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The use of DNA in criminal investigations [2018] NZLCIP 43; Te Whakamahi i te Ira Tangata i ngā Mātai Taihara

Last Updated: 18 December 2018

December 2018 Wellington, New Zealand

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Issues Paper | He Puka Kaupapa 43



The Use of DNA in Criminal Investigations



Te Whakamahi i te Ira Tangata i ngā Mātai Taihara























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The Law Commission | Te Aka Matua o te Ture is an independent, publicly funded, central advisory body established by statute to undertake the systematic review, reform and development of the law of New Zealand. Its purpose is to help achieve law that is just, principled and accessible and that reflects the heritage and aspirations of the people of New Zealand.
The Commissioners are:
The Hon Sir Douglas White – President Donna Buckingham
Belinda Clark QSO Helen McQueen


The office of the Law Commission is at:
Level 9, Solnet House, 70 The Terrace, Wellington 6011 Postal address: PO Box 2590, Wellington 6140, New Zealand Telephone: 04 473 3453
Email: com@lawcom.govt.nz Internet: www.lawcom.govt.nz
The Māori language version of this Issues Paper’s title was developed for the Law Commission by Kiwa Hammond







A catalogue record for this title is available from the National Library of New Zealand. Kei te pātengi raraunga o Te Puna Mātauranga o Aotearoa te whakarārangi o tēnei pukapuka.

ISBN 978-1-877569-85-2 (Online)
ISSN 1177-7877 (Online)
This title may be cited as NZLC IP43

This title is also available on the internet at the Law Commission's website: www.lawcom.govt.nz


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This work is licensed under the Creative Commons Attribution 4.0 International licence. In essence, you are free to copy, distribute and adapt the work, as long as you attribute the work to the Law Commission and abide by other licence terms. To view a copy of this licence, visit https://creativecommons.org/licenses/by/4.0

  1. FOREWORD

Foreword

In 1995, New Zealand became the second country to create a legislative regime for DNA sample collection and profiling for criminal justice purposes.

The Criminal Investigations (Bodily Samples) Act (CIBS Act) regulates DNA collection from known individuals, either by consent or by compulsion, and establishes the national DNA databank to hold the resulting profiles.

The Act focuses on the use of a DNA profile to identify an individual offender – either by offering an investigative lead in relation to unsolved criminal offending or by providing evidence in the prosecution of an offence. For that reason a DNA profile has sometimes been referred to as the ‘modern-day fingerprint’ in terms of the function it performs in the criminal justice context.

But while fingerprints are literally unique, DNA by its very nature is shared with ancestors, siblings and children. In the 22 years since the Act came into force, it has become clear that the modern-day fingerprint analogy is increasingly inapt.

First, DNA profiling can now provide information that goes beyond identification of an individual person. Where there is no exact match to a DNA profile obtained from a crime scene sample, the national DNA profile databank can be used to search for close matches. This is called familial searching and is used to provide an investigative lead to a relative whose profile is not on the database.

Second, the paths to using DNA profiling as a criminal investigative tool are becoming more varied and may lie outside the CIBS legislation - for example, drawing inferences as to the ethnicity of an unknown offender (by analysing a crime scene sample) or the accessing of newborn blood spot cards (to enable comparison with crime scene samples). These uses are currently exceptional, but they have occurred.

Other uses that lie outside the CIBS Act are yet to happen here – such as accessing public genealogical databases to provide investigative leads, recently highlighted in the United States in relation to the Golden State serial killer investigation.

The science of DNA profiling will continue to develop. Profiling methods may become even more comprehensive, and profiling costs will reduce. Theoretically, whole genome sequencing could ultimately become the standard method of analysing a DNA sample, capable of generating a complete genetic picture of a person. Such a development will give a new perspective to the concept of genetic surveillance in the criminal context.

iii FOREWORD











It is no longer possible to read the legislation and obtain an accurate picture of the role and function of DNA profiling in criminal proceedings.

We think these developments (and those that the science signals but have yet to come) raise questions on which we need informed public debate. Such questions must focus not only on how to support the effectiveness of DNA profiling in the criminal context but also address the significant privacy, tikanga, human rights and Treaty of Waitangi concerns that arise.

They are questions that could not have been asked 22 years ago in this area where law and science intersect so directly. It is time to ask them now.

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Douglas White President

  1. HAVE YOUR SAY

Have your say

This issues paper setting out issues we have identified relating to the use of DNA in criminal investigations, with a focus on the Criminal Investigations (Bodily Samples) Act 1995, is available online at www.lawcom.govt.nz.
We want to know what you think about the issues covered in this paper. Do you agree or disagree with the way the issues have been articulated? Are there additional issues you think should be considered? Please also explain the reasons for your views.
Submissions or comments (formal or informal) on our issues paper should be received by 31 March 2019.
You can email your submission to dna@lawcom.govt.nz.
You can complete your submission online at https://dna-consultation.lawcom.govt.nz. You can post your submission to
DNA Review Law Commission PO Box 2590
Wellington 6140

WHAT HAPPENS TO YOUR SUBMISSION?


The Law Commission may refer to the views it receives in its publications, but will anonymise submissions from private individuals. The Commission keeps all submissions as part of its official records.
The Law Commission’s processes are public, and it is subject to the Official Information Act 1982. For example, this means that, if someone requests a copy of all submissions the Commission has received, the Commission will have to consider whether it is required to release individual submissions.
If your submission includes personal information that means you could be identified (even if you do not provide your name), you may want to request that your submission (or the relevant part) is treated in confidence by the Commission. If you do not want the Commission to release all or part of your submission (including any personal details provided) or for it to be referred to in any Commission publication, please advise which parts should be withheld and the reasons. The Commission will take your views into account when assessing whether or not it is required to release the information under the Official Information Act 1982.
If the Commission considers that a privacy interest or issue of confidentiality arises (regardless of whether you have sought confidentiality in advance), the Commission will make its best endeavours to consult you on your views before releasing the submission (if the Commission has details that enable it to contact you).
The Law Commission also complies with the Privacy Act 1993, which governs how it collects, holds, uses and discloses personal information you provide. You have the right to access and correct your personal information.
  1. CONTENTS

Contents

  1. GLOSSARY

Glossary




Abandoned sample
A biological sample that is already separated from its ‘owner’ and so obtained indirectly, rather than directly, from a person, for instance, saliva on a cup or mucus on a tissue. Also known as a ‘covert sample’.
Adult
There is no definition in the CIBS Act but we use the term in this issues paper to mean someone aged 17 years or over. This is based on the definitions of child and young person that are in section 2 of the CIBS Act.
AIMs
Ancestry informative markers - specific points on the human genome where there is genetic variation amongst different ancestries/ethnicities. Conducting analysis of the DNA at these points can identify the likely ancestry/ethnicity of the person.
Allele
One of many forms that a genetic marker at a particular locus may take. Within the context of STR (short tandem repeat) analysis, this is a difference in the number of repeats of the DNA sequence at that locus. The data (for any given person) typically shows two allele sizes (shown as numbers) at each locus - one allele contributed by the person’s biological mother and the other allele contributed by the biological father.
Autosomal chromosomes
All chromosomes except for the sex-determining one (X and Y). Humans have 22 pairs of autosomal chromosomes - one set inherited from the father and one from the mother.
Biometrics
The technical term for body measurements and calculations. Biometric information is information obtained from different parts of the body, such as iris scans or fingerprints.
Biological sample
Any sample of biological material, such as saliva, semen, blood or skin cells, that has been collected for the purpose of scientifically analysing the DNA contained within that sample. This could be a sample obtained from a known person or collected from a crime scene. Also known as a ‘DNA sample’.
Buccal swab
Mouth swab – the usual method of obtaining a sample directly from a person by rubbing a sterile swab on the inside of the mouth or cheek.
Casework
Within the confines of a specific criminal investigation, the process of conducting either a forensic comparison of a crime scene profile and the profile of a known person or the analysis of a crime scene sample in isolation (that is, performing analysis on that sample alone, without comparing it to a reference sample).
  1. GLOSSARY

CIBS Act
Criminal Investigations (Bodily Samples) Act 1995.
Child
As set out in section 2 of the CIBS Act, child means a person of or over the age of 10 years but under the age of 14 years.
Crime Sample Databank (CSD)
A databank established to store DNA profiles generated from biological samples collected from crime scenes. In New Zealand, ESR conducts the analysis of crime scene samples. The profiles generated from the analysis populate the Crime Sample Databank, which ESR maintains on behalf of New Zealand Police.
Crime scene sample
See ‘biological sample’.
Direct sampling
The process of obtaining a biological sample directly from a known person, such as through a buccal swab or blood sample.
DNA
DNA (deoxyribonucleic acid) is a molecule that programmes how cells work. It is found in almost every cell in the human body.
DNA analysis
The process of analysing the DNA in a biological sample. This may, or may not involve generating a DNA profile.
DNA profile
Information derived from analysis of a biological sample. A profile consists of a series of numbers and letters that can accurately identify an individual. The numbers represent measurements taken at specific places on the non-coding regions of a person’s genome. These locations were chosen because it was believed that they would not reveal any information about a person’s genetic characteristics. The letters reflect a sex test and are usually XX or XY.
DNA Profile Databank (DPD)
A databank authorised by section 25 of the CIBS Act to store the profiles of known persons obtained from biological samples taken under Parts 2 and 3 of the Act. The DPD is administered for Police by ESR.
Elimination sample
A biological sample that is obtained from a person who is not considered to be a suspect. This may be a victim, a third party (for example, the victim’s partner) or an investigator.
ESR
Institute of Environmental Science and Research.
Ethnic inferencing
The analysis of a biological sample (in this issues paper, a crime scene sample) at certain locations of the genome to predict the likely ancestry of the person who left the crime scene sample behind. Also known as ‘ancestry inferencing’.
Familial searching
Searching the known person databank for a near match. This kind of search is used where a DNA profile has been generated from a crime scene sample but does not fully match a profile on the known person databank. Familial searching is based on the fact that siblings, parents and children will have genetic material in common. Familial searching can therefore provide an investigative lead to a parent, child or sibling of the person whose profile is a near match.
  1. GLOSSARY

Forensic
The application of scientific methods and techniques to the investigation of crime.
Forensic comparison
The process of comparing a DNA profile generated from a crime scene sample to a DNA profile generated from a known person to see if they match. In casework, the forensic comparison is between the crime scene profile and a reference profile. A forensic comparison may also be between the Crime Sample Databank (CSD) and the known person databank.
Genome
The complete set of genetic information contained in the DNA of an organism. In the case of humans, the genome consists of approximately 3 billion base pairs of DNA.
FTA card
A special card used for the transport and storage of cellular material collected from a buccal (mouth) swab for analysis.
Indirect sampling
The process of obtaining a biological sample from a secondary source – not directly from a known person. This may be through covert sampling or, obtaining a sample from a relative etc.
“Junk” DNA
Non-coding sections of DNA. The STR markers currently included in DNA profiling kits are all found on non-coding regions of the genome. These locations were chosen because it was believed that they would not reveal any information about a person’s genetic characteristics. These regions were misnamed as “junk”, as it was wrongly thought that these sections of DNA did not perform any function.
Link rate
The percentage of DNA profiles that have matched another DNA profile on one of the databanks. This may refer to links between profiles on a databank of crime scene profiles and the profiles on a known person databank or crime scene to crime scene links (between profiles uploaded to a databank of crime scene profiles). In
New Zealand, this is links between the Crime Sample Databank (CSD)
and known person databank (which consists of the Temporary Databank and the DPD) or links within the CSD.
Locus/Loci
Specific area/s or site/s on a chromosome.
Low copy number (LCN) analysis
A technique that involves additional copying of small amounts of DNA obtained from only a few cells.
Known person databank
A DNA profile databank containing profiles from known persons. In this issues paper we primarily use this phrase to refer, collectively, to the DNA Profile Databank (the DPD) and the Temporary Databank.
Match
When the identifiable STRs in two DNA profiles are exactly the same. If both profiles have identifiable STRs at all of the possible markers, this is referred to as a match or a full match. If one or both of the DNA profiles only contains some of the possible markers, this is referred to as a partial match.
Mass screening
When Police obtain biological samples by consent from a relatively large group of people who share particular characteristics, with a
  1. GLOSSARY


view towards identifying a suspect. The characteristics will be ones
that the investigators believe the offender also shares, for example, all males aged between 20 and 30 who live in a particular geographic area.
Phenotyping
The process of analysing a person’s DNA to predict their likely physical appearance. Ethnic inferencing is a type of phenotyping.
Police Manual
The Police Manual consolidates New Zealand Police rules and policy, including relevant law, and contains numerous individual chapters on each aspect of policing. It contains standard operating practice, principles and procedure that should be followed, although Police may work outside this standard operating practice where it is justified to do so. The Police Manual is in the form of an electronic database and is not available in hard copy.
Reference sample
Biological samples that are obtained from known persons (such as suspects, victims, third parties or investigators). The profile generated from such a sample (the reference sample) is then compared with the profile obtained from a crime scene sample.
Single nucleotide polymorphisms (SNPs)
Variations at the level of single base pairs – the simplest and most common form of genetic variation, accounting for about 90 per cent of the variations in humans.
Single tandem repeats (STRs)
Repetitive chains of bases that occur at certain points on the genome, the length of which varies from person to person.
STR profiling/traditional STR profiling
Short tandem repeat analysis – the process that focuses on areas of the genome that are known to vary among humans. STR profiling targets particular locations (loci) where these STRs are known to occur and measures them by counting how many times the chain is repeated at that location. Except for the Y chromosome, there are two STRs at each location (one inherited from each parent), known as 'alleles’.
STRmix
Software developed by ESR and Forensic Science South Australia that uses mathematical algorithms to identify the most likely combination of DNA profiles in a mixed crime scene sample. Also used to interpret single contributor DNA profiles.
Temporary Databank
A databank authorised by the CIBS Act (2009 amendment) to store the profiles of known persons obtained from biological samples taken under Part 2B.
Trace DNA
A tiny amount of a biological sample containing a very low-level amount of DNA. Various analysis techniques, such as low copy number (LCN) analysis, are used to analyse trace DNA. Trace DNA often consists of skin cells collected from objects at a crime scene that have been touched by someone (which is an example of ‘touch DNA’).
Touch DNA
DNA obtained from items that have been touched by someone and from which DNA can be collected.
  1. GLOSSARY

Transferred DNA
Primary transfer occurs when DNA is directly transferred from a person to an object.
Secondary transfer occurs when the DNA deposited on one object is transferred to a second object or person (for example, after skin to skin contact between two individuals).
Volume crime
Cases involving general theft, burglary or vehicle crime. Vehicle crime includes unlawful taking of and theft from vehicles.
Whole genome sequencing
Identifying and recording the order of all of the base pairs that make up the genome. In the case of humans this is approximately 3 billion base pairs.
Young person
As set out in section 2 of the CIBS Act, young person means a person of or over 14 years of age but under 17 years of age.1
Y-STRs
Loci on the Y chromosome. Y-STR profiling is used primarily to detect male DNA in the presence of female DNA.































  1. Police has advised that a process is underway to amend the Criminal Investigations (Bodily Samples) Act 1995 to reflect the change to the age of a young person who is covered by the the youth justice system under the Oranga Tamariki Act 1989. It is intended that this change will come into effect on 1 July 2019. Pursuant to those changes, “young person” will include a person of or over the age of 14 years but under the age of 18 years.

DNA - DNA IN CRIMINAL INVESTIGATIONS 10



Key terms and actors


KEY TERMS


This issues paper deals with three core inter-related concepts: biological samples, DNA profiles and DNA profile databanks. Below we introduce these concepts and explain the main differences between them.

Biological sample


We use the term biological sample to refer to any sample of biological material, such as saliva, blood or semen, which has been obtained for the purpose of scientifically analysing the DNA it contains.
Biological samples are collected from crime scenes by seizing or swabbing items that have biological material on them. We refer to these as crime scene samples. Biological samples are usually obtained from known individuals by asking the person to rub a swab along the inside of their cheek. This is called buccal swabbing (mouth swabbing).1 In this issues paper, we refer to biological samples obtained from known persons as either reference samples (samples obtained for use in a particular case, such as sampling of suspects) or databank samples (samples obtained for the sole purpose of generating a DNA profile for the known person databank).

Casework


Casework is the term used within a specific criminal investigation to describe the process that covers all of the stages below.
Stage 1. Obtaining a biological sample:
Stage 2. Analysing the sample to generate a DNA profile – respectively referred to as a crime scene profile or a known person profile/suspect profile) (see Chapter 7).
Stage 3. Comparing one profile to another profile (for instance, comparing a crime scene profile to the known person profile) to see if there is a match in order to rule someone into Police enquiries or eliminate them from enquiries (see Chapter 7). The results of this comparison can

  1. Buccal swabbing is discussed in Chapter 8. It is also possible to collect a sample from a known person indirectly. For example, an indirect sample may be obtained by seizing an item that the person has disposed of such as a cup that may have a biological sample on it. Indirect collection of samples is discussed in Chapter 9.

11 KEY TERMS AND ACTORS



later be used as evidence in court, so Police sometimes refer to the casework process under the CIBS Act as “evidential” sampling or obtaining samples for investigatory purposes.
Stage 4. There is another option available within casework that only applies to crime scene samples. Instead of analysing a crime scene sample to obtain a profile that is compared to another profile, a forensic scientist can perform analysis on the crime scene sample alone (or in isolation). The purpose of this is to mine the crime scene sample for information about the person who owns the DNA. This is referred to as forensic DNA phenotyping (see Chapter 6).

DNA profile


On average, any two people share 99.9 per cent of their DNA.2 However, specific areas of the DNA molecule vary highly between people. By focusing on these areas, scientists can analyse a biological sample to generate a series of numbers, known as a DNA profile, which can accurately identify an individual. We discuss DNA profiles in Chapter 3.

DNA profile databanks


In this paper, we refer to two main types of DNA profile databank: databanks containing profiles from known individuals and databanks containing profiles associated with crime scenes.3

The Crime Sample Databank


In New Zealand, if a biological sample is collected from a crime scene, it may be analysed by the Institute of Environmental Science and Research (ESR) to obtain a DNA profile. ESR may then upload the profile onto what it calls the Crime Sample Databank. This is a databank of crime scene profiles. It is not regulated by nor even mentioned in the CIBS Act. Instead, it is governed by policies agreed between ESR and Police. When we are discussing this specific databank, we refer to it as the Crime Sample Databank (CSD). When we are talking generically about databanks that contain profiles collected from crime scenes, we refer to them as crime scene databanks.

The known person databank


The CIBS Act establishes two DNA databanks that contain DNA profiles from people whose identity is known – such as suspects or those arrested and charged with certain offences.
The original databank that was established by the Act is the DNA Profile Databank (DPD). This is sometimes referred to as the National DNA Profile Databank. It contains DNA profiles from certain convicted offenders (obtained by consent or compulsion) and from others who have provided DNA samples to police officers for the purpose of adding their profiles by consent.
The second databank is the Temporary Databank, established by the 2009 amendment. The Temporary Databank contains DNA profiles from individuals who have been charged with an imprisonable offence or the offence of peeping and peering. If a person is later acquitted of the
  1. In the case of identical twins, scientists thought until recently that they shared identical DNA. However, discoveries have now shown their DNA can be distinguished due to mutations that occur in each of their genes after the fertilised egg splits and over the course of their lifetimes.

3 Other jurisdictions use different terminology – see Table 5 in Chapter 4.

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offence or the charges are withdrawn, their DNA profile is destroyed. If a person is convicted of the offence, their profile is automatically transferred to the DPD.
The CIBS Act gives the impression that the DPD and the Temporary Databank are two separate databanks, but in practice, that is not the case. Both are stored within the same computer system and are routinely compared to the Crime Sample Databank. There are differences in the collection and retention criteria for the databanks but the profiles themselves are stored and used in virtually the same way.4 For this reason, we usually refer to the DPD and the Temporary Databank collectively in this paper as the known person databank, except when we are specifically discussing provisions in the CIBS Act. When we are talking generically about databanks that contain profiles collected from known people (for instance, such databanks in other countries) we refer to them as known person databanks. 5

KEY ACTORS


The Ministry of Justice is responsible for administering the CIBS Act. However, in practice, the operational work is conducted by two other organisations: Police and ESR. Below is a very high- level explanation of their roles and relationship.

New Zealand Police


New Zealand Police is an instrument of the Crown and one of its functions is to investigate and prosecute offences.6 In performing this function, the Commissioner of Police is not responsible to, and must act independently of, any Minister of the Crown.7
As discussed above, the CIBS Act empowers police officers, in certain circumstances, to obtain biological samples from known individuals for use in criminal casework. The Act also states that the DPD and the Temporary Databank may be maintained “by or on behalf of the Police.” However, Police has no internal DNA analytical service, and ESR provides these services to Police. Services include assistance in serious crime scene examinations, forensic analysis of biological samples, maintaining DNA profile databanks and court-related processes.

ESR


ESR is a Crown Research Institute. It operates as a company8 and has seven areas of science capability: forensic science, health science, radiation science, social science, workplace drug

  1. One significant difference in relation to use is that only information stored on the DPD can be shared with a foreign country in response to a request made pursuant to the Mutual Assistance in Criminal Matters Act 1992. This is discussed in Chapter 12.
  2. There are two other largely unregulated known person databanks that Police operate. One is the Criminal Investigators Elimination Database (CIED), which contains profiles from investigators and scientists who collect and/or analyse DNA samples. Section 82 of the Policing Act 2008 provides that Police employees and associates may voluntarily provide a bodily sample for DNA profiling. The Policing Act does not, however, expressly mention the CIED. This is discussed in Chapter 10. The second is the Y-STR population databank, which contains DNA profiles collected from known individuals who complete a voluntary ethnicity form. These profiles are then anonymised and assist ESR in calculating likelihood ratios and in conducting ethnic inferencing. This is discussed in Chapters 6 and 11.

6 Policing Act 2008, ss 7(1) and 9.

7 Policing Act 2008, s 16(2)(c).

8 Crown Research Institute Act 1992, s 11.

13 KEY TERMS AND ACTORS


testing, food science and water science. It provides knowledge, research and laboratory services in all of these areas.
ESR has provided forensic science services to Police since before the CIBS Act came into force in 1996. Originally, this was done by way of a bulk-funding arrangement, but in 1998, this changed to a fee for service billing model set out in a Forensic Science Services Agreement. Periodically, Police and ESR negotiate a new agreement setting out the fees. The most recent agreement covers the years 2018-2021.
The agreement is based on the fundamental principle that ESR will be Police’s “sole source provider” of forensic science services.9 Under the agreement, ESR undertakes all DNA profiling mandated by the CIBS Act as well as maintaining various statutory and non-statutory DNA profile databanks. It is not, however, directly or indirectly referred to in the CIBS Act.







































9 Police and ESR “Forensic Science Services Agreement” 2018-2021 at [10].

DNA - DNA IN CRIMINAL INVESTIGATIONS 14



Executive summary

THE REVIEW PROCESS AND THIS ISSUES PAPER

  1. The Law Commission is reviewing the use of DNA in criminal investigations, with particular focus on the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act). Our terms of reference ask us to determine whether the CIBS Act is keeping pace with developments in forensic science, international best practice and public attitudes and whether it gives appropriate recognition to law enforcement values and human rights, including the right to privacy.
  2. In preparing this issues paper, the Commission has engaged with a wide range of stakeholders. We held frequent meetings with New Zealand Police and the Institute of Environmental Science and Research (ESR), the two agencies that use the CIBS Act on a day-to-day basis. We established two advisory groups, one of experts and one of officials, with whom we met twice. Our Māori Liaison Committee convened a sub- committee to consult with us. We attended the Australian and New Zealand Forensic Sciences Symposium in 2016. We also met with more than 30 other interested parties, including academics specialising in law and social sciences, and experts from Australia, Canada and the United Kingdom.
  3. We launched a publicly available educational website, which included scenarios to introduce the current legislation, highlighted some of the issues we saw arising and invited general comment.
  4. As a result of our consultation and research to date, we have built on our terms of reference to identify three core objectives for our review. In short, our review aims to ensure that the law governing the use of DNA in criminal investigations is:
We discuss these objectives in Chapter 2.
  1. Using these three objectives, we have identified issues with the current law governing the use of DNA in criminal investigations and we have developed various options for reform. This issues paper sets out those issues and options. We also arrive at some preliminary proposals, key to which is our view that it is time for a new Act.

15 EXECUTIVE SUMMARY


  1. The purpose of this issues paper is to facilitate consultation and foster public debate. Many of the issues and options are relatively technical and so our target audience is primarily those who work in the criminal justice sector or a related scientific, academic or legal field. However, some core issues would benefit from much wider public debate. To promote that debate, we are relaunching an updated version of our website at https://dna-consultation.lawcom.govt.nz.
  2. We are calling for submissions on this paper until 31 March 2019. Submissions can take any form, but we have included questions in the issues paper (and on the website) to give submitters an indication of the areas where we think feedback would be most valuable. A copy of the full list of our questions is at the end of this issues paper. The submissions we receive, both in response to this issues paper and through our website, will inform our final report, which we intend to provide to the Minister of Justice in the latter half of 2019.

HOW IS DNA USED IN CRIMINAL INVESTIGATIONS?

Part A: A general overview

  1. Part A of this paper deals with background and conceptual matters. This includes a summary of the science involved in forensic DNA analysis (Chapter 3).
  2. Police primarily use DNA to link people to crime scenes. This involves collecting and analysing biological samples (for example, blood or skin cells) from known people and from crime scenes. These are called reference samples and crime scene samples, respectively.
  3. The samples are analysed by ESR (on behalf of Police) to generate DNA profiles. A DNA profile is a series of numbers and letters that can accurately identify an individual. The profile from the crime scene sample is then compared to the profile from the known person to see if they match. This process is referred to as a forensic comparison.
  4. If the two profiles match, that can be a strong indication that the known person was at the crime scene. If the two profiles do not match, that person may not have been there. This kind of information can be vital in a criminal investigation.
  5. Part A also sets out the case for needing a new Act that replaces the CIBS Act. Our paper is based on this proposition, and the chapters that follow explore the options for what that new Act should say.

Part B: Casework

  1. The CIBS Act provides a statutory framework for Police to obtain biological samples directly from suspects (the suspect regime). This is one form of reference sample. Another type of reference sample is an elimination sample. These samples are obtained from known people whose DNA may be present in a crime scene sample but who are not suspects. These people may include victims, third parties and investigators. The CIBS Act does not cover elimination samples.
  2. Nor does the CIBS Act address indirect suspect sampling. This is when a biological sample relating to a suspect is obtained by police officers through a secondary source, for example, from a personal item belonging to the suspect, such as a toothbrush.

DNA - DNA IN CRIMINAL INVESTIGATIONS 16


  1. Where a forensic comparison occurs or where a crime scene sample is analysed in isolation within a specific criminal investigation, we refer to this as “casework”. This term covers the entire process, from the collection of crime scene and reference samples right through until the matter goes to trial and/or the investigation is closed. Part B of this issues paper (Chapters 5 to 9) relates to casework.

Part C: Databanks

  1. The CIBS Act also establishes what we refer to as the known person databank. This is maintained by ESR on behalf of Police.
  2. The Act itself refers to two databanks: the DNA Profile Databank (DPD) and the Temporary Databank. As we explain throughout this paper, the DPD and the Temporary Databank are not really distinct databanks, as they are each used by Police in almost exactly the same way. In this issues paper we refer to them jointly as the known person databank.
  3. The Act provides various different ways in which a police officer can obtain a biological sample from a person for the purpose of generating a DNA profile and storing it on the known person databank (a databank sample). At present, the most common way is for a police officer to require a person to provide a databank sample when they arrest or intend to charge the person with an imprisonable offence. If the charge is later withdrawn or the person is acquitted, their profile is removed from the known person databank.
  4. ESR regularly compares the known person databank to a databank of crime scene profiles, which it also maintains on behalf of Police. (ESR calls this the Crime Sample Databank, and we will refer to it as such throughout this issues paper.) The Crime Sample Databank (CSD) is not mentioned in the CIBS Act. It contains DNA profiles that have been generated from crime scene samples. If a comparison between the CSD and the known person databank results in a match, that information is forwarded to Police in the form of a link report. Again, this may provide Police with useful information that can help to resolve a criminal investigation.
  5. Technically, it is possible to use the CSD and the known person databank within the confines of a specific investigation, as we discuss in Chapter 8: Reference samples – direct collection. However, most of the time the databanks are used to generate investigative leads in cases other than the one for which the databank sample was originally taken. Part C of this paper (Chapters 10 to 13) considers the issues and options relating to databanks more generally.

Part D: Retention and oversight

  1. Part D of this issues paper then deals with two over-arching topics: the retention of biological samples and DNA profiles (Chapter 14) and oversight (Chapter 15).

UNDERLYING THEMES

  1. There are three underlying themes to the issues that we identify in this paper:

17 EXECUTIVE SUMMARY


The purpose and structure of the CIBS Act

  1. One of the recurring themes is that the purpose of the CIBS Act is unclear and its internal structure is confusing.
  2. The CIBS Act came into force in 1995 and has been the subject of two major amendments: one in 2003 and a second in 2009. These amendments blurred the original purpose and structure of the Act. It is now no longer clear whether DNA should be used primarily to investigate sexual and violent offending, or whether it should be used to investigate any criminal offence. This is important because it affects the decisions that are made around what DNA profiles are uploaded onto the CSD and the known person databank, as we discuss in Chapter 2: Framework for analysis, Chapter 10: Crime Sample Databank and Chapter 11: Known person databank – collection.
  3. The role of the Temporary Databank, which was introduced in 2009, is also unclear. The power that enables police officers to obtain DNA profiles for the Temporary Databank can be used in a way that undermines both the original suspect regime in the CIBS Act and the original regime governing the DPD. Unlike those two regimes, the process of obtaining databank samples for the Temporary Databank is not expressly subject to any court oversight. We explain why we see that as problematic in Chapter 8: Reference samples – direct collection and Chapter 11: Known person databank – collection.
  4. A further issue is that several significant matters are not addressed in the CIBS Act. For instance, unlike equivalent legislation in some comparable jurisdictions, the Act does not regulate elimination sampling or the CSD. This may be because New Zealand was one of the first countries to enact a legislative regime for using DNA in criminal investigations. Early adoption of such a regime has meant that New Zealand did not have the benefit of learning from the experiences of its international counterparts. Many of those countries have since adopted legislation that provides a more complete picture of how DNA and DNA profile databanks are used in policing. We look at the reasons why it might be beneficial to place a statutory framework around elimination sampling and the Crime Sample Databank (CSD) in Chapter 8: Reference samples – direct collection and Chapter 10: Crime Sample Databank, respectively.
  5. Another matter that is not covered by the CIBS Act is indirect suspect sampling. The relationship between indirect suspect sampling and the suspect regime in the CIBS Act is not clear. Furthermore, there is some doubt as to whether a police officer can currently obtain a search warrant to seize a suspect’s personal belongings and to arrange for DNA profiling. Additional doubt arises where a police officer may wish to seize a pre-existing biological sample that has been collected for a medical purpose (such as a suspect’s newborn blood spot card). There is also legal uncertainty around collecting and analysing items found in public places (such as a cup thrown in a rubbish bin by a suspect). We explore these issues in Chapter 9: Reference samples – indirect collection. We also discuss related concerns around the availability of search warrants to collect and analyse crime scene samples in Chapter 5: Crime scene examinations.

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Public misconceptions and measures of effectiveness of DNA profiling

  1. A second underlying theme in this paper is that there are public misconceptions about the use of DNA in criminal investigations.
  2. This phenomenon is not limited to New Zealand. Research, particularly around jury trials, has shown that members of the public often expect DNA analysis to play a pivotal role in resolving most criminal investigations, particularly those involving sexual and violent offending. There are several high-profile examples of DNA being used in this way, and popular television dramas, such as CSI: Crime Scene Investigation, may have inflated public expectations. The reality is somewhat different, as we discuss in Chapter 2: Framework for analysis, Chapter 5: Crime scene examinations and Chapter 10: Crime Sample Databank.
  3. Exact figures are unknown, but research suggests that crime scene samples are collected and sent away for DNA profiling in 0.5–2 percent of all criminal investigations in New Zealand. Furthermore, some of these crime scene samples will not contain enough DNA to enable a scientist to generate a usable DNA profile. Others will be sent for analysis, even though the identity of the offender is already known. This highlights why DNA profiling should be treated as just one of the many investigative tools that need to be made available to Police.
  4. In addition, around three-quarters of the DNA profiles currently on the CSD relate to “non-suspect volume crime”, that is, investigations into burglary, general theft or vehicle crime (theft of, or from, a vehicle) where there is no suspect sample available for comparison. This suggests that the databanks may be most effective in resolving investigations into property offending as opposed to sexual or violent offending.
  5. However, this is not certain. While Police report the number of matches between the CSD and the known person databank each year (around 2,000–2,500), it does not routinely collect any additional data on the nature or impact of these matches. We do not know the type of investigations the matches relate to, whether they were followed up or whether they assisted in resolving the investigations.
  6. There is also a pressing need in New Zealand to gather more data to measure how effective our DNA profile databanks are. This will help to identify where improvements can be made. In particular, it will help to ensure that the intrusions on individual privacy that are inherent in maintaining a known person databank are justified by the law enforcement benefits. That issue is central to Chapter 11: Known person databank – collection.
  7. In terms of the known person databank, there may also be public misconceptions as to whose DNA profiles are on it. The CIBS Act empowers police officers to obtain databank samples from people who have been charged with, or convicted of, an imprisonable offence.
  8. However, as we explain in Chapter 11: Known person databank – collection, those statutory collection powers are broad and discretionary. Only some of the people who qualify are required to provide a databank sample. This leaves room for inconsistency and unconscious racial bias. There is a risk that the known person databank could then exacerbate any bias by enabling more efficient policing of the people whose profiles are already on it. This is a particular concern for Māori. The Police Commissioner has

19 EXECUTIVE SUMMARY



acknowledged that there is unconscious bias against Māori in policing. The risk of exacerbating these issues should not be taken lightly.
  1. Compounding these issues is the fact that police officers can also obtain databank samples by consent. The CIBS Act does not place any constraints around this power. As such, there is no way of knowing why some people will have been asked to provide databank samples but not others. Historically, obtaining databank samples by consent was very common, and over half of the DNA profiles currently on the known person databank were generated from such samples. Some of these people may never have been charged with, or convicted of, imprisonable offending (and have never asked to have their profiles removed).
  2. Finally, a common misconception we discuss throughout the paper is that a DNA profile is a modern-day fingerprint. Similar to a fingerprint, DNA is something that can be used to accurately identify that person. But as the Supreme Court of Canada has observed, “[u]nlike a fingerprint, [DNA] is capable of revealing the most intimate details of a person’s biological makeup”.1
  3. It is true that, at present, reference and databank samples are only analysed to the extent needed to generate a DNA profile. That profile does not consist of the person’s entire genome sequence (that is, the complete set of genetic information contained in the DNA of an organism). In humans, this consists of all 3 billion base pairs, written out in sequence. Instead, the profile consists of up to 42 numbers and (usually) two letters. The numbers represent measurements taken at specific places on the non-coding regions of a person’s genome. These locations were chosen because it was believed that they would not reveal any information about a person’s genetic characteristics. The letters reflect a sex test and are usually XX or XY. When profiling first began, a DNA profile was viewed as being an uninformative (aside from sex) but virtually unique barcode.
  4. However, there are two important points to note. First, a person’s biological sample, containing their entire genome, is still collected and retained by the State, albeit briefly. How the samples are dealt with is therefore very important for maintaining public trust, as we discuss in Chapter 14: Retention of samples and profiles. Second, the CIBS Act does not place any limitations around the nature or amount of information that can be included in an individual’s DNA profile.
  5. This second point is a problem because, as we explain in Chapter 7: Forensic comparisons, the current trend is towards including more and more information in DNA profiles. There are sound scientific reasons for this trend, but there are also privacy implications. Relatedly, the Act does not place any limitations on how crime scene samples can be analysed, as we discuss in Chapter 6: Forensic DNA phenotyping, or on the type of research that can be conducted using the DNA profile databanks in an anonymised form, as we discuss in Chapter 12: Known person databank – use.
  6. Put simply, no other biometric data can reveal anywhere near the amount of personal information that is contained in a DNA molecule. This means that, while DNA can be a powerful tool in criminal investigations, its use raises significant privacy concerns far beyond those associated with fingerprinting, as we discuss in Chapter 6: Forensic DNA

1 RC v C 2005 SCC 61, [2005] SCR 99 at [27].

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phenotyping, Chapter 12: Known person databank – use and Chapter 13: Familial searching.

Scientific developments and international responses

  1. The third underlying theme in this paper is that scientists are constantly learning more about DNA and developing new DNA analysis techniques. This poses a significant challenge for those seeking to regulate the use of DNA in criminal investigations.
  2. A prime example is that, over time, reference and databank sampling by Police has become less physically invasive but has become more intrusive into privacy.
  3. When the CIBS Act was enacted in 1995, a police officer had to obtain a blood sample from a person in order to obtain enough DNA for a scientist to generate a DNA profile. This required a medical practitioner to either prick the person’s finger or extract blood from their vein using a syringe. This was a grave intrusion on autonomy and bodily integrity, so robust statutory safeguards were put in place. Many of these safeguards were then retained when the less physically intrusive option of buccal sampling was introduced in 2003. Buccal sampling involves a person rubbing a swab on the inside of their own mouth. The change caused a disjunct between the level of physical intrusion in the sampling process and the statutory safeguards, as we explain in Chapter 8: Reference samples – direct collection.
  4. At the same time, the amount of information routinely included in DNA profiles has increased since 1995. In addition, new DNA analysis techniques have emerged that push the boundaries of compliance with NZBORA and that Parliament has not yet expressly considered.
  5. One example is forensic DNA phenotyping. This is when a crime scene sample is analysed to predict aspects of the physical appearance of the person who left the sample. This may include inferring the person’s ethnicity. This technique may be discriminatory on the basis of ethnicity. It also raises practical and ethical concerns, as we discuss in Chapter 6: Forensic DNA phenotyping.
  6. A second example is familial searching. This is when a scientist compares the CSD and the known person databank and looks for near matches. A near match may indicate that a close relative of the person on the known person databank was responsible for the crime scene sample. We consider that this technique is likely discriminatory on the basis of family status, as we discuss in Chapter 13: Familial searching. We explore whether its use may, nevertheless, be justified in limited circumstances.
  7. Another scientific development that Parliament has not expressly considered is the emergence of increasingly sensitive DNA technology. This can be used to generate a DNA profile from the skin cells left behind on an item that a person has merely touched. This kind of technology has existed since 2007, and it is becoming increasingly commonly used. It heightens concerns around background DNA (DNA that was at the crime scene before any offence occurred), transferred DNA (DNA that is transferred via a third person to a crime scene) and contamination, as we discuss in Chapter 7: Forensic comparisons.
  8. How to address these and other scientific developments is the subject of continuing international discussion. As a partial solution, many countries have established independent bodies to oversee the operation of DNA profile databanks and the use of DNA in criminal investigations more generally. This provides a measure of public

21 EXECUTIVE SUMMARY



accountability and transparency, whilst also enabling legislation to be flexible enough to accommodate continuing scientific change. We look at the oversight framework in comparable jurisdictions in Chapter 15: Oversight. In doing so, we emphasise that an important feature of any oversight regime in New Zealand will need to be providing a central role for Māori. That is because Māori are currently over-represented in the criminal justice system and are more likely to be adversely affected by use of discretionary powers, forensic DNA phenotyping, familial searching, research on the databanks and retention of biological samples and DNA profiles. In those circumstances, the Treaty principles of active protection, equity, rangatiratanga and partnership indicate that Māori should have an active role in all governance decisions.

PRINCIPAL PROPOSALS FOR REFORM

  1. These are the two main proposals for reform in this issues paper:
These proposals are mentioned throughout this paper, but given their centrality, they are also the subjects of Chapter 4: Time for a new Act and Chapter 15: Oversight.
  1. In the paper, we also put forward several different options and some preliminary views on how a new Act could be framed to help to address the issues we have identified. This includes discussions of the following:

DNA - DNA IN CRIMINAL INVESTIGATIONS 22



(d) How the effectiveness of the DNA profile databanks (or a new DNA database system) should be measured and monitored. This includes discussion of possible reporting requirements and of auditing and monitoring functions, including assessing consistency with NZBORA and the principles of the Treaty of Waitangi and looking at privacy and tikanga issues, which could be given to an oversight body: Chapter 10: Crime Sample Databank.
(e) How to regulate the DNA profiling process and other forms of DNA analysis. This could include placing statutory rules around the introduction of new DNA analysis techniques, defining “DNA profile” in a more meaningful way, describing standard DNA analysis in statute; and/or including guiding principles around what kinds of analysis are permissible: Chapter 7: Forensic comparisons.
(f) Whose DNA profiles should be stored on the known person databank. We discuss options relating to whether databank samples should be collected from convicted offenders, suspects, anyone who agrees to provide a databank sample by consent or all New Zealand residents (otherwise known as a universal databank). We put forward variations on each of these options and explore the advantages and disadvantages: Chapter 11: Known person databank – collection.
(g) Whether suspect and databank samples should still be obtained by informed consent. As an alternative, we explore whether new regimes based around court orders or contestable notices issued by senior police officers could be introduced. We also consider how the procedures surrounding consent could be improved if the alternative options are not favoured: Chapter 8: Reference samples – direct collection and Chapter 11: Known person databank – collection.
(h) Whether the process of obtaining reference and databank samples could be made less physically intrusive and more compliant with tikanga Māori, for instance, by introducing new sampling methods and/or alternatives to the use of reasonable force, if a person refuses to comply with a court order, notice or statutory rule requiring them to provide a sample: Chapter 8: Reference samples – direct collection.
(i) How the indirect and direct suspect sampling processes interact with each other. We propose that this is one of the areas where the courts and/or an oversight body could have an active role: Chapter 9: Reference samples – indirect collection.
(j) How forensic DNA phenotyping, familial searching, the use of newborn blood spot cards and mass screening could be dealt with in statute. In relation to each, we propose a permissive but conservative approach. We also explore a variety of options involving the courts and/or an oversight body having a statutory role: Chapter 6: Forensic DNA phenotyping, Chapter 13: Familial searching, Chapter 9: Reference samples – indirect collection and Chapter 8: Reference samples – direct collection.
(k) Whether new legislation should clarify the rules around using the known person databank for research purposes or to obtain and share information with a foreign law enforcement agency. We suggest that there should be more transparent rules around these uses and put forward options for expanding international information sharing and limiting permissible research: Chapter 12: Known person databank – use.
(l) Whether the rules governing the collection, analysis and destruction of crime scene samples in the Search and Surveillance Act 2012 should be amended and whether

23 EXECUTIVE SUMMARY



the general search warrant provision in that Act should also be amended: Chapter 9: Reference samples – indirect collection.
(m) How to increase transparency around the length of time biological samples are retained by Police and how they are destroyed. This includes a discussion of what should happen to crime scene samples and possible new mechanisms to facilitate convicted offenders obtaining access to those samples in certain circumstances for re-analysis: Chapter 14: Retention of samples and profiles.
(n) Whether there is a need to introduce a new legislative regime around the retention of DNA profiles on the known person databank that is simpler, places a greater emphasis on rehabilitation, and facilitates the removal of profiles after death. We propose different options as to how such a regime could be structured: Chapter 14: Retention of samples and profiles.

