, stated at 613 that Parliament was precise in laying down what is a detailed code for the taking of bodily samples. It is clear from an overview of the Act that it is comprehensively detailed, providing lengthy provisions for the taking of bodily samples either from persons voluntarily or through issuing a databank compulsion notice. It carefully prescribes the manner in which the samples may be gathered, and it prescribes remedies for breaches of those provisions. The Act appears to balance carefully the need for a DNA databank in order to detect and prosecute serious crime
with the need to protect and maintain the privacy and other rights of the
individual. The legislature plainly undertook a careful
and delicate balancing
process.
[52] In R v T, Blanchard J at 613 characterised the taking of a
sample as “...a substantial intrusion into the privacy of an
individual...”.
Moreover, Ronald Young J in Taylor v AG HC WN
CIV-2005-485-530 4 May 2005 at [14] called the Act a “protective
regime”. Further, he said at [13]:
It has been observed that this Act is a code prescribing the process for the
collection of bodily samples. It therefore mandates
by statute the invasion of
the body of a citizen and it requires citizens to provide evidence that may be
used to convict them of
a crime.
[53] The question then is how does such protective regime affect the
exercise of the discretion on the part of the Police to
issue a databank
compulsion notice? Certainly the rights of the individual would require that
this discretion be exercised in
a careful and considered manner. Some
considerations will never be legitimate or relevant, for example sampling on the
basis of
race. The nature of the relevant offence is, of course, a relevant
consideration – the more minor the offence, the less likely
it is that the
offender will re-offend or have offended seriously prior to the inclusion of a
bodily sample in the DNA database.
[54] Similarly, I consider that the previous criminal history of
an offender convicted of a relevant offence must be
a relevant consideration.
This may show the offending in a different light, and suggest that even though
minor, the offending was
part of a broader trend or pattern of offending or risk
of future re-offending. A recidivist offender will no doubt be considered
more
likely to commit a crime in the future. Hence, the value of holding his or her
DNA on the database would be greater than that
of a first offender.
[55] The hope or expectation that the sample will end up matching a DNA databank sample from the scene of a serious crime will probably be in the mind of every officer who examines a file with a view to obtaining a bodily sample. Detection and prevention of crime is fundamental to the policing process. However, I am not persuaded that this was a consideration that influenced the Acting Detective Sergeant in this case. Certainly he mentioned the potential links between the tested
minor offenders and samples contained within the DNA database. However, this
did not appear to influence his decision making one
way or another. If that had
been his approach then one might expect the Police to be approaching the
exercise of the discretionary
power in s 39 of the Act by issuing all minor
offenders who have committed a relevant offence a databank compulsion notice.
This
is clearly not the case. On the evidence of Acting Detective Sergeant
Davenport, he was approached the decision-making exercise
required by s 39 of
the Act in an open way and on a case by case basis. I find on the evidence that
he considered Mr T ’s
case on an individual basis.
Relevant considerations
[56] The applicant further alleged that the Police had failed to take
into account a relevant consideration, namely the de minimis nature of
the offending. I agree that the nature of the relevant offence may be a
relevant consideration for the Police in deciding
whether to issue a databank
compulsion notice. The nature of offending or offence itself is one of the
considerations that was taken
into account, as outlined by the Acting Detective
Sergeant at paragraph 9 of his affidavit:
...the offence itself is one of a number of factors that might be
weighed.
[57] Whilst this aspect was not stated as being a factor in every case,
from the explanation of the Acting Detective Sergeant
I am satisfied that it
will be. He spoke in his affidavit about looking beyond the conviction for the
offence to the circumstances
of the offending in any given case, or speaking to
the officer in charge of the case. Therefore I consider it implicit that the
nature of the relevant offence and the circumstances of the offending itself,
though not overriding, will be a factor to be considered
when exercising the
discretionary power to issue a databank compulsion notice.
[58] Was the nature of the offence considered in this particular case and given the correct weight? As mentioned at [48], the Acting Detective Sergeant deposed at paragraph 17 of his affidavit that he knew of occasions when people tested for less
serious offending have been linked to serious crime. At paragraph 14, he
outlined that in his initial look at the applicant’s
file, he
considered:
...the Caption Summary, the Information, the prosecution cover
sheet...
[59] All these factors relate to the relevant offence. While the de
minimis nature of the offending was not decisive in this particular case, I
conclude that it was taken into account, in what was a balanced
way, taking into
account a number of relevant issues. The applicant cannot of course sensibly
suggest that every minor shoplifter
must not have a databank compulsion order
issued in his or her name, but there may be other circumstances personal to that
offender
that make it desirable that the Police seek to require a bodily sample.
This is a basic element of a discretionary decision. I find
that this relevant
consideration was properly taken into account.
[60] Related to this argument was the submission propounded by the
applicant that Parliament only intended that serious
offending be
subject to the bodily sampling regime. The applicant based such reliance on
a number of parliamentary papers and
excerpts from Hansard to support this
submission. However, in the end those supplementary materials provided me
with little
assistance because the wording of the statute is quite
clear.
[61] Section 5 of the Interpretation Act 1999 gives statutory guidance
for the interpretation of statutes:
5 Ascertaining the meaning of legislation
(1) The meaning of an enactment must be ascertained from its text and in
the light of its purpose.