BROADER ISSUES

  1. In preparing this paper, we became aware of several broader issues that fall outside our terms of reference. These issues provide important context for the discussions in this paper. We put forward options for reform that could address aspects of these broader issues as well. The issues fall into three categories.

The use of non-DNA based forensic sciences in criminal investigations

  1. Non-DNA-based forensic science includes fingerprint, bite mark, hair, ballistic and footprint analysis. As we explain in Chapter 7: Forensic comparisons, two highly influential reports have recently been released on this topic in the United States. As we explain in Chapter 15: Oversight, an independent oversight body could be established to oversee the use of forensic science in investigations more generally, not just Police’s use of DNA in criminal investigations.

The presentation of expert scientific evidence in court

  1. There is a growing body of research in New Zealand and overseas regarding the dangers posed by the presentation of expert evidence by scientists in court. This includes scientists discussing DNA evidence. Put simply, there are fears that juries often do not understand scientific evidence, especially when it is presented in the form of probabilities, and that therefore they are unable to properly assess it.
  2. As we explain in Chapter 7: Forensic comparisons, this issue is largely outside our terms of reference because it concerns scientific evidence more generally and many of the solutions relate to the law around expert evidence and trial procedure. That law is not contained in the CIBS Act. Nonetheless, we suggest that changes could be made to the CIBS Act to make the DNA analysis process more robust and transparent. This could provide some reassurance around the nature and quality of any evidence given about that process at trial.

The use of DNA in non-criminal investigations

  1. Police does not just investigate criminal offences. It is also responsible for other kinds of investigations, including the identification of missing persons and disaster victims. In

DNA - DNA IN CRIMINAL INVESTIGATIONS 24


Chapter 10: Crime Sample Databank, we explain that it can be difficult for police officers to know at the outset whether an investigation involves criminal offending. If there is no clear indication that criminal offending is involved, the known person databank and the CSD probably cannot be used for identification purposes.
  1. However, as previously noted, Australia, Canada and Ireland have established DNA database systems that include indices for DNA profiles from unidentified human remains and relatives of missing persons. The rules around permissible matching prevent these DNA profiles from being inappropriately matched to unrelated crime scenes profiles. In a similar vein, the United Kingdom has established the Missing Persons DNA Database.
  2. Non-criminal investigations fall outside the scope of our terms of reference, but the option of establishing a DNA database system is one that we put forward in this paper. If this option were preferred, it could be structured to help address the broader issues around missing persons and disaster victim identification.



















Part A

Preliminary matters
































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DNA - DNA IN CRIMINAL INVESTIGATIONS 26

CHAPTER 1



Introduction




1.1 In July 2016 the Government asked the Law Commission to review the law governing the use of DNA in criminal investigations in New Zealand. The review is primarily focused on the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act).
1.2 The CIBS Act provides the framework for New Zealand Police to obtain biological samples from suspects in criminal investigations. It also regulates two known person DNA profile databanks that are maintained on behalf of New Zealand Police by the Institute of Environmental Science and Research (ESR).
1.3 The full terms of reference for the review are set out in Appendix 1. As stated in those terms, the purpose of the review is:

[T]o determine whether the current legislation is fit for purpose and whether it is keeping pace with developments in forensic science, international best practice and public attitudes, in relation to the collection, retention and use of DNA in criminal investigations. The review will also examine whether the Act gives appropriate recognition to both law enforcement values and human rights, including the right to privacy.

1.4 The Law Commission will report to the Minister in 2019.

ORIGINS OF THIS REVIEW

The trend of expanding DNA profile databanks


1.5 Since the mid-1980s, DNA profiling has become an important crime fighting tool worldwide.1 By comparing DNA found at crime scenes to DNA from known individuals, investigators have been able to identify suspects and rule out innocent people.
1.6 The forensic comparison process generally involves generating DNA profiles. A DNA profile is a unique series of numbers that can be generated by analysing a biological sample (for example blood, saliva or skin cells). If a DNA profile generated from a biological sample found at a crime scene is the same as a DNA profile from a known individual, there is a high likelihood that the same person was responsible for both samples. This can be very important information in a criminal investigation.
  1. DNA profiling was first used in a serious criminal investigation in the United Kingdom in 1986. The Pitchfork case involved the rape and murder of two 15-year-old girls, three years apart, and other serious and violent offending. DNA was used to exonerate the person originally arrested for one of the murders and to implicate Colin Pitchfork. The police had organised mass screening of local males in 1987 and later discovered that Mr Pitchfork had bribed another person to provide a blood sample on his behalf. Mr Pitchfork was arrested, confessed and pleaded guilty to the murders and other charges. A summary of the facts is contained in R v Pitchfork [2009] EWCA Crim 963 at [4]–[11]. The United Kingdom established the world’s first DNA profile databank in 1995. New Zealand followed suit a few months later that same year.

27 CHAPTER 1: INTRODUCTION



1.7 Initially, DNA profiling was only used within the confines of individual cases. However, from 1995 onwards, several countries, including New Zealand, established DNA profile databanks to capitalise on this developing science.2 By creating crime scene databanks containing DNA profiles associated with unresolved crimes and known person databanks containing DNA profiles from known individuals (commonly those convicted of serious offending), investigators could conduct a wide-ranging forensic comparison process.
1.8 The international trend over the last 20 years has been for DNA profile databanks to expand. This has occurred in three ways. First, more information is being included in each DNA profile. Second, the number of profiles contained in crime scene databanks has increased. Scientists can now generate DNA profiles from a broader range of crime scene samples and can do so more cheaply. Third, the number of profiles held on known person databanks has increased as countries have enabled the collection and analysis of biological samples from more known individuals.
1.9 In respect of known individuals, countries first focused on collecting and retaining DNA profiles from convicted sexual and violent offenders.3 Over time, several countries began collecting DNA profiles in respect of less serious offending as well. Some also collected it earlier in criminal proceedings, at the point when individuals were arrested or charged. The result is that more people have ended up with their DNA profiles on known person databanks. At the farthest end of the spectrum, Kuwait passed a law in 2015 requiring all of its citizens to provide DNA samples for a national known person databank.4 This law has been successfully challenged in Kuwait’s Constitutional Court where it was ruled unconstitutional.5

New Zealand’s expanding use of DNA: legislative changes in 2009


1.10 New Zealand has followed the international trend of expansion. The CIBS Act established a known person databank in 1996, and the collection criteria for the databank were expanded in 2003 and again in 2009.6 The 2009 changes significantly lowered the threshold so that biological samples can now be obtained from any adult that a police officer intends to charge with an imprisonable offence or the offence of peeping and peering.7 The term “imprisonable offence” covers a wide range of behaviour from murder to wilfully opening a letter that is not addressed to you. These changes mean that, if a police officer intends to charge an individual with an imprisonable offence, the officer has

2 It appears that there are now around 64 countries that have operational forensic DNA databases. See

<http://dnapolicyinitiative.org/wiki/index.php?title=Global_summary> .

  1. Martin PD and others “A brief history of the formation of DNA databases in forensic science within Europe” (2001) 119 Forensic Science International 225 at 229.

4 Kuwait Law No 78/2015 on DNA.

  1. Andy Coghlan “Kuwait to change law forcing all citizens to provide DNA samples” New Scientist (online ed, London, 21 October 2016); and Jaber Al-Hamoud “High Court Rules Against Controversial Law on DNA: ‘Articles Violate Constitution’” (6 October 2017) Arab Times <www.arabtimesonline.com/news/>.
  2. The Criminal Investigations (Blood Samples) Act was passed in 1995 and amended by the Criminal Investigations (Bodily Samples) Amendment Act 2003 and Criminal Investigations (Bodily Samples) Amendment Act 2009.
  3. Criminal Investigations (Bodily Samples) Act 1995, s 24J. An imprisonable offence is any offence that can be punished by a term of imprisonment. For example, the following offences are imprisonable as they can be punished by imprisonment for up to three months: disorderly behaviour; wilful damage; intimidation, seeking donations by false pretence; resisting Police; indecent exposure; possession of cannabis; theft if the value of stolen property is less than

$500; depositing dangerous litter without consent; wilful breaking of bottles in public places and wilfully opening a postal article not addressed to you. However, it would be rare (if it has occurred at all) for the courts to sentence an individual to a term of imprisonment for committing one of these offences.

DNA - DNA IN CRIMINAL INVESTIGATIONS 28



the power to require a biological sample and the individual must comply. There is no court oversight of the exercise of these powers.8 These changes were quickly moved through Parliament as part of the (then) Government’s post-election 100-day reform programme.
1.11 At the time, the (then) Attorney-General reported to Parliament that, in his view, the 2009 changes would be inconsistent with section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA), which protects against unreasonable search and seizure.9 Parliament decided to pass the legislation in any event.10 However, the Attorney-General’s concerns and general concerns about the speed with which the Act had been passed and its cost implications prompted Cabinet to agree to a future review of the Act’s operation.11 It also led to Police and the Ministry of Justice developing operational guidelines on how police officers should exercise these new powers.12

Growing international debate


1.12 The Attorney-General’s report highlighted a 2008 decision of the European Court of Human Rights, S & Marper v United Kingdom.13 In S & Marper, the Court held that aspects of the United Kingdom’s DNA profile databank regime violated the right to a private life and family life as protected by the European Convention on Human Rights.14 This decision led to major law reform in the United Kingdom.15 The litigation also fuelled wider debates in the United Kingdom around the legal and ethical implications of both DNA profile databanks and of emerging DNA analysis techniques, including forensic DNA phenotyping and familial searching.16

8 This is discussed in more detail in Chapter 11.

  1. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (2009) (10 February 2009).

10 The legislation passed with 108 ayes and 14 noes: (28 October 2009) 658 NZPD 7506.

  1. Ministry of Justice and Treasury Criminal Investigations (Bodily Samples) Amendment Bill 2009: Regulatory Impact Statement (February 2009), which stated at 5:

It is proposed that the Ministry of Justice undertake a review of the Criminal Investigations (Bodily Samples) Act 1995 to review the operational and cost effectiveness of the entire Act, any amendments made, any advances in technology, and the impact of the legislation on population groups including Māori. This review should be completed by August 2011.

This review was delayed and then ultimately referred to the Law Commission. See our terms of reference at Appendix 1.

  1. Police Manual – the operational guidelines are set out in the chapter on DNA sampling. This guidance is discussed in Chapter 11. The Police Manual consolidates New Zealand Police rules and policy, including relevant law, and contains numerous individual chapters on each aspect of policing. It contains standard operating practice, principles and procedure that should be followed, although Police may work outside this standard operating practice where it is justified to do so. The Police Manual is in the form of an electronic database and is not available in hard copy. In this issues paper, we cite the chapter name and page reference from the electronic database.
  2. S and Marper v The United Kingdom [2008] 5 ECHR 167 (Grand Chamber). We discuss this case in further detail in Chapter 11.
  3. Formerly known as the Convention for the Protection of Human Rights and Fundamental Freedoms (signed 4 November 1950, entered into force 3 September 1953). Article 8 provides:

Right to respect for private and family life:

  1. Everyone has the right to respect for his private and family life, his home and his correspondence.
  2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

15 This culminated in the Protection of Freedoms Act 2012 (UK).

  1. Forensic DNA phenotyping and familial searching are discussed in Chapters 6 and 13, respectively. For the wider debate, see Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007); and

29 CHAPTER 1: INTRODUCTION



1.13 Similar debates in the United States were fuelled by the 2013 case of Maryland v King.17 In a split decision (5:4), the United States Supreme Court found that Maryland’s DNA profile databank regime was constitutional. The majority held that Maryland’s policy of obtaining biological samples from persons arrested for serious criminal offending was justified as a “routine booking procedure” to confirm identity and inform bail decisions.18 The potential use of the DNA profile databank as an investigative tool was only mentioned in passing. The dissent, on the other hand, focused on the use of the databank as an investigative tool, finding that Maryland’s policy was unconstitutional on the basis that it amounted to routine suspicionless searches of arrested persons primarily for investigative purposes in relation to other offending. The dissenting opinion revealed a deep division in the views of the Court and described the majority’s reasoning as “tax[ing] the credulity of the credulous”.19

THE LAW COMMISSION’S APPROACH


1.14 In preparing this issues paper, the Law Commission has engaged with a wide range of stakeholders. We held a number of meetings with Police and ESR, the two agencies that use the CIBS Act on a day-to-day basis. We established two advisory groups, one of experts and one of officials, with whom we met twice. Our Māori Liaison Committee convened a sub-committee to consult with us. We attended the Australian and New Zealand Forensic Sciences Symposium in 2016. We also met with more than 30 other interested parties, including academics specialising in law and social sciences, and experts from Australia, Canada and the United Kingdom. We also created a website to inform and engage with the public.
1.15 During these initial discussions, a consensus emerged. It is time for a new Act. The CIBS Act is based on outdated science. Multiple amendments to implement conflicting policies have made it complex and inaccessible. We set out the history of the CIBS Act and why we think it should be repealed in Chapter 4. The rest of our issues paper sits on this premise that it is time for a new Act. The chapters that follow on from Chapter 4 then explore the more contested question: What should a new Act say?

Who is this issues paper for?


1.16 Our primary audience is those who work in the criminal justice sector or in related scientific, academic or legal fields. We have included a series of questions in this paper aimed at this audience. We seek submissions on these questions and any other feedback to improve our understanding of how DNA is currently used in criminal investigations and where the main issues and opportunities for improvement lie.






United Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009).

17 Maryland v King 569 US 435 (2013).

18 Maryland v King 133 S.Ct. 1958 (2013) at 440 per Kennedy J.

19 Maryland v King 133 S.Ct. 1958 (2013) at 466 per Scalia J.

DNA - DNA IN CRIMINAL INVESTIGATIONS 30



1.17 However, a number of the central issues raise significant ethical questions for our society and would benefit from more extensive public debate. These issues are addressed in this paper, which will be publicly available. We are also relaunching an updated website aimed at generating discussion and seeking public submissions and feedback on broader ethical questions. The website is available at https://dna-consultation.lawcom.govt.nz. Submissions are due by 31 March 2019.
1.18 The submissions and feedback we receive in response to this paper and our website will inform our final report to the Minister of Justice, which we intend to publish in the latter half of 2019. The report will contain our recommendations for reforming the law in this area.

STRUCTURE OF THIS PAPER


1.19 This issues paper is divided into the following four parts:

31 CHAPTER 1: INTRODUCTION


1.20 Research for this issues paper was completed as at 31 October 2018. Data in this issues paper is current as at 30 June 2018.20 Relevant updates will be included in the final report.
1.21 We note that much of our research has been informed by information and documentation provided to us by Police and ESR, including information set out in the Forensic Science Services Agreement between Police and ESR 2018-2021. As some of these documents have been provided to us on a confidential basis or are commercially sensitive, we are unable to quote from them. We have provided references where possible.










































  1. We note for completeness the decision of the Supreme Court in Attorney-General v Taylor [2018] NZSC 104, delivered on 9 November 2018 while we were preparing for publication. In that decision, the Supreme Court confirmed the jurisdiction of the High Court to make a declaration that legislation is inconsistent with the New Zealand Bill of Rights Act 1990.

DNA - DNA IN CRIMINAL INVESTIGATIONS 32

CHAPTER 2



Framework for analysis



INTRODUCTION


2.1 The Legislation Guidelines that have been approved by Cabinet identify three core objectives for all high-quality law in New Zealand: legislation should be fit for purpose; constitutionally sound; and accessible.1 These three objectives are also at the heart of our terms of reference. That is because, when the terms of reference were agreed, there was evidence to suggest that the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) might be deficient in all three areas.
2.2 We have used the objectives articulated in the Legislation Guidelines as a starting point to develop the framework for analysis of the current law and practice relating to the use of DNA in criminal investigations. By knowing what kind of legislation we want, it is possible to identify what the current issues are and what appropriate options for reform might look like.
2.3 In this chapter, we explain what we consider “fit for purpose”, “constitutionally sound” and “accessible” to mean in the context of our review. In doing so, we draw on our terms of reference,2 the Legislation Guidelines and relevant Law Commission reports and study papers concerning search and surveillance, privacy and tikanga Māori.3
2.4 In Chapter 4, we use this framework for analysis to provide a high-level overview of why we consider that the CIBS Act should be repealed and replaced by new legislation.
2.5 In Chapters 5 to 14, we examine the CIBS Act in more detail and look at the wider law and practices governing the use of DNA in criminal investigations. We identify the areas where change is needed and put forward options for improvement. In doing so, we again focus on the three core objectives that we explore in this chapter.








1 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8.

2 The terms of reference are set out at Appendix 1.

  1. Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017); Law Commission Search and Surveillance Powers (NZLC R97, 2007); Law Commission A Conceptual Approach to Privacy (NZLC IP19, 2007); Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008); Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17, 2006); and Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001).

33 CHAPTER 2: FRAMEWORK FOR ANALYSIS


FIT FOR PURPOSE


2.6 The Legislation Guidelines explain that to be fit for purpose, legislation should:4
2.7 We now consider each of these points as they relate to the CIBS Act.

(a) A clear purpose, robustly tested


2.8 We do not think that the purpose of the CIBS Act is clear at present.6 There is also considerable room for debate as to what its purpose should be. Given that this is a central issue in our paper, it is worth briefly outlining some of the difficulties in this chapter.
2.9 The long title explains what the CIBS Act does. It enables police officers to obtain biological samples from known persons and it authorises the establishment of the known person databank. The databank of information derived from analysis of those samples may then be used in criminal investigations. There is nothing in the CIBS Act to explain why it was passed by Parliament. What did Parliament hope to achieve? Were there competing interests it intended to reconcile, and how did it intend to do that?7
2.10 The Parliamentary debates and surrounding documents that make up the legislative history of the CIBS Act indicate that by passing and later amending the Act, Parliament intended to:



4 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8.

  1. For a discussion on the desirability of purpose provisions in statutes, see Law Commission Reforming the Law of Contempt of Court: A Modern Statute (NZLC R140, 2017) at 35; Law Commission Second Review of the Evidence Act 2006: Te Arotake Tuarua i te Evidence Act 2006 (NZLC IP42, 2018) at 32; and Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at 60–61.
  2. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 11 explains the importance of a purpose provision as follows:

The purpose of the legislation will continue to have an ongoing key function once the legislation is enacted as it will govern how regulators organise themselves and exercise powers under legislation, and how the courts interpret the legislation. A well-articulated purpose should be capable of explaining the regime, guide interpretation of its provisions when there is uncertainty, and act as a test for decision making.

7 By way of comparison, the purpose provision in the Search and Surveillance Act 2012, s 5 states:

The purpose of this Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values by—

(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies; and
(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006; and

DNA - DNA IN CRIMINAL INVESTIGATIONS 34



(a) improve identification and prosecution of offenders, particularly sexual and serious violent offenders;8
(b) enable early elimination of suspects and exoneration of innocent people;9
(c) deter criminal offending;10 and
(d) reduce the costs of Police, due to the swift and reliable nature of DNA profiling.11

  1. The following comments were made during the Parliamentary Debates on the Criminal Investigations (Bodily Samples) Act 1995 and its subsequent amendments: (29 November 1994) 545 NZPD 5191: Hon D A M Graham (Minister of Justice):

I now turn to the obtaining of blood samples for the databank ... The databank will be used to store the DNA profiles of persons convicted of the serious offences mentioned in the schedule. The focus is on offenders who have committed, and may well commit again, the type of sexual or violent offence in respect of which a bodily sample could be left at the scene.

And at (12 October 1995) 551 NZPD 9725: Warren Kyd (Hauraki):

[This Bill] will provide much better evidence that will stand up in court. I believe that the police will be able to prosecute cases with much more certainty, and are likely to get a much higher conviction rate because of these tests ...

And at (14 October 2009) 658 NZPD 7069: Kanwaljit Singh Bakshi (National):

Current technology allows bodily samples like blood, saliva, and semen to be processed and reassembled in the form of a barcode that can be matched with other samples taken from crime scenes. This procedure is an important investigative tool, resulting in virtually conclusive proof of identity.

  1. The following comments were made during the Parliamentary Debates on the Criminal Investigations (Bodily Samples) Act 1995 and its subsequent amendments: (14 October 2009) 658 NZPD 7066: Simon Bridges (National):

More accused who would otherwise have been in the frame for crime will ... be excluded through this technology. They will be excluded and there will be more rightful convictions. We have high-profile examples of the ultimate exclusion following wrongful convictions of people through the powerful use of DNA. One example is David Dougherty in New Zealand ... It was only through advances in DNA that he was freed.

And at (9 August 1995) 549 NZPD 8574: Warren Kyd (Hauraki):

It is very important that the police should have the right to take samples, because so often the one person who will not give a sample is the person who carried out the crime ... Samples can enable the police to eliminate [suspects], and quickly get on to the narrow band of people who are more likely to have committed the crime but will not give samples.

And at (18 September 2002) 602 NZPD 671: Dr Wayne Mapp (NZ National – North Shore):

... it is a matter of the integrity of the criminal law, and our faith in it, that we have the certainty that the person arrested, charged, tried, and convicted is, in fact, the person who committed the crime. The DNA sample provides that chain of evidence – that link. It goes both ways. There have been numerous cases when, firstly, people have been arrested because the DNA samples proved they committed the crime; and, secondly, and equally important, people have been acquitted because the DNA samples proved conclusively they were not the people who committed the crimes.

  1. Deterrence is a recurring theme in the Act’s legislative history. Then Minister of Justice Douglas Graham stated that a central purpose of the Act was that “convicted offenders may be deterred from future offending if there is a high chance of apprehension because their DNA profile is in the databank.” Douglas Graham Memorandum for Cabinet Social and Family policy Committee: Enforcement, prosecution and Sentencing: Part G Obtaining Blood Samples from Certain Convicted Offenders for the Purpose of a DNA Databank (July 1994), at 2. Deterrence is also often cited in Parliamentary Debate. At (10 August 1995) 549 NZPD 8634: Hon Jenny Shipley:

... it is my opinion that the greatest benefit from this legislation may well prove to be that it will deter some men ... who are potential rapists, and will cause them to weigh up the risk of being involved in a crime against the much greater risk of being caught and convicted than has been the case in the past.

And at (21 October 2013) 612 NZPD 9471: Edwin Perry (NZ First): “I believe that this tool will prevent criminal activity. Criminals will now know that crime will not be so easy to get away with.”

  1. Reducing police costs and increasing the efficacy of policing was a central purpose of the Act: Douglas Graham Memorandum for Cabinet Social and Family policy Committee: Enforcement, prosecution and Sentencing: Part G Obtaining Blood Samples from Certain Convicted Offenders for the Purpose of a DNA Databank (July 1994), at 2:

Police resources in the investigative process will be saved, swift apprehension of the offender will be possible, and there will be minimal interference with the lives of suspects eliminated from the enquiry.

This theme was reiterated in the Parliamentary Debates on the Act and its subsequent amendments: (10 August 1995) 549 NZPD 8628: Hon John Luxton (Minister of Police):

... many suspects who would require extensive investigation by the police can be ruled out very, very quickly if a blood sample is taken and a DNA test run on it. In many ways taking samples will free up police work, speed up police work, and take suspects off the wanted list ... much faster.

And at (18 September 2002) 602 NZPD 670: Edwin Perry (NZ First): “With the passing of this bill, the police will be empowered to solve crimes in a more efficient manner, and the financial savings will be substantial.”

35 CHAPTER 2: FRAMEWORK FOR ANALYSIS



2.11 Below we consider whether each of these four objectives is realistic and appropriately recognised in the CIBS Act.

Identification and prosecution of offenders


2.12 DNA profiling has been used to identify and prosecute offenders who would otherwise not have been caught. There have been some high-profile cases. For instance, in 2002, Jules Mikus was found guilty of abducting, raping and murdering Teresa Cormack in 1987.12 The turning point in the investigation came in 2001 when scientists obtained a usable DNA profile from semen found on Teresa Cormack’s body. Similarly, DNA profiling linked Jarrod Mangels to the murder of Maureen McKinnel, 16 years after her death. He pleaded guilty to the charge.13
2.13 The value of DNA profiling stems from its reliability. It has long been described as the “gold standard” of forensic science – a status largely reinforced in a 2016 report by the United States President’s Council of Advisors on Science and Technology (PCAST). The PCAST report was highly critical of many fields of forensic science but found that the vast majority of DNA profiling used “an objective method in which the laboratory protocols are precisely defined and the interpretation involves little or no human judgment”.14
2.14 There are, however, limits to the utility of DNA profiling. First, even if the methodology is sound, there is always room for human error. Second, DNA evidence is not always relevant. As leading experts in the United Kingdom and Europe have stated:15

Such is the power of DNA to identify, convict, and exonerate, that many perceive it to be infallible. Yet DNA evidence has a number of limitations: it might be undetectable, overlooked, or found in such minute traces as to make interpretation difficult. Its analysis is subject to error and bias. Additionally, DNA profiles can be misinterpreted, and their importance exaggerated ... Even if DNA is detected at a crime scene, this doesn’t establish guilt. Accordingly, DNA needs to be viewed within a framework of other evidence, rather than as a standalone answer to solving crimes.

2.15 This is an important point to keep in mind, especially when assessing how valuable DNA profiling is in identifying and prosecuting sexual and violent offenders.
2.16 A common misconception is that DNA is central to almost all sexual assault investigations.16 This is not the case. Research suggests that, in the vast majority of rape cases, the alleged offender was previously known to the complainant.17 Where there is a
  1. Institute of Environmental Science and Research A Brief History of Forensic DNA 1990-2010: Marking 20 years of DNA analysis for the New Zealand criminal justice system (February 2010).
  2. Institute of Environmental Science and Research A Brief History of Forensic DNA 1990-2010: Marking 20 years of DNA analysis for the New Zealand criminal justice system (February 2010).
  3. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 7. For further discussion on this point see Chapter 5.

15 Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime?

(2017) at 6.

  1. A New Zealand phone survey found that 85.5 per cent of respondents considered that DNA evidence would be vital or important in coming to a decision as to whether a defendant was guilty or not guilty in a trial for a sexual offence: Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at 24–30.
  2. See Sue Triggs and others Responding to sexual violence: Attrition in the New Zealand criminal justice system (Ministry of Women’s Affairs, Wellington, 2009) at 17–20. This study surveyed 1,955 police files coded as sexual violation of an adult victim between 1 July 2005 and 31 December 2007. The relationship between the victim and the alleged offender

DNA - DNA IN CRIMINAL INVESTIGATIONS 36



clear suspect from the start, there is no need to search a known person databank. There may also be little point in obtaining a DNA sample from the suspect unless the complainant underwent a medical examination shortly after the incident. If there was no medical examination, DNA profiling would not assist in resolving the case. Furthermore, in many cases of sexual offending there is no dispute as to whether sex occurred. The issue is consent. Again, in those circumstances, DNA profiling would usually be of limited relevance.18
2.17 There are similar misconceptions around investigations into serious violent offending.19 Often identity is known at the outset, and the case will turn on whether the alleged offender intended to cause the resulting injuries.
2.18 These misconceptions are sometimes attributed to the so-called “CSI effect”.20 This is a theory that popular television dramas, like CSI: Crime Scene Investigation, create unrealistically high public expectations about the ability of forensic science to swiftly and reliably solve any case. Notably, the investigations depicted in these dramas almost invariably involve sexual and/or violent offending.
2.19 Beyond the high-profile cases, it is difficult to find information about how DNA profiling is currently being used to identify and prosecute offenders.21 However, from the information we do have, it is plain that DNA profiling may be particularly effective when investigating property offending.
2.20 Of the DNA profiles currently on the Crime Sample Databank, 76 per cent relate to non- suspect volume crime cases. This is the term used by Police to describe cases involving general theft, burglary or vehicle crime (unlawful taking of, and/or theft from, vehicles) where no suspect sample is available for comparison. This may seem surprising, but it makes sense.22 The central question in property crime investigations is often: who committed the offence? Commonly, complainants have no idea as to the answer.

was recorded for 73 per cent of the cases. Of those cases, only 16 per cent involved rape by a stranger. The authors note that this figure aligns with similar research conducted into rape by strangers in the United Kingdom (14 per cent) and Australia (16-24 per cent). This suggests that in around 80 per cent of the rape complaints investigated by police, the alleged offender is identified at the outset.

  1. In some criminal investigations where the central issue is whether sex occurred consensually, DNA profiling may have been relevant to the suspect’s decision not to dispute whether sex occurred at all.
  2. Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at 29 also found that 72.2 per cent of respondents considered that DNA evidence would be vital or important in coming to a decision as to whether a defendant was guilty or not guilty in a trial for a major assault.
  3. Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at 21–22.
  4. The Act originally required Police to report on the number of prosecutions instituted where evidence from a DNA profile was adduced, together with the results of the prosecutions. As far as we can ascertain, this information was only reported in 1998, when 47 prosecutions were recorded. The results of these prosecutions were reported as “not available”. Since changes to the Act in 2003, section 76(1)(d) of the Criminal Investigations (Bodily Samples) Act 1995 has required Police to report annually how often DNA profiling evidence obtained under a Part 2 procedure is presented at trial and the number of persons who have had a conviction entered against them as a result of the trial. In both the 2003/2004 and 2004/2005 years, Police recorded seven cases and seven convictions: New Zealand Police Annual Report 2003-2004 (October 2004) and New Zealand Police Annual Report for the year ended 30 June 2005 (October 2005). In 2006/2007 this was reported as 23 cases and 14 convictions: New Zealand Police Annual Report 2006-2007 (October 2007). Since then, no figures have been reported. The annual reports have stated that the information is “not captured nationally”. Even were Police able to fulfil the reporting requirements, these requirements would not indicate whether the DNA evidence was pivotal in the conviction.
  5. Cate Curtis’ study found that only 28 per cent of respondents considered that DNA evidence would be vital or important in coming to a decision as to whether a defendant was guilty or not guilty in a trial for a major theft and 15.3

37 CHAPTER 2: FRAMEWORK FOR ANALYSIS



2.21 When the CIBS Act first came into force, DNA profiling was not as effective in answering this question because, at the time, a relatively large biological sample was required in order to generate a profile. For instance, a semen or blood stain needed to be the size of a 50 cent piece. By contrast, it is now possible for the Institute of Environmental Science and Research (ESR) to generate a DNA profile from a biological sample as small as the traces of skin left in a fingerprint.
2.22 In light of these observations, we question whether the focus of the CIBS Act should now be broader than the original objective of identifying and prosecuting serious sexual and violent offenders.23 As noted at [2.6(a)], for legislation to be fit for purpose, there must be evidence to suggest that it is capable of achieving the identified purpose. It may therefore be better simply to focus on identifying and prosecuting offenders for a range of serious crimes. A seriousness threshold would be necessary to recognise the fact that DNA profiling comes at a constitutional cost, as we discuss at [2.42] to [2.88].

Elimination of suspects and exoneration of innocent people


2.23 Regarding Parliament’s second aim of eliminating suspects and exonerating the innocent, there are high-profile cases in New Zealand that demonstrate how DNA profiling can exonerate the wrongfully convicted. The cases of Teina Pora, David Dougherty and Aaron Farmer are the most prominent.24
2.24 We question whether the CIBS Act is currently structured in a way that makes the most of the potential of DNA profiling to exculpate – either during investigations or after conviction.
2.25 The CIBS Act alludes to this potential:

per cent for a minor theft: Cate Curtis “Public Understandings of the Forensic Use of DNA: Positivity, Misunderstandings, and Cultural Concerns” (2014) 34 BSTS 21 at Table 9.

  1. The lists of offences in the Schedules to the Criminal Investigations (Bodily Samples) Act 1995 are almost entirely sexual and violent offences, plus certain offences that are perceived to be precursors to sexual and violent offending. However, as we identify later in this issues paper, arguably the focus is now broader than sexual and violent offences, due to the changes to the Criminal Investigations (Bodily Samples) Act 1995 in 2009. Those changes allow samples to be obtained (in the case of adults) not only for offences listed in the Schedules but for all imprisonable offences.
  2. Teina Pora was arrested in 1993 and convicted of the rape and murder of Susan Burdett in 1994. DNA evidence obtained from Ms Burdett’s body was linked to another man. This DNA evidence was later relevant when the Privy Council quashed Mr Pora’s conviction in 2015. David Dougherty was convicted of kidnapping and raping an 11-year-old girl in 1993. However, new DNA evidence led to a retrial in 1997 where Mr Dougherty was acquitted. Aaron Farmer was convicted of raping a 22-year-old woman in 2003. After a successful appeal, the retrial ordered did not proceed as new DNA evidence excluded Mr Farmer as the rapist.
  3. Criminal Investigations (Bodily Samples) Act 1995, s 16(1)(c). This language reflects an assumption that the person was involved in the offending. Further, it may overestimate the value of the forensic comparison. A match would not necessarily “confirm” that the person was involved in offending. It would only show a link to the crime scene. Equally, the absence of a match would not necessarily “disprove” the person’s involvement.

26 Criminal Investigations (Bodily Samples) Act 1995, ss 55(1), 56(b) and 56A(2)(b).

DNA - DNA IN CRIMINAL INVESTIGATIONS 38



analysis.27 ESR advises that it receives very few such requests, although it does not collect exact numbers.
2.26 The main problem with these provisions is that the Act does not contain the additional procedures and infrastructure that would seem necessary to promote exculpatory DNA profiling. In Chapters 5 and 8, we explore ways in which this objective could be recognised more appropriately in the legislation.

Deterrence of criminal offending


2.27 Whether DNA profile databanks have any deterrent effect on criminal offending – Parliament’s third aim – is debatable. Some studies suggest that, to the extent databanks deter offending at all, the effect is minimal, whilst others claim a significant deterrent effect. It appears that the methodology employed informs the outcome.28
2.28 The studies that cast doubt on the deterrent effect explain that deterrence hinges on offenders undertaking a cost-benefit analysis before choosing to offend. This typically does not happen, especially in the context of spontaneous violent offending.29 Even when this mental calculation does occur, offenders often do not appreciate that DNA evidence increases the risk of apprehension.30 The studies note that, alternatively, offenders may believe they can avoid forensic detection by employing countermeasures.31 Some research even suggests that retaining DNA profiles creates barriers for the rehabilitation of offenders, which may increase the risk of recidivism for some individuals.32 However, as noted, other studies take a different view.
2.29 It is our preliminary view, therefore, in light of the inconclusive research, that it is unrealistic to include deterrence as one of the main objectives of the CIBS Act or any replacement legislation.



27 Criminal Investigations (Bodily Samples) Act 1995, s 57(1).

  1. Avinash Bhati and Caterina G Roman “Evaluating and Quantifying the Specific Deterrent Effects of DNA Databases” (2014) 38 Eval Rev 68 at 86–88. For a contrary view, see Jennifer L Doleac “The Effects of DNA Databases on Crime” (2017) 9 AEJ: Applied Economics 165 at 166–167; and Anne Sofie Tegner Anker, Jennifer L Doleac, and Rasmus Landersø “The Effects of DNA Databases on the Deterrence and Detection of Offenders” [2017] SSRN Electronic Journal at 24. These latter two studies found a high degree of deterrence. Dr Russil Durrant, a criminologist based at Victoria University of Wellington, reviewed these three articles for the Law Commission. He concluded that the literature, as it stands, does not allow any clear conclusions to be drawn about the potential deterrent effect of DNA databases, as each study has used different methodologies, each producing different results. He noted that the results are not too dissimilar to research that has examined the putative deterrent effects of policy changes such as the death penalty and three-strikes laws in the United States where there are also highly variable findings, which appear to be strongly influenced by the specific methodology employed.
  2. Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at 59.
  3. Marie-Amélie George “Gendered Crime, Raced Justice: A Critical Race Feminist Approach to Forensic DNA Databank Expansion” (2005) 19 Nat’l Black LJ 78 at 87 found that databanks are not a deterrent as humans are cognitively biased “towards optimism and overconfidence” and “underestimate the likelihood of a future negative outcome”.
  4. See Carlos Jordi “Diminished Returns: The Exorbitance of Collecting DNA from all Arrestees” (2015) 26 St Thomas L Rev 346 at 367–368, n 191 where the author notes that offenders avoid detection in a number of ways such as intentionally contaminating DNA evidence so that it is unreadable by forensic scientists and avoiding leaving cigarette butts in the vicinity of their offending.
  5. Jason Tarricone “‘An Ordinary Citizen Just Like Everyone Else’: The Indefinite Retention of Former Offenders’ DNA” (2005) 2 CRCL 209 at 243–254. See also Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at 60.

39 CHAPTER 2: FRAMEWORK FOR ANALYSIS


Reduced Police costs


2.30 Very little data is routinely collected and analysed to show how efficient the CIBS Act is in achieving the objectives of identifying and prosecuting offenders and of eliminating other persons of interest. For example, the number of matches between the Crime Sample Databank (CSD) and the known person databank is reported annually, but there is no data on how often these matches assist in resolving the associated criminal investigations.
2.31 Therefore, in terms of Parliament’s fourth aim, the lack of data makes it especially difficult to assess whether DNA profiling is a cost-effective tool for Police. We are continuing to work with Police and ESR to collate relevant data to determine how efficient the current system is.

Summary: What should the legislative purpose be?


2.32 Our preliminary view is that the greatest benefit of DNA profiling is its ability, in certain cases, to inculpate offenders and exculpate others in a manner that has been robustly tested. Our goal in this review is to consider how to maximise that benefit in a way that is constitutionally sound. This requires legislation that is not overly restrictive, but as we discuss further below, there need to be clear limits in place to ensure constitutional soundness, in particular in relation to consistency with the principles of the Treaty of Waitangi and NZBORA. There is also a need for the DNA regime to be transparent and to recognise that DNA profiling is just one tool available to Police. We think that the purpose of regulating the use of DNA in criminal investigations should acknowledge all these factors.

(b) Certain and flexible for the future


2.33 The second factor in assessing fitness for purpose is whether legislation is certain as to rights and obligations, yet sufficiently flexible to enable it to last. The CIBS Act creates search powers for police to collect and use DNA in criminal investigations. In our report Search and Surveillance Powers, we noted that:33

To the greatest extent possible, laws creating and regulating search powers should provide certainty to enforcement officers. Certainty ensures that enforcement officers can do their job with confidence. Like complexity, uncertainty can breed risk-aversity in some officers and risk-taking behaviour in others. Furthermore, uncertainty creates a greater likelihood that the exercise of powers will be challenged in court proceedings, with the diversion of resources (both financial and personnel) that entails. The principle of certainty suggests that, as far as possible, search powers should be expressed in explicit and objective terms; tests that require enforcement officers to make subjective judgements are likely to be applied loosely and inconsistently, with the attendant harm to human rights and the likelihood of court challenge.

2.34 The CIBS Act is full of uncertainty. It often requires police officers to make subjective judgements. Officers are empowered to obtain biological samples by consent and by compulsion for the DNA Profile Databank (DPD) and by compulsion for the Temporary Databank,34 yet the Act does not set out the factors that should inform the decisions as to whether to exercise those powers. Furthermore, key terms like “DNA profile” are not

33 Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [2.29].

34 These databanks are discussed in Chapters 11, 12 and 13.

DNA - DNA IN CRIMINAL INVESTIGATIONS 40



defined in a meaningful way, and neither ESR nor the CSD is even mentioned.35 There is also no statutory regime for elimination samples.36 As we explain in this issues paper, there is scope for considerable improvement, particularly in relation to certainty and accessibility of the DNA regime.
2.35 In addition to certainty, however, there is a competing need for flexibility. DNA analysis techniques are evolving at a rapid pace.37 There are also several different ways in which biological samples could be useful in an investigation. While we can predict the developments on the immediate horizon, there needs to be room in the legislation to accommodate new (and potentially unforeseen) developments. This is one of the biggest challenges for our review. In Chapter 15, we discuss options for independent oversight that are designed to create a workable balance between certainty and flexibility.

(c) Appropriately comprehensive


2.36 Being appropriately comprehensive is the third factor in assessing fitness for purpose as set out by the Legislation Guidelines. As indicated at [2.34], there are significant gaps in the CIBS Act. It is not comprehensive. As we explain in Chapter 4, several chapters in this issues paper are dedicated to matters that are not currently covered by the CIBS Act but potentially should be.

(d) Effective within the wider legal system


2.37 The CIBS Act is part of the criminal justice regulatory system. Therefore, to comply with the fourth aspect of fitness for purpose, it must align with related criminal justice legislation, common law principles (including tikanga38), the principles of the Treaty of Waitangi, and international treaty obligations. As we discuss later in this chapter this includes the New Zealand Bill of Rights Act 1990 (NZBORA) and related international human rights instruments, the Privacy Act 1993 and the Search and Surveillance Act 2012. It also includes the Policing Act 2008, the Oranga Tamariki Act 1989, the Criminal Records (Clean Slate) Act 2004, the Returning Offenders (Management and Information) Act 2015, the Mutual Assistance in Criminal Matters Act 1992, the Evidence Act 2006 and the Legal Services Act 2011.
2.38 In addition, we note that, in New Zealand, biometric information,39 including fingerprints, photographs and iris scans,40 is collected and used by a number of government authorities. A consistent approach to all biometric information may be considered desirable. However, DNA is unique, and as we discuss in Chapter 3, no other biometric information can reveal anywhere near the amount of personal information that is

35 See the Glossary at the beginning of this issues paper.

  1. Elimination samples are samples obtained from people such as victims, third parties and investigators. For a further discussion, see Chapter 8.

37 This is discussed in Chapter 3.

  1. See Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733 at 164 per Tipping, McGrath and Blanchard JJ (“the common law of New Zealand requires reference to ... tikanga, along with other important cultural, spiritual and religious values”). See also at [94] and [101] per Elias CJ.
  2. Biometrics is the technical term for body measurements and calculations. Biometric information is information obtained from different parts of the body.
  3. Iris scans are a method of identifying individuals by recognising the unique patterns present in the irises of one or both eyes.

41 CHAPTER 2: FRAMEWORK FOR ANALYSIS


contained in a DNA molecule at present. Accordingly, the central considerations are markedly different.
2.39 We have also considered whether alignment with health law related to DNA is necessary or desirable. Again, our view is that the central considerations are quite different. In health law, the primary driver is improving the health and well-being of the individual concerned. In contrast, DNA is used in criminal investigations primarily for wider societal benefits.
2.40 Nonetheless, enactments like the Human Tissue Act 2008 provide some assistance in identifying attitudes towards DNA. For instance, part of its purpose provision states:

The purpose of this Act is to help to ensure that collection or use of human tissue—

(a) occurs only with proper recognition of, and respect for,—
2.41

2018_4307.png

This suggests that the collection and use of biological samples by the State engages the concepts of autonomy, dignity and the public good. It is also clear that collection and use of these samples will have cultural, ethical and spiritual implications that should be recognised and respected.



Q1
One of our goals is to ensure that legislation regulating the use of DNA in criminal
investigations is fit for purpose. It must have a clear purpose that has been robustly tested, be certain and flexible for the future and be appropriately comprehensive and effective for that purpose within the context of the wider criminal justice system. What do you think about the way we have framed this goal?

CONSTITUTIONALLY SOUND


2.42 As noted at the outset of this chapter, the Legislation Guidelines set out that well- designed legislation should not only be fit for purpose, but also constitutionally sound. It should reflect the fundamental values and principles of a democratic society.41 This is the second main goal of our review.
2.43 In relation to those values, the House of Lords has stated:42

It is the first responsibility of government in a democratic society to protect and safeguard the lives of its citizens. That is where the public interest lies. It is essential to the preservation of democracy, and it is the duty of the court to do all it can to respect and uphold that


41 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 8.

42 A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68 at [99].

DNA - DNA IN CRIMINAL INVESTIGATIONS 42


principle. But the court has another duty too. It is to protect and safeguard the rights of the individual.

2.44 Similarly, the introduction to the New Zealand Cabinet Manual emphasises the importance of preserving democratic values in legislation. It states:43

A balance has to be struck between majority power and minority right, between the sovereignty of the people exercised through Parliament and the rule of the law, and between the right of elected governments to have their policies enacted into law and the protection of fundamental social and constitutional values. The answer cannot always lie with simple majority decision-making. Indeed, those with the authority to make majority decisions often themselves recognise that their authority is limited by understandings of what is basic in our society, by convention, by the Treaty of Waitangi, by international obligations and by ideas of fairness and justice.

2.45 Two major constitutional sources that are discussed at length in the Legislation Guidelines are particularly relevant to our review: the Treaty of Waitangi and NZBORA. The Privacy Act 1993 is also highly relevant.

Treaty of Waitangi


2.46 The Treaty of Waitangi is a founding document of government in New Zealand.44 As with NZBORA, all legislative proposals must be considered for consistency with the principles of the Treaty. All policy and legislative development should comply with the spirit and principles of the Treaty, both procedurally and substantively.45
2.47 In a 2015 report, the Waitangi Tribunal considered the principles of the Treaty in the criminal justice context in a claim about whether the Crown is acting consistently with the Treaty in relation to its action and policies to reduce disproportionate Māori reoffending rates. The Tribunal recognised and applied these principles and duties. We summarise these principles here and identify how we see these being relevant to this review.46


43 Cabinet Office Cabinet Manual 2017 at 5.

  1. Cabinet Office Cabinet Manual 2017 at 1. See also the introduction to the Cabinet Manual (Cabinet Office Cabinet Manual 2017 at 5).

45 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 27.

  1. The Waitangi Tribunal is a standing commission of inquiry. It makes recommendations on claims brought by Māori relating to legislation, policies, actions or omissions of the Crown that are alleged to breach the promises made in the Treaty of Waitangi: Ministry of Justice “About the Waitangi Tribunal” (1 November 2018) Waitangi Tribunal

<www.waitangitribunal.govt.nz/>. The Tribunal’s role is set out in s 5 of the Treaty of Waitangi Act 1975. It is worth noting that the United Nations Declaration on the Rights of Indigenous Peoples GA Res 61/295 (2007) (which New Zealand officially endorsed in 2010), although not creating any binding legal obligations, is consistent with and complements the Treaty principles and duties as described in [2.47]. The Declaration’s emphasis on self-determination in arts 3–4 provides international support for the recognition of rangatiratanga in New Zealand. In addition, art 31 of the Declaration imposes a duty on States to assist in the protection of indigenous resources including their “cultural heritage”, “traditional knowledge” and “human and genetic resources”. This aligns with the Treaty’s approach to taonga. For further discussion on the relationship between the Treaty and Declaration see Kiri Rangi Toki “What a Difference a ‘Drip’ Makes: The Implications of Officially Endorsing the United Nations Declaration on the Rights of Indigenous Peoples” [2010] AukULawRw 11; (2010) 16 Auckland U L Rev 243; and Ngati Whātua Ōrākei Trust v Attorney-General [2017] NZHC 389, [2017] 3 NZLR 516 at [111].

43 CHAPTER 2: FRAMEWORK FOR ANALYSIS



not unfettered.47 The guarantee of rangatiratanga requires the Crown to acknowledge Māori control over their tikanga and to manage their own affairs in a way that aligns with their customs and values.48 Kāwanatanga must be informed by rangatiratanga and vice versa.49
To find an appropriate balance between kāwanatanga and rangatiratanga in our review it is necessary to consider tikanga Māori in respect of DNA. We introduce the tikanga concepts that we see as being particularly relevant at [2.51].
(b) Active protection: This duty requires the active protection of taonga50 and extends beyond the protection of specific Māori resources, to Māori interests more generally.51 The Crown has a duty to protect such interests as far as is reasonable in the circumstances.52
For our review, it is notable that taonga can include intangible things, like values, traditions and customs.53 Individual people are not generally considered to be taonga, but knowledge about whakapapa (genealogy),54 human tissue55 and human genes56 have all been described as taonga by scholars or the Tribunal. Accordingly, to be consistent with the spirit of the Treaty, the Crown needs to actively protect the information derived from Māori DNA. This is particularly relevant in considering what the known person databank should be used for. For example, should academic research be permitted? We discuss these issues in Chapter 12.





  1. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at [4.1.1].
  2. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at [4.1.1]; Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 15–16; and Waitangi Tribunal Turanga Tangata Turanga Whenua: The Report on the Turanganui A Kiwa Claims (Wai 814, 2004) vol 2 at 113.

49 Waitangi Tribunal Te Whanau o Waipareira Report (Wai 414, 1998) at 29–30.

  1. New Zealand Māori Council v Attorney-General [1994] 1 NZLR 513 (PC) [Broadcasting Assets Case] at 517. In this case, the Privy Council noted that te reo Māori is “a highly prized property or treasure (taonga)”, as referred to in Article 2 of the Treaty.
  2. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at [4.1.2].

52 Broadcasting Assets Case at 517.

  1. These are considered taonga tuku iho: Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 396.
  2. Professor Sir Ian Hugh Kawharu Waitangi: Māori and Pākehā Perspectives of the Treaty of Waitangi (Oxford University Press, Auckland, 1989) at 320–321. The description is in an English translation of the Māori text of the Treaty. In the footnote to treasures/taonga, Professor Kawharu, a respected scholar and former member of the Waitangi Tribunal, cites “whakapapa (genealogies)” in a short list of examples. See also Ministry for Culture and Heritage “Read the Treaty” (1 February 2017) New Zealand History <https://nzhistory.govt.nz/>; Waitangi Tribunal Ko Aotearoa Tēnei: A Report into Claims Concerning New Zealand Law and Policy Affecting Māori Culture and Identity (Wai 262, 2011) at 537–538; Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 53; and Ministry of Justice “About the Māori Land Court” (8 August 2018) Māori Land Court: Te Kooti Whenua Māori

<www.maorilandcourt.govt.nz/>.

  1. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake – Māori and Indigenous Governance Centre, Hamilton, October 2016) at 8.
  2. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at 28. The Tribunal describes te ira tangata as “the essence of life” and as “the ultimate taonga”. It can also be translated as human genes.

DNA - DNA IN CRIMINAL INVESTIGATIONS 44



(c) Equity: The Crown has an obligation to act fairly towards Māori and non-Māori.57 This principle complements the duty of active protection and can require positive intervention to address disparities.58
There are disparities in this context. As at 30 June 2018, Māori represented 15.75 per cent of the general population59 but represented 41 per cent of those convicted of a criminal offence and 58 per cent of those sentenced to a prison term. 60 Accordingly, it can be inferred that the Māori population is over-represented on DNA profile databanks as well. There are a variety of reasons for this, including racial bias in policing.61 A survey of police officers concluded that, while cultural awareness was improving, bias continued to be an issue for some officers.62 As the Court of Appeal has noted, although that study is a number of years old, “the disparity in “criminal justice outcomes” that triggered concerns explored in it and other studies remains unchanged, and in some respects has become worse”.63
(d) Partnership and reciprocity: This describes the ongoing relationship between the Treaty partners who are bound to work together reasonably, honourably and in good faith.64 Good faith includes a duty to make informed decisions.65 This may require consultation.66
In a 2017 article about the need for Māori involvement in the drug law debate, Khylee Quince talks about how Māori are “filtered into the [criminal justice] system” and what the Treaty relationship means in a bicultural nation. She states that, in terms of drug law reform, Māori “are the people most affected ... you shouldn’t be legislating about us without us”.67
This also applies to the use of DNA in criminal investigations. As noted above, Māori are over-represented on the DNA profile databanks and are therefore the people most affected by law and practice in this area and need to be involved in the law reform discussion.
2.48 In addition, we note that the Waitangi Tribunal’s kaupapa inquiry programme includes an upcoming inquiry into the justice system and specifically lists the criminal justice system
  1. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at [4.1.3].
  2. Waitangi Tribunal Tū Mai Te Rangi! The Report on the Crown and Disproportionate Reoffending Rates (Wai 2540, 2017) at [4.1.3].
  3. Calculated from population estimate data as at 30 June 2018 from <https://www.stats.govt.nz/topics/population- estimates-and-projections>: Māori population 766,000 and NZ population 4,864,600.
  4. Calculated from the tables set out on the NZ statistics website: <https://www.stats.govt.nz/topics/crime-and-justice>; this aligns with findings made by Justine O’Reilly in 2014. She noted in a review for Police that, at that time, Māori made up 14 per cent of the population but 45 per cent of those arrested, 38 per cent of those convicted and 50 per cent of the prison population. A review of Police and Iwi/Māori relationships: Working together to reduce offending and victimisation among Māori (New Zealand Police, October 2014) at i.
  5. See the discussion of unconscious racial bias in policing, particulary in respect of the exercise of stop and search discretions, in Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [24]- [26].
  6. Gabrielle Maxwell and Catherine Smith Police Perceptions of Maori: A Report to the New Zealand Police and the Ministry of Maori Development: Te Puni Kokiri (Institute of Criminology, Victoria University of Wellington, March 1998) at 36, as discussed in Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [25].

63 Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [25].

  1. New Zealand Māori Council v Attorney-General [1987] 1 NZLR 641 (CA) [Lands Case] at 664; Waitangi Tribunal Orakei Claim Report (Wai 9, 1987) at 207; and Waitangi Tribunal Taranaki Report: Kaupapa Tuatahi (Wai 143, 1996) at 17–18 and 132–134.

65 Lands Case at 682 per Richardson J.

66 New Zealand Māori Council v Attorney-General [1989] NZCA 43; [1989] 2 NZLR 142 (CA) [Forests Case] at 152.

67 Max Towle “Why Māori need to be included in the drug law debate” The Wireless (online ed, New Zealand, 5 July 2017).

45 CHAPTER 2: FRAMEWORK FOR ANALYSIS



as an area for inquiry.68 Kaupapa inquiries deal with issues of national significance affecting Māori as a whole and look at how the issue has affected the Treaty relationship as well as how the issue may potentially impact on government policy.69

Tikanga Māori


2.49 Tikanga has been described as “doing things right, doing things the right way, and doing things for the right reasons” in Māori culture.70 It is also often described as Māori custom law.71 Like the common law, tikanga has evolved over time and continues to adapt to accommodate developments in society and technology. Practices and ideas relating to tikanga also vary between hapū, iwi and rohe, but the central tenets are consistent throughout te ao Māori and reflect a shared set of values.
2.50 As explained at [2.47(a)], the Treaty reinforces the Crown’s obligation to accommodate tikanga to the fullest extent possible in the exercise of kāwanatanga.72 In relation to this obligation, the Commission offered the following advice in our 2001 study paper Māori Custom and Values in New Zealand Law:73

If society is truly to give effect to the promise of the Treaty of Waitangi to provide a secure place for Māori values within New Zealand society, then the commitment must be total. It must involve a real endeavour to understand what tikanga Māori is, how it is practised and applied, and how integral it is to the social, economic, cultural and political development of Māori, still encapsulated within a dominant culture in New Zealand society.

However, it is critical that Māori also develop proposals which not only identify the differences between tikanga and the existing legal system, but also seek to find some common ground so that Māori development is not isolated from the rest of society.

2.51 In line with that advice, we have begun a consultation process to identify the tikanga concepts that are engaged by the use of DNA in criminal investigations. After this initial consultation and research, our preliminary view is that personal tapu, whakapapa, whanaungatanga and manaakitanga are particularly relevant. These are complex and inter-related concepts, but a brief introduction is provided below:

68 Memorandum of the Chairperson concerning the kaupapa inquiry programme (Waitangi Tribunal, 1 April 2015) at [25].

  1. Memorandum of the Chairperson concerning the kaupapa inquiry programme (Waitangi Tribunal, 1 April 2015) at [12] and [22].
  2. Bishop Manuhuia Bennet “Pū Wānanga Seminar” (presented with Te Mātāhauariki Institute) in Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 431.

71 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 6–7.

  1. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at [3.4] states that – independently of the Treaty – new legislation should, as far as practicable, be consistent with fundamental common law principles and tikanga. The Guidelines further note at [5.3] that “care should be taken where legislation may affect practices governed by tikanga”. Notably, the Law Commission also has a statutory obligation to take te ao Māori (the Māori dimension) into account in all law reform projects: Law Commission Act 1985, s 5(2)(a).

73 Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [402]–[403].

  1. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 404.

75 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 49–50.

DNA - DNA IN CRIMINAL INVESTIGATIONS 46

respected in society.76 Thus tapu can fluctuate, depending on the actions of an individual and what happens to them. It reflects the state of the whole person. 77 The notion of te tapu o te tangata (the sanctity of the person) is important. 78 This requires respect for an individual’s personal space and for their body. Anything that comes from the body, like fingernails, hair and skin, is considered to have a mauri (often described as ‘life spark’ or ‘essence’) and needs to be disposed of carefully. The head and blood are considered particularly tapu.79 It has been explained to us that, in certain circumstances, the State may be justified in intruding upon personal tapu, for example, where a person has driven whilst intoxicated80 or is seeking to avoid their obligations as a parent.81 In such cases, what is important from a tikanga perspective is that there is a good reason for the intrusion and that those affected understand what is happening and why. In the context of our review, this would include an explanation of what will happen to any biological sample and any DNA profile. This dialogue demonstrates respect for the person and can lessen the impact on personal tapu/mana. There is also scope to restore a measure of balance, by complying with tikanga during the process of destroying the sample. We discuss these issues further in Chapter 14.
(b) Whakapapa: Whakapapa literally means ‘to place in layers’.82 It describes the connections between people, and their responsibilities to past, present and future generations. It is the key to identity and belonging in te ao Māori.83 Whakapapa reflects the social component of ira (genes). Ira tangata refers specifically to a human life that has inherited a collection of genes from its parents.84 Ira tangata descend from ira atua, the Gods.85 Thus ira represent a spiritual inheritance as well as a biological or physical inheritance. Put another way, an individual’s body can be conceived of as a physical manifestation of their whakapapa.86 The parallels between

76 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 56.

77 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 51.

78 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 43.

  1. Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 53–54; and Te Rangi Hīroa “Medicine Amongst the Maoris in Ancient and Modern Times” (Thesis for the Degree of Doctor of Medicine, University of Otago, 1910). See also the discussion of hauora in Elsdon Best The Maori (Board of Maori Ethnological Research, Wellington, 1924) vol 1 at 308. Hauora denotes vital, physical and intellectual wellbeing. Best notes that a person who has infringed tapu cannot be in a hauora state.
  2. Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 252 discussing Police v Cooper DC Papakura CRN 9055011094, 1 July 1999. See also Raharaha v Police HC Whangarei CRI- 2008-488-23, 31 July 2008.

81 B v T [Paternity] (1997) 16 FRNZ 175 (DC).

  1. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 504.
  2. Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 47; Makeriti Papakura Makeriti: The Old Time Māori (New Woman’s Press, Auckland, 1986) at 37 in Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 511.

84 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 46.

  1. For a discussion of ira tangata and ira atua, see Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 46.
  2. Robert Webb and Rhonda Shaw “Whanau, whakapapa and identity in experiences of organ donation and transplantation” (2011) 8(1) SITES 40 at 44. See also Maui Hudson and others Te Mata Ira: Guidelines for Genomic Research with Māori (Te Mata Hautū Taketake – Māori and Indigenous Governance Centre, Hamilton, October 2016); and Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake – Māori and Indigenous Governance Centre, Hamilton, October 2016).

47 CHAPTER 2: FRAMEWORK FOR ANALYSIS



ira, whakapapa and DNA are obvious. But while information derived from Māori DNA might be whakapapa information, whakapapa is much more. Whakapapa includes names, stories, social histories and connections to places. This information is considered tapu and has been described as a taonga.87 Its protection has become a key concern for whānau, hapū and iwi.88 As a result, Māori often place restrictions on access to their whakapapa information and limitations on how it can be used by others.
(c) Whanaungatanga: Whanaungatanga is linked to whakapapa and refers to the rights and responsibilities associated with being a relative.89 Originally, it referred to blood relationships, but now it is used more widely to refer to, when appropriate, other kin- like relationships as well.90 It denotes the fact that, in te ao Māori, relationships are everything and all individuals owe certain responsibilities to the collective.91 There is clearly room for conflict between whanaungatanga and DNA databanking. Familial searching is particularly problematic, as we discuss in Chapter 13.
(d) Manaakitanga: Manaakitanga describes the process of showing and receiving care, respect, kindness and hospitality.92 It is expected for all people, regardless of whether (or especially when) there is no pre-existing relationship. Thus, whanaungatanga may start with manaakitanga. This duty to nurture relationships, look after people and be very careful about how others are treated underpins all tikanga.93
2.52 In the development of the CIBS Act there was little express consideration of tikanga.94 The Act was, however, designed to accommodate human rights concerns, and many of the underlying values are similar.95
  1. See the discussion of taonga at [2.47(b)]. See also Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 53.
  2. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (VUP, Wellington, 2013) at 514 and Dr Grant Philipson Preparing Claimant Evidence for the Waitangi Tribunal (Waitangi Tribunal, Wellington, 2004) at 15.

89 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 32.

  1. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 524.
  2. Law Commission Māori Custom and Values in New Zealand Law (NZLC SP9, 2001) at [130]. See Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.3.02], which suggests that the broader base of whanaungatanga has enabled the development of a sense of civic obligations whereby Māori individuals and collectives began to accept that decisions could be made for and on behalf of their groups outside of immediate kin-based connections.
  3. Richard Benton, Alex Frame and Paul Meredith Te Mātāpunenga: a compendium of references to the concepts and institutions of Māori customary law (Victoria University Press, Wellington, 2013) at 205.

93 Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 33.

  1. The following comments were made during the Parliamentary Debates on the Criminal Investigations (Bodily Samples) Amendment Bill 2009: (10 February 2009) 652 NZPD at 1125: Keith Locke (Green):

I will be interested to hear the Māori Party’s contribution on this bill, because I think the forcible extraction of blood from a person who is not even charged with an offence will be seen as offensive by many in the community. From what I understand about tikanga, to many Māori it is offensive and we should not support it”

and

[Moana Jackson] mentioned the questions of tapu in Māori society in relation to taking bodily samples, and he was worried about cases when the person had been arrested. But in this bill, it is not just when people have been arrested; bodily samples can be forced out of people...

And at 1129: Te Ururoa Flavell (Māori Party) “The Māori Party believes in the sacredness of whakapapa, of genealogical connections, or bloodlines, and we believe there is no room for doubt when DNA is concerned” and (27 October 2009) 658 NZPD at 7499 Kelvin Davis (Labour):

DNA - DNA IN CRIMINAL INVESTIGATIONS 48



2.53 A central tenet of both tikanga and human rights is the inherent dignity of all individuals, as part of a wider community.96 In tikanga this flows through to personal tapu - a concept that aligns in many respects with bodily integrity (a concept we discuss further below) and other aspects of privacy law.97
2.54 A distinction between tikanga and human rights is that tikanga focuses on relationships and collective groups (as evident in our discussions of whakapapa, whanaungatanga and manaakitanga) while human rights focus more heavily on the individual.98 In our view however this conflict tends to be exaggerated. As we stated in our 2006 study paper Converging Currents: Custom and Human Rights in the Pacific:99

Individual rights are raised in human rights law substantially in the context of protecting the individual from an overbearing state, but there is no denying that individuals also have certain duties to the state and community, as reflected in article 29(1) of the UDHR [Universal Declaration of Human Rights].

2.55 Article 29 of the UDHR is equivalent to section 5 of NZBORA. Article 29 states:

As a Māori, I know there is a whole cultural side to the sanctity of parts of a person’s body, although I acknowledge that the persons from whom these bodily samples are taken, as a generalisation, have probably failed to respect the sanctity of another person’s body. So I have little sympathy for those people; it is the person who has had a sample taken and is either not charged in the end or exonerated for whom I have empathy. I have described the way in which Māori, traditionally, have jealously guarded personal possessions—not just body parts like hair and fingernails but other personal items that come into contact with a person’s body, such as clothes and hairbrushes, etc. This is because of the belief that if we physically take a part of a person, then we also capture a part of the person’s wairua, and we can then use that to cause misfortune to the person. We call it mākutu.

At 7492: Carmel Sepuloni (Labour):

The things that Kelvin Davis and I both talked about earlier with regard to the way in which many Pacific groups and Māori collect their hair—and even that is tapu, because they do not leave it lying around for someone else to pick up—can be deemed indicative of the fact that they understood, even prior to the science that we have now, that it contained information, and that the information was sacred.

And at 7495 Rahui Katene (Māori Party): [Following a discussion about the possibilities of unethical research and ethnic profiling] “We are, as I said earlier, absolutely committed to the protection of the sacred genetic make-up inherent in whakapapa, and, as such, we cannot support this bill.” To alleviate concerns raised about Māori being targeted unfairly, the Government advised that: “the police will be required to report on the use of DNA sampling on an annual basis, to ensure that the use of this discretion is transparent.” (10 February 2009) 652 NZPD at 1118: Simon Power (National). Otherwise no changes were made to the Bill to address concerns associated with tikanga Māori.

  1. For an extensive discussion of the overlap between customary values in the Pacific and human rights values, see Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17, 2006) at chs 4–6.
  2. The preamble to the Universal Declaration of Human Rights GA Res 217A (1948) begins: “Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.”
  3. See Khylee Quince “Māori Concepts and Privacy” in Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thompson Reuters, Wellington, 2010) 29 and 33; and Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.6.03].
  4. See Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.2.01].

99 Law Commission Converging Currents: Custom and Human Rights in the Pacific (NZLC SP17, 2006) at [6.11].

49 CHAPTER 2: FRAMEWORK FOR ANALYSIS



2.56 The purpose of highlighting the similarities between tikanga and human rights is not to conflate the two. There are significant differences,100 and our review must consider both in their own right. We aim to ensure that the use of DNA in criminal investigations is regulated in a way that accommodates tikanga wherever possible. The similarities that exist between human rights and tikanga simply serve to highlight that some options for reform may be capable of addressing both.
2.57 To illustrate the point, it is useful to consider how, for example, the notion of bodily integrity is dealt with in another area of law. Under the Search and Surveillance Act, bodily integrity does not prevent police officers from ever conducting a strip search, but it does require that strict guidelines are in place to ensure that such searches are conducted in the most respectful way possible.101 There may be room to recognise tikanga in a similar way, as we discuss in Chapter 8.

NZBORA


2.58 The other major constitutional source that we consider to be particularly relevant is NZBORA.
2.59 Judges and commentators have long recognised NZBORA as a constitutional document.102 NZBORA must be understood in context. Its purpose is to affirm New Zealand’s international commitment to human rights and fundamental freedoms, particularly as a party to the International Covenant on Civil and Political Rights (the ICCPR).103 These broader international human rights obligations are significant, especially when it comes to the right to privacy, as we discuss further at [2.81] to [2.88].
2.60 The right to privacy is not expressly provided for in NZBORA. It does, however, stem from the same core principle that underlies all the rights protected in NZBORA: the inherent dignity of the human person.104
2.61 Given that the DNA regime results in the State taking control of a biological sample that contains an individual’s entire genetic blueprint – including information about health, ethnicity and family relationships – it is not difficult to see how a person’s inherent dignity could be harmed by the State collecting, using and retaining their DNA.105 Therefore, it is unsurprising that at least seven of the rights protected in NZBORA appear, at first glance,
  1. Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.6].
  2. Search and Surveillance Act 2012, s 126. See also Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [8.1]–[8.5] and [8.106].
  3. See for example Rt Hon Sir Kenneth Keith On the Constitution of New Zealand: An Introduction to the Foundations of the Current Form of Government (2017); Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 9–14; Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [108]; Sian Elias “Fundamentals: a constitutional conversation” [2011] WkoLawRw 1; (2011) 19 Waikato L Rev 1 at 1–3; Paul Rishworth and others The New Zealand Bill of Rights (Oxford University Press, Melbourne, 2003); and R v Poumako [2000] NZCA 69; [2000] 2 NZLR 695 (CA) at [75] per Thomas J.

103 New Zealand Bill of Rights Act 1990, long title.

  1. As recognised in the preamble to the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).
  2. Section 3 of the New Zealand Bill of Rights Act 1990 states that the Act applies to acts done by the legislative, executive, or judicial branches of the New Zealand Government, or to acts done by any person or body in the performance of any public function, power or duty conferred or imposed by or pursuant to law. Therefore the New Zealand Bill of Rights Act 1990 applies both to Police, as an instrument of the Crown, and to ESR as a Crown Research Institute.

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to be highly relevant to our review. However, as we explain in Table 1, we consider that only two rights are squarely engaged, these being section 19 (freedom from discrimination and section 21 (protection from unreasonable search and seizure).

Table 1: Relevant NZBORA rights

NZBORA PROVISION
THE
PROTECTED RIGHT
IS THE RIGHT ENGAGED?
11
The right to refuse medical treatment.
Not engaged.
To qualify as “treatment” under section 11, the action in question must be designed to improve the individual’s health. The section does not apply where a medical procedure is undertaken for a forensic purpose.106
19
Freedom from discrimination.
Engaged.
See [2.62] to [2.66].
21
Protection from unreasonable search or seizure.
Engaged.
See [2.67] to [2.80].
23(4)
The right to refuse to make a statement.
Not engaged.
There is debate on whether “statement” could be read broadly enough to include a biological sample.107 However, the generally accepted view is that this right only protects written or oral statements involving either the creation of new information or the presentation of existing information in a new form. Similarly, the related privilege against self- incrimination in section 60 of the Evidence Act 2006 does not cover biological sampling.108
23(5)
The right to be treated with humanity and dignity.
Engaged but overtaken by section 21.
The right in section 23(5) only applies when a person is arrested or detained and relates primarily to detention conditions.109 Notably, biological samples are regularly collected following arrest, so the right is engaged in the sense that it covers the process of physically obtaining a biological sample in those circumstances. However, this physical process is squarely covered by section 21 (the protection against unreasonable search or seizure), which applies more broadly as it applies to the information derived from the sample as well and it is not limited to those arrested or detained.
25(c)
The presumption of innocence.
Engaged but in some respects overtaken by section 21 and in other respects outside the terms of reference for our review.
The presumption of innocence in section 25(c) is triggered
  1. Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 428–429. See also Jeffcoat v Waetford (1999) 17 CRNZ 75 (HC) where s 11 was found not to apply in a case involving blood sampling and driving offending.
  2. Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at 1169–1170.
  3. By virtue of the definition of “information” in section 51(3) of the Evidence Act 2006, the privilege against self- incrimination can only attach to oral or written statements.
  4. See Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 and the recent summary of section 23(5) jurisprudence in S v Attorney-General [2017] NZHC 2629 at [215]–[241].

51 CHAPTER 2: FRAMEWORK FOR ANALYSIS


NZBORA PROVISION
THE
PROTECTED RIGHT
IS THE RIGHT ENGAGED?


when a person is charged with an offence. It relates to the determination of that charge.
It is questionable whether the practice of collecting biological samples upon arrest for the Temporary Databank intrudes upon the presumption of innocence.110 The Temporary Databank is primarily designed to facilitate investigations into past or future offending, not to determine the charge the person was arrested for.111
The Court of Appeal has found that an assessment of the risk of future reoffending is not the same as pre- determining a person’s guilt in respect of a specific charge.112 Therefore, in our view, section 25(c) is not engaged. Nevertheless, we consider that the existence of the right informs the debate as to whether retaining the DNA profiles of arrested persons is reasonable in a free and democratic society.113 For further discussion, see Chapter 11.
In relation to casework,114 biological samples are almost always obtained from suspects prior to charges being laid, so section 25(c) is not triggered. However, it has been argued that the use of DNA evidence at trial could intrude upon the presumption of innocence.115 The argument is that juries place too much weight on DNA evidence and that, as
  1. Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [23.4.14]–[23.4.17]; and Rameka v New Zealand (2003) 7 HRNZ 663 (UNHRC). In Rameka v New Zealand the United Nations Human Rights Committee (HRC) considered the legality of the preventive detention regime in New Zealand. Preventive detention is a sentence that can only be imposed on an offender if there is a “substantial risk” that he or she will reoffend at the end of any otherwise appropriate finite prison sentence. The majority of the HRC concluded at [7.4] that preventive detention cannot offend the presumption of innocence because no new charge is laid to attract its applicability. However, several members of the HRC dissented, and four of them stated at 681: “To rely on a prediction of [future] dangerousness is tantamount to replacing presumption of innocence by presumption of guilt”.
  2. It should be noted that, in theory, the databanks can be used in this way. See the discussion in Chapter 8 on suspect and elimination sampling.
  3. See McDonnell v Chief Executive of the Department of Corrections [2009] NZCA 352, (2009) 8 HRNZ 770 at [38]–[40] where the Court of Appeal found that imposing an extended supervision order upon a person at the end of a prison sentence is not analogous to bringing fresh charges and so the presumption of innocence does not apply. Further, see R v Dittmer [2003] 1 NZLR 41, (2002) 19 CRNZ 710 at [25]–[31] where the Court of Appeal dismissed a submission that the imposition of a sentence of preventive detention was inconsistent with the presumption of innocence.
  4. This question arises because of the protection in section 21 of the New Zealand Bill of Rights Act 1990 against “unreasonable” search or seizure. For a similar approach, see S and Marper v The United Kingdom [2008] 5 ECHR 167 (Grand Chamber). In S and Marper the European Court of Human Rights found that the United Kingdom’s practice of collecting DNA samples pre-trial and retaining the resultant profiles, regardless of conviction or acquittal, breached Article 8 of the European Convention of Human Rights. The Grand Chamber drew on the presumption of innocence at

[119] in its analysis of whether the interference with the right to privacy could be justified under Article 8(2) as being “necessary in a democratic society ... for the prevention of disorder or crime ...” For related discussions, see generally Liz Campbell “Criminal Labels, the European Convention on Human Rights and the Presumption of Innocence” (2013) 76 MLR 681; Brian Blakemore and Christopher Blake “Can the National DNA Database be Effective and Comply with Human Rights Legislation” (2012) 85 Pol J 191; Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015); Liz Campbell “A rights-based analysis of DNA retention: ‘non-conviction’ databases and the liberal state” (2010) 12 Crim LR 889; and United Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009).

114 See the Glossary at the beginning of this issues paper.

  1. Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at [3.31]; David Turner “Towards a DNA Dystopia? Human Rights Concerns Under the Criminal Investigation (Bodily Samples) Act 2009” (2011) 2 NZLSJ 502 at 519; and Michael Kirby “Forensic Evidence: Instrument of Truth or Potential for Miscarriage?” (2009) 20 JLIS 1 at 14–20.

DNA - DNA IN CRIMINAL INVESTIGATIONS 52


NZBORA PROVISION
THE
PROTECTED RIGHT
IS THE RIGHT ENGAGED?


a result,the practical reality is that the onus of proof shifts to the defendant to explain how their DNA came to be at the crime scene. We discuss this issue briefly in Chapter 5.
25(i)
The right of a child to be treated in a manner that takes account of their age
Not engaged.
The right in section 25(i) applies to the determination of a particular charge. Therefore, like the presumption of innocence, it is not engaged by suspect sampling (which usually occurs prior to charging), and it is not engaged by sampling for the known person databank (because the databank is not usually used to resolve the charge that enables the sample to be taken).
Despite this, our view is that the existence of the right supports the proposition that, to be reasonable in terms of section 21 of NZBORA, biological sampling procedures that apply to anyone under the age of 18 must take the age of those persons into account.116 For further discussion, see Chapters 8 and 11.

Freedom from discrimination


2.62 Section 19(1) of NZBORA provides that everyone has the right to be free from discrimination on any of the grounds set out in section 21 of the Human Rights Act 1993 (HRA). Those grounds include race,117 ethnic origin,118 age (which is limited to any age over the age of 16)119 and family status (which includes being related to a particular person120 or class of persons121).
2.63 For an act or omission to amount to discrimination under section 19(1), it must:122
2.64 If there is discrimination, it is necessary to consider section 5 of NZBORA by asking: Is the discrimination “prescribed by law” and “a demonstrably justified limitation on the right”?


  1. This is similar to the approach we have taken in respect of the presumption of innocence in the table entry above. It also aligns with the Law Commission’s recommendation that the Search and Surveillance Act 2012 should be amended to include a principle that search and surveillance powers should be exercised in a manner that minimises the impact on children and vulnerable members of the community: in Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at R5(c)(iv) (discussed at [4.85]–[4.88]).

117 Human Rights Act 1993, s 21(1)(f).

118 Human Rights Act 1993, s 21(1)(g).

119 Human Rights Act 1993, s 21(1)(i).

120 Human Rights Act 1993, s 21(1)(l)(iv).

  1. Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [17.8.35].

122 Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55].

  1. Notably section 19(2) of the New Zealand Bill of Rights Act 1990 states: “Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.”

53 CHAPTER 2: FRAMEWORK FOR ANALYSIS



2.65 In our review, the issue of possible discrimination arises in respect of the following:
2.66 In analysing these issues, we adopt the approach extrapolated from the case law surrounding sections 5 and 19 of NZBORA. Ideally, legislation governing the use of DNA in criminal investigations (and any options for reform) should not directly or indirectly make any distinctions based on a prohibited ground of discrimination if that distinction could result in a material disadvantage for a particular group. If, however, such a distinction is necessary (for instance to fulfil a different law reform goal), the rationale for the distinction needs to be supported by evidence and clearly stated. Further, the relevant law must transparently reflect that the distinction is permissible.

Protection against unreasonable search or seizure


2.67 The second right in NZBORA that we consider to be squarely engaged by our review is the protection against unreasonable search and seizure.
2.68 Section 21 of NZBORA states: “Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.” This raises two questions:
2.69 There is no need to conduct further analysis under section 5 of NZBORA because an unreasonable search or seizure cannot be justified under the Act.125 The matters of

124 Police Manual DNA Sampling at 16-18.

  1. Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [162]; and Cropp v Judicial Committee [2008] NZSC 46, [2008] 3 NZLR 774 at [33].

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justification that would ordinarily be considered in the context of section 5 are instead incorporated into the all-encompassing reasonableness inquiry required by section 21.126
What is a search or seizure?
2.70 A “search” for the purpose of section 21 is a State intrusion upon a reasonable expectation of privacy, and a “seizure” is a taking of what is discovered.127 Applying these definitions to our review, it is clear that a police officer obtaining a biological sample directly from a person is conducting a search.128 The sampling process, usually in the form of a buccal swab (mouth swab), involves a physical intrusion that interferes with the person’s bodily integrity, even though it is almost always undertaken by the person themselves. This alone would qualify it as a search, as we discuss in Chapter 8.
2.71 However, the sampling process also results in the State taking possession of (and therefore seizing) a biological sample that contains the entire genetic blueprint of the individual. This includes information about the person’s health, ethnicity and family relationships, which, if generated by scientists, would be part of the “biographical core of personal information” that section 21 is designed to protect.129 Even if the biological sample may not be analysed in a way that reveals this information, the extent of the analysis relates to whether the seizure (which is a continuing act130) is reasonable, not whether it has occurred at all.
2.72 In addition to obtaining a biological sample directly from a known person, it is possible for a police officer to obtain such a sample indirectly. This can occur where the biological sample already exists independently of police actions. For instance, a person may provide a blood sample to a hospital for medical testing. If a police officer uplifted the sample from the hospital, that would clearly amount to a seizure.131 However, other forms
  1. Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.15.4]–[18.15.5]. The authors describe this as the traditional approach and the one favoured by the Supreme Court. There is some debate as to whether a two-stage analysis would be more appropriate. In any event, there is considerable overlap between the reasonableness inquiries required by sections 5 and 21. In Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1 Tipping J explained at [104] that, in applying section 5 of the New Zealand Bill of Rights Act 1990, it is necessary to ask:

Does the limiting measure serve a purpose sufficiently important to justify curtailment of the right or freedom? Is the limiting measure rationally connected with its purpose? Does the limiting measure impair the right or freedom no more than is reasonably necessary for sufficient achievement of its purpose? And is the limit in due proportion to the importance of the objective?

These issues of purpose, proportionality and minimal intrusion also arise in the application of section 21 of New Zealand Bill of Rights Act 1990 as discussed at [2.67]–[2.80].

  1. Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [160] and [163]. See also Westco Lagan Ltd v Attorney-General [2001] 1 NZLR 40 (HC) at [57] where McGechan J commented that seizure will usually suggest “physical removal, or assumption of physical control over, a tangible item, whether permanently or temporarily”. As noted by Butler and Butler, there is considerable overlap between the concepts of “search” and “seizure”: Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.9.9].
  2. Having endorsed the reasonable expectation of privacy test, Blanchard J at [165] in Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 gave “any physical examination of a person” and “the taking of bodily samples” as examples of actions that would qualify as searches.

129 In R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710, the majority of the Supreme Court per Arnold J stated at [63] that:

The reasonable expectation of privacy is directed at protecting ‘a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination by the state’ and includes information ‘which tends to reveal intimate details of the lifestyle and personal choices of the individual.’

  1. A seizure is not just the initial act of the State taking control of a thing. It extends to the situation after the thing is taken into custody and for so long as that state or situation continues: Alwen Industries v Comptroller of Customs (1993) 1 HRNZ 574 (HC) at 586.
  2. In T (CA438/2015) v R [2016] NZCA 148 at [61]–[67], the Court of Appeal discussed whether a search warrant could be obtained under the Search and Surveillance Act 2012 in respect of biological samples obtained for medical purposes

55 CHAPTER 2: FRAMEWORK FOR ANALYSIS



of indirect sampling are more complicated. For example, is it a search or seizure if a police officer follows a person, watches them throw a drink bottle in a public rubbish bin and then collects the bottle to obtain their saliva? Is it different if the officer simply finds the drink bottle at a crime scene? The answers require us to consider the nature of individual and group interests in DNA. What ownership, property, privacy and/or other interests are at play?132 We explore these issues in Chapters 5 and 9.
When will a search and/or seizure be unreasonable?
2.73 The Supreme Court has decided that:133

If it is found that there is a search or seizure ... the court must proceed to consider whether it was unreasonable, either because it occurred at all or because of the unreasonable manner in which it was carried out. In considering the question of unreasonableness, it is necessary to look at the nature of the place or object which was being searched, the degree of intrusiveness into the privacy of the person or persons affected and the reason why the search was occurring.

2.74 This test reflects what we described in our joint report with the Ministry of Justice Review of the Search and Surveillance Act 2012 as the principles of proportionality and minimal intrusion.134 The principle of proportionality is that State intrusion into an individual’s privacy should be proportionate to the public interest in the investigation and prosecution of the offence or the maintenance of the law.
2.75 In terms of the degree of intrusion, the courts have recognised a hierarchy of interests protected by section 21 and that expectations of privacy are highest in relation to physical searches of, or seizures from, persons.135 Further, the size and scope of any search also impacts on its intrusiveness.136 Given that biological sampling involves an intrusion on bodily integrity followed by analysis of a person’s DNA, it has the potential to be one of the most intrusive search and surveillance activities possible.
2.76 In terms of the justification, we explained in the Review of the Search and Surveillance Act 2012:137

and retained by a hospital or the Ministry of Health. The discussion is based on the presumption that a police officer obtaining such samples would be conducting a search or seizure. The focus of the discussion is on whether a search warrant would be available in these circumstances under the Search and Surveillance Act 2012. The Court considered, but did not determine, whether a pre-existing bodily sample could amount to a “thing” and/or “evidential material” as required by s 6 of the Search and Surveillance Act 2012. We discuss this issue further in Chapter 9. See also R v Colarusso [1994] 1 SCR 20, where the Supreme Court of Canada found that, by taking possession of a blood sample that had been taken from the appellant for medical purposes following a car accident, the police had breached the appellant’s right to be secure against unreasonable seizure.

  1. See Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 and Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1.

133 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [172] per Blanchard J.

  1. This principle is discussed in Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [4.44]–[4.56]. Note also the proportionality test under s 30(2)(b) of the Evidence Act 2006 where, as relevant cases show, similar issues arise.

135 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [113]; R v Shaheed [2002] 2 NZLR 377 (CA) at [147] and [161]; and

Pettus v R [2013] NZCA 157 at [50].

  1. See Powerbeat International Ltd v Attorney-General (1999) 16 CRNZ 562 (HC) at [104] where Hammond J assumed (without deciding) that “the use of powerful techniques may require more justification”. See also the Crown Law Office Search and Surveillance Bill (45-1): Consistency with the New Zealand Bill of Rights Act 1990 (ATT395/108, 12 June 2009) at [8]: “the greater the degree of intrusiveness, the greater the degree of justification that is required and, further, the greater the attendant safeguards to ensure that justification is present.”

137 Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012

(NZLC R141, 2017) at [4.55]–[4.56].

DNA - DNA IN CRIMINAL INVESTIGATIONS 56


As for the reason why the search is occurring, we expect that consideration would be given to the gravity and extent of the suspected offending. In general, there may be less justification for carrying out a search to target isolated “trivial or truly minor cases” than for more serious suspected offending. Similarly, activity carried out for general crime prevention or detection purposes is unlikely to be justified if it involves substantial intrusions on privacy.

We also expect that the proportionality assessment would include consideration of whether the activity can be carried out in a less intrusive manner.

2.77 Significantly the proportionality assessment must be conducted on a case-by-case basis.138 This means that the justification must be case specific. Ordinarily, this requires that, in any given case, a police officer must have reasonable grounds to believe that a particular offence has been or will be committed and that the proposed search or seizure will produce evidence of that offending.
2.78 The principle of minimal intrusion overlaps with the principle of proportionality. It requires searches and seizures to be exercised in a manner that minimises the intrusion on the privacy of any individuals likely to be affected.139 This reflects the fact that an otherwise lawful search can still be in breach of section 21 if it is conducted unreasonably.140 To avoid this, a search must be conducted in a way that is no more intrusive than is reasonably necessary to achieve its objective. This principle is pertinent to our discussions of DNA analysis techniques in Chapters 5, 6 and 13.
2.79 In Review of the Search and Surveillance Act 2012, we identified two further principles arising from the section 21 jurisprudence that are relevant to this review:141


  1. Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [4.47]–[4.48]. The assessment must be case specific even if the search is undertaken for a broader “maintenance of the law” purpose such as preventing or detecting crime.

139 Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012

(NZLC R141, 2017) at [4.57]–[4.68].

  1. For example, R v Pratt [1994] 3 NZLR 21 (CA) where a strip search conducted in public view was found to be lawful but unreasonable.
  2. The report identifies three further guiding principles that underpin search and surveillance law but those principles do not arise directly from section 21 jurisprudence. We discuss two of those principles with reference to the right to privacy and the Treaty of Waitangi. The last principle relates to privilege and is not relevant to this review. See the discussion concerning the privilege against self-incrimination in Table 1 at [2.61].
  3. Chapter 5 of Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) explains the nature of policy statements. Such statements relate to grey areas where it may be unclear whether a particular type of activity is lawful or reasonable in the absence of a warrant. By way of example, section 206 of the Intelligence and Security Act 2017 requires the Minister responsible for an intelligence and security agency to issue publicly available ministerial policy statements that provide guidance to the agency on how certain activities should be carried out.