[62] The traditional approach to the use of extrinsic aids such as Hansard or other parliamentary material is exclusionary. Since 1984, this rule has been somewhat relaxed in New Zealand and other common law jurisdictions, though not without controversy (see for example the history of the rule contained in Burrows, Statute Law in New Zealand (3ed 2003) at Chapter 9(d)). However, it will only provide help in interpretation where the meaning of the text is not clear. Here, the text within the Act and its meaning is clear: theft is an offence contained within the schedule to the Act. It is quite possible that Parliament could have chosen to specify what types of
theft were to be tested by reference to the various levels of sentence for
theft. It has chosen not to do so. Therefore I cannot
read in any limitation
of seriousness on the basis suggested by counsel for the applicant.
Other grounds
[63] In this case, there is no evidence to suggest that there is a
blanket policy requiring that all those people convicted of
relevant offences
will have samples taken. On the contrary, the evidence was that careful
consideration is given to each case
on an individual basis. Therefore the
decision is not reviewable on that ground.
[64] None of the other grounds that the applicant outlined in
the original application for judicial review (see [19])
have been made out.
There was nothing unlawful in the manner in which the Police went about
exercising this power, nor has any discernable
error of law been established.
It is clear from the evidence and I so find that the Police exercised this
discretionary power in
good faith, making this decision in the manner described
at [16]. Therefore, there are no grounds upon which the discretionary
power of
the Police to issue a databank compulsion notice in the case of Mr T can be
reviewed.
Unreasonable search and seizure: s 21 NZBORA
[65] There is clear authority to the effect that the taking of a blood
sample from a person may constitute an unreasonable search
and seizure in terms
of s 21 NZBORA. For example, in R v T, the Court of Appeal held that
breaches of the Act in the taking of a sample, except where the breach was a
minimal procedural default,
meant that the sample became inadmissible evidence,
in breach of s 21.
[66] Essentially, counsel for the applicant advanced the argument
that the discretion should be limited to serious indictable
crimes in order to
read the Act in accordance with the rights protected under the NZBORA.
Relevantly, sections 4, 5 and 6 provide:
4 Other enactments not affected
No court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), -
Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or
Decline to apply any provision of the enactment –
by reason only that the provision is inconsistent with any provision of this
Bill of Rights.
5 Justified limitations
Subject to s 4 of this Bill of Rights, the rights and freedoms contained in this
Bill of Rights may be subject only to such reasonable limits prescribed by
law as can be demonstrably justified in a free and democratic
society.
6 Interpretation consistent with Bill of Rights to be preferred
Wherever an enactment can be given a meaning that is consistent with the
rights and freedoms contained in this Bill of Rights, that
meaning shall be
preferred to any other meaning.
[67] However, as counsel for the respondent pointed out, the interaction between the Act and the NZBORA has already been discussed to some extent in Van de Wetering. In that case, Eichelbaum CJ recognised, on the authority of Quilter v AG [1997] NZCA 207; [1998] 1 NZLR 523, 581, that ss 5 and 6 NZBORA do not authorise a strained interpretation of the Act. While the application of these sections is not uncontroversial (see Moonen v Film & Literature Board of Review [2000]
2 NZLR 9, Butler and Butler The New Zealand Bill of Rights Act: A
Commentary (2005) at Chapter 7 and Rishworth et al The New Zealand Bill
of Rights (2003) at Chapter 4), it is apparent that in this situation,
Parliament has given a clear statutory directive regarding which offences
are
relevant, qualifying offences. This means, in terms of s 6 NZBORA, no other
meaning can be given.
Police surveillance analogy
[68] The Federal Law of the United States requires that any wiretap order to intercept conversations be “conducted in such a way as to minimize [sic] the interception of communications not otherwise subject to interception...”:
18 USC § 2518(5). On this basis, and with the accompanying case law from Massachusetts, counsel for the applicant propounded an analogy, arguing that DNA sampling was analogous to surveillance, and therefore should be limited by reference to ‘pertinent’ evidence of appropriate criminality.
[69] This argument holds little weight. Whether or not the DNA databank
might in fact be analogous to surveillance is irrelevant:
the maintenance, by or
on behalf of the Police, of a DNA profile databank has been expressly authorised
by s 25 of the Act. This
surveillance analogy in reality is another assertion
that the crime must first be “appropriate”, or serious enough to
qualify as the basis for a compulsion notice under s 39 of the Act. Yet
Parliament has specified with particularity in the schedule
to the Act those
crimes that it considered to be relevant offences. Further, there is evidence
that the Police do consider the particular
crime and its background
circumstances in the exercise of their discretionary power under s 39 of the
Act. It is clear that the
consideration of the nature of the offending is in
itself a relevant consideration, amongst others, in an Act that carefully
balances
and respects the rights of the individual.
Decision
[70] The applicant has established no grounds for judicial review of the
exercise in this case of the discretionary power to issue
a databank compulsion
notice under the Criminal Investigations (Bodily Samples) Act 1995. The
application for judicial review is
therefore dismissed.
Costs
[71] Leave is reserved to the respondent to apply for costs. If counsel
cannot agree on the question of costs, I will entertain
memoranda from
counsel.
Stevens J
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