143 Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012

(NZLC R141, 2017) at [4.6]–[4.27].

144 Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012

(NZLC R141, 2017) at [4.28]–[4.43].

57 CHAPTER 2: FRAMEWORK FOR ANALYSIS



2.80 The warrant preference principle requires a “realistic and practical approach”145 and reflects that a pre-requisite of most warrantless statutory search powers is a sense of urgency,146 for instance, where there is a safety risk or a risk that evidence will be destroyed. In Chapter 11, we examine whether the warrantless search powers in the CIBS Act are consistent with this principle. This builds on the Attorney-General’s NZBORA vetting report to Parliament from 2009, which concluded that such powers were not consistent with section 21 of NZBORA.147 The vetting report stated that, absent emergency or other special circumstances, section 21 of NZBORA requires prior independent approval, usually from a judge, before a biological sample may be taken from a person.148 As we discuss in Chapter 11, the need for independent pre-approval may be heightened by the fact that, unlike the fruits of most searches, DNA profiles are often retained by the State indefinitely.

The right to privacy


2.81 The concept of privacy is central to section 21 of NZBORA, but there is also a broader right to privacy not mentioned in that Act that is relevant to our review. This broader right is affirmed in article 17 of the ICCPR149 and is reflected domestically in the Privacy Act 1993 and in the tort of privacy developed by the courts.150
2.82 The societal significance of this right is evidenced in New Zealand by the appointment of an independent Privacy Commissioner who is responsible for reviewing and commenting on any policy or legislative proposal that may affect the privacy of individuals.151 To assist in this task, public sector agencies are encouraged to complete standardised Privacy Impact Assessments (PIA) in respect of their proposals.152 There is also a Government Chief Privacy Officer who is responsible for leading an all-of-government approach to privacy.153

145 F v R [2014] NZCA 313 at [46].

  1. See the discussion in Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake i te Search and Surveillance Act 2012 (NZLC R141, 2017) at [4.37]–[4.43]; Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.25.2]–[18.25.18].
  2. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (2009) (10 February 2009).
  3. Christopher Finlayson Report of the Attorney-General under the New Zealand Bill of Rights Act 1990 on the Criminal Investigations (Bodily Samples) Amendment Bill (2009) (10 February 2009) at [2.2.2].
  4. Article 17(1) of the International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976) states:

150 Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA).

  1. Section 13(1)(f) of the Privacy Act 1993 states that this is a function of the Privacy Commissioner. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at [8.5] explain that the Government Chief Privacy Officer should also be consulted when developing new policies and legislation that may affect the privacy of individuals. The Guidance also includes a chapter on privacy and references it in discussing the “fundamental values and principles of a democratic society”: at 8. See also the discussion of privacy in the Cabinet Office Cabinet Manual 2017 at [8.66]–[8.77].
  2. See Privacy Commissioner “Privacy Impact Assessment Toolkit” (7 July 2015) <https://privacy.org.nz/>. Private sector agencies are also encouraged to complete PIAs in respect of any project that involves the collection of personal information. These assessments identify privacy risks by applying the information privacy principles and explain how those risks will be minimised.

153 See <https://www.ict.govt.nz/governance-and-leadership/the-gcio-team/government-chief-privacy-officer/>.

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2.83 Given the societal importance of privacy, we consider that to be constitutionally sound, the use of DNA in criminal investigations must take the broader right to privacy into account as well as section 21 of NZBORA.
2.84 The right to privacy is made up of overlapping interests. These can be difficult to conceptualise, but as noted by the Privacy Commissioner:154

Despite the difficulties, a common understanding about privacy has emerged, in New Zealand and in many countries overseas. Our laws reflect this common understanding:

Privacy, as defined by this common understanding, is important to ensure that we feel secure. For instance:

So privacy, which supports or creates feelings of security, is an important human right. If we feel secure, we're more likely to play a full part in society.

However, although privacy is important, it is not absolute. Other important social interests can be more important in particular circumstances. All privacy laws make allowances for other social interests such as: preventing crime, ensuring safety and ensuring that courts get information to make their decisions.

2.85 In this paper, we refer to the need to be able to protect personal information as ‘informational privacy’. The Privacy Act is New Zealand’s main informational privacy law. It is designed to ensure that personal information is suitably protected by those that handle it. To do that, the Act contains 12 information privacy principles that apply to any agency (public or private) that holds personal information.157 This includes law enforcement agencies, such as Police. Personal information is defined broadly as “information about an identifiable individual”.158 Significantly for our review, this definition would include any DNA profile associated with a known individual and probably includes the information generated from crime scene samples as well, as we discuss in Chapter 5.159
2.86 Some of the principles in the Privacy Act contain an express exception where there are reasonable grounds to believe that non-compliance “is necessary to avoid prejudice to the maintenance of the law by any public sector agency, including the prevention,

154 Privacy Commissioner “About Privacy” <https://privacy.org.nz/>.

155 In this paper, we refer to this as ‘informational privacy’.

156 In this paper, we refer to this as ‘physical and attentional’.

157 Privacy Act 1993, s 6.

158 Privacy Act 1993, s 2 definition of “personal information”.

  1. This is the approach that has been adopted in Australia. See Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [43.45]; and Australia Attorney-General’s Department DNA Forensic Procedures: Further Independent Review of Part 1D of the Crimes Act 1914 (30 June 2010) at [7.1.1].

59 CHAPTER 2: FRAMEWORK FOR ANALYSIS



detection, investigation, prosecution, and punishment of offences”.160 This exception, however, does not render the principles irrelevant in the context of criminal investigations. They still apply and may only be infringed to the extent that is necessary in any given case to serve the societal interest in the maintenance of the law.161 This aligns with the principles of proportionality and minimal intrusion discussed above.
2.87 Table 2 introduces the 12 information privacy principles and explains where they are of particular relevance to our review:

Table 2: Information privacy principles

PRINCIPLE
SUMMARY
RELEVANCE
1
Information should only be collected for a lawful purpose.
Analysis of crime scene samples (Chapter 5), Crime Sample Databank (Chapter 10) and collection for the known person databank (Chapter 11).
2
It should be collected directly from the person concerned where possible.
Indirect sampling (Chapter 9).
3
The person concerned should be told about what information is being collected and why.
Direct sampling (Chapter 8) and collection for the known person databank (Chapter 11).
4
Information should not be collected by unlawful, unfair or unreasonably intrusive means.
Direct sampling (Chapter 8), indirect sampling (Chapter 9) and collection for the known person databank (Chapter 11).
5
There must be safeguards in place to prevent misuse, loss or disclosure of the information.
Retention of DNA samples and profiles (Chapter 14) and oversight (Chapter 15).
6
The person concerned should be able to access their information.
Direct sampling (Chapter 8) and collection for the known person databank (Chapter 11).
7
The person concerned should be able to ask for their information to be corrected.
Direct sampling (Chapter 8) and collection for the known person databank (Chapter 11).
8
Reasonable steps must be taken to ensure information is accurate, complete, relevant, up to date and not misleading.
Analysis of crime scene samples (Chapter 5) and the Crime Sample Databank (Chapter 10).
9
Information should not be retained for longer than is necessary.
Retention of DNA samples and profiles (Chapter 14) and oversight (Chapter 15).
10
Information should only be used for the purpose for which it was collected.
Direct sampling (Chapter 8), use of the known person databank (Chapter
12) and familial searching (Chapter 13).

160 Privacy Act 1993, s 6 principles 2 (para 2(d)(i)), 3 (para (4)(c)(i)), 10 (para (1)(c)(i)) and 11 (para (11)(e)(i)).

  1. For guidance on what “necessary” means in this context see Privacy Commissioner Releasing personal information to Police and law enforcement agencies: Guidance on health and safety and maintenance of the law exceptions (October 2017, updated December 2017); and R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710.

DNA - DNA IN CRIMINAL INVESTIGATIONS 60


PRINCIPLE
SUMMARY
RELEVANCE
11
Information should not be disclosed unless there is a good reason.
Use of the known person databank (Chapter 12) and familial searching (Chapter 13).
12
“Unique identifiers” should only be assigned were necessary.
Use of the known person databank (Chapter 12).

2.88

2018_4307.png

It is also important to consider the potential for a collective privacy interest in DNA information. As noted above, whakapapa information is considered tapu and has been described as a taonga. From a Māori perspective, DNA could be considered private information that relates to a group. Recognising a collective privacy interest in DNA may also accord with international developments in privacy law and is particularly relevant in the context of familial searching, where individuals’ DNA is increasingly being used by Police to identify a close genetic relative as a suspect.162 Collective privacy is discussed in Chapter 9.




Q2
One of our goals is to ensure that the use of DNA in criminal investigations is
regulated in a way that is constitutionally sound. This requires ensuring that the regime is consistent with the principles of the Treaty of Waitangi and NZBORA and that any intrusions upon tikanga and privacy are minimised. What do you think about the way we have framed this goal?

ACCESSIBLE


2.89 In addition to being fit for purpose and constitutionally sound, the Legislation Guidelines specify that well-designed legislation should be accessible. This means that it should be easy to find, navigate and understand. This is particularly important for legislation that deals directly with the relationship between the State and individual citizens.
2.90

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A universal theme amongst those we have consulted so far is that the CIBS Act is overly complex and confusing. Police officers, lawyers and those having their samples taken could legitimately interpret the applicable rights and obligations in different ways. The current inaccessibility of the Act is a central focus of Chapter 4.




Q3
One of our goals is to ensure that legislation governing the use of DNA in criminal
investigations is accessible. It should be conceived of and expressed simply. What do you think about the way we have framed this goal?



162 Collective privacy is discussed in Chapter 9. Familial searching is discussed in Chapter 13.

61 CHAPTER 2: FRAMEWORK FOR ANALYSIS

CONCLUSION


2.91 In conclusion, our preliminary view is that the new legislation is needed. The CIBS Act is not fit for purpose, there are questions about how constitutionally sound the Act is in terms of the Treaty of Waitangi, tikanga, privacy and NZBORA, and it is overly complex. The remainder of the issues paper considers these issues in more detail. We use the identified objectives for this review to guide us to possible options for reform.



DNA - DNA IN CRIMINAL INVESTIGATIONS 62

CHAPTER 3


The science



INTRODUCTION


3.1 In order to understand the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act), it is necessary to have a basic understanding of DNA science and DNA analysis. This chapter therefore starts with a brief description of the science and the current DNA analysis techniques used by the Institute of Environmental Science and Research (ESR) when it analyses biological samples (such as blood and semen) on behalf of New Zealand Police.
3.2 The chapter then provides a description of some additional DNA analysis techniques that are being considered for future use. These descriptions provide important context for the remainder of this issues paper.

DNA: THE BASICS


3.3 Human bodies are made up of cells. Within each cell are several compartments. This ordinarily includes a nucleus, which contains DNA. Nuclear DNA (DNA in the nucleus) is organised into 46 chromosomes. Everybody gets 23 chromosomes from each of their biological parents. Two are the sex-determining chromosomes, X and Y, and the rest are called autosomal chromosomes.
3.4 There are four bases (otherwise known as nucleotides) in DNA: adenine (A); thymine (T); cytosine (C); and guanine (G). These bases pair up in set ways to form “base pairs”: A only pairs with T, and C only pairs with G. A nuclear DNA molecule contains 3 billion base pairs. These base pairs are spread across the 46 chromosomes. The arrangement of base pairs is 99.9 per cent the same across all human beings. However, the remaining 0.1 per cent is so variable that every individual has a unique DNA sequence.1
3.5 A scientist can identify the features of an individual’s DNA in a number of different ways. The most obvious way is to sequence the person’s whole genome (a technique known as whole genome sequencing or WGS).2 Essentially, this involves identifying and recording the order of all 3 billion base pairs.
  1. Recent studies have shown that even identical twins are likely to have minute differences in their DNA. On average, nine base pairs are likely to be different across the 3 billion pairs due to somatic mutations: Olivia M Gerth “Identical twins as a misnomer: how advancing technology protects the interests of justice in the courtroom” (2017) 30 Geo J Legal Ethics 783.
  2. For more information on what whole genome sequencing is and the process involved, see National Human Genome Research Institute (US) “The Human Genome Project Completion – Frequently Asked Questions” (30 October 2010)

<www.genome.gov/>.

63 CHAPTER 3: THE SCIENCE



3.6 An alternative is to focus solely on the areas of the genome that are known to vary among humans. This may involve focusing on the following:

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(b) Single nucleotide polymorphisms (SNPs): These are variations at the level of single base pairs. At certain points on the genome, one person may have a G and another may have a C. SNPs are the simplest and most common form of genetic variation accounting for about 90 per cent of the variations in humans.4 On its own, an SNP would not be particularly helpful in identifying a particular person, but large numbers of ‘SNP panels’ or ‘SNP arrays’ can be helpful.

DNA ANALYSIS TECHNIQUES CURRENTLY USED


3.7 ESR, on behalf of Police, is responsible for analysing biological samples that contain DNA (such as blood, saliva and semen) in the context of criminal investigations. This is done on a contractual, fee for service basis.5 This includes analysis of biological samples both from known people and from crime scenes.
  1. The Forensics Library “DNA analysis” (22 August 2017) About Forensics UK <http://aboutforensics.co.uk/> : STRs are groups of 1–5 bases that repeat a varying number of times in different individuals. STR profiling uses groups of four or five bases because these groups do not degrade as much, which lowers the error rate. See also John M Butler and Dennis J Reeder “Short Tandem Repeat DNA Internet DataBase” (11 January 2018) STRBase – National Institute of Standards and Technology <https://strbase.nist.gov>.

4 The Forensics Library “DNA analysis” (22 August 2017) About Forensics UK <http://aboutforensics.co.uk/> .

  1. ESR has provided forensic science services to Police since before the Criminal Investigations (Bodily Samples) Act 1995 came into force in 1996. Originally, this was done by way of a bulk-funding arrangement but is now a fee for service billing model set out in a Forensic Science Services Agreement between Police and ESR. The latest agreement is for the period 2018-2021. See Key terms and actors at the beginning of this issues paper for further discussion of this agreement.

DNA - DNA IN CRIMINAL INVESTIGATIONS 64



3.8 There are several different analysis techniques ESR may choose to use. The choice of technique depends largely on the quality and quantity of the biological sample. If it is a good-quality sample containing plenty of DNA, it is usually analysed using traditional short tandem repeat (STR) profiling (as explained in the next section).
3.9 Traditional STR profiling is the main technique used by ESR when it analyses biological samples obtained by police from suspects and other known persons to create a DNA profile. These samples almost always take the form of a special card, known as an FTA card. A police officer will ask the person to rub a swab along the inside of their mouth to collect cellular material and then will press the swab against the card, transferring the collected material.6 Both the card and the swab are then sent to ESR. This process generates high-quality samples. The DNA collected on the card is stable and can be stored for long periods of time.
3.10 By contrast, the DNA recovered from biological samples collected at crime scenes (crime scene samples) will be more variable in both quality and amount. A crime scene sample may be collected by rubbing a swab against an item – for example, a cup, some half- eaten food or a fingerprint. The crime scene sample that is collected may not contain much DNA or may contain DNA from multiple people. Consequently, ESR may need to use one or more supplementary techniques to obtain a DNA profile.
3.11 We now go on to explain what traditional STR analysis involves and the other supplementary techniques that are used now or may be possible to use in the future.

TRADITIONAL STR PROFILING – THE MAIN DNA ANALYSIS TECHNIQUE


3.12 Since the early 1990s, the main DNA analysis technique used in criminal investigations to obtain DNA profiles has been STR profiling – usually referred to as “traditional STR profiling”. Generating a DNA profile from a sample (using DNA analysis) is a key part of the criminal investigation process, as once generated, profiles can be compared to each other to see if there is a match. For instance, a crime scene profile can be compared to a profile from a known person, such as a suspect, to see if there is a match.7 Traditional STR profiling is also the only technique currently used around the world to generate DNA profiles for both crime scene databanks and known person databanks.8 Initially, the analysis kits used for STR profiling for databank purposes focused on six loci on the autosomal chromosomes plus a sex test. These loci were chosen because, along with other criteria:9





6 We discuss the process of Police obtaining samples from known people in Chapters 8 and 11.

7 We discuss this process – called “forensic comparison” – in more detail in Chapter 7.

  1. This is because, once a profile is generated, it can be uploaded to a databank. For instance, a crime scene profile can be uploaded to a databank of crime scene profiles, and a profile from a known person can be uploaded to the databank containing profiles of known people. These databanks can then be compared to each other to see if there are any matches. This process of comparing the Crime Sample Databank and known person databanks is discussed in more detail in Chapter 10.

9 Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at Appendix 4.

65 CHAPTER 3: THE SCIENCE



(a) they were on “non-coding” regions of the genome, which were believed to contain no information relevant to a person’s health or physical characteristics; 10
(b) they were on different chromosomes and so were likely to be independent of each other; and
(c) they were shown to vary greatly between people.
3.13 The independence of each locus is important. It enables forensic scientists to calculate the likelihood ratio, which they use to present their evidence in court. In lay terms, this is an assessment of how likely it is that the crime scene sample came from the person in question (usually the defendant). They do this by using anonymised population frequency datasets to calculate a likelihood ratio for each locus. They then multiply those ratios together to get an overall likelihood ratio.
3.14 The overall likelihood ratio compares two propositions: the likelihood of the DNA profiling results from the crime scene sample if they came from the suspect/person of interest compared to the likelihood of the same DNA profiling results from the crime scene sample if they came from a member of the New Zealand public selected at random. This ratio is then explained using an equivalent verbal scale.11 For example: the likelihood of obtaining these [DNA profiling] results is at least one million times greater if the DNA in this sample originated from Person X rather than from someone selected at random from the general New Zealand public. On the verbal equivalent scale this would provide extremely strong support for the proposition that the DNA evidence came from the person of interest.
3.15 Over time, the number of loci targeted by the STR profiling analysis kits has increased. In New Zealand, ESR has previously used SGM (six loci12) and SGM Plus (10 loci13) kits and now uses Identifiler (15 loci14) and Globalfiler (21 loci15) kits. In Canada, Europe, the United States and Australia, the standard kits target 14–18, 16, 20 and 21 loci, respectively.
3.16 The chances of an “adventitious match” or a “false positive” between two full DNA profiles was around 1:50 million.16 Academic research suggests that juries struggle to
  1. DNA contains instructions (coding) that are used to create proteins in the cell. Coding regions of DNA are known as genes. Non-coding regions of DNA do not code for proteins and used to be described as “junk” DNA. However, scientists now believe that this DNA simply serves a different purpose, such as telling genes when to switch on and off.

11 The verbal equivalent scale used in New Zealand:

Likelihood ratio
Verbal equivalent
1
Is neutral
1-10
Provides slight support
10-100
Provides moderate support
100 - 1,000
Provides strong support
1,000 - 1,000,000
Provides very strong support
Over 1,000,000
Provides extremely strong support

12 Plus the locus on the sex chromosome, so this kit tests seven loci in all.

13 Plus the locus on the sex chromosome, so this kit tests 11 loci in all.

14 Plus the locus on the sex chromosome, so this kit tests 16 loci in all.

  1. Plus the locus on the sex chromosome, another locus on the Y chromosome and a Y-STR locus - so this kit tests 24 loci in all.
  2. By “adventitious match” or “false positive” we mean that, purely by chance, the STRs in both profiles (the crime scene profile and the DNA profile of the known person) are the same at each locus tested – yet the crime scene profile did

DNA - DNA IN CRIMINAL INVESTIGATIONS 66



make sense of this kind of statistical evidence and often conflate the likelihood ratio with a likelihood of guilt.17 To address this, the United Kingdom has capped match probabilities at “more than 1 in a billion” to make the ratio more comprehensible.18 So why increase the number of loci that are analysed?19
3.17 The answer lies mainly in the high variability of DNA in crime scene samples. As noted above, these samples often contain very small amounts of DNA, degraded DNA20 and/or DNA from multiple people (known as a mixed crime scene sample). Scientists analysing a poor-quality crime scene sample may only be able to generate a partial DNA profile, if one can be generated at all.

2018_4310.png


3.18 In that situation, it is useful to test a larger number of loci. Even a partial match of only a few numbers may prove to be significant evidence.






not come from the known person, but from a different person. This is possible within a large population group. As the number of loci tested has increased, the risk of adventitious matches has reduced. However, if a crime scene profile is degraded or partial, this increases the chance of an adventitious match.

  1. See for example John Rowan “Reviewing DNA Evidence” [2011] NZLJ 400; Rhonda Wheate “The Importance of DNA Evidence to Juries in Criminal Trials” (2010) 14 E&P 129; Yvette Tinsley “Science in the criminal courts: tools in service, challenge to legal authority or indispensable ally?” (2013) 25 NZULR 844; Valerie P Hans “Judges, Juries, and Scientific Evidence” (2008) 16 JL & Poly 19; Mike Redmayne “Presenting probabilities in court: the DNA experience” (1997) 1 E&P 187; Kate Cashman and Terese Henning “Lawyers and DNA: Issues in Understanding and Challenging the Evidence” (2012) 24 CICJ 69; J Holmgren “DNA Evidence and Jury Comprehension” (2005) 38 Canadian Society of Forensic Science Journal 123; Jessica Ritchie “Probabilistic DNA evidence: the layperson’s interpretation” (2015) 47 AJFS 440; and Michael Kirby “Forensic Evidence: Instrument of Truth or Potential for Miscarriage?” (2009) 20 JLIS 1.

18 Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime?

(2017) at 13.

  1. There was extensive debate in the United States recently about moving from 13 to 20 loci. The CODIS [Combined DNA Index System] Core Loci Working Group, established in 2010, identified three main factors in support of the change in 2011. It would facilitate greater discrimination, assist in missing person cases, and promote international sharing of data. Following widespread consultation, new loci were selected in 2014. Congress was notified, and the change took effect from 1 January 2017. For a summary of the process see: Federal Bureau of Investigation “Combined DNA Index System (CODIS) Overview” (27 April 2018) <www.fbi.gov/>. Similarly, the Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at [2.22] stated that the benefit of adding any more markers to the SGM+ set was “debatable”, although we note that this statement was made over 10 years ago.

20 DNA that has become fragmented due to environmental pressures, such as temperature or moisture.

67 CHAPTER 3: THE SCIENCE


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3.19 To illustrate this point, it is useful to consider a real case. In Manoharan v R (an aggravated burglary case in New Zealand), the crime scene sample was of such poor quality that it was only possible to obtain a partial DNA profile containing three alleles (that is, three numbers).21 This was compared to a full DNA profile obtained from Mr Manoharan (Mr M), which consisted of 30 alleles (two at each of the 15 loci). For the three alleles that could be compared, the results were the same in Mr M’s profile and the crime scene profile.
3.20 At trial, the scientist explained that the likelihood of obtaining this match was at least 20 times more likely if the DNA in the crime scene sample had originated from Mr M rather than from someone else unrelated to him and selected at random from the general New Zealand population. On appeal, the Court of Appeal commented that, put another way, 200,000 other New Zealanders would have shared the same profile.22 Even though it was a low likelihood ratio, the DNA evidence formed an important part of a wider Crown case. Mr M was convicted at trial, and his conviction was upheld on appeal.

SUPPLEMENTARY DNA ANALYSIS TECHNIQUES


3.21 The high variability of DNA found in crime scene samples has led scientists to develop additional analysis techniques to supplement traditional STR profiling. This includes both DNA and non-DNA-based techniques. One of these techniques is LCN analysis, which was used alongside traditional STR profiling in Manoharan v R.
3.22 Tables 1 and 2 describe LCN analysis and various other supplementary techniques some of which are currently being used by ESR or are under consideration internationally.23

  1. Manoharan v R [2015] NZCA 237 at [35]–[39]. To obtain this result, ESR had to use LCN analysis as well as traditional STR profiling. This technique is described in Table 1 at [3.23]. Note that an allele is one of many forms that a genetic marker at a particular locus may take. Within the context of STR (short tandem repeat) analysis, this is a difference in the number of repeats of the DNA sequence at that locus. The data (for any given person) typically shows two allele sizes (shown as numbers) at each locus: one allele contributed by the person’s biological mother and the other allele contributed by the biological father.

22 Manoharan v R [2015] NZCA 237 at [53].

  1. See generally Institute of Environmental Science and Research DNA Techniques Available for Use in Forensic Case Work (March 2016); Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017); and Marcus Smith and Monique Mann Recent Developments in DNA Evidence (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice no 506, November 2015).

DNA - DNA IN CRIMINAL INVESTIGATIONS 68



Whether or not a technique will be used in New Zealand is a decision that Police and ESR make together. This decision process is discussed in Chapter 7.
3.23 For each technique, the tables include a description of the perceived benefits, cites one or two prominent New Zealand or international cases (where possible) and indicates how often the technique is used or when it could be available for use (if a decision were made to bring it into use in casework).

Table 1: Techniques currently in use

TECHNIQUE
DESCRIPTION
BENEFITS
STATUS AT ESR
LCN analysis
Low copy number (also known as low template DNA) analysis involves additional copying of small amounts of DNA, obtained from only a few cells.
Enables the analysis of very small amounts of DNA. This is often referred to as “trace DNA”.
See Manoharan v R.24
Used 10–5 times per year since 2006.
Y-STR
profiling
This targets STR loci on the Y chromosome. Therefore, it can only be used to analyse male DNA.
The resultant profile will usually be the same for close male relatives (father and sons) and will normally differ amongst the wider population.
Therefore, Y-STR profiling provides less discrimination than autosomal techniques.
Is primarily used to detect very small amounts of male DNA in the presence of large amounts of female DNA.
Can be good for resolving mixed crime scene samples where there are one or more male contributors.
Has the potential to improve the accuracy of familial searches25 and AIMs analysis (described below).
See Wallace v R26, Carseldine v R27and R v Kerr.28
Used routinely since 2006.
MiniSTR DNA
profiling
This is similar to traditional STR profiling. As used at ESR, eight loci are tested using a kit (MiniFiler)
Enables the analysis of degraded crime scene samples.
Used 40 times in the last two years.

24 See also Murdoch v R [2007] NTCCA 1, (2007) 167 A Crim R 329.

25 See Chapter 2and Chapter 13.

  1. Wallace v R [2010] NZCA 46, [2010] BCL: Wallace was found guilty at trial of murder. DNA taken from the victim’s boots was linked to the appellant using Y-STR analysis (yielding a partial profile of five alleles with a likelihood ratio of 13 times more likely to have originated from the appellant’s family). The case also involved LCN analysis of DNA found on a metal bar, arguably from Wallace’s car. See also R v Priestley [2012] SASC 119: Priestley pleaded guilty to stabbing his former domestic partner but not guilty to an additional charge of rape. A mixed sample of DNA was recovered from the body of the victim. Y-STR DNA profiling was used to separate the accused’s DNA profile from the victim’s DNA profile. This evidence was admitted and included as circumstantial evidence used to find the accused guilty of rape.
  2. Carseldine v R [2016] NZCA 573. Carseldine was convicted at trial of sexual violation by unlawful sexual connection. DNA found on the complainant’s labia was 70 times more likely to have come from Carseldine or a paternal relative than from any other male selected at random from the New Zealand population.
  3. R v Kerr [2016] NZHC 416. Kerr was found guilty at trial of blackmail. DNA was found on an envelope and letter, which retracted statements made in an earlier blackmail letter. The DNA was 260 times more likely to have come from Kerr (or one of his brothers or sons) than any other males sourced from the New Zealand population.

69 CHAPTER 3: THE SCIENCE


TECHNIQUE
DESCRIPTION
BENEFITS
STATUS AT ESR

designed to work with degraded DNA. It is more sensitive than traditional STR profiling but less sensitive than LCN.


Laser micro- dissection
This allows for the isolation of a particular cell type from a mixture of cells.
These can then be analysed using traditional, LCN, MiniFiler or Y-STR profiling.
Good for resolving mixed crime scene samples containing small numbers of spermatozoa.
Used 1–8 times per year since 2010.
STRmix
Software developed by ESR and Forensic Science South Australia that uses mathematical algorithms to identify the most likely combination of DNA profiles in a mixed crime scene sample. Also used to interpret single contributor DNA profiles.
Enables the resolution of highly complex mixed crime scene samples, for instance, samples with multiple contributors. Usually up to three contributors and very rarely up to five.
Used routinely, for every autosomal statistical calculation since 2012.
Analysis of AIMs
This targets SNPs or STRs that are known to be ancestry informative markers (AIMs). This is used to identify the likely ethnicity of the person who deposited the crime scene sample. These markers can be on the autosomes, the Y chromosome and/or mitochondrial DNA.
Provides investigative leads.
Chapter 6 discusses all 11 New Zealand cases. See also R v Delroy Grant (UK).29
Y- STRs have been used in this way by ESR in 11 cases since 2007.

Table 2: Techniques under consideration internationally

TECHNIQUE
DESCRIPTION
BENEFITS
FUTURE
AVAILABILITY30
Analysis of EVCs
This targets SNPs that are known to be associated with externally visible characteristics (EVCs). This is used to identify likely physical characteristics of the person who deposited the crime scene sample, for example, hair, eye and skin colour.
Provides investigative leads. This could be particularly helpful in eliminating suspects. See Chapter 6.
Could be available for use in 1–2 years.
  1. Crown Court Woolwich T20097551, 25 March 2011. Delroy Grant was convicted of multiple counts of burglary, rape and indecent assault, although it is estimated he committed hundreds of offences over 20 years. The media referred to him as the ‘Night Stalker’. Grant was aware of forensic techniques and made use of a range of strategies to avoid leaving fingerprints, wore a mask and disconnected the electricity before he broke into a house. The victims were unable to describe the attacker, and there were contradictory accounts of his race. Without any investigative leads for almost two decades, police used DNA phenotyping to determine his race was Afro-Caribbean, which was used (unsuccessfully) in the investigation but was confirmed when Grant was later apprehended. See Kopec M “A new use of ‘race’: The evidence and ethics of forensic DNA ancestry profiling (2014) 31(3) J Appl Philos 237.
  2. These techniques could be available for use within the noted timeframes, but only if a decision is made by Police and ESR to bring a technique into use in casework (see the Glossary at the beginning of this issues paper).

DNA - DNA IN CRIMINAL INVESTIGATIONS 70


Analysis of MtDNA
Mitochondria (also found in cells) have their own DNA (MtDNA), which is different from nuclear DNA. MtDNA consists of around 16,000 base pairs and is inherited maternally so it will be the same for a mother and all her biological children.
Analysis of MtDNA often involves sequencing all 16,000 base pairs.
Enables the analysis of degraded crime scene samples and cells that have no nucleus (for example, the cells in a hair that has no root attached).
Has the potential to improve the accuracy of familial searches and AIMs analysis.
See R v Mikus (New Zealand case but analysis in the United States).31
No immediate plans for implementation at ESR, but if analysis is required, it could be outsourced (internationally).32
NGS
Next generation sequencing (NGS) is a DNA sequencing technology that allows sensitive tests to be done simultaneously. For example particular STRs, SNPs, AIMs and EVCs could be identified using one test. The technology is already used routinely in non- forensic laboratories and in some forensic laboratories.
Provides more sensitive testing and can provide much more detailed results.
Underpinning technology could be in use in 1–2 years.
WGS
This codes the entire genome of the person who deposited the crime scene sample, that is, all 3 billion base pairs. WGS is routine in some non-forensic laboratories.
Provides incredibly detailed results. This could assist in distinguishing between suspects who are identical twins or multiples.
Could be in use in forensic laboratories in 5–
10 years.
Rapid DNA devices
This refers to portable machines that undertake STR profiling (and potentially other forms of DNA analysis) on site within hours. These could be used at crime scenes or in the laboratory.
Provides more timely results.
See: State of South Carolina v Berry (US).33
Could be in use in 2–5 years.
Epigenetics
Epigenetics looks at how DNA is regulated and expressed by identifying changes that affect DNA over time. 34
Can be used for distinguishing between identical twins and for establishing biological age.
Could be in use in 2–5 years.
  1. R v Mikus [2011] NZCA 298. Mikus was found guilty at trial of the murder of Teresa Cormack. 14 years after the investigation began, scientists found a potential match between the DNA in a small amount of semen found on the victim, and Mikus’ DNA. To confirm the match scientists analysed the MtDNA in three hairs that had been found on the victim’s body. These also matched Mikus. See also Aytugrul v R [2012] HCA 15, (2012) 247 CLR 170.
  2. ESR advises that there are no immediate plans to introduce MtDNA testing as only a limited number of samples would require this type of analysis.
  3. State of South Carolina v Berry as cited in Erin R Steward “Discussion and Evaluation: The Legality and Use of Rapid DNA Technologies” (2016) 84 UMKC L Rev 1133 at 1159–1161. A rapid DNA device was used to test blood on a murder suspect’s shirt after he was stopped at a routine driver check point. It was found to be the blood of the victim. The evidence was ruled admissible at trial and the suspect pleaded guilty.
  4. See generally Peter Gunn, Simon Walsh and Claude Roux “The nucleic acid revolution continues – will forensic biology become molecular biology?” (2014) 5 Front Genet 44.

71 CHAPTER 3: THE SCIENCE

RELATED TECHNIQUES


3.24 In addition to the techniques already described in this chapter, there are other forensic techniques that can be used to analyse biological samples. Analysis techniques are being used or developed in the fields of RNA (a nucleic acid, like DNA, but with different functions, including coding and carrying genetic information) and metagenomics (the study of genetic material from environmental samples).35
3.25 ESR has used messenger RNA (mRNA) analysis to identify body fluids since 2011. mRNA is the intermediary conveying information between nuclear DNA and proteins within cells. An mRNA profile is unique for each type of cell. ESR’s current analysis kit (CellTyper 2) allows scientists to determine whether a crime scene sample consists of blood, menstrual blood, vaginal fluid, saliva or semen (with or without the presence of sperm).
3.26 Metagenomics can be used to identify the population of microbes that live on, in and around the human body. Microbes are a collection of microscopic lifeforms including bacteria, viruses and fungi. Every person sheds millions of microbes each day. This leaves behind what has been described as a “unique” and “persistent trail”.36 In the future, this could be analysed to provide police officers with intelligence leads. This might include indications as to whether the person who was at the crime scene was a smoker, drank heavily, owned a pet or lived in a particular area. It may also be able to uniquely identify a body fluid.

CONCLUSION


3.27 The scientific understanding of DNA and DNA analysis techniques has advanced considerably since the CIBS Act was enacted. ESR is constantly refining and developing the techniques that it uses to analyse biological samples for Police. Even traditional STR profiling has changed since it was introduced in the 1990s, as the analysis kits have increased in sophistication.
3.28 Crime scene samples, in particular, may be the subject of a wide array of different techniques. These techniques tend to be able to extract increasing amounts of DNA information from biological samples. In addition, the analysis process is largely unregulated by the CIBS Act. This raises related concerns about certainty and the accessibility of the law.
3.29 In Chapters 6 and 7, we discuss further the implications of some of these changes and propose some options to regulate these techniques. Next, however, we examine the original framework for the CIBS Act and identify that scientific advances are just one of a number of reasons why, in our view, new legislation is required.





  1. National DNA Database Ethics Group (UK) Ethical Dimensions of Next Generation Sequencing – Stakeholder Consultation (March 2017).
  2. See George M Dery “Should Everyone Now Use the ‘Royal We’? The Microbiome’s Implications for Fourth Amendment Rights” (2017) 26 PILJ 1. The authors note that “researchers have successfully matched smartphones and keyboards to the people who used them by analysing microbial signatures”.

DNA - DNA IN CRIMINAL INVESTIGATIONS 72

CHAPTER 4



Time for a new Act



INTRODUCTION


4.1 In this chapter, we outline the history and structure of the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act). We then compare the CIBS Act to equivalent legislation in jurisdictions that New Zealand often compares itself to. This provides the necessary context within which to consider the question: Is it time for a new Act?
4.2 In answering this question, we identify seven fundamental problems with the Act. Most are explored in more detail elsewhere in this issues paper. However, we consider it important to draw attention to their collective breadth and depth at the outset. Our preliminary view is that these problems would only be exacerbated if the CIBS Act were heavily amended for a third time. Our advisory groups and others with whom we have consulted so far agree.
4.3 This chapter sets out the case for needing a new Act. In the chapters that follow, we explore the options for what that new Act should say.

THE HISTORY OF THE CIBS ACT

Policy development


4.4 In 1992, the (then) Department of Justice put together a proposal for legislation to facilitate New Zealand Police use of DNA in criminal investigations in New Zealand. The proposal focused on using DNA in casework.1 The proposed legislation would establish a framework for police officers to obtain blood samples from suspects. The DNA profile generated from such a biological sample could then be compared to a DNA profile generated from a biological sample found at the scene of the offence under investigation. Put another way, the suspect’s DNA profile could be compared directly with a DNA profile generated from a crime sample.
4.5 In its submission on draft legislation in 1993, Police suggested that, for DNA to be properly utilised, a databank of DNA profiles of convicted offenders needed to be established as well. The function of such a databank was compared to the fingerprint database already maintained by Police.2
  1. Casework is the term used within a specific criminal investigation to describe the process of comparing a crime scene profile to the DNA profile of a known person or alternatively the analysis of a crime scene sample in isolation (that is, performing analysis on that sample alone, without comparing it to the DNA profile from a known person). The current use of DNA in casework is discussed in Part B of this issues paper (Chapters 5 to 9).
  2. Letter from JA Jamieson (Commissioner of Police) to the Secretary for Justice (Department for Justice) regarding Police Submissions on DNA Sample Legislation (17 February 1993).

73 CHAPTER 4: TIME FOR A NEW ACT



4.6 In July 1994, following further work on the databank proposal, the (then) Minister of Justice recommended to Cabinet that it agree to legislation that would establish both a regime for using DNA in casework and a DNA profile databank. The Minister explained that the purpose of the databank would be two-fold:3

First, where a convicted offender reoffends the police may be able to match that offender’s DNA profile with a body sample left at the crime scene. It will also help eliminate from consideration those suspects whose profiles are in the databank and which do not match the sample from the crime scene. Police resources in the investigative process will be saved, swift apprehension of the offender will be possible, and there will be minimal interference with the lives of suspects eliminated from the enquiries. Secondly, convicted offenders may be deterred from future offending if there is a high chance of apprehension because their DNA profile is in the databank.

4.7 Cabinet accepted the proposal. This resulted in the original Act, the Criminal Investigations (Blood Samples) Act 1995, which came into force in August 1996.

The original Act


4.8 In 1995, it was still relatively novel for Police to use DNA in criminal investigations in New Zealand. The process of analysing biological samples was expensive, and blood sampling was the only reliable way of obtaining a DNA profile in relation to a known person (such as a suspect). Taking a blood sample directly from a person, particularly if reasonable force was required, was considered a grave intrusion on bodily integrity.4 Accordingly, the original Act contained extensive restrictions and safeguards, particularly around the collection process.
4.9 The original Act was divided into five Parts:
  1. Douglas Graham Memorandum for Cabinet Social and Family Policy Committee: Enforcement, prosecution and Sentencing: Part G Obtaining Blood Samples from Certain Convicted Offenders for the Purpose of a DNA Databank (July 1994) at 2.
  2. There was also concern that the taking of blood samples from suspects breached the fundamental premise that an individual was innocent until proven guilty. Phil Goff, the Opposition MP for Roskill and Labour’s justice spokesperson, highlighted the line being crossed: see (29 November 1994) 545 NZPD 5194:

the common law has long protected the sanctity of the individual from physical interference, in particular when an individual has been neither arrested nor charged. Any diminution of this right requires the closest possible scrutiny both in terms of the justification for diminishing the right and in terms of the procedures that need to be followed.

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would be transferred to the DPD. Second, a police officer could ask anyone aged 17 years or over to provide a sample by consent for the purpose of adding their profile to the DPD (a databank consent sample). Third if someone was convicted of a “relevant offence” (but no sample had been obtained under Part 2), the officer could apply to the High Court for a databank compulsion order to obtain a sample from the convicted person. If the application was successful and the sample obtained, the resulting profile would be added to the DPD. Extra protections applied to those under 17 years of age. Under Part 3, “relevant offence” included the serious sexual and violent offences listed in Part A of the Act’s Schedule and two further offences listed in Part B: burglary and entering with intent. These were considered precursors to the more serious offences in Part A. It was thought that, by putting those convicted of Part B offences on the DPD, those people could be caught if they progressed to the more serious offending. Once populated, the DPD could be regularly compared to a databank of crime scene profiles. However, Part 3 did not expressly mention this comparison process nor establish a databank of crime scene profiles.
4.10 Significantly, when the original CIBS Act was enacted, the only other country that had a DNA profile databank for use in criminal investigations was the United Kingdom – and its databank was only a few months old. Therefore, there was no real opportunity to benefit from the experience of other countries in developing DNA databank legislation.
4.11 It is also important to note that although the CIBS Act does not establish (and nor does it mention) a databank of crime scene profiles, such a databank does exist, and has existed from the time the CIBS Act was enacted. The Institute of Environmental Science and Research (ESR), which conducts the analysis of biological samples and administers the DPD on behalf of Police, also maintains what it calls the Crime Sample Databank (CSD). We refer to it by this name throughout this issues paper. The CSD is a databank of DNA profiles that have been generated from crime scene samples. The CSD plays a key role in the forensic comparison process. For instance, if a biological sample is collected from a crime scene, Police may ask ESR to analyse it and to obtain a DNA profile. ESR may then upload the profile onto the CSD. The CSD can be compared to the known person databank
4.12 The CSD is not regulated by the CIBS Act. Instead, it is governed by policies agreed between ESR and Police.
4.13 We mention the CSD at this point because it is key to understanding how the CIBS Act works in practice and, in particular, understanding subsequent amendments to the Act.

75 CHAPTER 4: TIME FOR A NEW ACT


The 2003 amendment


4.14 In 2003, a number of significant amendments were made to the Act. It was at this time that the name of the Act changed from the Criminal Investigations (Blood Samples) Act 1995 to the Criminal Investigations (Bodily Samples) Act 1995 to reflect the introduction of a new method for obtaining a biological sample from a known person: buccal (mouth) swabbing. In addition, there were three other changes of particular significance: the introduction of databank compulsion notices; changes to the definition of relevant offence; and new provisions in relation to sampling from children.

Buccal swabbing (mouth swabbing)


4.15 Buccal swabbing involves rubbing a swab on the inside of the person’s mouth. Parliament decided that this procedure did not need to be performed by a medical practitioner or registered nurse, so the amendment included an option to allow people to perform the procedure themselves under police supervision.
4.16 Following the amendment (which affected Parts 2, 3 and 4), a biological sample could be obtained from a known person in three ways: mouth swab, fingerprick or venous sample. Each method triggered a slightly different set of procedural rules. These rules also differed depending on whether the person was an adult or under the age of 17. This change made it more difficult for police officers to determine which procedural rules applied in any given case.

Databank compulsion notices


4.17 By 2003 it was clear that databank compulsion orders issued under Part 3 of the Act were almost always granted by the High Court, because if a convicted offender qualified for a compulsion order, very few grounds were available to oppose it. Therefore, to make the best use of judicial time, the 2003 amendment allowed commissioned police officers to issue databank compulsion notices instead of applying to the High Court for a databank compulsion order. These notices required a convicted offender to provide a biological sample for the DPD at a set time and place. They could be challenged in the High Court but only on limited grounds.
4.18 As a result of this change, some of the symmetry between Parts 2 and 3 of the CIBS Act was lost. Both Parts still contained procedures for obtaining samples by consent. However, the compulsion procedures for obtaining samples under each Part now differed significantly.

Definition of relevant offence


4.19 Another significant change in 2003 related to the definition of “relevant offence”. As introduced, the amendment Bill sought to enable a police officer to seek a suspect compulsion order in relation to any “relevant offence” (that is, any offence listed in Part A or B of the Schedule). As explained above, under the original CIBS Act, the offences in Part B of the Schedule only qualified as “relevant offences” under Part 3 of the Act (for the databank) not under Part 2 (for casework). This meant that, if a suspect in a burglary or entering with intent case refused to provide a suspect sample by consent, a police officer could not obtain a compulsion order under Part 2. The amendment sought to change this.

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4.20 What would have been a relatively simple amendment became more complex during the select committee process, and Parliament decided to further expand the definition of “relevant offence”.
4.21 First, the Bill repealed the original Schedule and replaced it with a new one. Part 1 of the new Schedule listed all of the offences that had been listed previously in the original Schedule (both Parts A and B). Part 2 then listed an additional 27 sexual and violent offences and three preparatory offences to burglary. The additional sexual and violent offences were added largely to align with the list of qualifying offences in the Sentencing Act 2002 for the sentence of preventive detention. The other three offences were added as part of the Government’s policy to focus on addressing burglaries. The reason for splitting the Schedule into two Parts was to reflect a further aspect of the 2003 amendment that enabled retrospective sampling of offenders convicted of an offence listed in Part 1 of the new Schedule, but not those in Part 2.
4.22 The Bill amended the definition of “relevant offence” in section 2 to reflect these changes but complicated matters further by broadening the definition to include any offence punishable by seven years’ imprisonment and any attempt or conspiracy to commit an otherwise qualifying relevant offence. This resulted in considerable overlap between the various limbs of the definition, as 58 of the 62 offences in the new Schedule were also punishable by seven years’ imprisonment or more.5
4.23 After the 2003 amendment, the definition of “relevant offence” was overly complex, and the rationale behind the choice of offences in the Schedule was no longer intuitive.6

Part 2A and non-prosecutable children


4.24 The final significant change was that the 2003 amendment inserted Part 2A into the CIBS Act. It dealt with criminal offending by children who could not be prosecuted because of their age at the time of the alleged offending.7 Part 2A allows a police officer to obtain a biological sample from a child suspected of a non-prosecutable offence, with the child’s consent and the consent of a parent. Police officers need to investigate these offences, even though prosecution is not a possibility. That is because the commission of a criminal offence is one of the factors that is relevant to any court determination as to whether a child is in need of care or protection under the Oranga Tamariki Act 1989.8
4.25 Part 2A is relatively straight-forward in itself and has been used fewer than 25 times since 2003. However, its inclusion added yet another layer of complex procedural rules for taking and retaining biological samples and DNA profiles.
  1. The four remaining offences were: being in possession of an instrument for conversion (then section 229 of the Crimes Act 1961, punishable by one year’s imprisonment); entering with intent (then section 242 of the Crimes Act 1961, punishable by five years’ imprisonment); being armed with intent to break or enter (then section 243 of the Crimes Act 1961, punishable by five years’ imprisonment); and being disguised or in possession of instruments for burglary (then section 244 of the Crimes Act 1961, punishable by three years’ imprisonment). All four offences were repealed later in 2003. Being in possession of an instrument for conversion (now section 227) and being disguised or in possession of instruments for burglary (now section 233) were re-enacted in a similar form with the same maximum penalties.
  2. A mistake as to whether a particular charge of theft qualified as a “relevant offence” led to Police issuing an unlawful databank compulsion notice in Liston-Lloyd v Commissioner of Police [2014] NZHC 2615. The Commissioner of Police was subsequently ordered to pay $2,500 in compensation: Liston-Lloyd v Commissioner of Police [2015] NZHC 2614. Similarly in Police v Fraser HC Wellington CRI-2007-485-69, 3 October 2007, a suspect compulsion order application was declined because the offence of theft did not qualify at the time of the relevant offending.
  3. A child is defined as over the age of 10 years but under the age of 14: Criminal Investigations (Bodily Samples) Act 1995, s 2.

8 Oranga Tamariki Act 1989, s 14(1)(e).

77 CHAPTER 4: TIME FOR A NEW ACT


The 2009 amendment


4.26 Further major amendment to the CIBS Act occurred in 2009. The main policy intent behind this amendment was to require DNA profiling for every person a police officer arrested or intended to charge with an imprisonable offence in order to:9

... recognise DNA as the modern day fingerprint and to assist police solve more crime by having more identified DNA profiles to match against the increasing number of DNA samples obtained from scenes of unsolved crimes.

4.27 To achieve this aim, the 2009 amendment inserted Part 2B, which established a second known person databank: the Temporary Databank. As well as introducing Part 2B, the 2009 amendment further expanded the range of offences that qualify under Parts 2, 2B and 3 of the Act.

Part 2B and the Temporary Databank


4.28 Under Part 2B, a police officer could require any person they intended to charge with a specified offence to provide a biological sample. Unlike Parts 2 and 3, this power was not framed with reference to consent nor was any avenue provided to challenge the officer’s decision in court. After a charge was laid, the DNA profile generated from the reference sample was to be stored on the Temporary Databank, until such a time as the charge was resolved.10 If the person was convicted, the DNA profile would be transferred to the DPD. If not, the DNA profile was destroyed. Like the DPD, the Temporary Databank was designed to be routinely compared to the CSD, but that was not expressly stated in the Act. The result was that an individual’s DNA profile could be compared to the CSD prior to that person being convicted of an offence.
4.29 When Part 2B came into force, the clear distinction between Parts 2 and 3 of the CIBS Act was lost. There was now considerable overlap.
4.30 As we explain in Chapter 8, both Parts 2 and 2B can be used in casework. This creates uncertainty for any police officer who has identified a suspect where DNA may be relevant to the investigation. If there is sufficient evidence to charge the suspect, should the officer ask the person to provide a suspect sample by consent under Part 2 or arrest the person and require a databank sample for the Temporary Databank under Part 2B? Either way, the suspect’s DNA profile can be compared to the crime scene profile. Part 2 allows for a direct one-to-one comparison. Part 2B enables a comparison using the databanks.11
4.31 A similar issue arises under Part 3 with databank compulsion notices. Should an officer who has arrested a person require that person to provide a sample under Part 2B for the Temporary Databank prior to charging them (the sample could then be transferred to the databank on conviction), or should the officer ask for a databank consent sample (also under Part 3) or wait to see if the person is convicted and then obtain the profile though

9 Criminal Investigations (Bodily Samples) Amendment Bill 2009 (14-1) (explanatory note) at 1.

  1. Police policy is not to send any sample obtained under Part 2B to ESR for analysis until charges are laid. If no charges are laid within the two month window the sample is destroyed. Police Manual DNA Sampling at 53.
  2. Criminal Investigations (Bodily Samples) Act 1995, s 24R(1)(a). However, for such a comparison to occur, the crime scene profile would need to be uploaded onto the Crime Sample Databank (ESR does not conduct a one-to-one comparison of a crime scene profile and the known person databank). The results of any comparison would not be able to be used as evidence against the person, and a suspect sample would then need to be obtained from the person. See Chapter 8 for further discussion on this and the role of section 71A of the Criminal Investigations (Bodily Samples) Act 1995 regarding what can be used as evidence.

DNA - DNA IN CRIMINAL INVESTIGATIONS 78



issuing a databank compulsion notice (under Part 3)? The advantage of obtaining the sample under Part 2B is that the person who has been arrested is required to provide a sample, and after charging the person, a comparison can be made to the CSD. As we explain in Chapter 11, the answer to this question is almost always the same: obtain the sample under Part 2B. For that reason, databank compulsion notices under Part 3 are now rarely used to obtain DNA profiles from convicted persons for the DPD. Instead, since 2010, the DPD has been mainly populated by profiles transferred from the Temporary Databank.12

Triggering offences


4.32 Before the 2009 amendment (which came into effect in two stages) the compulsory procedures in Parts 2 and 3 of the Act could only be used if the offence in question was a “relevant offence”. After the second stage came into force, “any imprisonable offence or offence against any of the provisions listed in Part 3 of the Schedule” qualified under Parts 2, 2B (for adults only) and 3 of the Act. The new Part 3 of the Schedule listed a further 22 offences that included selected offences under the Animal Welfare Act 1999, the Arms Act 1983, the Crimes Act 1961, the Land Transport Act 1998 and the Summary Offences Act 1981.13
4.33 The wording of the offence threshold “any imprisonable offence or offence against any of the provisions listed in Part 3 of the Schedule” is odd. Significantly, all but one of the offences listed in Part 3 are imprisonable. The exception is the offence of peeping and peering. This is an offence under the Summary Offences Act punishable by a maximum fine of $500.14 This offence was included as it was considered to be a precursor to more serious sexual offending. Given the extensive overlap, the threshold could have been framed more simply as “an imprisonable offence or the offence of peeping and peering”.
4.34 However, Parliament wanted to target the offences listed in Part 3 of the Schedule as a matter of priority. To do this, the Bill came into force in two phases. Phase one expanded the threshold to include the offences listed in Part 3 of the Schedule. Phase two expanded it further to include all imprisonable offences. Again, the long-term effect of this transitional policy was that the terminology inserted into the CIBS Act was overly complex.
4.35 This complexity was compounded by the fact that the equally confusing definition of “relevant offence” (discussed above) still applied after the 2009 amendments but only to obtaining samples under Part 2B from young persons.15

12 See Chapter 11 for a discussion of the data.

  1. Respectively offences such as wilful ill-treatment of animals, unlawful possession of firearms, aggravated assault, person in charge of motor vehicle causing injury or death and peeping and peering.

14 Summary Offences Act 1981, s 30.

  1. The definition of “relevant offence” under Criminal Investigations (Bodily Samples) Act 1995, s 2 now incorporates all the offences listed in the three Parts that comprise the Schedule to the Act, which, in summary, include serious sexual and violent offences, offences punishable by seven years’ imprisonment or more (as well as attempts and conspiracies); and selected offences under the Animal Welfare Act 1999, the Arms Act 1983, the Crimes Act 1961, the Land Transport Act 1998 and the Summary Offences Act 1981 (peeping and peering). Of the relevant offences, 23 have a maximum penalty of less than seven years imprisonment, 20 of which are listed in Part 3 of the Schedule added in 2009.

79 CHAPTER 4: TIME FOR A NEW ACT


The current Act


4.36 In addition to the amendments described above, numerous other changes were made to the CIBS Act in 2003 and 2009. For example, in 2009 the District Court became responsible for issuing suspect and juvenile compulsion orders instead of the High Court. (To complicate matters further, we note that the very recently passed omnibus Act – the Courts Matters Act 2018 - now permits either Court to deal with applications for suspect compulsion orders although applications for juvenile compulsion orders will only be able to be made in the District Court (which includes the Youth Court.))16 Similar small changes were also made in 2005, 2008, 2013 and 2015. Individually, these amendments did not have as much of an impact on the overall coherence of the CIBS Act as those we have described above. Collectively, however, they have added to its increasing complexity and inaccessibility.
4.37 By way of summary, the CIBS Act now consists of the following:

CROSS-JURISDICTIONAL COMPARISON


4.38 Table 1 provides a snap shot of how the CIBS Act compares with legislation governing the use of DNA in criminal investigations in comparable jurisdictions overseas.

Table 1: Cross jurisdictional comparison

  1. The explanatory note to the Court Matters Bill noted that amendments to the Criminal Investigations (Bodily Samples) Act 1995 (alongside 10 other Acts) were being made to improve the efficiency, effectiveness and timeliness of the courts: Court Matters Bill 2017 (285-1) (explanatory note) at 4.

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NEW ZEALAND
SCOTLAND
UNITED KINGDOM
IRELAND
Name
National DNA Profile Databank (DPD)
Scottish DNA Database
National DNA Database (NDNAD)
DNA Database System
Date established
1995
1995
1995
2015
Legislation
Criminal Investigations (Bodily Samples) Act 1995
Criminal Procedure (Scotland) Act 1995, ss 18–20
Police and Criminal Evidence Act 1984
Criminal Justice (Forensic Evidence and DNA Database System) Act 2014
Statutory responsibility
New Zealand Police
Police Scotland
Home Office
Forensic Science Ireland (an associated office of the Department of Justice and Equality)
Day-to-day administration
Institute of Environmental Science and Research (ESR)
Police Scotland
Home Office
Forensic Science Ireland
Forensic analysts
ESR
Scottish Police Authority Forensic Services (SPSA)
Various NDNAD approved laboratories
Forensic Science Ireland
Independent oversight body
None
None
NDNAD Strategy Board (statutory)
Biometrics Commissioner (statutory)
Forensic Science Regulator (non- statutory)
Biometrics and Forensics Ethics Group (non-statutory)
Statutory Oversight Committee (statutory)
(Bodies are classed as



independent if they include



at least one representative



who does not have



statutory responsibility or



responsibility for the day-



to-day administration of a



databank/database.)



Structure of databank(s) in legislation
Two known person databanks:
DPD and Temporary Databank
One known person database:
Scottish DNA Database
One known person database:
NDNAD
Other legislation governs:
- Counter Terrorism DNA Database
One database system consisting of the following divisions and indexes:
- Investigation
- Crime scene
- Reference



- Missing Persons Database
- Elimination (An Garda Síochána)



- Vulnerable Persons Database
- Elimination (crime scene investigators)




- Elimination (prescribed persons)




- Identification




- Unknown persons




- Missing persons
DNA profile
21 loci
24 loci
16 loci
16 loci
Known person databank collection thresholds
Intention to charge with or convicted of an imprisonable offence
Charged with or convicted of an imprisonable offence
Arrested or convicted of a recordable offence (any offence punishable with imprisonment and any other offence mentioned in the National Police Records (Recordable Offences) Regulations 2000
Arrested and detained or convicted of an offence punishable by 5 years’ imprisonment or more

81 CHAPTER 4: TIME FOR A NEW ACT


CANADA
COMMONWEALTH
- AUSTRALIA
VICTORIA - AUSTRALIA
NEW SOUTH WALES -
AUSTRALIA
UNITED STATES
National DNA Data Bank (NDBB)
National Criminal Investigation DNA Database (NCIDD)
Victorian DNA Database
NSW DNA Database
Combined DNA Index System (CODIS)
2000
2001
1998
2000
1998
DNA Identification Act 1998
DNA Identification Act 1994
Royal Canadian Mounted Police (RCMP)
Australian Criminal Intelligence Commission (ACIC)
Chief Commissioner of Police
Secretary of the Ministry of Health
Director of the Federal Bureau of Investigation (FBI)
RCMP
ACIC
Victoria Police Forensic Services Department
NSW Health Division of Analytical Laboratories
FBI
Six RCMP laboratories and two provincial laboratories
Various NCIDD approved laboratories
Victoria Police Forensic Services Department
NSW Health Division of Analytical Laboratories
Various CODIS- approved laboratories
National DNA Data Bank Advisory Committee (statutory)
Privacy Commissioner (statutory)
Commonwealth Ombudsman (statutory)
Complaints can be made to the Health Complaints Commissioner, Ombudsman or Information Commissioner (statutory)
DNA Advisory Committee (statutory)
National Forensic Science Commission (statutory)
Scientific Working Group on DNA Analysis Methods (non-statutory)
Office of the Inspector General US Department of Justice (statutory)
One database system consisting of the following indexes:
- Crime scene
- Convicted offenders
- Victims
- Voluntary donors
- Human remains
- Missing persons
- Relatives of missing persons
One database system consisting of the following indexes:
- Crime scene
- Serious offenders
- Suspects
- Volunteers (limited purpose)
- Volunteers (unlimited purpose)
- Unknown deceased persons
- Missing persons
- Statistical
One database system consisting of the following indexes:
- Crime scene
- Serious offenders
- Suspects
- Volunteers (limited purpose)
- Volunteers (unlimited purpose)
- Unknown deceased persons
- Missing persons
One database system consisting of the following indexes:
- Crime scene
- Offenders
- Suspects
- Volunteers (limited purpose)
- Volunteers (unlimited purpose)
- Unknown deceased persons
- Missing persons
One database system consisting of the following indexes:
- Forensic (casework)
- Convicted offender
- Arrestees
- Detainees
- Legal
- Unidentified human remains
- Missing persons
- Relatives of missing persons
14–18 loci
21 loci
21 loci
21 loci
20 loci
Convicted of a prescribed serious offence
A suspect in relation to or convicted of an offence punishable by 5 years’ imprisonment or more
A suspect in relation to or convicted of a prescribed serious offence
A suspect in relation to or convicted of an offence punishable by 5 years’ imprisonment or more
Varies between States

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4.39 Table 1 shows that the legislation governing the use of DNA in criminal investigations in New Zealand differs in two main areas:

THE DECISION TO AMEND OR REPLACE AN ACT


4.40 Having briefly explained how the CIBS Act was developed and how it compares with its international counterparts, we use the Legislation Guidelines approved by Cabinet to consider whether to amend or replace the current Act.
4.41 The Legislation Guidelines offer the following advice:18

If existing legislation is to be heavily amended (or is already old or heavily amended), consideration should be given to replacing it instead. A key factor to consider is accessibility. If multiple amendments will cause the resulting law to be so complex it becomes difficult to understand, replacing the legislation should be preferred. Complexity can arise through grafting new policies onto existing frameworks so that the overall coherence of the legislation is lost. On the other hand, accessibility should be balanced against any disadvantage in disrupting settled understandings of the law.

THE SEVEN FUNDAMENTAL PROBLEMS


4.42 Bearing the advice in the Legislation Guidelines in mind, we have identified what we consider to be seven fundamental problems with the CIBS Act. This chapter has already foreshadowed many of them. These problems are not necessarily controversial in terms of how they should be addressed, but they could not be easily resolved by simple amendment to a few provisions or even a Part of the CIBS Act. They are systemic and fundamental to how the entire Act operates.
4.43 These problems are explored in more detail elsewhere in this issues paper. In the overview below, we refer the reader to those discussions rather than repeating them at
  1. The recommendations were made by the Independent Advisory Group on the Use of Biometric Data in Scotland (The Scottish Government, March 2018). The Scottish Government has formally accepted many of the recommendations of the 2018 Independent Advisory Group: Scottish Government Response to the Report of the Independent Advisory Group on Biometric Data in Scotland (March 2018).

18 Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 17.

83 CHAPTER 4: TIME FOR A NEW ACT



length here. The purpose of this overview is to make what we see as a clear case for comprehensive reform.

The purpose of the Act is not clear


4.44 As explained in Chapter 2, legislation should be fit for purpose. This requires a clear purpose that has been robustly tested. Our view is that the purpose of the CIBS Act is not clear.
4.45 Notably, the CIBS Act does not contain a purpose provision. While a purpose provision could easily be inserted on its own, the problem is that the policy behind the original Act and the policies underlying the 2003 and 2009 amendments are very difficult to reconcile. Furthermore, the legislative history suggests that exculpating the innocent, deterring criminal offenders and reducing Police costs were all important drivers behind the original Act. However, there are virtually no provisions in the Act that reflect those original intentions. The goal of facilitating the identification and prosecution of offenders is somewhat vague, as we have discussed in Chapter 2. The list of over 100 offences in the Schedule suggests a focus on serious sexual and violent offenders. In contrast the remainder of the Act suggests a more general focus.

The internal structure of the Act is confusing


4.46 As noted at [4.28] to [4.31] above, and as we explore in Chapters 8 and 11, it is not immediately obvious how Parts 2, 2B and 3 of the Act fit together. The extensive overlap has caused considerable uncertainty and has made the Act difficult for a lay person to understand. In particular, the creation of two statutory known person databanks is problematic. The CIBS Act gives the impression that the Temporary Databank and the DPD are two distinct databanks, but in an operational sense, they are used by Police in virtually the same way. We discuss this further in Chapter 12.

The forms, terminology and retention periods in the Act are overly complex


4.47 The CIBS Act contains an array of different procedural rules. The rules apply to any police officer obtaining a biological sample from a known person. In turn, these rules prescribe the use of various consent and notification forms to accommodate this.
4.48 There are four main factors that determine the applicable procedural rules and forms in any given case:
The CIBS Act allows for more than 35 possible combinations of these factors. Slightly different procedures must be followed in each of these scenarios, and Police therefore have 70 different forms.19
4.49 To add to the complexity, it is not always easy to determine whether a case involves a triggering offence in the first place. This is discussed at [4.19] to [4.23] and [4.32] to
  1. This includes the forms pursuant to the Regulations, affidavits and applications, procedural forms, forms for methods of sampling and general police forms.

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[4.35] above. A further difficulty is that, in respect of some requirements in the CIBS Act, a “related offence” may suffice, but that phrase is defined narrowly, which has caused problems for Police.20
4.50 As we explore in Chapter 14, these complexities are mirrored in the CIBS Act provisions governing retention periods. These are the set statutory time periods during which Police can retain biological samples from known persons and the DNA profiles generated from them. The applicable time period depends first on whether a sample or a profile is being considered. Then it is necessary to consider the first three factors listed at [4.48] and the stage of the proceedings (that is, whether charges have been laid, whether a conviction has been entered and the nature of the sentence). This provides a vast number of possible permutations.

The privacy concerns have significantly changed


4.51 As explained at [4.8], the original CIBS Act only enabled blood sampling. This was a grave intrusion on bodily integrity (especially since reasonable force could be used in certain circumstances) so extensive safeguards were introduced around the procedure itself. When mouth swabbing was introduced in 2003, these safeguards were largely copied and applied to this procedure as well, even though it was less intrusive. The rationale for this was that mouth swabbing still involved the State searching inside a person’s body. The person’s bodily integrity was still compromised. While there are parallels between the concept of te tapu o te tangata and the concepts of the inherent dignity of the person and bodily integrity, no express consideration of personal tapu or other tikanga has occurred in making these amendments.
4.52 As we explain in Chapter 8, it may soon be possible to avoid internal body searches entirely. DNA profiling kits may already be sufficiently sensitive to generate consistently a full DNA profile from tape placed on the back of a person’s hand or from the skin cells left by a fingerprint. If this type of sampling becomes available and is used on a regular basis, some of the protections in the Act concerning the sampling process itself will no longer be required.
4.53 The more serious privacy concern will be the amount of personal information that can be generated from a biological sample, as we discuss below. The tikanga implications of this, and in particular the potential for recognition of a collective privacy interest in DNA as whakapapa information, will need to be considered. Recognising a collective privacy interest in DNA may also accord with international developments in privacy law.21

The science has advanced


4.54 When the CIBS Act was enacted in 1995, there was very little discussion about what the DNA analysis process actually involved. During the extensive debates on the original Bill, only three opposition MPs commented on the amount of personal information that DNA

  1. Police has advised that the requirement for a single triggering offence creates difficulties when charging for multiple incidents, for example, five separate burglaries over a period of a week. If the charge for a triggering offence does not result in a conviction, but the charges for the four other incidents do, Police cannot retain the DNA sample collected. While the other incidents might be conducted in a similar manner, they do not comprise substantially the same act and are therefore not “related offences” under the definition in the Act.
  2. Office of the Australian Information Commissioner “What is personal information?” (May 2017) <www.oaic.gov.au> at 12. See also discussion of collective privacy in Chapter 9.

85 CHAPTER 4: TIME FOR A NEW ACT



analysis could potentially reveal.22 By contrast, several MPs drew comparisons to police officers obtaining fingerprints and conducting breath tests.23 The Parliamentary Debates in 2003 and 2009 also involved similar comparisons.24
4.55 This lack of concern about informational privacy probably stemmed from the initial belief among scientists that traditional STR profiling targeted “junk” DNA left over from human evolutionary development.25 As such, it was thought that it revealed no personal information, beyond sex.
4.56 Scientists’ understanding of DNA has grown exponentially in recent years. We now know that there is no such thing as “junk” DNA. Scientists have also identified connections between the loci targeted by traditional STR profiling and a small number of medical genetic disorders.26 Further, as we explain in Chapter 7, vast amounts of information about a person can now be generated from a biological sample, and there is no statutory limit on the amount of information that could be included in a DNA profile. This raises questions about how and whether this information could be used in criminal investigations.
4.57 As a result, new DNA analysis techniques have been developed such as forensic DNA phenotyping, which aims to predict physical appearance (Chapter 6), and familial searching, which aims to identify suspects through their family members (Chapter 13). As we discuss in Chapter 7, it is even possible that whole genome sequencing will become a routine part of the DNA profiling process. These developments raise human rights, Treaty of Waitangi, ethical and tikanga issues as well as issues around informational privacy.
  1. Judith Tizard (25 July 1995) 549 NZPD 8079 and (10 August 1995) 549 NZPD 8630 expressed concerns about access to health information and information about genetic relationships; Tau Henare (10 August 1995) 549 NZPD 8636 highlighted that victims’ DNA profiles could be used against them in later investigations and commented that the profiles could be used to define who is Māori and Richard Northey (12 October 1995) 551 NZPD 9724 alluded to the possibility of familial searching.
  2. Hon Phil Goff suggested there is a “clear parallel” to compulsory fingerprinting and the evidential breath analysis or blood sampling of suspected drinking drivers: (9 August 1995) 549 NZPD 8567. Rick Baker MP and Clem Simich also expressed similar sentiments: (25 July 1995) 545 NZPD 8079 and 8081.
  3. On introduction of the Amendment Bill in 2009, the Hon. Simon Power stated that the Government’s position was that “a DNA sample simply constitutes the modern fingerprint”. He went on to say that the risks of “inappropriate disclosure of an individual’s confidential genetic information are very low” as only a small portion of an individual’s total DNA profile is obtained and only “a small group of specialist scientists” can decipher it: (10 February 2009) 652 NZPD 1117– 1118. Stephen Franks asked what the difference is “between a fingerprint and DNA? What is the difference between taking a photograph and taking a DNA sample?” (21 October 2003) 612 NZPD 9450. Marc Alexander also asked “How is [DNA sampling] any more a breach of personal liberties than the current requirement of obtaining fingerprints for all arrests?” (21 October 2003) 612 NZPD 9453.
  4. Initially, it was thought that the regions of the human genome that do not code for proteins served no practical purpose. However, it has since been discovered that non-coding DNA is not “junk”. One of its functions is that it ‘switches’ coding regions of the genome on and off. See Kat Arney Herding Hemingway’s Cats: Understanding How Our Genes Work (Bloomsbury Publishing, London, 2016) at 23-24.
  5. In May 2009 Dr Martin Somerville, President of the Canadian College of Medical Geneticists, testified before the Canadian senate and stated:

The information that is obtained from the analysis of the 13 DNA markers used for identification purposes can have direct medical relevance. There are numerous claims that these regions are anonymous and, other than gender, do not provide specific medical or physical information about the donor, but the use of these markers can, in fact, detect the presence of changes in the copy number of very large segments of DNA. In other words, it is not designed to do this, but it can do it by circumstance. It is not a very sensitive way of getting medical information, but it can. The list of conditions that this type of profiling can detect includes, but is not limited to, any difference in the number of sex chromosomes as well as Down syndrome or what is commonly known as trisomy 21. DNA profiling will very effectively detect that. No DNA information is truly anonymous, since any portion of the DNA has potential to reveal personal details about an individual. It is only since the completion of the human genome project in 2003 that the complexity and relevance of what was previously labelled as junk DNA has been realized. In essence, that term has fallen out of favour.

See Standing Senate Committee on Legal and Constitutional Affairs Public Protection, Privacy and the Search for Balance: A Statutory Review of the DNA Identification Act (Canadian Senate, June 2010) at 51–52.

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4.58 The comparison to fingerprinting is no longer apt. As we explain in Chapter 5, Parliament will need to consider these issues afresh.

The Act is not sufficiently comprehensive


4.59 Several chapters in this issues paper are dedicated to matters that are not currently addressed in the CIBS Act but potentially should be. This includes Chapters 5, 6, 8, 9, 10 and 13.
4.60 As noted above, a decision to adopt more comprehensive legislation in this area would be in keeping with the recent trend in comparable jurisdictions.

There is no independent oversight body


4.61 Issues with the lack of independent oversight are discussed throughout this paper and form the subject of Chapter 15. There is no oversight or auditing to ensure NZBORA and Treaty of Waitangi consistency in practice, nor to monitor privacy and tikanga issues. In short, the use of DNA in criminal investigations is constantly changing, and those changes are raising significant legal, ethical and tikanga issues. The Act is not able to keep up to date with the pace of these changes. Comparable jurisdictions have established a variety of different independent oversight bodies to identify and help to address areas of concern about the use of DNA in criminal investigations. Most, but not all, of these bodies have been established by statute to confer the powers considered necessary for meaningful oversight. For the reasons we outline in Chapter 15, our preliminary view is that New Zealand should also consider establishing such a body.

CONCLUSION


4.62

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We consider that the current CIBS Act is overly complex and inaccessible. It is difficult for police officers and lawyers to understand and navigate. It would be virtually impossible for the average person to work out how the system works in practice and what their rights are, without expert assistance. Furthermore, the Act has not kept pace with developments in science or international trends. Therefore, our preliminary view is that it is time for a new Act.




Q4
Do you think that the CIBS Act should be repealed and replaced with a new Act?
Why or why not?






















Part B


Casework





























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CHAPTER 5



Crime scene examinations



INTRODUCTION


5.1 This chapter looks at the first step in New Zealand Police’s casework process – obtaining crime scene samples. This chapter explains what a crime scene sample is and what a crime scene examination involves. We then outline Police’s legal authority for collecting and analysing crime scene samples.
5.2 This information provides context for the remainder of this issues paper, particularly Chapters 6 and 7, which focus on specific techniques for analysing crime scene samples and generating DNA profiles, which are important next steps in the casework process.
5.3 This chapter also looks at why DNA profiling is only able to be used in a very small percentage of criminal investigations.

WHAT IS A CRIME SCENE SAMPLE?


5.4 The Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) does not define “crime scene sample”, but it does contain an indirect description. This description is in the provision that enables a District Court Judge to make a suspect compulsion order.1
5.5 Under this provision, a judge must be satisfied of five things before making a suspect compulsion order, one of which is that “material reasonably believed to be from, or genetically traceable to” the offender has been found or is available:

1 Criminal Investigations (Bodily Samples) Act 1995, s 16(1).

  1. The phrase “or genetically traceable to” was inserted into section 16(1)(b) of the Criminal Investigations (Bodily Samples) Act 1995 by the Criminal Investigations (Bodily Samples) Amendment Bill 2003. Subsection 16(1)(b)(iii) was also inserted at this time. The impetus for the amendment came from R v T [1999] 2 NZLR 602 (HC). The victim in R v T was severely intellectually disabled. She had been raped, became pregnant and then miscarried. Police obtained foetal tissue and sought to compare it to potential suspects. Forensic analysis of a blood sample taken by consent from one of the victim’s care workers indicated that he was the likely offender. However, the Court ruled this evidence inadmissible on the basis that Police had not correctly followed the consent procedure in the Criminal Investigations (Bodily Samples) Act 1995 when obtaining the suspect’s blood sample. The Court then considered whether, if the suspect refused to provide a second sample by consent, a suspect compulsion order might be available. The Court concluded that the original version of section 16(1)(b) was not broad enough to include foetal tissue, as the tissue could not be described as being “material reasonably believed to be from” the offender.

89 CHAPTER 5: CRIME SCENE EXAMINATIONS



(e) on any person or thing associated with the commission of the offence.
5.6 This description is very broad but case law indicates that it is workable in practice.3 It also aligns with the approach taken in other common law countries.4 Therefore, this is the definition of crime scene sample that we use throughout this issues paper.
5.7 Commonly found crime scene samples include blood, semen, saliva and skin cells (which can be collected using swabs) and items that may have bodily fluids or skin cells on them such as bottles, cigarette butts, clothing and chewing gum.5

CRIME SCENE EXAMINATIONS


5.8 In a similarly broad definition, the Police Manual explains that “a crime scene is any place an offender has been in relation to a crime”.6 The Police Manual adds:7

Scenes are likely to include:

5.9 Ordinarily, a crime scene examination is an important early step in any criminal investigation. The examination may assist in establishing what may have happened and whether an offence has been committed. It may also assist in identifying suspects, victims and/or witnesses and in verifying any statement that police officers subsequently obtain from those people.8

  1. The following cases, which all concern section 16(1)(b)(v) of the Criminal Investigations (Bodily Samples) Act 1995, give a sense of the limits of the definition: R v Taylor HC Palmerston North CRI-2005-454-6, 7 April 2005, Ronald Young J, in which a cigarette butt that was found five days after an attempted murder in a car that was linked to the offence by other evidence was found to be a “thing associated with the commission of the offence”. R v Robinson HC Auckland CRI-2004-004-10413, 16 June 2006, Asher J, in which a glove was found in a car one or two days after a burglary. The car was indirectly linked to the offending through other evidence. The glove could not be described as a “thing associated with the commission of the offence”. Police v W HC Wellington CRI-2004-485-54, 28 June 2004, in which a witness to a drive-by shooting described the offender as wearing a dark jacket. A dark jacket was found at the suspect’s address with a round of ammunition in the pocket. The suspect denied it was his jacket but said he owned a similar one. There was a sufficient link between the jacket and the offence for it to be described as “a thing associated with the commission of the offence”. Police v Y HC Palmerston North CRI-2006-454-44, 6 November 2006, Mallon J, in which a jacket was found on the street with latex gloves and a cloth in the pocket. Black track pants were found nearby. The clothing appeared to have been thrown from a car. The clothing matched the description of clothing worn by an offender during an armed robbery the previous day. The relevant glove was found to be “a thing associated with the commission of an offence”.
  2. See the broad definitions of “crime scene” in the UK College of Policing Investigation Manual (Authorised Professional Practice, 5 October 2018) at Managing Investigations 9.1; Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s 3 definition of “crime scene”; and Police Powers and Responsibilities Act 2000 (Qld), at s 163B.

5 We refer to all of these as “biological samples”. See the Glossary at the beginning of this issues paper.

6 Police Manual Crime Scene Examination at 3.

7 Police Manual Crime Scene Examination at 3.

8 Police Manual Crime Scene Examination at 4.

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5.10 DNA profiling can be a valuable investigative tool, but crime scene examinations do not always have a forensic component to them. Even if a forensic specialist attends and obtains a crime scene sample, the sample is not always sent to the Institute of Environmental Science and Research (ESR) for analysis, and even if ESR does analyse a sample, it may not be possible to generate a usable DNA profile.

Incident occurs

Crime scene examination with a forensic

specialist

Crime scene sample collected

Crime scene sample submitted for analysis

Profile

There is a significant difference between the overall number of incidents that occur and the number of cases in which a usable DNA profile is generated. This number diminishes at each step in the process, as illustrated below:

Forensic specialists do not attend all crime scenes


5.12 Whether a forensic specialist attends a crime scene examination largely depends on the nature and seriousness of the offending.
5.13 For some offences, it is standard practice for a forensic specialist to be involved. For example, Police has a target of attending all reported burglaries of domestic dwellings within 48 hours.9 In the vast majority of these cases, a specially trained Police Crime Scene Attendant or Scene of Crime Officer will attend, alongside other police officers, to collect exhibits with forensic potential.10 It is also standard practice for Police to encourage sexual assault complainants to undergo a medical examination if there is any chance that genetic material traceable to the offender may still be present.11 These examinations are conducted by specially trained doctors.
5.14 For particularly serious offending, the Services Agreement between Police and ESR explains that police officers may need to engage one or more forensic scientists from ESR to conduct the crime scene examination.12 This may be required in the following categories of cases:13

9 New Zealand Police Annual Report 2016-2017 (November 2017) at 14.

  1. Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at [1.6].

11 New Zealand Police “Video Resources: Why don’t people report sexual assaults?” <www.police.govt.nz/>.

  1. See New Zealand Police and the Institute of Environmental Science and Research Forensic Science Services Agreement (2018) at [66]. See Key terms and actors at the beginning of this issues paper for further discussion of this agreement and the contractual basis to the relationship between Police and ESR.

13 New Zealand Police and the Institute of Environmental Science and Research Forensic Science Services Agreement

(2018) at [66].

91 CHAPTER 5: CRIME SCENE EXAMINATIONS


5.15 We understand that, in relation to all other offending, police staff will decide on a case- by-case basis whether a forensic specialist should attend the crime scene examination.

There may not be any crime scene samples suitable for collection


5.16 When considering a potential sample, a specialist will take into account all of the circumstances of the case. How likely is it that the sample was left behind by the offender? How high is the risk of contamination? Are elimination samples available?14 The specialist will also consider whether the sample is of a kind that is suitable for DNA profiling – some biological samples and items are much more likely to yield a DNA profile than others. Finally, in relation to the skin cells in fingerprints, a specialist may need to prioritise fingerprinting over DNA profiling. DNA profiles can be obtained from marks after most fingerprinting techniques (although the amount of DNA recovered will be reduced), but the reverse is not possible.15

Not all crime scene samples are sent to ESR for analysis


5.17 Police is divided into 12 districts, and each has its own forensics budget. District Crime Managers are responsible for the budget and oversee the decisions as to which samples will be sent to ESR for analysis.16 The decisions are made on a case-by-case basis by the District Crime Manager.
5.18 Our understanding is that the District Crime Manager will consider many of the same factors that the crime scene examiner will have considered when deciding whether to collect the crime scene sample in the first place as well as the following:
  1. Samples from known people who may have been at the crime scene, such as victims, third parties or investigators. The aim of comparing these samples to a crime scene sample is to isolate and identify any DNA that may belong to the offender or any other person investigators are seeking to identify.

15 Police Manual DNA Evidence at Crime Scenes at 10.

  1. Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at [1.6].
  2. See Police’s response to a request under the Official Information Act 1982 as quoted in Police v Shull [2017] NZDC 17314, [2018] DCR 587 at [32].

18 It should be noted that fingerprint analysis is completed prior to DNA submission in many volume crime cases.

19 Police Manual DNA Evidence at Crime Scenes at 10.

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(d) Whether there is already a clear suspect and a strong Crown case. This factor can cut both ways.20 If there is a clear suspect, an investigator may choose to send the sample to ESR for analysis to obtain the best possible evidence for any trial. Alternatively, in the same circumstances, an investigator may decide that sending the sample to ESR would not be cost-effective because the investigation is likely to result in a conviction anyway. If there is no clear suspect or there is a marginal Crown case, the decision to send the sample to ESR for analysis is likely to be much more straight-forward.

It may not be possible for ESR to obtain a usable result


5.19 As we discussed in Chapter 3, even if a crime scene sample is sent to ESR for analysis, it may not be possible to generate a usable DNA profile. There may be insufficient amounts of DNA in the sample, there could be DNA from too many contributors; or the DNA may be too degraded due to environmental factors.

DNA only relevant in a small number of cases


5.20 At present, there is very little data on the number of criminal investigations in New Zealand where a usable DNA profile is generated from a crime scene sample. However, DNA profiling is either not relevant or not possible in the majority of criminal cases.
5.21 In 2010, the United Kingdom Home Office estimated that DNA is found at less than 1 per cent of crime scenes in the United Kingdom.21 A 2014 PhD thesis found that the figure in New Zealand is likely to be similar, based on a study of Central Auckland investigations into reported offences in 2005.22
5.22 The percentage of cases where DNA is found at the crime scene may be slightly higher than average in volume crime cases. A 2008 study by ESR found that samples from 2 per cent of volume crime cases were submitted to ESR for profiling, with scientists being able to extract a DNA profile from 64 per cent of those samples.23
5.23 These percentages will probably rise as the sensitivity of DNA profiling kits increases and the cost of analysis decreases. Nevertheless, for the reasons described above, in those cases where DNA profiling may be relevant, the general trend of diminishing returns at each step in the process is likely to continue.

THE LEGAL AUTHORITY FOR CRIME SCENE EXAMINATIONS: ISSUES AND OPTIONS


5.24 The CIBS Act does not contain any provisions that deal with crime scene examinations or the collection of crime scene samples. Instead, the process is governed by:
  1. Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at [6.2].
  2. House of Commons Home Affairs Committee The National DNA Database (Session 2009–2010 Eighth Report, 4 March 2010) as cited in Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at 87.
  3. Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at [4.3]. We discuss these findings further in Chapter 10.
  4. J Buckleton DNA Solve More Burglaries (Environmental Science and Research Ltd, 2008) as cited in Catherine Gardner “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?” (PhD Thesis in Criminology, Auckland University of Technology, 2014) at [4.3].

93 CHAPTER 5: CRIME SCENE EXAMINATIONS



(a) the Search and Surveillance Act 2012, which contains general rules about gathering evidence in investigations; and
(b) the common law, which applies to crime scene samples found in public places.
5.25 Work has also been done to consider the impact of Māori cultural values on crime scene management, particularly where a homicide is involved.24 Police iwi liaison officers may be appointed to give advice on tikanga, and work with iwi and whānau in investigations involving Māori.25

The Search and Surveillance Act 2012


5.26 The rules around the collection of crime scene samples from people and private property are primarily in the Search and Surveillance Act. Under that Act, such samples are treated in the same way as any other evidence gathered during the course of an investigation. 26
5.27 The three different ways in which Police can collect a crime scene sample under the Search and Surveillance Act are:
All three ways result in Police being able to seize the crime scene sample on the basis that it may constitute “evidential material” in respect of the offence that is under investigation.30
5.28 The Search and Surveillance Act defines evidential material as “evidence of the offence, or any other item, tangible or intangible, that is of relevance to the investigation”.31 There is an issue as to whether a bodily fluid that is found at a crime scene (for example, blood) falls within the meaning of “item”.32 We discuss this issue in Chapter 9 and suggest that
  1. Maui Hudson and others “The Impact of Māori Cultural Values on Forensic Science Practice in New Zealand” (2008) 53 JFS 380 at 381.
  2. New Zealand Police “Iwi liaison officers” at <www.police.govt.nz>. See also discussion in the context of search and surveillance in Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake I te Search and Surveillance Act 2012 (NZLC R141, 2017) at [4.84].
  3. In New Zealand, the law treats a crime scene in the same way as any other search scene. For further discussion see Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [6.98]–[6.103].
  4. Police officers, like any other member of the public, have an implied licence to go onto private property to knock on the door with a view towards speaking with an occupier. If an officer comes across a crime scene, section 117 of the Search and Surveillance Act 2012 gives the officer the power to preserve the scene until a search warrant is obtained pursuant to section 6 of that Act.
  5. In certain circumstances, a police officer may be able to seize a crime scene sample in the course of exercising a statutory warrantless search power. For instance, under section 15 of the Search and Surveillance Act 2012, if a police officer has reasonable grounds to suspect that a very serious offence (punishable by a maximum penalty of at least 14 years imprisonment) has been committed; and to believe that evidential material relating to the offence is in a place and will be destroyed if entry is delayed, the officer may enter and search that place.

29 Consent searches are governed by sections 92–96 of the Search and Surveillance Act 2012.

  1. Under section 110 of the Search and Surveillance Act 2012, a police officer executing a search power may seize anything that is the subject of the search. Sections 6 (search warrant), 15 (statutory search power) and (indirectly) 92 (consent search) indicate that evidential material is the subject of these searches.

31 Search and Surveillance Act 2012, s 3.

  1. See Chapter 9, T v R [2015] NZHC 1588 at [79]–[83] and T (CA438-2015) v R [2016] NZCA 148. See also Simon France (ed) Adams on Criminal Law – Rights and Powers (online ed, Thomson Reuters) at [SS3.17.01], which states that there is probably no difference between the phrase “evidential material” in the Search and Surveillance Act and the phrase “evidence as to the commission of the offence” in its predecessor, the Summary Proceedings Act 1957. The authors

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this should be clarified. There is also a related issue that the relevance of a crime scene sample to an investigation is entirely dependent on its subsequent analysis.
5.29 To address this, section 112 of the Search and Surveillance Act empowers Police to seize evidential material that is of “uncertain status”. This material may or may not be of relevance to the investigation. To determine if it is relevant, the officer may remove the item for “examination or analysis”.33 The Search and Surveillance Act does not place any limits around what this process may entail.
5.30 Once a crime scene sample has been analysed and is no longer needed for “investigative or evidential purposes”, it must be disposed of in accordance with the general rules concerning the retention of evidential material in the Search and Surveillance Act.34 This raises several issues regarding the retention of crime scene samples, which we discuss in Chapter 14.
5.31 One difficulty is that, strictly speaking, “examination or analysis” of a crime scene sample in isolation will not usually determine its relevance to the investigation, as required by section 112 of the Search and Surveillance Act.
5.32 As we discuss in the Chapter 6, there have been 11 investigations in which ESR has analysed a crime scene sample in isolation to extract information about the potential offender’s likely appearance,35 but in the vast majority of cases crime scene samples are not analysed in isolation. Ordinarily, the analysis process involves a forensic comparison between a crime scene sample and a sample from a known person or the known person databank.36 This is in stark contrast to other forms of analysis that are conducted pursuant to section 112, such as drug testing and forensic analysis of computers, which are routinely conducted in isolation.
5.33 The Law Commission identified this issue in our original 2007 report Search and Surveillance Powers.37 We recommended that a provision akin to section 112 should be enacted but that it should expressly enable the analysis of evidential material “(whether by itself or together with other material)” (emphasis added) to determine its relevance.38 This would make it plain that DNA analysis of crime scene samples was covered. We remain of the view that section 112 would be more readily understood if it was amended to include the italicised phrase.

note: “‘Evidence’ has always had a broad meaning and covers a range of material that might not necessarily be used as evidence in any criminal prosecution for the suspected offence.” The more contentious issue is whether the general search warrant power in section 6 of the Search and Surveillance Act is framed broadly enough to enable a judge to issue a search warrant in respect of a bodily fluid. This depends on the definition of “thing”. This issue is discussed in Chapter 9.

33 Search and Surveillance Act 2012, s 112:

If a person exercising a search power is uncertain whether any item found may lawfully be seized, and it is not reasonably practicable to determine whether that item can be seized at the place or vehicle where the search takes place, the person exercising the search power may remove the item for the purpose of examination or analysis to determine whether it may be lawfully seized.

See also s 110(d), which states that every search power authorises the person exercising it to seize anything that is the subject of a search.

34 Search and Surveillance Act 2012, s 149.

  1. In other words, the crime scene sample (or biological sample) has been subject to particular scientific analysis in an attempt to ascertain information about the owner of that sample.

36 See Chapter 6 for further discussion on analysis in isolation and Chapter 7 for forensic comparisons.

37 Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [3.47]–[3.61].

38 Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [3.60].

95 CHAPTER 5: CRIME SCENE EXAMINATIONS

The common law


5.34 Crime scene samples that are discovered in public places are not covered by the Search and Surveillance Act because there is no competing property interest at stake. In these instances, police officers may rely on the common law principle that they are lawfully entitled to do what any member of the public can do.39
5.35 Under this principle, a police officer is entitled to seize a crime scene sample, such as a cigarette butt, found on a public street. The question of whether the officer can send the sample away for DNA analysis is much more difficult to answer. It depends on whether a member of the public would breach any laws by doing the same thing.
5.36 As we explain in Chapter 9, there is no clear answer to this question. The Human Tissue Act 2008 and the common law tort of privacy may prohibit a member of the public from arranging for DNA analysis in the absence of consent. Section 112 of the Search and Surveillance Act only applies to police officers exercising statutory search powers. It does not apply to officers who collect crime scene samples from public places using common law powers.
5.37 We see no reason why the law in this area should operate differently, depending on whether the sample is found on public or private property. We therefore suggest that there may also be merit in amending section 112 to widen its scope.
5.38 An alternative to amending section 112 of the Search and Surveillance Act in the way described above would be to enact a tailor-made provision empowering police officers to arrange for the analysis of crime scene samples. Such a provision could be included in any new legislation enacted to replace the CIBS Act.
5.39 The benefit of including a tailor-made provision in a new Act would be that it could describe the crime scene examination process and the associated powers available to police officers in more detail. Such a description could promote greater certainty, but that might come at the expense of accessibility and simplicity.
5.40 One of the major drivers behind the original enactment of the Search and Surveillance Act was to pull together the search powers available to Police in one statute and to simplify them. Placing a central Police search power in a different Act and framing it in specific as opposed to general terms would undermine that goal. For that reason, we consider that our proposed amendments to section 112 of the Search and Surveillance Act would probably be a preferable solution.

The issue of contamination


5.41 Aside from the two relatively technical issues discussed in this chapter, the only other area of concern that we have in respect of crime scene examinations is the increasing risk of contamination. This issue is closely related to developments in the sensitivity of DNA profiling kits and is discussed at length in Chapter 7.





39 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [217] per Tipping J; Lorigan v R [2012] NZCA 264, (2012) 25 CRNZ 729

at [26]–[38]; and R v Gardiner (1997) 15 CRNZ 131 (CA) at 134.

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CHAPTER 6



Forensic DNA phenotyping



INTRODUCTION


6.1 Once a crime scene sample is obtained, the next step in the casework process is for the sample to be analysed by forensic scientists at the Institute of Environmental Science and Research (ESR).
6.2 There are two main choices available to a forensic scientist. One choice is to analyse the sample using traditional STR profiling techniques1 to generate a crime scene profile that can be compared to another profile – usually from a known person (such as a suspect). This process, called forensic comparison, is the more usual one used in casework. We discuss this in Chapter 7.
6.3 The other choice, in lay terms, is for the forensic scientist to mine the crime scene sample for information about the person who left it at the crime scene.2 Recent developments in DNA analysis mean that forensic scientists can now use certain analysis techniques to predict some of the likely physical characteristics of the person who left the sample – such as a person’s hair colour, eye colour or ethnicity. This is known as forensic DNA phenotyping.
6.4 DNA phenotyping clearly demonstrates the tension in seeking to create a statutory regime that capitalises on developing science whilst being constitutionally sound and with sufficient legal certainty. Managing this tension is the biggest challenge in reforming this area of law.
6.5 This chapter explains what forensic DNA phenotyping is, the law that applies to it and how it has been used in New Zealand to infer ethnicity3 in certain situations. We then discuss the issues and options for reform.

WHAT IS FORENSIC DNA PHENOTYPING?


6.6 Forensic DNA phenotyping is the process of analysing a person’s DNA to predict their likely physical appearance. That prediction can be direct or indirect. A direct prediction is when a person’s DNA suggests that they have a particular physical characteristic or trait, such as red hair or blue eyes. An example of an indirect prediction is when a person’s

1 STR profiling techniques are discussed in Chapter 3.

  1. Note that the term we use in this issues paper to describe both of these processes (analysis of a sample in isolation and forensic comparison), when conducted within the confines of a specific criminal investigation, is “casework”.
  2. A person’s genetic ancestry is what is predicted through DNA phenotyping, rather than “ethnicity” per se. The term “ethnic inferencing” or “ethnicity testing” are the terms widely used in the academic literature as opposed to “ancestry inference”. We have opted to use “ethnic inferencing” in this paper.

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DNA is suggestive of a particular ethnicity or ancestry. That ethnicity or ancestry may in turn be linked to physical traits, such as skin colour.
6.7 At present, there are three types of forensic DNA analysis kit that are commercially available and can be used for forensic DNA phenotyping. Some of the kits target physical characteristics such as hair and eye colour (referred to as externally visible characteristics or EVCs). Some target certain genetic markers in order to predict a person’s likely ancestry or ethnicity. The kits are as follows:
6.8 As well as the forensic DNA phenotyping kits on the market, additional kits are currently being scientifically validated prior to commercial sale. These kits predict other physical traits including height, age, build and facial structure.10 Ultimately, these kits could be used to produce an identikit-style picture of a potential suspect.11
6.9 Like the other supplementary DNA analysis techniques discussed in Chapter 3, forensic DNA phenotyping has emerged in response to a policing need. In some investigations, police officers do not have any suspects and there is no match between the crime scene profile and any profiles on the databanks. Even if a DNA profile can be generated from a crime scene sample, there is no guarantee that any forensic comparison process will result in a match. In that situation, forensic DNA phenotyping has the potential to provide a lead in an investigation that would otherwise have stalled. Forensic DNA phenotyping could also be useful where police officers have a pool of potential suspects that they would like to narrow down before approaching any individual for direct suspect sampling.12


4 Note that while Y-STR kits can be used for ethnic inferencing, that is not the primary purpose of these kits.

5 See the explanations of SNPs, Y-STR profiling and AIMs in Chapter 3.

6 At [6.12] to [6.13].

7 See the explanation of EVCs in Chapter 3.

8 See Table 2 in Chapter 3 for further information.

9 See Table 2 in Chapter 3 for further information on this type of analysis kit.

  1. Peter Gunn, Simon Walsh and Claude Roux “The nucleic acid revolution continues: will forensic biology become molecular biology?” (2014) 5 Front Genet 44 at 3; and “Genes for face shape identified” The BBC (online ed, London, 13 September 2012).
  2. Donna Chisholm “Can a genetic test help you stay healthy and live longer?” North and South Magazine (online ed, Auckland, 7 August 2017).
  3. Aside from criminal investigations, phenotyping can also be used to assist in missing person and disaster victim identification cases.

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6.10 Significantly, forensic DNA phenotyping is a purely investigative tool. The results would not ordinarily be presented as evidence in court.13 There are two main reasons for this. First, it can only predict a person’s likely appearance, so it is not sufficiently reliable to be admitted as evidence. Second, there is no need to rely on the results as evidence. Once a suspect is identified using forensic DNA phenotyping, an investigator can obtain a reference sample from that person (either by consent or compulsion) for comparison to the crime scene sample. If that results in a match, the comparison would be the relevant evidence at any trial. While this provides a check on reliability, it means that forensic DNA phenotyping is not subject to any routine oversight by the courts. To address this, one of the options we put forward at the end of this chapter is for a court or oversight body to pre-approve the use of forensic DNA phenotyping in any particular case.

FORENSIC DNA PHENOTYPING IN NEW ZEALAND


6.11 New Zealand Police and ESR have advised that the only type of forensic DNA phenotyping that has been conducted in New Zealand is ethnic inferencing. It has been used in 11 criminal investigations. We examine these 11 instances further below, but first we explain how ethnic inferencing is conducted by ESR.
6.12 At present, the process used by ESR to make an ethnic inference involves three steps. First, the scientist obtains formal approval from the appropriate senior police officer to undertake the ethnic inference. Second, the scientist generates a Y-STR profile from the crime scene sample, which targets ancestry informative markers (AIMs). As explained in Chapter 3, the Y chromosome passes largely unchanged from one generation to the next, so it is relatively easy to identify related males.14 Third, the scientist compares the crime scene Y-STR profile to New Zealand and international Y-STR population databanks. (Y-STR population databanks contain anonymised Y-STR profiles from volunteers who have also provided information about their ethnicity. We discuss these in further detail below).
6.13 The aim of comparing the crime scene Y-STR profile to these Y-STR population databanks is for the scientist to identify how many times the exact same Y-STR profile as that obtained from the crime scene sample appears within each population databank. The scientist reports this information back to investigators and offers their opinion as to whether the results are indicative of a particular ethnicity. In reporting back, the scientist reports the findings in terms of a Y-STR likelihood ratio.15


  1. We understand that ESR’s case file is disclosed to defence counsel. This means any forensic DNA phenotyping results could be raised and discussed in court if defence counsel considered that there was a reason to do so.
  2. ESR has advised that, to date, the highest likelihood ratio for a matching Y-STR profile in New Zealand is approximately 1:430. This is significantly lower than the likelihood ratios in the millions that are common in relation to traditional STR profiling.
  3. An example of a Y-STR likelihood ratio provided by ESR is as follows: “Either a) the male DNA determined from this sample originated from Mr X; or (b) this DNA has originated from a male paternally unrelated to Mr X, selected at random from the New Zealand population and the match has occurred by chance. When considered in this way, the Y- STR profiling evidence is at least one million million (1x1012) times more likely if the male DNA determined from the sample originated from Mr X, rather than from another male paternally unrelated to him and selected randomly from the New Zealand population. This finding provides scientific support for the proposition that the male DNA determined from the sample originated from Mr X. It should be noted that paternal male relatives of Mr X may not be excluded by this Y-STR DNA evidence alone.”

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Y-STR population databanks


6.14 The New Zealand Y-STR population databank was originally created by ESR to assist in generating the likelihood ratios that explain the significance of a match between any two DNA profiles.16 In order to generate the likelihood ratios, ESR needed to know the frequency of particular STRs within the New Zealand population. It was not possible to simply rely on the international Y-STR population databank for this purpose as it contains too few profiles from the Pacific region.17 Therefore, ESR created the New Zealand Y-STR population databank.
6.15 The composition of the New Zealand Y-STR population databanks is demonstrated in the pie chart below:18

Graph 1: Y-STR population databank as at 30 June 2018

708
16%
1052

24%
1078

24%
588
13%

1011
23%
Caucasian Asian
Western Polynesian Eastern Polynesian
Other

2018_4313.png


6.16 There is an important issue to signal in relation to New Zealand’s Y-STR population databank. At present, the main way of obtaining profiles for this databank is to ask individuals who are required to provide biological samples to Police to also complete a voluntary ethnicity form.19 While the Y-STR population databank is important for scientific
  1. As discussed in Chapter 3, when a scientist presents forensic comparison evidence in court they do so with reference to a likelihood ratio. An example of this is as follows: “the likelihood of obtaining these [DNA profiling] results is at least one million times greater if the DNA in this sample originated from Person X rather than from someone selected at random from the general New Zealand public. On the verbal equivalent scale this would provide extremely strong support for the proposition that the DNA evidence came from the person of interest”.
  2. For instance, in 2010, the international Y-STR population databank consisted of the following main groupings: African (1,166), European (11,273), Arctic (272), Asian (12,666), Latin American (5,493) and North American (3,256). This data was provided to Police by ESR in a 2010 case. For updated information see Y-STR Haplotype Reference Database “Current State of the Database” <https://yhrd.org/>.

18 The data used to create this pie graph was provided by ESR.

  1. As the majority of samples are now obtained by Police by way of compulsion for the Temporary Databank (after a person has been charged with an offence), this means most of the voluntary ethnicity forms are also completed by people who have had their sample obtained by compulsion. However, as we explain in Chapter 11, prior to 2010, the most common method of obtaining samples was under Part 3, where samples were provided by consent for the DPD. Therefore, many of the DNA profiles currently on the Y-STR population databank will have been obtained when Police was also obtaining samples by consent (under Part 3) rather than when Police was obtaining samples by compulsion (under Part 2B). See Chapters 8 and 11 for further discussion of the process of Police obtaining samples.

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purposes, we have concerns about the content of the form and the timing of the request, which we discuss in Chapter 11.20

Police policy on ethnic inferencing


6.17 Police policy is that the use of ethnic inferencing is reserved for serious criminal cases where there are no other investigative leads. Any request to ESR for an ethnic inference must be pre-approved by a Police District Crime Manager. Police is currently finalising a written protocol confirming this policy. It will be similar to the one that is already in place on familial searching.21 However, even if finalised and publicly available, compliance with the protocol will be a matter of policy as opposed to law.

Eleven instances of ethnic inferencing


6.18 Since 2007, Police has asked ESR to provide an ethnic inference in 11 criminal investigations. In five of those, no ethnic inference was possible, as the results were not sufficiently indicative of a particular ethnicity. Of the remaining six investigations, three are ongoing, one involved the identification of a victim as opposed to a suspect, and in two, ethnic inferencing assisted in the identification of the offender. We now discuss these last two cases in further detail.

The 2010 murder


6.19 The first case involved the fatal stabbing of a taxi driver in 2010. The offender left the knife in the taxi and fled. When an ESR scientist analysed the knife, they found blood from the victim and an unknown male. Scientists generated a DNA profile for the unknown male (the crime scene profile). The crime scene profile did not match any profile on the known person databank. The officer in charge of the investigation made a request to ESR for an ethnic inference. The results indicated that the unknown male was probably Chinese. Meanwhile, police officers had obtained CCTV footage of the offender getting into the taxi. It was difficult to see the offender, but he was wearing a distinctive backpack that was later found in a park. Further investigation revealed the owner of the backpack, who was Chinese. The owner of the backpack had fled overseas, but police officers obtained a search warrant for his apartment and seized two toothbrushes. A forensic comparison revealed a match between a DNA profile from one of the toothbrushes and the crime scene profile. Eventually, this man was arrested, tried and found guilty of the murder.22

The 2015 rape


6.20 In 2015, a man broke into a house and raped a woman while she was in bed with her husband. The victim and her husband could not identify the offender. The victim’s medical examination kit was analysed by an ESR scientist who found semen from an unknown male. Scientists generated a DNA profile for the unknown male (the crime scene profile). The crime scene profile did not match any profile on the known person
  1. In September 2018 ESR recorded that only about 15 per cent of those requested completed a form that was sent with in with their sample.

21 Familial searching is the subject of Chapter 13.

  1. See Paul Easton “Slain taxi driver’s family fights for the kiwi dream” Sunday Star Times (online ed, Auckland, 3 July 2015). See also Simon Morton “Forensics NZ, season 1, episode 1: Operation Edgewater” (aired 24 April 2016).

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databank. The officer in charge of the investigation made a request to ESR for an ethnic inference. The results indicated that the unknown male was probably Western Polynesian. In light of that information and fingerprint evidence, police officers asked eight Tongan men who lived near the victim’s house to provide reference samples (by consent) for comparison to the crime scene profile. The men were on limited work visas and were due to leave the country. A profile generated from one of the samples matched the crime scene profile. The man who had provided the sample pleaded guilty to the rape.23

THE APPLICABLE LAW


6.21 Neither the Search and Surveillance Act nor the CIBS Act places any restrictions around what analysis of a crime scene sample may involve. The process is, however, subject to some restrictions by virtue of the New Zealand Bill of Rights Act 1990 (NZBORA) and the Privacy Act 1993. These restrictions apply to both forensic DNA phenotyping and forensic comparisons.
6.22 First we examine the two restrictions under NZBORA – the right to be free from unreasonable search and seizure under section 21 and the right to be free from discrimination under section 19(1).

Section 21 of NZBORA


6.23 Section 21 of NZBORA protects against unreasonable search and seizure by the State. As we explained in Chapter 2, the act of obtaining a biological sample directly from a suspect is a “search and seizure” for the purposes of section 21. That is because the sampling process is a State intrusion upon that person’s reasonable expectations of privacy. The intrusion is two-fold. First, the person’s bodily integrity is compromised. Second, there is an intrusion on informational privacy, as a biological sample can be analysed to obtain a vast amount of personal information.
6.24 Importantly, the search and seizure does not end at the moment a police officer takes possession of the sample. That is because seizure is a continuing act.24 It continues for the entire time that the sample is in the possession of the State. Therefore, the obligation of reasonableness in section 21 of NZBORA applies to both the taking of a biological sample from a suspect and how that sample is dealt with afterwards, including how it is analysed.

Is the act of analysing a crime scene sample part of a search and seizure?


6.25 In our view, there are three main differences between obtaining and analysing a crime scene sample and obtaining and analysing a suspect sample. These differences may mean that obtaining and analysing a crime scene sample is not part of a search and seizure.


  1. Lauren Moriarty and Turlough Thomas Stone “Case study: Ethnicity testing for intelligence purposes” (paper presented to the 23rd Australian and New Zealand Forensic Science Society Symposium, Auckland, 20 September 2016).
  2. A seizure is not just the initial act of the State taking control of a thing. It extends to the situation after the thing is taken into custody and for so long as that state or situation continues: Alwen Industries v Comptroller of Customs (1993) 1 HRNZ 574 (HC) at 586.

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6.26 First, crime scene sampling does not involve an intrusion on bodily integrity. Advances in technology mean that it is increasingly possible to minimise the physical intrusion inherent in direct sampling,25 so this distinction may not be as significant as it initially appears. What is more concerning, as it is with suspect sampling, is the increasing amount of personal information that can now be generated from a crime scene sample.
6.27 Second, investigators may not know who is responsible for a crime scene sample, but it is hard to see how a police officer’s lack of knowledge impacts upon the other person’s expectations of privacy.
6.28 Third, and most significantly, crime scene samples are found at crime scenes. This third difference raises the question: Does a person still have a reasonable expectation of privacy in the information that could be derived from their DNA if they leave a biological sample at a crime scene? We think that the answer is yes.
6.29 The point can be illustrated by considering an innocent bystander who has a drink at a bar and then leaves before a fight breaks out. Despite leaving a biological sample on a bottle at the crime scene, the person is still likely to consider that the information contained in their DNA is private. It could be argued that the person’s expectation of privacy would not be objectively reasonable if they were aware of, or committed, an offence. But this argument suggests that section 21 of NZBORA only protects innocent third parties. That is not the case. Section 21 protects all people from unreasonable search and seizure by the State. Whether or not a person has committed an offence, they are protected from unreasonable State action.

What analysis would be unreasonable?


6.30 Section 21 of NZBORA only provides protection from an unreasonable search and seizure. Case law suggests that, as long as the analysis of a crime scene sample in any given case is proportionate and minimally intrusive, there will be no issue in terms of section 21.26
6.31 In relation to crime scene samples, a central consideration in applying the principle of proportionality is that, by definition, a crime scene sample is closely connected to the offence under investigation. This means that the law enforcement interest in analysis may be such that a substantial intrusion on informational privacy is justified. However, investigators still need to undertake this assessment, weighing the gravity of the offence against the potential probative value of the analysis results. This is highly case-specific and suggests that blanket policies in this area may be problematic.
6.32 When it comes to the principle of minimal intrusion, it is useful to draw an analogy to the forensic examination of computers. In that context the courts afford considerable leeway to forensic examiners to decide what examination is necessary and how to conduct the examination, as long as steps are taken to avoid viewing irrelevant or privileged material.27 In short, not all of the potentially available information on a computer is fair game.
6.33 The analogy suggests that some of the information that could be derived from a crime scene sample is likely to be off limits to investigators under NZBORA.

25 See Chapter 8 for further discussion on this.

26 We introduced the principles of proportionality and minimal intrusion in Chapter 2.

27 Law Commission Review of the Search and Surveillance Act 2012: Ko te Arotake I te Search and Surveillance Act 2012

(NZLC R141, 2017) at ch 12.

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6.34 A prime example of is genetic disorders. Due to developments in health science, it would be entirely possible for a scientist to analyse a crime scene sample to look for a genetic disorder.28 This information could be used by an investigator to assist in identifying a suspect, but those actions would amount to a substantial intrusion on the suspect’s informational privacy, particularly if a disorder were found of which the person had been unaware. Analysing the crime scene sample in this way would undermine the fundamental concept of informed consent upon which genetic testing in the health sector operates. Furthermore, if the information about the disorder were shared with the suspect, this would undermine the right of that person not to know about their health issue.29 It is hard to imagine a case in which such a significant intrusion on privacy would be proportionate, necessary and minimally intrusive.

Police’s ethnic inferencing policy and section 21 of NZBORA


6.35 We consider that Police’s policy on ethnic inferencing reflects the requirements of section 21 of NZBORA. Limiting its use to serious cases where there are no other leads recognises that ethnic inferencing involves a reasonably significant intrusion on privacy and that the intrusion can only be justified, in any given case, if it is considered necessary to progress the investigation. Relaxation of that policy might result in a breach of section 21.

Is ethnic inferencing discrimination under section 19(1) of NZBORA?


6.36 A specific legal issue arises in relation to ethnic inferencing that does not arise in relation to other forms of forensic DNA phenotyping (or forensic comparisons). That is the question of whether ethnic inferencing could be an unjustified limitation on the right to be free from discrimination on the grounds of race or ethnic origin under section 19(1) of NZBORA.30
6.37 For an act or omission to amount to discrimination under section 19(1) of NZBORA:31




28 Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015) at [3.7.2.7].

  1. Universal Declaration on the Human Genome and Human Rights (UNESCO Res 29C/I7), art 5. See also the discussion in Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at Appendix 4.
  2. We examine the right to be free from discrimination as protected by sections 5 and 19 of NZBORA in Chapter 13, which discusses familial searching. Familial searching is used more frequently in New Zealand than ethnic inferencing - it has been used in 93 cases. We think that the risk of unjustified discrimination is much higher in respect of familial searching than with ethnic inferencing.
  3. This test comes from the leading case on section 19 of the New Zealand Bill of Rights Act 1990: Ministry of Health v Atkinson [2012] NZCA 184, [2012] 3 NZLR 456 at [55].

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Differential treatment


6.38 In terms of the science of ethnic inferencing, no ethnic or racial group is treated differently by the analysis process, but there may be a distinction in practice. That is because ethnic inferencing would be of most use to Police in cases where the identified ethnicity is rare in the geographic area of interest to Police - and therefore a manageable number for police officers to identify and approach.
6.39 By way of example, if a crime occurred in the small North Island town of Ohura and ethnic inferencing indicated that the crime scene sample probably came from a Latin American male, any Latin American men in the town would probably be spoken to by investigators and might be treated as potential suspects. In the same case, however, if the result was a male of European origin, the information probably would not lead to any further immediate police inquiries.
6.40 The two comparator groups are ethnic and racial groups that have very few members in the particular geographic area (the first group) and the remainder of the population (the second group).32 Ethnic inferencing could result in indirect differential treatment between these two groups. A person in the first group is more likely to be investigated for a crime they did not commit, on the basis of their ethnicity, than a person in the second group.
6.41 None of the 11 ethnic inferencing cases so far in New Zealand has involved an inference of a small minority ethnicity or race in the area of interest.

Material disadvantage


6.42 Whether any differential treatment would cause a material disadvantage to members of small minority ethnic or racial groups in any particular area is questionable. They would be more likely than members of larger racial and ethnic groups in the area to become a potential suspect in an investigation purely because of their race or ethnicity. On the other hand, those individuals would also be more likely to be ruled out of police inquiries for the same reason. Returning to the example above, if the ethnic inferencing result in relation to the crime in Ohura was European, any Latin American who was otherwise of potential interest to Police would probably not be the subject of further inquiries.
6.43 The question of whether ethnic inferencing could cause a material disadvantage in terms of section 19(1) of NZBORA needs to be distinguished from broader ethical concerns around racial profiling and stigmatisation, which could easily affect larger ethnic groups such as Māori and Pacific peoples in a given geographical area, such as in Auckland. These wider social problems could be exacerbated by ethnic inferencing. We consider this significant issue separately at [6.58] to [6.64].
6.44 The required assessment under section 19(1) is whether the potential differential treatment that we have identified above could result in a material disadvantage for any individual. In making that assessment, the focus must be on the direct impact that ethnic

32 The Court of Appeal reiterated the importance of identifying comparator groups in Ngaronoa v Attorney-General

[2017] NZCA 351, [2017] 3 NZLR 643. The Court stated at [121]:

There has been judicial debate in the Commonwealth about the usefulness of a comparator exercise. In the United Kingdom the search for a comparator has been described as an “arid” exercise. We accept that a comparator exercise should not be treated as a formula to determine the answer to an allegation of discrimination. Comparator groups can be overly refined by building into the comparators the contested assumptions, thereby neutralising the comparator exercise. However, since discrimination is, in essence, treating persons in comparable situations differently, it is inevitable that the reasoning involved in such a process will include choosing a person or group for comparison purposes.

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inferencing could have on members of rare ethnic and racial groups in any area of interest to Police, as compared to other individuals in the remainder of the population.

Demonstrably justified and prescribed by law


6.45 If ethnic inferencing were found to limit the right to be free from discrimination in some way, the limitation would need to be “demonstrably justified in a free and democratic society” and “prescribed by law” as set out in section 5 of NZBORA. To be “demonstrably justified”, the limiting measure needs to be:
6.46 To be “prescribed by law”, limits must be identifiable and expressed with sufficient precision in an Act of Parliament, subordinate legislation or the common law. The limits must be neither ad hoc nor arbitrary, and their nature and consequences must be clear, although the consequences need not be foreseeable with absolute certainty.34
6.47 When considering how these tests apply to ethnic inferencing, it is necessary to consider Police’s current policy. In accordance with that policy, the purpose of ethnic inferencing is to assist in resolving investigations into serious criminal offending. That is an important objective. Limiting the use of ethnic inferencing to serious cases also minimises the likelihood of causing any material disadvantage to members of small minority ethnic or racial groups in particular areas. The chance of identifying a small minority ethnicity is even lower if ethnic inferencing is hardly ever used. Further, there does appear to be a rational connection between ethnic inferencing and resolving criminal investigations. However, we have some concerns about the overall effectiveness of ethnic inferencing, which we discuss at [6.71] to [6.75].
6.48 Even if the limiting measure is justified, it still needs to be prescribed by law. A publicly available Police protocol may be sufficient to meet this definition – but only if the protocol relates to the exercise of a discretionary statutory power. The act of analysing a crime scene sample is undertaken as part of the exercise of general police search powers in the Search and Surveillance Act.35 Therefore, if the ethnic inferencing protocol were finalised and made publicly available, we consider that it would probably fulfil this requirement.

The information privacy principles in the Privacy Act


6.49 Whether the Privacy Act applies to the analysis of crime scene samples depends on whether the samples could be described as containing “personal information”.36
  1. R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1 at [104]. See detailed discussion of the case law in the section 19(1) analysis of familial searching in Chapter 13.

34 New Health New Zealand Incorporated v South Taranaki District Council [2018] NZSC 59 at [107].

  1. See Chapter 5 and in particular the discussion of section 112 of the Search and Surveillance Act 2012, which enables police officers to send crime scene samples to ESR for analysis.
  2. In a recent guidance document – Office of the Australian Information Commissioner What is Personal Information? (May 2017) – the Australian Information Commissioner explained:

Personal information can be in any format – it is not limited to information that is contained in records. The definition expressly states that information is personal information ‘whether the information or opinion is recorded in a material form or not’... For example, some

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6.50 Personal information is defined in the Privacy Act as “information about an identifiable person”.37 There has been judicial and academic debate on exactly what “identifiable” means in the context of this definition.38 Some have argued that the person must be able to recognise themselves on the face of the information.39 On this definition, a crime scene sample probably would not qualify. However, in a 2015 decision, the Court of Appeal in the United Kingdom found that identifiability hinges on whether a person can be individually distinguished from a group. It does not matter that the person’s name is not attached to the information, nor does it matter whether the person can recognise themselves in the information.40 In summary, the information is “identifiable” if it can be used alongside other information to identify the person.41
6.51 Were the approach of United Kingdom Court of Appeal followed by New Zealand courts, information derived from a crime scene sample would amount to “personal information”, as the sole reason for generating the information is to identify the person responsible for the sample. This would also mean that the information privacy principles in the Privacy Act would apply. Some of these principles have in-built exceptions for law enforcement purposes. However, others do not, including:
6.52 On this definition, the information privacy principles would require that forensic DNA phenotyping was only undertaken in cases where necessary and in a minimally intrusive way. This is similar to the principles underlying section 21 of NZBORA of proportionality and minimal intrusion. Again, Police’s current policy on ethnic inferencing seems to comply with these requirements.

Summary – is ethnic inferencing restricted by the current law?


6.53 NZBORA and the Privacy Act place legal restrictions on the way in which a crime scene sample can be analysed. Those restrictions recognise the importance of informational privacy and the right of individuals to be free from unjustified discrimination.
6.54 From our analysis, it appears that Police’s policy on ethnic inferencing reflects these statutory constraints. However, as we discuss below, we consider that there are additional legal and ethical issues that arise in relation to forensic DNA phenotyping.

personal information does not contain any words at all, such as images (especially photos) and sounds (voice or tape recordings) — or can be latent in a material item (for example, DNA in human tissue).

37 Privacy Act 1993, s 2 definition of “personal information”.

38 See for example: A v G [1999] NZCRT 18; (1999) 5 HRNZ 598 (CRT) at 605–606; C v ASB Bank Ltd [1997] NZCRT 21; (1997) 4 HRNZ 306 (CRT) at 308; and

Harder v Proceedings Commissioner [2000] NZCA 129; [2000] 3 NZLR 80 (CA) at [49].

  1. Katrine Evans “Personal Information in New Zealand: Between a Rock and a Hard Place” (paper presented to Interpreting Privacy Principles: Chaos or Consistency Symposium, Sydney, May 2006).
  2. Vidal-Hall v Google, Inc [2015] EWCA Civ 311, [2015] 3 WLR 409. This case related to a cookie that Google placed on devices that run Safari. The cookie allowed Google to collect browser-generated information that was then fed to their Double-Click service. Double-Click delivered advertising to consumers based on their online behaviour and apparent preferences. Three claimants filed proceedings against Google under the UK Data Protection Act. See the discussion of the case in K Evans “Pressures on Personal Information: The Ever-changing Field of Privacy” (paper presented to the New Zealand Law Society CPD Top-Up Day Conference, 20 March 2017) 79 at 82–83.

41 Paul Roth “What is ‘Personal Information’?” (2000) 20 NZULR 40 at 41–42, and n 4.

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ADDITIONAL LEGAL AND ETHICAL ISSUES WITH FORENSIC DNA PHENOTYPING


6.55 The use of forensic DNA phenotyping is considered controversial internationally.42 There is extensive academic literature as well as government reports on this topic, from which we have identified four main issues:

Intrusion on informational privacy


6.56 We have discussed the intrusion on informational privacy with reference to section 21 of NZBORA and the Privacy Act above.
6.57 Some international commentators have expressed concern that, due to growing academic interest in genetic predispositions towards anti-social or violent behaviour, this information may also be included in forensic DNA phenotyping kits in the future.43 This possibility suggests that there may need to be greater legal certainty around the types of analysis that society does or does not consider acceptable.

Racial profiling and stigmatisation


6.58 There is significant debate as to whether forensic DNA phenotyping may lead to racial profiling and stigmatisation. This is closely related to our discussion of discrimination above. Discrimination, however, is concerned with the effect of forensic DNA phenotyping at an individual level. The wider debate centres around the potential collective impact on groups. This includes ethnic groups of any size, not just rare ones.
6.59 There is a fear among many ethicists and scientists that the use of ancestry informative markers (AIMs) and evidentially visible characteristics (EVCs) in criminal casework could aggravate existing biases and erode social cohesion.44 They argue that AIMs are
  1. National DNA Database Ethics Group (UK) Ethical Dimensions of Next Generation Sequencing – Stakeholder Consultation (March 2017); Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014); United Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009); Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007); Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010); Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015); Marcus Smith and Monique Mann Recent Developments in DNA Evidence (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice no 506, November 2015); Jennifer K Wagner “DNA, Racial Disparities, and Biases in Criminal Justice: Searching for Solutions” (2017) 27 Alb LJ Sci and Tech 95; Victor Toom and others “Approaching ethical, legal and social issues of emerging forensic DNA phenotyping (FDP) technologies comprehensively: Reply to ‘Forensic DNA Phenotyping: Predicting human appearance from crime scene material for investigative purposes’ by Manfred Kayser” (2016) 22 Forensic Sci Int Genet e1; and Manfred Kayser “Forensic DNA Phenotyping: Predicting human appearance from crime scene material for investigative purposes” (2015) 18 Forensic Sci Int Genet 33.
  2. Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 46; and Marcus Smith and Monique Mann Recent Developments in DNA Evidence (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice no 506, November 2015) at 3.
  3. National DNA Database Ethics Group (UK) Ethical Dimensions of Next Generation Sequencing – Stakeholder Consultation (March 2017) at 6; Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 44; United

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unavoidably linked to prior social assumptions and group categorisations that are steeped in controversy. Given that ethnicity is a social construct, it seems like an uncomfortable fit for scientists to be promoting the use of AIMs in criminal casework.45 Arguably, the use of EVCs is also an uncomfortable fit, given that skin colour, build and facial structure are all traits that are likely to be targeted and that are already associated with different ethnicities.
6.60 Ethicists argue that the use of EVCs and AIMs may result in the public interpreting ethnicity and criminality as being intrinsically and unavoidably linked, thereby inflaming stereotypes.46

Impact on Māori


6.61 This prospect is particularly concerning in New Zealand given the current reality that Māori are disproportionally represented in the criminal justice system.47 The Commissioner of Police has acknowledged that there is unconscious bias against Māori in policing,48 and numerous initiatives are currently under way to address that.49 A 2017 Court of Appeal decision also highlighted the real danger of unconscious racial bias in criminal investigations.50 The risk of exacerbating these issues should not be taken lightly.
6.62 Another layer to this is the potential of damaging relationships both within and between ethnic groups. Forensic DNA phenotyping identifies groups of people based on shared characteristics: their ethnicity or their appearance. These people may well be related. If there is a cloud of suspicion over a group of related people due to the actions of one member or due to a misleading forensic DNA phenotyping result,51 the relationships within that group could be detrimentally affected. Internationally, this has been recognised as an ethical concern,52 and in New Zealand, there is an additional concern that forensic DNA phenotyping may be inconsistent with tikanga Māori.

Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009) at [5.13]–[5.14]; Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at [6.21]–[6.15]; and Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010) at 29–30.

45 Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review

(Northumbria University Centre for Forensic Science, 15 May 2014) at 44–47.

  1. Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010) at 29; National DNA Database Ethics Group (UK) Ethical Dimensions of Next Generation Sequencing – Stakeholder Consultation (March 2017) at 9; Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at 81.

47 Discussed in Chapter 2.

  1. Interview with Mike Bush, Commissioner of Police (Lisa Owen, The Nation, 28 November 2015) transcript provided by Scoop Independent News (Wellington). See also Nicholas Jones “Police Commissioner: Racial profiling perception ‘concern we need to address’” The New Zealand Herald (online ed, Auckland, 8 June 2018).
  2. Reducing Māori reoffending rates and building Māori confidence and trust in Police are currently important goals for Police. See New Zealand Police and the Māori Focus Forum The Turning of the Tide: A Whānau Ora Crime and Crash Prevention Strategy 2012-2013–2017-2018 (December 2012); and New Zealand Police Four Year Plan 2016-2017–2019- 2020 (May 2016). Commitment to Māori and the Treaty is one of Police’s seven core values: New Zealand Police Annual Report 2016-2017 (November 2017) at 9.

50 Kearns v R [2017] NZCA 51, [2017] 2 NZLR 835 at [24]–[26], [38] and [39].

  1. The result could be misleading for numerous reasons including if the result did not reflect how the person’s genes were expressed (for example, the prediction may be green eyes but the person’s eyes may in fact be blue), if the person had altered their appearance or if the person’s presence at the crime scene was entirely innocent.

52 Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review

(Northumbria University Centre for Forensic Science, 15 May 2014) at 52; United Kingdom Human Genetics Commission

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6.63 Regular use of ethnic inferencing could also undermine whanaungatanga and the maintenance of relationships of central importance in tikanga Māori.53 That is because the actions of one potentially unknown member of the group could bring the entire group under Police suspicion. The damage to any ethnic group that places considerable emphasis on the family and wider kin relationships could be significant.
6.64 For that reason, we consider that wide public consultation is necessary to determine the appropriate use of forensic DNA phenotyping in New Zealand. This would need to include a central role for Māori in a way that recognises the principles of rangatiratanga, partnership and equity under the Treaty of Waitangi. Those principles would also require Māori to have an active role in development of policies governing use and oversight if forensic DNA phenotyping were ultimately permitted.

Could forensic DNA phenotyping promote social cohesion?


6.65 In determining whether forensic DNA phenotyping should be permissible at all, it is however necessary to take into account the counter-arguments that have been raised, which suggest that this technique could promote, rather than undermine, social cohesion. Some academics argue that the analysis of AIMs and EVCs could be used to challenge racial bias.54 The prime example given in support of this argument is that, if a police officer was concerned that an eyewitness’s evidence might be tainted by racial bias, the officer could obtain an ethnic inference as an independent check on the witness’s account. It is widely recognised that eyewitness identification evidence is often unreliable, so use of this technique could be beneficial.55
6.66 An early ethnic inferencing case from 1999 in the Netherlands provides a real-life example of forensic DNA phenotyping being used in that way. In that case, a 16-year-old girl was murdered and the inhabitants of the town where it occurred widely believed that an asylum seeker was involved. Forensic DNA phenotyping suggested otherwise and assisted in alleviating the racial tension in the town.56

Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009) at 56; Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010) at 29.

  1. See discussion in Chapter 2; See also Hirini Moko Mead Tikanga Māori: Living by Māori Values (Huia Publishers, Wellington, 2003) at 28–29; Māmari Stephens “Fires Still Burning? Māori Jurisprudence and Human Rights Protection in Aotearoa New Zealand” in Kris Gledhill, Margaret Bedggood and Ian McIntosh (eds) International Human Rights Law in Aotearoa New Zealand (Thomson Reuters, Wellington, 2017) 99 at [3.3.02].
  2. Particularly Jennifer K Wagner “DNA, Racial Disparities, and Biases in Criminal Justice: Searching for Solutions” (2017) 27 Alb LJ Sci and Tech 95. See also Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015) at 64–65.
  3. Empirical studies suggest that attempts to identify someone of a different racial appearance are generally less accurate than attempts to identify someone of the same racial appearance (a phenomenon known as “own-race bias” or the “cross-race effect”). There is a substantial scientific literature on this phenomenon. See Brian Cutler and Steven Penrod Mistaken Identification: The Eyewitness, Psychology, and the Law (Cambridge University Press, New York, 1995) at 104; Christian Meissner and John Brigham “Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta- Analytic Review” (2001) 7 Pyschol Pub Pol and L 3 at 4–5, and 21–27; Luke Jackiw and others “Examining the Cross- Race Effect in Lineup Identification Using Caucasian and First Nations Samples” (2008) 40 Can J Behav Sci 52 at 56; United States Research Council and others Identifying the Culprit: Assessing Eyewitness Identification (The National Academies Press, Washington DC, 2014) at 96–97; and Steven Young and others “Perception and Motivation in Face Recognition: A Critical Review of Theories of the Cross-Race Effect” (2012) 16 PSPR 116 as cited in Andrew Roberts “Probative Value, Reliability and Rationality” in Andrew Roberts and Jeremy Gans (eds) Critical Perspectives on the Uniform Evidence Law (The Federation Press, Sydney, 2017) 63 at 69. See also Law Commission Second Review of the Evidence Act 2006: Te Arotake Tuarua I te Evidence Act 2006 (NZLC IP42, 2018) at [8.1].

56 Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015) at [3.7.3.3].

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6.67 We note that use of forensic DNA phenotyping may not be consistent with Police’s current policy of reserving ethnic inferencing for cases where there are no other leads.

The absence of a public mandate for DNA phenotyping


6.68 The international literature highlights that forensic DNA phenotyping is not in keeping with the original public mandate that was given for the use of DNA profiling in criminal investigations worldwide. As explained in Chapter 3, traditional STR profiling and DNA profile databanks were originally accepted by Parliaments around the world on the basis that DNA profiles would only be generated from “junk” DNA.57 Politicians stressed to the public that this meant that DNA profiles would not reveal any information about physical traits, disorders or dispositions.58 Similar statements were made by New Zealand politicians when the CIBS Act came into force and when it was subsequently amended.59 Given that forensic DNA phenotyping engages NZBORA and involves a substantial deviation from that original policy, we consider that Parliament needs to make a specific decision about whether it should be used and, if so, in what circumstances.60
6.69 There are three reasons we think this is a decision for Parliament. First, as discussed in this chapter, forensic DNA phenotyping raises significant legal and ethical issues. Second, forensic DNA phenotyping deviates from the original policy underlying the CIBS Act, as it analyses crime scene samples in isolation and targets coding regions of the genome. Third, forensic DNA phenotyping is only ever used for investigative purposes. This means that, unlike most other DNA analysis techniques, there is no court oversight in the form of rulings around the admissibility of evidence at trial.
6.70 We discuss possible options later in this chapter.

DNA phenotyping is of limited accuracy and utility


6.71 There are widespread concerns around the accuracy and utility of forensic DNA phenotyping. The kits that are currently on the market can predict particular EVCs and AIMs with a degree of estimated accuracy that ranges from 48 per cent to 94 per cent, depending on the ethnicity or trait in question.61 These figures may improve, but it is unlikely that they will ever reach 100 per cent due to the complexities of genetics and global migration,62 nor may there be any visible connection between a person’s genotype (their genes) and how they appear. Contact lenses, hair dye and tanning products are widely used to change eye, hair and skin colour. A person’s skin colour, appearance and the ethnicity with which they identify may not reflect their AIMs.

57 The loci in STR profiling kits were specifically chosen because they were in non-coding regions of the genome: Chapter

3. See also Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at Appendix 4.

  1. Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010) at 30; Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 41; and Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at Appendices 5 and 6.

59 Discussed in Chapter 4.

  1. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at 65–67 state that matters significantly affecting fundamental human rights should be addressed in primary legislation.

61 Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015) at [3.7.2.2]–[3.7.2.4].

  1. The Forensics Library “DNA analysis” (22 August 2017) About Forensics UK <http://aboutforensics.co.uk/> and Nuffield Council on Bioethics The forensic use of bioinformation; ethical issues (September 2007) at [2.17].

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6.72 A common argument in support of forensic DNA phenotyping is that it is no different to eyewitness identification evidence, but for the reasons we have just explained, it is often a less reliable indicator of a person’s actual physical appearance.
6.73 Some of the concerns around accuracy may be alleviated by the fact that forensic DNA phenotyping is only an investigative tool. Any investigative lead that results in the identification of a suspect can be verified by a direct forensic comparison between a sample from the suspect and the crime scene sample. However, this does not address the risk that, if police officers do not understand the practical limitations of forensic DNA phenotyping, they may exclude offenders from their investigations too soon. To avoid that outcome, there needs to be clear understanding and good communication between scientists and police officers about the possibility of misleading results.
6.74 There is also a question of the utility of investigative leads generated from forensic DNA phenotyping, even if they are accurate.
6.75 This is demonstrated by the 11 New Zealand cases reviewed earlier in this chapter. Even in the two cases where the ethnic inference appears to have been the most helpful, it was unlikely to have been essential to resolving the case. In the 2010 murder, other evidence led to police officers identifying the offender. The significance of the ethnic inference was that it confirmed the direction of the investigation. In the 2015 rape, the men seem to have been identified as suspects by fingerprint evidence as well the ethnic inference.63 Further, when they were approached by police officers, the men provided fingerprints and reference samples by consent. Eleven cases is not a very large sample size, but the results do suggest that ethnic inferencing is currently of limited utility and should be closely monitored.

APPROACHES TAKEN OVERSEAS


6.76 Given the controversy surrounding forensic DNA phenotyping, overseas jurisdictions have adopted a conservative approach to its use in criminal casework.64 The Netherlands is the only country that we are aware of having passed legislation expressly permitting it. The Dutch Code of Criminal Procedure restricts forensic DNA phenotyping to traits that have been pre-approved by Governmental Decree, and these must be externally observable.65 At present, the only traits that meet both requirements are race (as


  1. Lauren Moriarty and Turlough Thomas Stone “Case study: Ethnicity testing for intelligence purposes” (paper presented to the 23rd Australian and New Zealand Forensic Science Society Symposium, Auckland, 20 September 2016).
  2. See the cross-jurisdictional summaries in Debra Wilson Genetics, Crime and Justice (Edward Elgar Publishing, Cheltenham (UK), 2015) at [3.7.2.8]; Marcus Smith and Monique Mann Recent Developments in DNA Evidence (Australian Institute of Criminology, Trends and Issues in Crime and Criminal Justice no 506, November 2015) at 3; and Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes: A Review of Laws and Practices (Australia New Zealand Policing Advisory Agency, July 2010) at 31–33.

65 Criminal Procedure Code (The Netherlands) 2012, s 151d, which states:

  1. The public prosecutor may, in the interest of the investigation, order DNA testing aimed at establishing externally observable personal characteristics of the unknown suspect or the unknown victim to be conducted. Section 151a(2) shall apply mutatis mutandis.
  2. The DNA testing may only be aimed at establishing the sex, race or other externally observable personal characteristics designated by Governmental Decree.
  3. The proposal for a Governmental Decree to be enacted pursuant to subsection (2) shall not be made any earlier than four weeks after the draft Governmental Decree has been submitted to both chambers of the States General.
    1. The DNA testing may be ordered only in the case of suspicion of a serious offence as defined in section 67(1).
    2. Further rules pertaining to the manner of conduct of the DNA testing may be set by Governmental Decree.

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identified through AIMs) and sex. Its use is also limited to investigations into “serious offences”.66
6.77 In Germany, Belgium and three States in the United States, the use of forensic DNA phenotyping has been banned. There is also a ban in the European Union on member States sharing investigative information that is known to be associated with any hereditary characteristics.67 In many jurisdictions, however, including Canada, the United Kingdom and Australia, forensic DNA phenotyping is unregulated by statute. If it is used, it is reserved for particularly serious cases.68 This mirrors the current position in New Zealand.

OPTIONS FOR REFORM


6.78 In this chapter, we have identified the law and policies that apply to forensic DNA phenotyping in New Zealand. They are not particularly accessible. It is not immediately apparent that NZBORA and the Privacy Act are engaged, although we consider that they may be. Consideration also needs to be given to the potential Treaty of Waitangi and tikanga implications of reform options.
6.79 In addition, Police’s policy on ethnic inferencing is not yet the subject of a formal and publicly available governing protocol. There is room for improvement in terms of accessibility and legal certainty.
6.80 As we noted above, we consider that it is up to Parliament (as opposed to any other public body) to make an explicit decision as to whether to prohibit or permit forensic DNA phenotyping. This decision should be made in consultation with Māori and other affected groups.
6.81 We suggest there are two broad options for reform that Parliament could consider: a complete ban on forensic DNA phenotyping or a permissive statutory regime.
6.82 A complete ban may not be appropriate, as it would remove an investigative tool from Police that could be valuable in some circumstances. As discussed throughout this chapter, forensic DNA phenotyping has the potential to assist police officers in identifying suspects, narrowing down pools of ethnically or physically diverse suspects; and verifying questionable eyewitness evidence.
6.83 Our preliminary view is that the better approach is to develop a permissive, but conservative, statutory regime. By conservative, we mean that forensic DNA phenotyping should remain reserved for use in investigations into serious offending where there is a case-specific need to resort to use of this technique. This approach reflects the principles of proportionality, necessity and minimal intrusiveness protected by NZBORA and the Privacy Act. Limiting the use of forensic DNA phenotyping to a small number of cases also minimises the risk of damage to social cohesion and compromising duties of whanaungatanga.
  1. Section 67(1) of the Criminal Procedure Code 2012 (The Netherlands) defines a serious offence as an offence “which carries a statutory term of at least four years” and provides a list of additional offences that would qualify.
  2. European Council Resolution of 25 June 2001 on the exchange of DNA analysis results (2001/C 187/01). This provision is repeated in European Council Resolution of 30 November 2009 on the exchange of DNA analysis results (2009/C 296/01).
  3. Jessica Gabel Cino “Tackling technical debt: Managing advances in DNA technology that outpace the evolution of law” (2017) 54 Am Crim L Rev 373 at 408; Bert-Jaap Koops “Law, technology and shifting power relations” (2010) 25 Berkeley Tech L 973 at 982.

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6.84 A permissive statutory regime could be structured in a range of different ways. One option would be to model it on the Dutch Code of Criminal Procedure. A statutory provision could expressly permit the use of forensic DNA phenotyping but only in relation to traits that are externally visible and that have been pre-approved by Order in Council. Its use could also be limited to investigations into “serious offending”. This phrase could be defined in statute to ensure a common understanding.69
6.85 A variation on this option would be for an oversight body to provide the pre-approval in relation to specific traits. Chapter 15 outlines various options for the establishment of such an oversight body and explores how it might operate in practice. As we note in that chapter, it would be important for any oversight body to have a central role for Māori to recognise the Treaty principles of rangatiratanga, partnership and equity and to ensure that Māori interests are central to governance and decision making about forensic DNA phenotyping.
6.86 Another alternative, which we discuss in Chapter 7, would be for Parliament to enact clear guiding principles that would indicate whether any form of forensic DNA phenotyping was permissible and to empower in statute such an oversight body to decide what DNA analysis techniques could be used in criminal casework on the basis of these principles.
6.87 Alongside a permissive statutory regime, we consider that there would be merit in introducing additional safeguards to address some of the other concerns we have identified in this chapter. Such safeguards could include the following:
  1. In Chapter 13, we discuss Police protocol on familial searching, which uses the phrase “serious offence”. We explain that this term is not intuitive and can be interpreted in a range of different ways.
  2. For example, there is a process under Te Ture Whenua Māori Act 1993 for matters of tikanga to be referred to the Māori Land Court by, among others, the Minister of Māori Affairs. See sections 29, and 31-32, and see Te Ture Whenua Māori Act 1993, ss 29, and 31-32; In addition, section 61 enables the Māori Appellate Court to consider any question of tikanga put to it by the High Court. See for example: Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733, at [95] and Hauraki Māori Trust Board v Treaty of Waitangi Fisheries Commission [1995] 2 NZLR 702.

71 Oversight options are discussed in Chapter 15.

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(e) Controlling how the results are reported to police officers to avoid those officers over estimating the significance of the results.
(f) Imposing data security requirements to ensure that the results are not used for any inappropriate purpose.
(g) Requiring regular audits and reporting to promote transparency and accountability. This would also enable an assessment to be made as to the overall utility of forensic DNA phenotyping, which, as we have explained, is currently questionable.
6.88 Not all of these additional safeguards would necessarily need to be the subject of specific statutory provisions. To do so might make the statutory regime too inflexible to cope with continuing change. Instead, they could be addressed by Police and/or ESR policies, which could be developed in conjunction with an oversight body. The oversight body could also have a monitoring role. This would promote transparency and would recognise the desirability of independent oversight of these policies, given the legal, cultural and ethical issues engaged.



Q5
What concerns do you have, if any, about the use of forensic DNA phenotyping in
criminal investigations?
Q6
How do you think forensic DNA phenotyping should be regulated in New
Zealand?


115 CHAPTER 7: FORENSIC COMPARISONS

CHAPTER 7



Forensic comparisons



INTRODUCTION


7.1 In the previous chapter, we discussed forensic DNA phenotyping – the analysis of a crime scene sample in isolation. In this chapter, we consider the more common use of DNA profiles in criminal casework – direct forensic comparison. Direct forensic comparison involves comparing a profile generated from a crime scene sample with a profile generated from another biological sample to determine whether they came from the same person. In this context, the comparator biological sample is often called a reference sample. Reference samples are obtained from known persons. They may be from suspects, victims, third parties or investigators – anyone whose DNA may be present in a crime scene sample.
7.2 The aim of comparing profiles from reference samples to profiles from a crime scene sample is to isolate and identify any unidentified DNA that may belong to the offender or any other person investigators are seeking to identify. The results of this sort of forensic comparison can be used as evidence in court.
7.3 As well as a one-on-one comparison, a forensic comparison can also be conducted on a mass scale by comparing a profile from a crime scene sample to a databank containing profiles from known people.1 However, the results of this type of mass forensic comparison, which are reported by the Institute of Environmental Science and Research (ESR) to New Zealand Police in the form of link reports,2 are not generally admissible as evidence in court.3
7.4 In this chapter, we focus on the direct forensic comparison process and identify three main areas where we think the law and current practice could be improved.

CURRENT LAW AND PRACTICE

The CIBS Act


7.5 The Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) does not expressly refer to crime scene samples or how they should be analysed.4 The same is true of reference samples obtained from people other than suspects (elimination samples).5

1 We discuss DNA profile databanks in Part C of this issues paper.

2 Link reports can also include reports on any links between a crime scene sample and the Crime Sample Databank (CSD)

– this will only occur if the crime scene sample is uploaded to the CSD. See Chapter 10.

3 The Criminal Investigations (Bodily Samples) Act 1995, s 71. See further discussion on this in Chapter 8.

4 See the discussion in Chapters 5 and 6.

5 Chapter 8 discusses the process of obtaining samples from suspects and elimination/reference samples.

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7.6 However, the CIBS Act does refer to the analysis of suspect samples. Section 16 enables a District Court Judge to issue a suspect compulsion order if certain criteria are met. As noted in Chapter 5, one criterion is the availability of an appropriate crime scene sample for analysis.6 A second criterion is that there must be reasonable grounds to believe that “analysis of a bodily sample taken from the [suspect] would tend to prove or disprove involvement in the offending”.7 Section 16 does not specifically state that the crime scene sample should be compared to the suspect sample as part of the analysis process, but this is what the section implies.8
7.7 Section 16 further implies that the analysis of a suspect sample may involve generating a DNA profile.9 The Act defines a DNA profile as follows:10

DNA profile, in relation to any person, means information derived from an analysis of a sample of genetic material obtained from that person, being information –

(a) that is clearly identifiable as relating to that person; and
(b) that is able to be compared with information obtained from an analysis (using the same technique) of another sample of genetic material for the purpose of determining, with reasonable certainty, whether or not the other sample is from that person.
7.8 This definition describes the forensic comparison process that is used in casework.11 The use of the phrase “analysis (using the same technique)” seems to reflect an expectation that DNA profiles will be generated from crime scene samples as well. Thus, the two samples are not directly compared to each other – it is the two DNA profiles that are compared.
7.9 One problem with this definition is that it does not place any limits on the nature or type of information that could be included in a DNA profile. Take, for example, a whole genome sequence. This is the entire sequence of a person’s DNA – all 3 billion base pairs written down in order. A whole genome sequence would fall within the current definition of a DNA profile in the Act. The sequence would be information “derived from an analysis of a sample”, it would be “clearly identifiable” as relating to an individual; and it could be compared to another whole genome sequence.

6 Criminal Investigations (Bodily Samples) Act 1995, s 16(1)(b). See the discussion about this criterion in Chapter 5.

7 Criminal Investigations (Bodily Samples) Act 1995, s 16(1)(c).

  1. See also sections 57 and 59 of the Criminal Investigations (Bodily Samples) Act 1995 which state that if a bodily sample is obtained under the Act, records of analysis of that sample and any comparison made to a crime scene sample need to be available to the person from whom the bodily sample was taken or to their lawyer.
  2. Sections 16(3) and 23(3) of the Criminal Investigations (Bodily Samples) Act 1995 state that a suspect should be given the opportunity to provide a specimen from their body (such as a hair) for analysis instead of providing a biological sample (that is, a mouth swab or a blood sample). The Act explains that a DNA profile may be obtained from the specimen to determine whether the suspect was involved in the offending. Oddly, there is no equivalent statement in Part 2 explaining how a biological sample may be analysed. The only other reference to “DNA profile” in Part 2 of the Act is in section 24, which explains that a suspect compulsion order must inform the suspect that, if they are subsequently convicted of the relevant offending, “information derived from any analysis of the sample will be held on a DNA profile databank”.

10 Criminal Investigations (Bodily Samples) Act 1995, s 2 definition of “DNA profile”.

  1. Interestingly, the phrase “forensic comparison” is only used in the Criminal Investigations (Bodily Samples) Act 1995 with reference to DNA profile databanks. Section 2 states:

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.

The phrase is then used in section 27 (which states that a person may access and disclose information on a DNA profile databank for the purpose of making a forensic comparison) and section 80(c) (which enables regulations to be made prescribing procedures relating to the undertaking of forensic comparisons using a DNA profile databank).

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7.10 Sections 58 and 80(a) of the CIBS Act allow for regulations to be made to prescribe how samples taken pursuant to the Act should be analysed. No such regulations have been made, so while the CIBS Act provides some guidance on what the forensic comparison process might involve in casework, it places no substantive restrictions on that process.

Current and emerging ways of analysing DNA


7.11 The non-prescriptive nature of the CIBS Act has enabled Police and ESR to use a variety of different DNA analysis techniques to conduct forensic comparisons in New Zealand. These are outlined more fully in Chapter 3 and briefly summarised here.
7.12 Traditional STR profiling is the main DNA analysis technique used by ESR to generate DNA profiles for forensic comparison. It is also the only technique that is used to analyse reference samples (that is, suspect and elimination samples). Given that reference samples come from known persons, it is possible to approach those people again to ask for a second sample if for any reason profiling of their first sample does not work.
7.13 Crime scene samples are different. They often contain only a small amount of DNA or degraded DNA, and obtaining a second sample is not an option. Given these constraints, scientists may need to use other DNA analysis techniques alongside or instead of traditional STR profiling. The other techniques most commonly used by ESR include the following:
7.14 In addition, as also outlined in Chapter 3, there are several other emerging DNA analysis techniques that may be introduced into criminal casework in New Zealand within the next 10 years. These could be used to analyse crime scene samples or reference samples or both. These include the following:

12 Y-STR profiling is discussed further in Chapter 10.

  1. An SNP is a single nucleotide polymorphism. These are variations at the level of single base pairs. For example, at a certain point on the human genome one person may have a C and another person may have a G. For further see Chapter 3.

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Deciding whether to introduce new DNA analysis techniques


7.15 The decision as to whether to introduce a new DNA analysis kit or technique into criminal casework is currently made by ESR and Police. This occurs in one of two ways:

The Evidence Act 2006


7.16 When ESR and Police are deciding whether to introduce a new method of analysing DNA into criminal casework, the rules surrounding the admissibility of expert evidence at trial are highly influential. That is because one of the main reasons for conducting a forensic comparison between a profile generated from a crime scene sample and a profile generated from a suspect sample is to produce results that have the potential to be presented as evidence in court. If the results of such a forensic comparison were found to be inadmissible for some reason, ultimately they would be of limited use to Police.
7.17 Section 25 of the Evidence Act 2006 deals with the admissibility of expert evidence in court. Section 25(1) states:

An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

The “substantial help” requirement involves “consideration of an amalgam of relevance, reliability and probative value”.18
7.18 There is considerable overlap between the “substantial help” requirement in section 25 of the Evidence Act and the general exclusion rule in section 8 of that Act. Section 8 states that evidence must be excluded in any proceeding if “its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding”.



14 Plus the locus on the sex chromosome, so this kit tests 11 loci in all.

15 Plus the locus on the sex chromosome, so this kit tests 16 loci in all.

16 Plus the locus on the sex chromosome, a Y-STR locus, and another Y marker locus, so this kit tests 24 loci in all.

  1. Globalfiler is only currently used to generate DNA profiles for the known person databank. In other instances, Identifiler is used.

18 Lundy v R [2014] NZCA 576 at [75].

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7.19 When applying sections 8 and 25 of the Evidence Act in the context of forensic comparison DNA evidence, the Daubert factors are also relevant.19 These factors emerged from overseas case law and have been applied by New Zealand courts. They set out what should be considered when assessing whether any forensic expert evidence is scientifically valid and therefore sufficiently reliable to be admitted at trial.20 The four factors are:21

Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry.

(2) Whether the theory or technique has been subjected to peer review and publication:

Submission to the scrutiny of the scientific community is a component of “good science,” in part because it increases the likelihood that substantive flaws in methodology will be detected.

(3) The known or potential rate of error or the existence of standards; and
7.20 Therefore, before introducing a new way of analysing DNA into criminal casework, Police and ESR need to be confident that the technique is scientifically valid, in the sense that the Daubert factors have been met. The courts are then in a position to consider that approach if a case goes to trial and the admissibility of the DNA evidence is challenged at trial or on appeal. In this way, the New Zealand courts have considered the reliability of LCN analysis,22 Y-STR profiling23 and RNA analysis.24

THREE AREAS OF CONCERN ABOUT THE FORENSIC COMPARISON PROCESS


7.21 We consider that, when it comes to the forensic comparison process, the combination of minimal statutory regulation and rapidly evolving science is an area for concern. DNA analysis techniques are now more sensitive and can generate more data than ever before. The rate of this change will only escalate, especially if next generation sequencing kits are introduced. These changes raise new ethical, practical, tikanga and legal challenges as we have already identified in relation to forensic DNA phenotyping in Chapter 6.
7.22 Many of these challenges are not unique to New Zealand. Around the world, government bodies, non-governmental organisations, scientists, lawyers and ethicists are currently debating the potential risks and benefits associated with the new wave of emerging DNA


  1. These factors were originally identified by the United States Supreme Court in Daubert v Merrell Dow Pharmaceuticals Inc [1993] USSC 99; 509 US 579 (1993).
  2. Lundy v R [2014] NZCA 576 at [42]. See also R v Calder HC Christchurch T154/94, 12 April 1995; Mahomed v R [2010] NZCA 419 at [35]; and R v Thompson (No 2) HC Auckland CRI-2007-090-5246, 30 May 2008 at [14] and [38].
  3. This summary of the Daubert factors is from the Supreme Court of Canada in R v J–LJ 2000 SCC 51, [2000] 2 SCR 600 at [33], which was cited by the Privy Council in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [139], and by the New Zealand Court of Appeal in Lundy v R [2014] NZCA 576 at [42] and Lundy v R [2018] NZCA 410 at [241].

22 Manoharan v R [2015] NZCA 237; and Wallace v R [2010] NZCA 46.

23 Wallace v R [2010] NZCA 46.

24 Lundy v R [2018] NZCA 410.

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analysis techniques.25 An underlying theme of this work is that there is an urgent need for informed public debate in order to build trust. As noted by leading European experts:26

We cannot overemphasise the importance of the social issue of trust in the criminal justice uses of forensic genetics, even though what is known about levels of trust – especially "public trust" – is not always clear.

7.23 Just one high-profile case of needlessly intrusive or misunderstood DNA evidence has the potential to significantly undermine public trust in the criminal justice system. Such a case would also come at a tremendous personal cost to the individuals and families involved and at a societal cost, given the expense of appeals and compensation payments in miscarriage of justice cases.
7.24 Bearing those observations in mind, we have identified three main areas of concern in relation to forensic comparisons:
7.25 Before we explore these issues, we address a preliminary question: What is the appropriate role for judges and juries in reviewing the forensic comparison process?

THE ROLE OF JUDGES AND JURIES – A PRELIMINARY QUESTION


7.26 As we have noted, there is virtually no statutory regulation of the forensic comparison process. If DNA evidence is challenged at trial or on appeal, the court has an opportunity to consider that process, but there are several limitations. First, there are very few cases where DNA evidence is challenged. Second, reliance on the court stage of the criminal justice system to undertake after-the-fact challenges does not take into account the kind of systemic ethical and legal issues that can arise from DNA analysis.27 Third, it is very

  1. See for example Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014); Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017); National Research Council Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, August 2009); President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016); National DNA Database Ethics Group Ethical Dimensions of the Application of Next Generation Sequencing: Stakeholder Consultation (March 2017); United Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009); Sophie Rushton Familial Searching and Predictive DNA Testing for Forensic Purposes (Australia New Zealand Policing Advisory Agency, July 2010); and Jennifer K Wagner “DNA, racial disparities, and biases in criminal justice: searching for solutions” (2017) 27 Alb LJ Sci & Tech 95.
  2. Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 52. This paper was produced to further the goals of the EUROFORGEN Network of Excellence. This Network brings together some of the leading individuals and groups in European forensic genetic research in order to “develop a network of excellence for the creation of a European Virtual Centre of Forensic Genetic Research”. The Network aims to further existing collaborations in this field of research and operation as well as improve knowledge of innovations in forensic genetics amongst potential users, policy makers and the general public.

27 Such as those discussed with reference to forensic DNA phenotyping in Chapter 6.

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difficult for jurors, lawyers and judges to comprehend and critically assess DNA evidence at trial.
7.27 Our terms of reference do not include reviewing the law governing the admissibility of evidence in court or other trial procedures. However, by identifying the tasks that pose the most difficulty in court, we can explore whether making law reform changes outside of the courtroom may help.

The challenge posed by the admissibility decision


7.28 It has been widely recognised internationally that judges and lawyers generally lack the scientific expertise necessary to conduct the critical assessment of forensic evidence and associated literature that is required by the Daubert factors. This is supported by an abundance of academic literature and government reports.28 In making this point, a 2009 report from the National Research Council in the United States warned:29

... we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the forensic science community.

7.29 Although the report was primarily concerned with non-DNA-based forensic analysis techniques, assessing the reliability of new DNA analysis techniques raises the same problem – it requires a considerable amount of scientific expertise. The following two examples demonstrate this.

STRmix and the PCAST Report


7.30 In 2016, the United States President’s Council of Advisors on Science and Technology (PCAST) released a report on the use of forensic science in criminal cases. This report aimed to address some of the concerns that had been raised by the National Research Council. PCAST assessed the reliability of six forensic feature comparison methods commonly put before the courts: fingerprint, bite mark, firearms, footwear, hair and DNA
  1. See for example National Research Council Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, August 2009); President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016); Bernard Robertson “Likelihood ratios in evidence” [2016] NZLJ 22; John Rowan “Reviewing DNA evidence” [2011] NZLJ 400; Rhonda Wheate “The importance of DNA evidence to juries in criminal trials” (2010) 14 E&P 129; Yvette Tinsley “Science in the criminal courts: tool in service, challenge to legal authority or indispensable ally?” [2013] 25 NZULR 844; Devon Helm “Digesting the Double Helix: Receptions and Misconceptions of DNA Evidence in the New Zealand Criminal Trial” (LLB (Hons) Dissertation, University of Otago, 2015); Valerie P Hans “Judges, Juries, and Scientific Evidence” (2007) 16 JL & Poly 19; Mike Redmayne “Presenting probabilities in court: the DNA experience” (1996) 1 E&P 187; Kate Cashman and Terese Henning “Lawyers and DNA: Issues in Understanding and Challenging the Evidence” (2012) 24 CICJ 69; Angela van Daal and Andrew Haesler “DNA evidence: current issues and challenges” (2011) 23 Judicial Officers Bulletin 55; Michael B Dann, Valerie P Hans and David H Kaye “Can jury trial innovations improve juror understanding of DNA evidence” (2007) 90 Judicature 152; Mark Findlay “Juror comprehension and the hard case—Making forensic evidence simpler” (2008) 36 IJLCJ 15; J Holmgren “DNA Evidence and Jury Comprehension” (2005) 38 Canadian Society of Forensic Science Journal 123; KA Martire and others “On the interpretation of likelihood ratios in forensic science evidence: Presentation formats and the weak evidence effect” (2014) 240 Forensic Science International 61; J Ritchie “Probabilistic DNA evidence: the layperson’s interpretation” (2015) 47 AJFS 440; Michael Kirby “Forensic Evidence: Instrument of Truth or Potential for Miscarriage?” (2009) 20 JLIS 1; Andrew Haesler “DNA in court” (2006) 8 Judicial Review 121; Emily Henderson and Fred Seymour Expert Witnesses Under Examination in the New Zealand Criminal and Family Courts (School of Psychology, University of Auckland, March 2013); and Roberta Julian and Sally Kelty “Forensic Science as a 'risky business': Identifying key risk factors in the forensic process from crime scene to court” (2015) 1 Journal of Criminological Research, Policy and Practice 195.
  2. National Research Council Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, August 2009) at 12. The broader discussion is at 9–13.

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analysis. One of the DNA analysis techniques that PCAST assessed was the use of probabilistic genotyping software, including STRmix, to resolve mixed crime scene samples.30
7.31 As explained in Chapter 3 and above, STR mix is a software program that uses mathematical algorithms to predict the likely combination of DNA profiles in a mixed crime scene sample. Nowadays, over half of all crime scene samples are mixed (that is, they contain DNA from more than one contributor). Since 2012, ESR has routinely used STRmix to resolve these samples.31
7.32 PCAST described software programs like STRmix as being a “major improvement” on other techniques that have been used to analyse mixed crime scene samples, based on subjective judgments.32 However, it also expressed some concerns. Most significantly, it noted that the eight software programs on the market at that time employed different mathematical algorithms and could yield different results for the same complex mixed crime scene sample (that is, samples with more than three contributors).33
7.33 PCAST concluded:34

Objective analysis of complex DNA mixtures with probabilistic genotyping software is [a] relatively new and promising approach. Empirical evidence is required to establish the foundational validity of each such method within specified ranges. At present, published evidence supports the foundational validity of analysis, with some programs, of DNA mixtures of 3 individuals in which the minor contributor constitutes at least 20 percent of the intact DNA in the mixture and in which the DNA amount exceeds the minimum required level for the method. The range in which foundational validity has been established is likely to grow as adequate evidence for more complex mixtures is obtained and published.

7.34 Since the PCAST report was released, further validation studies have been published concerning STRmix, and it may now be considered scientifically valid for analysing mixed crime scene samples for up to six contributors.35 (We understand that STRmix is not used to analyse mixtures more complex than that, so there seems to be no ongoing issue.)
7.35 PCAST, a council of world-leading scientific experts, was able to critically assess the science and associated literature to reach its conclusion. That led the forensic community

30 See Chapter 10 for a discussion of mixed crime scene samples in the context of the Crime Sample Databank.

31 See Chapter 3.

  1. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 79.
  2. This occurred in New York v Hillary, a high-profile murder case in the United States. The forensic scientists used two different software programs (STRmix and TrueAllele) and obtained different conclusions concerning whether DNA from the defendant could be said to be included within the mixed sample collected from one of the victim’s fingernails. The evidence was not admitted: New York v Hillary, No. 2015-15, (N.Y St Lawrence City. Ct. Aug. 26, 2016). The decision is found at <www.northcountrypublicradio.org/assets/files/08-26-16DecisionandOrder-DNAAnalysisAdmissibility.pdf>. In the same case, defence counsel expressed concern about the inability to interrogate the algorithms used by the software. The developers of TrueAllele had refused access to this information on the basis that it was commercially sensitive. ESR has released the STRmix source code so it is available to prosecution and defence bars to review: see Katherine Kwong “The Algorithm Says You Did It: The Use of Black Box Algorithms to Analyze Complex DNA Evidence” (2017) 31 Harv J L & Tech 275 at 294-295.
  3. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 82.
  4. Bright and others “Internal validation of STRmix – A multi laboratory response to PCAST” (2018) 34 Forensic Science International: Genetics 11 at 11–24. See also State of Florida v Dwayne Cummings Case No 2016-CF-239 (12th Cir 2016) in which a Judge admitted expert evidence based on STRmix in a murder trial, after the PCAST report was published. The mixed crime scene sample in that case had at least four contributors.

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to respond with further evidence. It seems inappropriate to ask judges to replicate that same task.

RNA analysis and Lundy v R


7.36 A second example of the difficulty associated with assessing scientific validity in a courtroom is the New Zealand case of Lundy v R.36 Mr Lundy was convicted for the murder of his wife and daughter, but those convictions were set aside on appeal to the Privy Council and a retrial ordered.37
The pre-trial (to the second trial)
7.37 Before the second trial commenced, pre-trial applications were made to the High Court38
and subsequently appealed.39
7.38 One of the pre-trial application issues for the Court of Appeal to determine was the admissibility of expert evidence relating to messenger RNA (mRNA).40 Two stains on the shirt that Mr Lundy wore on the night of the murders contained central nervous system (CNS) tissue. In the original trial, there had been some dispute as to whether that tissue was from a human or non-human source.41 As a result of this dispute, in the Privy Council the Crown produced expert evidence on mRNA to demonstrate that the CNS tissue was more likely to be from a human than any other source. The expert evidence came from scientists at the Netherlands Forensic Institute (NFI) who used a process of looking for mRNA markers with a test called “brain plex”, which was developed specifically for the Lundy case.
7.39 In the pre-trial application judgment, the Court of Appeal reviewed the mRNA evidence and received defence expert evidence raising questions around the validity of the methodology and reliability of results.
7.40 The majority in the Court of Appeal ruled the mRNA evidence to be admissible in the second trial. The majority observed that the testing was done by scientists who were credible and eminent in their field, and the results were interpreted conservatively.42 Although some aspects of the testing were novel, they were logical and rational extensions of established scientific theory and techniques.43 It found that the contest between experts related to how reliable the jury should find the evidence when deciding whether to accept it, rather than the reliability of the science for the purpose of admissibility. Therefore, the majority concluded that the matter could be properly left to the jury.44
7.41 However, the President of the Court of Appeal dissented. Her Honour expressed concerns about the lack of validation and international standards regarding the mRNA

36 Lundy v R [2018] NZCA 410 and Lundy v R [2014] NZCA 576.

37 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.

38 Lundy v R [2014] NZHC 2527.

39 Lundy v R [2014] NZCA 576.

  1. As explained in Chapter 3, mRNA is the intermediary within cells between nuclear DNA and proteins and can be used to identify body fluids.
  2. Note that the mRNA evidence was not called at the first trial. It had been procured in response to submissions to the Privy Council suggesting that CNS tissue on Mr Lundy’s shirt was from a non-human source.

42 Lundy v R [2014] NZCA 576 at [80].

43 At [80]–[85].

44 At [90]–[93].

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analysis and stated that she would have ruled it inadmissible under section 8 of the Evidence Act.45 In her view, the probative value of the evidence was outweighed by the risk of its unfairly prejudicial effect.
7.42 The majority’s approach reflects a trend identified by the United States National Research Council. The Council reviewed reported pre-trial admissibility decisions in federal criminal trials in the United States and noticed that there were very few decisions ruling expert forensic evidence inadmissible. Instead, trial judges seemed to prefer for this evidence to be tested in court through cross-examination and contrary expert evidence, with the burden of proof providing an additional safeguard. This placed the primary responsibility for assessing scientific validity (and therefore reliability) on jurors.46
The second trial
7.43 Following the Court of Appeal’s pre-trial judgment, the case went to trial, and Mr Lundy was convicted for the murder of his wife and daughter (for the second time).47 Mr Lundy then appealed those convictions.48 One of the principal issues advanced on appeal was that the mRNA evidence was not scientifically valid and therefore unreliable. In addition, the appeal argued that it could not be said to have been substantially helpful and its low probative value was outweighed by its unfairly prejudicial effect.
7.44 In its 2018 decision, a differently constituted Court of Appeal held that the mRNA evidence was inadmissible.49 The Court stated that the “robustness of a methodology cannot legitimately be established by an inexpert judge or jury. The essential work of validation must occur before the courtroom is entered” and must have a “track record of acceptance by a body of scientific opinion”.50 The Court went on to say:51

We consider that inviting the jury to resolve the issues presented on both sides of the mRNA issue in this case was to ask them to carry out a task for which they cannot have been equipped. They were effectively required to resolve a complicated scientific debate about whether the methodology employed was robust in the absence of the general acceptance of the methodology envisaged by Daubert.

7.45 In the end, the Court found that the evidence cannot have been substantially helpful to the jury for the following reasons:52

First, the subject matter was inherently complex, and it had to be covered by both the Crown and defence experts to a level of detail commensurate with the fact that the Crown were not able to point to widespread acceptance of the methodology employed. In a real sense the conflict was about the validity of the NFI methodology. The jury cannot realistically have been in a position to resolve the highly specialised competing claims made by reputable scientists on both sides of the argument. Second, the evidence could not cross the


45 At [68]–[69].

  1. National Research Council Strengthening Forensic Science in the United States: A Path Forward (National Academies Press, August 2009) at 11 and 90–98.

47 R v Lundy HC CRI-2001-054-832244, 19 February 2015.

48 Lundy v R [2018] NZCA 410.

  1. However, the other grounds of the appeal were rejected and the appeal was ultimately dismissed because the Court determined that, notwithstanding evidence that had been ruled inadmissible, Mr Lundy would have been convicted without such evidence and therefore no substantial miscarriage of justice had actually occurred.

50 At [241].

51 At [243].

52 At [248].

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reliability threshold in the absence of peer review, known or potential rate of error, standards, and general acceptance in the scientific community.

The role of jurors


7.46 The PCAST report also discussed the role of jurors in assessing scientific evidence. The report highlighted the danger of leaving decisions about the reliability and relevance of DNA evidence to jurors. It stated that the vast majority of jurors have no independent ability to assess the strength of the evidence, observing that:53

If a witness were to describe a perpetrator as “tall and bushy haired,” jurors could make a reasonable judgment of how many people might match the description. But, if an expert witness were to say that, in two DNA samples, the third exon of the DYNC1H1 gene is precisely 174 nucleotides in length, most jurors would have no way to know if they should be impressed by the coincidence; they would be completely dependent on expert statements garbed in the mantle of science. (As it happens, they should not be impressed by the preceding statement: At the DNA locus cited, more than 99.9 percent of people have a fragment of the indicated size.)

7.47 PCAST explained that the potential prejudicial impact of DNA evidence is also unusually high, because jurors are likely to overestimate the probative value of a match between samples.54 This stems in part from the difficulty of understanding the likelihood ratios that are used to explain the significance of such a match.
7.48 Research has shown that jurors struggle to engage in the probabilistic reasoning that is required to make sense of likelihood ratios.55 This causes some jurors to conflate the likelihood ratio with the likelihood of guilt. In a 2015 decision, the New Zealand Court of Appeal commented on the difficulties that juries face in understanding the likelihood ratio.56
7.49 A related concern is that, given New Zealand’s limited size and the economic pressures on legal aid, there are some indications that it may be difficult to secure an expert witness to review forensic evidence for the defence.57
7.50 Along similar lines, the Court of Appeal in its 2018 decision in Lundy v R flagged the possible impact of expert evidence on fair trial rights. The Court observed that, if Mr
  1. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 45.
  2. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 45.
  3. See in particular Bernard Robertson “Likelihood ratios in evidence” [2016] NZLJ 22; Valerie P Hans “Judges, Juries, and Scientific Evidence” (2007) 16 JL & Poly 19; Mike Redmayne “Presenting probabilities in court: the DNA experience” (1996) 1 E&P 187; and Kate Cashman and Terese Henning “Lawyers and DNA: Issues in Understanding and Challenging the Evidence” (2012) 24 CICJ 69.
  4. Manoharan v R [2015] NZCA 237 at [50]–[53]. At trial, the expert witness on DNA evidence had refused to express her findings in any way other than a likelihood ratio. She would not even endorse a rephrasing of the ratio, which stated that “it is likely that x amount of New Zealanders share this DNA”. The Court of Appeal commented at [51]-[52]:

We appreciate and respect the need for scientists to be precise. However in the trial context, it is also important that the evidence be presented in a way that is easily understood by people... In this case the DNA evidence was not strong and there was a real risk that unless it was expressed in a way that made its limitations readily apparent to a layperson, the jury would attribute a weight to it that was not warranted.

  1. See Kelly Makiha “Murder Trial May be Delayed” The New Zealand Herald (online ed, Auckland, 9 March 2016). Brewer J stated that, if he had to adjourn a murder trial, he would call for an inquiry into the New Zealand forensic and pathology system. The adjournment was requested because defence counsel was having difficulty finding a forensic pathologist. Brewer J explained that he adjourned two other murder trials in 2015 because of difficulties in getting pathology reports.

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Lundy had not had the resources to obtain expert assistance to question the reliability of the mRNA evidence, it would have gone to the jury without challenge:58

The notion that the robustness of cutting edge scientific techniques can be established before juries creates a clear tension with the right to a fair trial in the many cases that might arise where the defence would simply be unable, through lack of resources, to mount soundly based challenges to the science relied on by the Crown.

Summary


7.51 The task of assessing the relevance and reliability of DNA evidence in court is sometimes very difficult. To address this – and wider concerns about forensic evidence more generally – commentators have suggested an array of reform options that could be adopted to improve trial procedures.59 In addition, we think that, in relation to the forensic comparison process, more can be done outside of the courtroom to provide reassurance about the scientific validity of DNA evidence before it is given in court.

THE INTRODUCTION OF NEW ANALYSIS TECHNIQUES

The issue


7.52 There is a need to ensure that new ways of analysing DNA are not introduced into casework too soon and are also not perceived to be introduced into casework too soon. By “too soon”, we mean before scientific validity, legal requirements and ethical implications have been appropriately assessed and addressed. Transparency and trust are crucial. For that reason, we think that the introduction process should be more open.
7.53 As explained above, the CIBS Act does not place constraints on what analysis is undertaken as part of any forensic comparison process. Ordinarily, this process involves traditional STR profiling, but an array of supplementary techniques has developed to assist with the analysis of crime scene samples. As we have noted above, the decision to introduce one of these techniques into criminal casework is made jointly by Police and ESR.
7.54 However, there is a strong argument that Parliament should have more input into the introduction of new analysis techniques. According to the Legislation Guidelines approved by Cabinet, significant policy decisions that either affect fundamental human rights or that relate to public search powers should be dealt with in statute.60 One indicator of significance is whether the policy decision has the potential to give rise to

58 Lundy v R [2018] NZCA 410 at [247].

  1. For instance, Emily Henderson and Fred Seymour Expert Witnesses Under Examination in the New Zealand Criminal and Family Courts (School of Psychology, University of Auckland, March 2013) at 29–41 suggest the options of raising the admissibility threshold, educating the judiciary and lawyers, juror training, expert panels to provide advice to judges, court-appointed experts, accreditation and pre-trial peer review, codes of conduct, training of experts in court craft, consecutive expert evidence, concurrent expert evidence (“hot-tubbing”), increased pre-trial discussions, increased judge-alone trials, disciplinary actions and tortious liability. Some of these options are considered in Law Commission Second Review of the Evidence Act 2006: Te Arotake Tuarua i te Evidence Act 2006 (NZLC IP42, 2018) at ch 10, namely: whether expert witnesses in criminal proceedings should be required to adhere to a code of conduct; whether expert witnesses in criminal proceedings should be subject to an obligation to confer with another expert witness if directed to do so; and whether section 26(2) should be amended to provide guidance on when the evidence of an expert who has failed to comply with the Code of Conduct in the High Court Rules 2016 can be given.

60 Legislation Design Advisory Committee Legislation Guidelines (March 2018) at [14.1].

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controversy.61 In our view, the adoption of some DNA analysis techniques such as next generation sequencing kits, whole genome sequencing or rapid DNA devices are likely to fall into this category. As we explained in Chapter 6, forensic DNA phenotyping probably does too.
7.55 There is also an argument that the scientific validity of new DNA analysis techniques should be the subject of an independent review, prior to introduction into casework. This would promote transparency and would help to address the concerns outlined at [7.26] to [7.51] about the reliability of DNA evidence being tested in court.

Options for reform

New analysis techniques could be expressly permitted by statute


7.56 The most straight-forward way of addressing potential issues with new analysis techniques would be for new legislation to expressly identify the DNA analysis techniques that may be used in any forensic comparison process. Parliament could seek independent advice from the scientific community for this purpose. However, simply listing permissible techniques in primary (or even secondary) legislation may not be appropriate, given the speed with which the science is developing.

There could be a statutory process for making decisions about new analysis techniques


7.57 An alternative would be to leave the decision to introduce new analysis techniques with Police and ESR but to impose statutory requirements on the decision-making process. For example any such decision could be required to:
7.58 All of these factors would also benefit from statutory recognition of the role currently performed by ESR.
Considerations and guiding principles could be in statute
7.59 If the decision to introduce a new DNA analysis technique is to remain with Police and ESR, new legislation should either contain mandatory statutory considerations or guiding principles. This would make the decision-making process much more transparent, and there would be clearer direction from Parliament.
7.60 Any mandatory statutory considerations could include the factors that we know already influence this decision: scientific validity, cost, ethical and legal implications (including tikanga, the Treaty of Waitangi, the New Zealand Bill of Rights Act 1990 (NZBORA) and privacy).
7.61 In terms of principles, one option would be for new legislation to state that forensic DNA analysis should be limited to (or should generally focus on) analysis of non-coding regions of the genome. This principle would align with the original policy behind the CIBS

61 At [14.1].

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Act and would alleviate some privacy concerns.62 This option also aligns with the best- practice guidance issued by the Forensic Genetics Policy Initiative in 2017. The Initiative explained:63

Although the role of DNA in disease is complex, forensic DNA profiles generally focus on individual differences in “non-coding” DNA (the parts of the DNA that do not code for proteins that play important biological functions in the human body). Although such markers can sometimes be statistically associated with disease within a family, they are not predictive of disease in the general population. Legislation should therefore specify that only forensic DNA profiles are extracted and stored in DNA databases and that they are based on non- coding DNA that provides no information on a person’s health risks or physical characteristics (other than their sex).

7.62 However, as we learn more about non-coding areas of the genome, new privacy concerns may arise. Further, this principle could prevent (or limit, depending on the wording) Police from capitalising on emerging techniques, such as forensic DNA phenotyping and whole genome sequencing, should their use be appropriate or required in any given case.
Statutory considerations and guiding principles could include consultation requirements
7.63 This option could include a requirement for Police and ESR to consult with key stakeholders, such as the Privacy Commissioner, tikanga experts and/or an oversight body. The tension here is between ensuring that the right mix of people with scientific, ethical, legal and cultural expertise are involved, whilst ensuring that the consultation requirements remain workable. One of the functions of the Biometrics and Forensics Ethics Group in the United Kingdom is to provide the Home Office with publicly available advice about the adoption of new analysis techniques.64 Oversight is discussed in Chapter 15.

There could be an independent pre-approval process


7.64 A variation on this option would be to involve an independent oversight body formally pre-approving the use of DNA analysis techniques in criminal casework. Chapter 15 outlines various options for the establishment of such an oversight body and explores how it might operate in practice.
7.65 The pre-approval process could have a narrow focus – such as providing an independent review of scientific validity. This would address some of the concerns we have about assessing the reliability of new techniques in court. Alternatively, it could focus broadly on whether the applicable mandatory statutory considerations or guiding principles were complied with – including ensuring that appropriate consideration is given to scientific, ethical, legal and cultural issues. This is one of the options that we put forward in relation to forensic DNA phenotyping in Chapter 6. Oversight options are discussed in Chapter 15.

  1. See the discussions about the original policy behind the Criminal Investigations (Bodily Samples) Act 1995 in Chapters 4 and 6.
  2. Forensic Genetics Policy Initiative Establishing best practice for forensic DNA databases (September 2017) at [4.1]. The Forensic Genetics Policy Initiative is an international collaborative group. It undertook a seven-year project that, aimed to set the worldwide human rights standards for the use of forensic DNA profile databanks. We discuss the Initiative further in Chapter 15.
  3. Biometrics and Forensics Ethics Group (BFEG) Terms of Reference, Code of Practice and Working Protocol (Home Office, April 2017). We discuss the BFEG and its functions in Chapter 15.

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7.66 In terms of procedure, pre-approval could be obtained through a formal application process. As part of the application, ESR and Police could be required to prepare privacy and/or cultural impact assessments. If the applications were publicly available, that would promote public scrutiny. They could also be used to frame consultation discussions. In deciding how prescriptive to make this process, however, it is important to be mindful of the costs of establishing a body to conduct pre-approval as well as the costs to those involved in the process.

The role of Police forensic services provider could be recognised in statute


7.67 The CIBS Act does not mention ESR or its role as Police’s forensic services provider.65 This role carries a considerable amount of social responsibility, particularly given the degree of influence that ESR has over the introduction of new DNA analysis techniques. For this reason and to promote accessibility, we think that the role should be recognised in statute. This would also provide greater legal certainty as to the rights and obligations between Police and ESR.
7.68 This proposal reflects our preliminary view that there is no case for significant reform when it comes to ESR’s role. The operational relationship with Police seems to work well. Nothing that we have seen during our review so far suggests that major change is required, such as Police undertaking forensic analysis work in-house. Further, we consider that the current approach – of Police choosing and contracting its own forensic science service provider – also works well. It provides flexibility and allows for market forces to have an impact on quality and cost. Therefore, we do not think that any new Act should refer directly to ESR.
7.69 Instead, new legislation could empower Police (potentially in conjunction with Parliament or another appropriate body) to appoint a “forensic services provider”. The appointment could be conditional on the provider meeting certain requirements. These could include requirements to meet specified international laboratory accreditation standards and/or to arrange for staff to undertake regular proficiency tests. Such requirements are common overseas in countries where multiple private laboratories provide forensic science services to local and federal police. These requirements would reassure the public that any provider contracted by Police will continue to be appropriately qualified.
7.70 This would effectively codify the current practice. We think that requests by other enforcement agencies for DNA analysis should continue to be filtered centrally through Police. This is mainly for practical reasons, including assisting ESR to prioritise the casework. Any requests by accused persons and convicted offenders to have crime scene samples analysed or reanalysed should also be filtered centrally by Police because it has a statutory responsibility for law enforcement.66





  1. See Key terms and actors at the beginning of this issues paper. This describes the basis of the relationship between Police and ESR.
  2. By way of example, in New South Wales, a convicted person may apply to the Commissioner of Police to have a crime scene sample analysed or reanalysed. If the Commissioner declines, the convicted person may apply to the Supreme Court for an order requiring the Commissioner to comply with the request. In the United Kingdom, the Criminal Cases Review Commission is involved in considering this type of request. See Policing Act 2008, s 9(c).


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Q7
What concerns do you have, if any, about the introduction of new DNA analysis
techniques into casework in New Zealand?
Q8
What factors do you think should be considered before a new DNA analysis
technique is introduced into casework? Who do you think should make that decision?
Q9
Do you think that the role of Police “forensic services provider” should be
recognised in statute? If so, how do you think that role should be structured?

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TRACE DNA – THE RISKS

The issue


7.71 As explained in Chapter 3, new DNA analysis techniques are capable of generating profiles from very small biological samples. These samples may be invisible to the naked eye. This is described as trace DNA.
7.72 Experts consider that, as the sensitivity of DNA analysis tests increases, so do the problems.67 These include heightened risks of human error through contamination, cognitive bias and attaching undue significance to background DNA (that is, DNA that was present prior to the offending) or to DNA that has been transferred (that is, transferred from one person to another before being deposited at the crime scene). In the early days of DNA analysis, a sizeable blood or semen stain was required to generate a DNA profile, but now only a tiny sample is required (such as the skin cells left behind in fingerprints). Therefore, it is likely to be increasingly common for crime scene samples to contain background or transferred DNA.
7.73 Many of these issues were identified and discussed when LCN analysis was introduced into casework in the mid-2000s.68 These issues will only be amplified if sensitive next generation sequencing kits for analysis of crime scene samples are adopted. Using these kits to reanalyse crime scene samples from so-called “cold cases” would also be problematic. That is because the likelihood of there being contamination is even higher due to historically poor crime scene sample collection and storage processes. In a 2015
  1. See for example Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017) at 16–23; Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 26; Karen Richmond “DNA profiling: Transfer and Persistence R v Tsekiri [2017] EWCA Crim 40” (2017) 81 JCL 275; and Nicola Davis “DNA in the dock: how flawed techniques send innocent people to prison” The Guardian (online ed, United Kingdom, 2 October 2017) citing a study of 218 successful appellate DNA cases in England and Wales from 2010–2016 conducted by Ruth Morgan, the Director of the Centre for the Forensic Sciences at University College London (see Nadine Smit, Ruth Morgan and David Lagnado "A systematic analysis of misleading evidence in unsafe rulings in England and Wales" (2018) 58 Science & Justice 128).
  2. See R v Hoey [2007] NICC 49 and the resultant report: Brian Caddy, Graham Taylor and Adrian Linacre A Review of the Science of Low Template DNA Analysis (Home Office, 11 April 2008); Wallace v R [2010] NZCA 46; R v Lepper CA334/04, 1 November 2005; Anna Sandiford Forensic Science and the Law: A Guide for Police, Lawyers and Expert Witnesses (Thomson Reuters, Wellington, 2013) at [16.7.5]; SallyAnn Harbison, Marita Fallow and Donna Bushell “An analysis of the success rate of 908 trace DNA samples submitted to the Crime Sample Database Unit in New Zealand” (2008) 40 AJFS 49.

131 CHAPTER 7: FORENSIC COMPARISONS



report, the United Kingdom’s Government Chief Scientific Adviser warned: “[O]ur ability to analyse may outstrip our ability to interpret”.69
7.74 These issues are compounded by two well-documented courtroom trends that we have already discussed:
7.75 The following cases demonstrate some of the risks associated with trace DNA.
7.76 In R v Jama (Australia, 2009) a woman was found unconscious in a toilet cubicle.70 While she did not have any recollection of what had occurred, she believed she was sexually assaulted and she underwent a medical examination. DNA in the resultant crime scene sample was linked to Mr Jama, who was convicted of raping the woman. The court later found that the crime scene sample taken from the woman was contaminated and it was likely that no rape had occurred. The doctor who examined the woman had taken swabs from another woman 28 hours earlier, who had engaged in sexual activity with Mr Jama;71 however, no charges were laid in relation to that earlier event. He spent 16 months in prison before the miscarriage of justice was discovered.72
7.77 The case of Adam Scott (United Kingdom, 2011) involved a similar contamination issue although the case did not proceed to trial.73 He was arrested for rape and held in custody for five months and then released after his phone records corroborated his assertion that he was in a different town at the time of the alleged rape. This led to the discovery that the crime scene sample from the rape investigation had been contaminated by a biological sample taken from him for an unrelated ‘spitting incident’.74
7.78 In R v Tsekiri (United Kingdom, 2017) a woman was approached by two men as she got into her car in London.75 One of the men opened her car door. A struggle ensued and the man stole the woman’s necklace. Both men then ran away. A swab was taken from the car door. Analysis revealed a mixed crime scene sample with one major contributor and at least one minor contributor. The major contributor’s profile was consistent with the

69 United Kingdom Government Office for Science Forensic Science and Beyond: Authenticity, Provenance and Assurance

– Annual Report of the Government Chief Scientific Adviser 2015 at 6.

70 R v Jama (unreported) VSCA, 7 December 2009.

  1. The doctor had not sufficiently cleaned a tray after the first medical examination before he used it again in the second examination. It is not clear whether there were only trace amounts of DNA left on the tray or whether there was a larger amount of DNA present. Nonetheless, the case does serve to highlight the risks and potential impact of contamination.
  2. Marcus Smith and Monique Mann Recent Developments in DNA evidence (Australian Institute of Criminology, No 506, November 2015). A former Supreme Court Justice examined Mr Jama’s case and provided a report on the reasons for the miscarriage: Frank Vincent Report: Inquiry into the Circumstances that Led to the Conviction of Mr Farah Abdulkadir Jama (Victorian Government Printer, 2010). Vincent concluded at 11:

I have been left with the deep impression that at virtually every point, and by almost everyone involved, [DNA evidence] was handled with so little insight into the issues which it presented that no need was seen to explore or conduct research into them.

73 Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What DNA can tell you about a crime?

(2017) at 7.

  1. In 1999, there was also a similar contamination case in New Zealand, although this was before LCN analysis or other forms of analysing trace DNA were in use. The case led to an external inquiry (Thomas Eichelbaum and John Scott Report on DNA Anomalies for the Minister of Justice (30 November 1999)) and to substantial improvements to ESR’s anti-contamination policies.

75 R v Tsekiri [2017] EWCA Crim 40, [2017] 1 All ER 394.

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DNA profile of Mr Tsekiri, who was arrested and who refused to make a statement. The DNA evidence was the sole evidence at trial. The trial judge rejected a submission that there was insufficient evidence for the case to go to the jury, and the appellant was convicted. The Court of Appeal upheld the trial judge’s decision on appeal. The Court highlighted that the expert’s opinion was that it was “unlikely” that the DNA in the crime scene sample had been transferred and noted that defendant was the major contributor to the sample.76 The decision has been criticised. In particular, it has been noted that studies have shown that a major contributor’s DNA can be deposited through transfer and that a major contributor may not have been the last person to touch an item. 77 The DNA evidence presented to the jury may, therefore, have been oversimplified.
7.79 In R v Tsekiri the Court of Appeal summarised four other appellate cases in the United Kingdom where trace DNA was the sole or main evidence at trial.78 Background DNA or transfer were also central issues in the murder cases of R v Hillier79 and Fitzgerald v R80 in Australia and of McLaughlin v R81 and Preston v R82 in New Zealand. Unlike the Australian murder cases, however, the DNA evidence in McLaughlin v R and Preston v R was only a small part of the Crown case. DNA transfer was a disputed issue in the New Zealand case of Young v R83 as well.84

76 At [20].

  1. Andrew Roberts “DNA evidence: R v Tsekiri” [2017] 8 Crim LR 628. See also Karen Richmond “DNA profiling: Transfer and Persistence R v Tsekiri [2017] EWCA Crim 40” (2017) 81 JCL 275.
  2. R v Grant [2008] EWCA Crim 1890; R v Ogden [2013] EWCA Crim 1294; R v Bryon [2015] EWCA Crim 997, [2015] 2 Cr App R 299; and R v FNC [2015] EWCA Crim 1732, [2016] 1 WLR 980.
  3. R v Hillier [2007] HCA 13, (2007) 233 ALR 634. This case was an appeal against a murder conviction. Hillier had been found guilty after his DNA was found on the victim’s (his former partner) pyjamas. On appeal, the defence argued that the DNA could have been transferred via the children of the victim and the accused and was not conclusive as to guilt. Circumstantial evidence also suggested the accused was innocent. Ultimately, the Court quashed the conviction. It held that the DNA evidence was considered in isolation, and too much weight had been placed on the DNA evidence in the context of the case.
  4. Fitzgerald v R [2014] HCA 28, (2014) 311 ALR 158. The defendant was convicted of murder based on DNA evidence found on a didgeridoo at the scene. No other evidence linked the defendant to the crime. On appeal, counsel argued that the basis for the verdict was unreasonable as the DNA could have been transferred by other means, such as by shaking hands with someone who subsequently came into contact with the didgeridoo. The Court agreed and held at

[36] that: “The Jury, acting reasonably, should have entertained a reasonable doubt as to the appellant’s guilt.” Alternative hypotheses, and in particular the possibility of secondary transfer, were “not unreasonable and the prosecution had not successfully excluded them”. The appellant’s conviction was quashed.

  1. McLaughlin v R [2015] NZCA 339. This case was an appeal against a murder conviction. Expert evidence at trial showed that DNA found under the victim’s fingernails matched the defendant’s DNA profile. It was unclear whether the sample was present from direct or indirect transfer – experts canvassed both options at trial. Counsel for the defendant argued the jury was not entitled to find that the DNA was present from direct transfer. The Court of Appeal disagreed and held that the jury was entitled to make this finding in the context of all of the evidence adduced at trial.
  2. Preston v R [2016] NZCA 568, [2017] 2 NZLR 358. This case was an appeal against a murder conviction. One of the grounds advanced was that the trial judge failed to put the defence case properly regarding the significance – or lack thereof – of DNA evidence on the handle of the knife used in the killing. In particular, the defence claimed the Judge failed to convey the issues surrounding DNA transference raised by experts at trial. The Court of Appeal disagreed and stated at [115] that the Judge accurately conveyed that the mere presence of DNA on the knife said “nothing of how it got put there, whether directly from the owner of the DNA or by transfer through some other intermediate means”.
  3. Young v R [2010] NZCA 309. This case was an appeal against a conviction for armed robbery. DNA matching the defendant’s DNA profile was found on abandoned latex gloves believed to be used in the offence. The defendant’s profile was the only DNA profile located on the gloves. Part of the defendant’s argument on appeal was that the DNA present on the gloves was innocently transferred there. Thus, the Jury was arguably not entitled to find that the defendant was the robber. The Court disagreed and held at [18] that the jury was “fully entitled to find that the DNA was on the gloves because Mr Young was wearing them”.

84 Another 2018 case is currently subject to a suppression order.

133 CHAPTER 7: FORENSIC COMPARISONS


Discussion


7.80 As discussed at [7.46] to [7.50] there is extensive academic literature on the risk of overestimating the probative value of DNA evidence and underestimating its unfairly prejudicial effect.
7.81 It has been suggested that, in practice, the presentation of DNA evidence reverses the presumption of innocence, as juries expect defendants to provide an explanation for their DNA being present.85 This can be an impossible task, and there have been calls for a prohibition on convicting a person based solely on DNA evidence.86 Commentators have also suggested that trial processes should be amended to improve the understanding of jurors.87 As noted above, these suggestions fall outside our terms of reference. However, the literature calls for steps to be taken outside of the courtroom as well, including:88









  1. United Kingdom Human Genetics Commission Nothing to hide, nothing to fear? Balancing individual rights and the public interest in the governance and use of the National DNA Database (November 2009) at 28–29; and David Turner “Towards a DNA Dystopia? Human Rights Concerns under the Criminal Investigation (Bodily Samples) Act 2009” (2011) 2 NZLSJ 502 at [D6].
  2. Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017) at 7. Notably, corroboration of DNA evidence is a legal requirement in Scotland: Nuffield Council on Bioethics The forensic use of bioinformation: ethical issues (September 2007) at [7.11].

87 See the discussion at [7.51].

  1. President’s Council of Advisors on Science and Technology Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods (Executive Office of the President, September 2016) at 73–75; Forensic Science Regulator Guidance: Cognitive Bias Effects Relevant to Forensic Science Examinations (2015); EJAT Mattijssen and others “Implementing context information management in forensic casework: Minimizing contextual bias in firearms examination” (2016) 56 Science and Justice 113; Karen Richmond “DNA profiling: Transfer and persistence” (2017) 18 JCL 275–277; Kelty and others “Professionalism in Crime Scene Examination: The Seven Key Attributes of Top Crime Scene Examiners” (2011) 2 Forensic Science Policy and Management 175.
  2. Shedder status is explained in Sense About Science and EUROFORGEN Making Sense of Forensic Genetics: What can DNA tell you about a crime? (2017) at 18:

One way in which we release DNA into our environment is through the constant shedding of skin cells onto our clothes and the surfaces we touch. But not everyone does this at the same rate. People who shed lots of skin cells — possibly because of a skin condition such as eczema, dermatitis, dandruff, or even sunburn — are known as ‘high status shedders’ and are more likely to deposit DNA. For instance, a recent study found that people with atopic dermatitis shed four times as much DNA as healthy individuals. Conversely, a ‘low status shedder’ is less likely to deposit DNA. But not everyone does this at the same rate and it will also vary within the same person at different times.

DNA - DNA IN CRIMINAL INVESTIGATIONS 134

Options for reform

Review and audit of new techniques generally


7.82 Earlier in this chapter, we introduced the option of any new Act allowing for the appointment of a Police “forensic services provider”.90 We explained that this appointment could be conditional on the provider meeting specified accreditation and proficiency testing standards. In addition to those requirements, the Act could require the provider to maintain policies (compliant with international best practice) in relation to the types of matters described at [7.81]. An oversight body (see [7.64] and discussion in Chapter 15) could also be involved in reviewing the policies for consistency with NZBORA and the principles of the Treaty of Waitangi and considering privacy and tikanga issues and/or auditing as the science continues to develop. The oversight body could itself be given obligations in relation to public education and promoting necessary research in this area. These sorts of requirements and obligations could help to reduce the general risk of misunderstandings and misuse of trace DNA evidence.

Review and audit of new techniques in specific cases


7.83

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In relation to specific cases, the existing criminal appeal system in New Zealand may provide sufficient opportunities to challenge trace DNA evidence. However, if it was considered that an additional safeguard should be put in place, one option would be to empower an independent body to review any conviction that is based solely on trace DNA evidence. For instance, this could be a function given to a Criminal Cases Review Commission, if such a Commission were established in New Zealand.91



Q10
What concerns do you have, if any, about the increased use of highly sensitive
DNA analysis techniques (that enable trace DNA to be analysed) in criminal investigations?

ROUTINELY OBTAINING MORE INFORMATION THAN NECESSARY

The issue


7.84 We understand from ESR that new DNA analysis kits are on the international market that simultaneously target more than 50 STRs and 200 SNPs (including SNPs that are ancestry informative markers and SNPs associated with externally visible characteristics). Other kits are available that sequence the entire mitochondrial genome, which passes from generation to generation largely unchanged through the maternal line. This technology has been used for a long time for non-forensic DNA analysis, and these kits have recently been adopted by some overseas laboratories for forensic use. These kits could be used to analyse crime scene samples and/or reference samples on a case-by- case basis or routinely. The results could even be stored on databanks.


90 See the discussion at [7.67].

91 See Chapter 15 for further discussion.

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7.85 ESR has also advised us that the most cost-efficient way of analysing DNA in the foreseeable future could involve whole genome sequencing of nuclear (as opposed to mitochondrial) DNA. The international forensic community has not yet considered how this might work in practice, but from a policy perspective, it is clear that strict rules would need to be in place around retaining only the amount of information in a whole genome sequence required for law enforcement purposes and destroying information that is not required for this purpose.

Discussion


7.86 Like forensic DNA phenotyping, which we discussed in Chapter 6, these developments represent a major shift from the policy that underpins the CIBS Act, which was based on an assumption that only non-coding regions of the genome would be targeted in DNA profiling. Our view is that any new forensic analysis technique that targets coding regions of the genome should be debated in Parliament to obtain a new public mandate.
7.87 As we explained in Chapter 6, there are particular legal and ethical issues associated with analysing SNPs or STRs that are ancestry informative markers or that are linked to externally visible characteristics. We explained that such analysis could only be justified on a case-by-case basis in cases involving serious criminal offending. As such, we do not think that it should be included in any routine analysis process.
7.88 Additionally, we do not see the law enforcement need to significantly increase the amount of data included in DNA profiles. One of the core information privacy principles is to collect only the amount of personal information that is necessary for any given purpose.92 Personal information is information about an identifiable person, so this principle applies regardless of the sensitivity of the information in question.93 As such, there needs to be some justification for any significant expansion of the number of STRs or SNPs in DNA profiles, whether they are in coding or non-coding regions of the genome.
7.89 It is possible that, in the future it will be cheaper to undertake more extensive analysis than to undertake less extensive analysis. However we do not think that this equates to a law enforcement need to generate the extra information. Further we do not think that commercial drivers should be the focus of policy development in this area.94
7.90 If a case could be made for extensive analysis (based on utility and cost efficiency), there would still be significant practical barriers to its implementation in casework. For instance, whole genome sequencing would require extensive computing storage even if entire sequences were only stored temporarily. This raises significant concerns about data security. In addition, we understand that effective data destruction can be technically difficult, which is a further concern.





92 Privacy Act 1993, s 6 information privacy principle 1.

93 See the discussion of the definition of “personal information” in Chapter 6.

  1. Similar concerns about the influence of the commercial actors who develop new DNA analysis kits were raised by Robin Williams and Matthias Wienroth Ethical, Social and Policy Aspects of Forensic Genetics: A Systematic Review (Northumbria University Centre for Forensic Science, 15 May 2014) at 7.

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Options for reform


7.91 The prospect of introducing whole genome sequencing into criminal casework demonstrates the need for Parliament to turn its mind to the question of how much data- mining of crime scene sampling is justified, especially on a routine basis.
7.92 We have introduced the idea that new legislation could contain a guiding principle that DNA analysis should focus on non-coding regions of the genome.95 A variation on this option would be for the legislation to at least describe what routine analysis of crime scene samples and reference samples may involve. Any analysis technique falling outside that general description could then be subject to more rigorous safeguards.96
7.93 One possible model for this approach could be Ireland’s new Criminal Justice (Forensic Evidence and DNA Database System Act) 2014.97 The definitions of “crime scene sample”, “DNA profile” and “match” in that Act are:98

“crime scene sample” ... means a sample of biological material found at, or recovered from, a crime scene from which a DNA profile in respect of a person may be generated;

“DNA profile”, in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person;

“match”, in relation to two DNA profiles ..., means that there is such a degree of correspondence between them that they are indistinguishable and it is probable that they relate to the same person, and the degree of that probability can be indicated statistically.

7.94

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These definitions imply that – ordinarily – crime scene samples and reference samples will be analysed to generate DNA profiles and the profiles will come from non-coding regions of the genome. This is a simple and transparent way of providing at least some statutory guidance on how these samples should be analysed.



Q11
What limits, if any, do you think there should be on the type and/or amount of
information that may be included in a DNA profile that is generated from a crime scene sample and a reference sample for direct forensic comparison purposes?








95 See the discussion at [7.59].

96 For instance, pre-approval from an independent body could be required.

  1. Annex N of the Forensic Genetics Policy Initiative Establishing Best Practice for Forensic DNA Databases (September 2017) provides examples of legal provisions around the world that restrict forensic DNA profiles to non-coding DNA. The list includes provisions from Russia, the European Union Prüm decisions, Argentina, Belgium, Germany, Portugal, South Korea and South Africa.
  2. Section 2(1) of the Criminal Justice (Forensic Evidence and DNA Database System Act) 2014 (Ireland). We note that the Irish Act does not prohibit these samples from being analysed in a different way.

137 CHAPTER 8: REFERENCE SAMPLES – DIRECT COLLECTION

CHAPTER 8



Reference samples – direct collection


INTRODUCTION


8.1 In Chapter 5, we explained how crime scene samples are collected. In Chapters 6 and 7, we explained how those crime scene samples are forensically analysed in isolation or alternatively how a DNA profile is generated and then compared to a DNA profile from a known person.
8.2 In this chapter, we look at the collection of samples from such known persons. They may be suspects, victims, third parties, investigators – anyone whose DNA may be present in a crime scene sample.
8.3 A sample from a known person is collected so that a profile can be generated. That profile is then compared to a crime scene profile. The purpose of the comparison is to look for matches or to help rule people out of criminal investigations. In this chapter, we refer to samples from known persons as reference samples.
8.4 In the vast majority of cases, police officers obtain reference samples directly from the person concerned. For suspects, this process is governed by the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act). For non-suspects (victims, third parties and investigators), a non-statutory regime applies. This chapter outlines these two regimes and explores issues around the physical process of collection, consent, elimination sampling and mass screening.
8.5 Chapter 9 looks at the much less common method of collecting reference samples through indirect means, for example, seizing a suspect’s coffee cup or toothbrush and then analysing that for DNA.

CURRENT LAW – SUSPECT SAMPLES

The criteria for obtaining a suspect sample


8.6 We begin by considering the regime set out in the CIBS Act for collecting biological samples directly from suspects.
8.7 Parts 2 and 2A of the CIBS Act set out the procedures that apply. The procedure differs depending on the age of the suspect and whether they are therefore a “child” (defined in section 2 of the CIBS Act as 10 to 13 years of age), a “young person” (defined in section 2 of the CIBS Act as 14 to 16) or an adult (not defined in the CIBS Act but by default, means

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17 years and over). It is intended that from 1 July 2019, the definition of “young persons” will change to include 17 year olds.1
8.8 For adults and young persons, the police officer must first ask the person to provide a suspect sample by consent. If the person refuses, the option of applying to the District Court (or, if an adult, the High Court)2 for a compulsion order becomes available.
8.9 For children the procedure depends on the seriousness of the offence under investigation. For very serious offending for which the child can be prosecuted, the only option is a compulsion order. For less serious offending for which the child cannot be prosecuted, the only option is to obtain a suspect sample by consent. The sample may then be used to decide whether the child committed the offence. This in turn may be used to decide whether the child should be the subject of a care and protection order under the Oranga Tamariki Act 1989.
8.10 Table 1 sets out the statutory criteria for each category of suspect.

Table 1: Criteria for obtaining a suspect sample

AGE
CRITERIA FOR REQUESTING A SAMPLE BY CONSENT
PROCEDURE FOR CONSENT
ACTION IF THE SUSPECT REFUSES
Adult and young person
A constable must:
  • believe that the adult or young person may have committed an imprisonable offence or the offence of peeping and peering3 (whether or not there is good cause to suspect that they committed the offence);4 and
  • believe on reasonable grounds that analysis of the biological sample would tend to confirm or disprove the suspect’s involvement in the offending.5
The constable must provide the suspect (and a parent if it is a young person) with a written notice in the prescribed form, oral advice on certain matters and the opportunity to take legal advice.6 If the person consents, their consent must be recorded in writing or on video.7 For young persons, the suspect and a parent must consent.8
Option to apply for a suspect compulsion order or a juvenile compulsion order.9
The District Court (or High Court in respect of an adult) may make the order if:
  • the suspect has refused to provide a sample by consent;
  • there is good cause to suspect that the person has committed the offence;
  • a crime scene sample is available for analysis;10
  • there are reasonable grounds to believe that analysis of the suspect sample would tend to confirm or disprove the person’s involvement in the
  1. Police has advised that a process is under way to amend the Criminal Investigations (Bodily Samples) Act 1995 to reflect the change to the age of a young person who is covered by the youth justice system under the Oranga Tamariki Act 1989. It is intended that this change will occur on 1 July 2019. Pursuant to those changes, “young person” will include a person of or over the age of 14 years but under the age of 18 years.
  2. The Courts Matters Act 2018 now permits either Court to deal with applications for suspect compulsion orders although applications for juvenile compulsion orders will only be able to be made in the District Court (which includes the Youth Court).
  3. Criminal Investigations (Bodily Samples) Act 1995, s 5. Section 5(a) states that the offence must be an “imprisonable offence or an offence against any of the provisions listed in Part 3 of the Schedule”. The only non-imprisonable offence in Part 3 of the Schedule, however, is peeping and peering. For further discussion, see Chapter 4.
  4. Criminal Investigations (Bodily Samples) Act 1995, ss 2 and 5. Section 2 states that suspect “means any person whom it is believed has or may have committed that offence, whether or not ... there is good cause to suspect that person of having committed that offence”.

5 Criminal Investigations (Bodily Samples) Act 1995, s 6(1).

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commission of the offence; and
  • in all the circumstances, it is reasonable to make the order.
The Court must also have regard to the nature and seriousness of the offence, any reasons given for opposing the order, any evidence regarding the importance of the proposed DNA analysis to the investigation, whether the person has offered to provide an alternative bodily specimen (for example, hair) and whether a DNA profile was able to be obtained from that specimen, the age of the suspect (if that person is a young person) and any other matter the Judge considers relevant.
Child (very serious offence)
Not an option.11
Not applicable.
The same criteria for a juvenile compulsion order described above apply.12 In addition, the offence must be one that the child can be prosecuted for.13 That is:
  • murder or manslaughter, if the child is 10 years old or older;
  • punishable by 14 years’ imprisonment or more, if the child is 12 years old or older;
  • punishable by 10 years’ imprisonment or more, if the child is 12 years old or older and a previous offender.
Child (less serious offence)
The same criteria for requesting a sample for consent for an adult or young person apply, except:14
  • the offence must be one that the child cannot be prosecuted
The constable must provide the child and their parent with a notice in the prescribed form, oral advice on certain matters and the opportunity to take legal advice.15 Both must
Not an option.

6 Criminal Investigations (Bodily Samples) Act 1995, ss 6(2) and (7). We discuss the notice requirements further at [8.11].

7 Criminal Investigations (Bodily Samples) Act 1995, s 9.

8 Criminal Investigations (Bodily Samples) Act 1995, s 8(2).

  1. Criminal Investigations (Bodily Samples) Act 1995, ss 16 (adults) and 23 (young persons). In respect of a young person, a judge shall appoint a lawyer to represent the young person in the proceedings under section 21 if the young person does not already have legal representation.

10 For a discussion of the exact wording of this criterion, see Chapter 5.

11 Criminal Investigations (Bodily Samples) Act 1995, s 8(1).

12 Criminal Investigations (Bodily Samples) Act 1995, s 23; and the Oranga Tamariki Act 1989, s 272.

13 Criminal Investigations (Bodily Samples) Act 1995, s 23(1)(b).

14 Criminal Investigations (Bodily Samples) Act 1995, s 24D.

15 Criminal Investigations (Bodily Samples) Act 1995, ss 24E and F.

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for; and
  • the child must be a person for whom an application for a declaration for care or protection may be made under the Oranga Tamariki Act 1989 if the child’s involvement tends to be confirmed by the analysis of the suspect sample.
consent before a sample may be taken.16 Their consent must be recorded in writing or on video.17
The sample can only be taken as a mouth swab.18

The prescribed oral advice and written notice


8.11 As indicated in Table 1, when a police officer asks an adult or a young person to provide a suspect sample by consent, the officer must orally inform the person “in a manner and in language that the suspect is likely to understand” of a number of things, including the offence the person is suspected of committing and that:19
also consents, which they are under no obligation to do.
8.12 The police officer must also give the suspect (and their parent in the case of a young person)21 a notice on which he or she must acknowledge their consent.22 The notice must set out the same matters as those in respect of which the suspect must be orally advised and include: 23

16 Criminal Investigations (Bodily Samples) Act 1995, s 24C.

17 Criminal Investigations (Bodily Samples) Act 1995, s 24G.

18 Criminal Investigations (Bodily Samples) Act 1995, s 48(1).

19 Criminal Investigations (Bodily Samples) Act 1995, ss 6(2) (for adults) and 8 (for young persons).

  1. Criminal Investigations (Bodily Samples) Act 1995, s 2 definition of “parent”. “Parent” is defined in relation to a person under 17 years to include parent, guardian, a step-parent sharing responsibility for day-to-day care with a parent or a person acting in place of a parent if no parent or guardian can be found.
  2. Criminal Investigations (Bodily Samples) Act 1995, s 8(2)(a). A police officer must take all reasonable steps to ensure a copy of the notice is handed to the parent of the young person.
  3. Criminal Investigations (Bodily Samples) Act 1995, s 9. A person also may consent orally and in a video recording, in which case, the recording must show the request being made to the person, and the person being handed the notice and giving consent. In the case of a young person, it must also show the parent being handed the notice or acknowledging receipt and consenting to a sample being taken from the suspect.
  4. Criminal Investigations (Bodily Samples) Act 1995, ss 7(b) (for adults) and s 8(2)(c) for additional matters for young persons.

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(a) the procedures for taking and analysing the sample and disclosing the results;
(b) that a lawyer and/or certain other people may be present when the sample is taken;
(c) that, if they do not consent within 48 hours, it will be deemed a refusal;
(d) that New Zealand Police will retain the sample and analysis unless/until they are required to destroy them (and what those circumstances are); and
(e) That, if the person is convicted of the offence (or a related offence), their DNA profile will be added to the known person databank; and
(f) in the case of a young person, that the suspect’s parent or caregiver may consult a lawyer, withdraw their consent and be present during the taking of the sample.
8.13 If the suspect is a child and Part 2A of the Act applies, there are different rules around what the suspect and their parent or caregiver must be told prior to giving a sample by consent.24

Physically obtaining a suspect sample


8.14 If the police officer has a mandate to obtain a suspect sample (by virtue of either consent or a compulsion order), the officer must follow the strict procedures around physically taking the sample that are set out in Part 4 of the CIBS Act.
8.15 Part 4 sets out the ways in which a suspect sample can be obtained. Suspect samples can be obtained by:25
8.16 The Act provides that a suspect is entitled to have a lawyer and (if the suspect is a young person) a parent or a person having their care present during any of these procedures.28 Suspects also need to be afforded reasonable privacy during the process.29
8.17 In most instances, the suspect gets to decide which of the methods is used.30 There are two exceptions. A compulsion order may state that a particular method must be used, and if a suspect refuses to comply with a compulsion order and an officer decides that
  1. Criminal Investigations (Bodily Samples) Act 1995, ss 24D and E. The information and the content of the notice is broadly the same as consent samples from young persons (so omitting the information regarding the possibility of Police compelling a sample and the consequences that flow from that).

25 Criminal Investigations (Bodily Samples) Act 1995, s 48.

  1. Criminal Investigations (Bodily Samples) Act 1995, s 2 definition of “suitably qualified person”: a medical practitioner or (in relation to blood samples) a nurse, a medical technologist or a person trained in phlebotomy or (in relation to buccal samples) any of the last three professionals if they have specific training in buccal sampling.

27 Criminal Investigations (Bodily Samples) Act 1995, s 49A.

28 Criminal Investigations (Bodily Samples) Act 1995, s 50.

29 Criminal Investigations (Bodily Samples) Act 1995, ss 52–53.

30 Criminal Investigations (Bodily Samples) Act 1995, ss 48(3) and (7).

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reasonable force is required, the fingerprick method must be used.31 If reasonable force is used, the police officer must provide a written report to the Commissioner of Police within three days.32
8.18 Once the sample is taken, the police officer must offer the suspect the opportunity to have a second sample taken, which the suspect may then arrange to be independently analysed.33

CURRENT PRACTICE – SUSPECTS


8.19 In this section, we set out the available data to show how often Police use the suspect regime. The data we draw on is Police annual reports and additional information provided by Police.
8.20 Section 76 of the CIBS Act contains Police’s reporting obligations.34 The reporting year runs from 1 July to 30 June. One of the requirements is to report certain figures annually concerning compulsion orders, and under this category, Police report on the numbers of suspect compulsion and juvenile compulsion orders.35
8.21 Police has also provided us with figures concerning suspect samples obtained by consent during the 2010–2018 reporting periods. Table 2 provides a general picture of how the suspect sampling regimes in Parts 2 and 2A of the Act have been used in the last 10 years.

Table 2: Suspect sampling under Parts 2 and 2A

REPORTING YEAR
2007–2008
2008–2009
2009–2010
2010–2011
2011–2012
2012–2013
2013–2014
2014–2015
2015–2016
2016–2017
2017–2018
Suspect samples by consent – Part 2 (adult and young person)36
N/A
N/A
N/A
341
623
545
585
737
730
656
642
Suspect samples by consent – Part 2A (child)37
0
1
0
0
0
0
3
2
6
0
8

2018_4314.pngThe very rare exception to this would be if a Judge issued a compulsion order that stated that, for health reasons, the sample must be taken as a buccal sample (Criminal Investigations (Bodily Samples) Act 1995, ss 24A and 48(5)(b)(i)). This may occur if a person is a haemophiliac. We are not aware of any instances where a mouth sample has been taken by force.

32 Criminal Investigations (Bodily Samples) Act 1995, ss 54(2) and (4).

  1. Criminal Investigations (Bodily Samples) Act 1995, ss 55, 56 and 56A. If it is a venous sample, the original sample would be divided in two instead under s 55(2)(a).
  2. This obligation rests with the Commissioner of Police. The information set out in section 76 of the Criminal Investigations (Bodily Samples) Act 1995 is to be included in Police’s Annual Report to Parliament.
  3. Pursuant to section 76(1)(b) of the Criminal Investigations (Bodily Samples) Act 1995, Police is to report on “the number of applications for compulsion orders, with the number of each type of compulsion order stated separately”. Police began to report on juvenile compulsion orders under this category in the 2007-2008 year: New Zealand Police 2007- 2008 Annual Report (October 2008) at 80.
  4. Police is not required to report on suspect samples obtained by consent. This information was provided separately by Police.

37 Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(ea).

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Juvenile compulsion orders
(all orders granted and none refused)38
41
61
16
16
1
0
2
6
1
0
Suspect compulsion orders sought40
124
160
66
59
50
43
50
76
72
78
59
Suspect compulsion orders granted41
124
140
60
59
44
36
43
52
56
59
4642
Suspect compulsion orders refused43
0
4
0
0
0
1
1
1
0
2
1
Blood samples (venous and fingerprick) taken pursuant to a suspect or juvenile compulsion order44
4
1
0
1
0
5
0
1
3
1
1
Buccal samples taken pursuant to a suspect or juvenile compulsion order45
61
46
44
46
55
59
62
59
59
64
70
Reasonable force used to obtain either a suspect sample or a databank sample pursuant to a compulsion order or notice46
1
1
1
2
1
1
1
0
1
0
0

38 Criminal Investigations (Bodily Samples) Act 1995, ss 76(1)(b)and (c).

  1. New Zealand Police Annual Report 2017-2018 (October 2018) at 146. S76(1)(b) and (c). Three were applied for but only one was granted, as two were withdrawn or discontinued.

40 Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(b).

41 Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(c).

  1. New Zealand Police Annual Report 2017-2018 (October 2018) at 146. Twelve suspect compulsion orders were outstanding, withdrawn or discontinued.
  2. In some years, there is a discrepancy between the number of suspect compulsion orders granted when taking into account the numbers sought and refused. We infer that this is likely due to some applications being withdrawn or discounted. For instance, regarding the numbers of suspect compulsion orders granted in the 2016-2017 year, Police reported that 17 applications for suspect compulsion orders were withdrawn or discontinued that year: New Zealand Police Annual Report 2016-2017 (November 2017) at 141.
  3. Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(ca). The section requires the reporting of the number of times a blood sample is taken pursuant to a compulsion order. Police began reporting on juvenile compulsion orders in the 2007-2008 year.
  4. Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(cb). The section requires the reporting of the number of times a buccal sample is taken pursuant to a compulsion order. Police began reporting on juvenile compulsion orders in the 2007-2008 year.
  5. Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(e). This section requires Police to report on the combined total for any use of reasonable force pursuant to compulsion orders under Part 2 (including juvenile compulsion and suspect compulsion orders) and databank compulsion notices under Part 3. Therefore, it is not possible to separate out the Part 2 figures. For a period of six years between the 2003 changes to the Act and the 2009 changes, these were reported separately. Over that period, Police annual reports show that reasonable force was used pursuant to a Part 2 compulsion order to obtain a buccal sample in 2004-2005 and a fingerprick sample in 2008-2009 and 2009-2010: New Zealand Police Annual Report (October 2005) at 8; New Zealand Police 2008-2009 Annual Report (October 2009) at 77; and New Zealand Police 2009-2010 Annual Report (October 2010) at 89.

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8.22 There are several points worth noting about this data, the implications of which we go on to discuss later in this chapter:

NON-SUSPECTS/ELIMINATION SAMPLES

The relevance of Part 2 of the CIBS Act


8.23 An elimination sample is a reference sample that is obtained in relation to a particular case from a person who is not considered to be a suspect. This may be a victim or a third party (for example, the victim’s partner).50
8.24 Until 2011, Police used the consent procedure in Part 2 of the CIBS Act to obtain elimination samples as well as suspect samples. Police used this Part on the basis that it contains considerable procedural safeguards and enables analysis to “prove or disprove the suspect’s involvement in the commission of the offence” (emphasis added).51 However, Police has advised that the reference to “suspect” in the associated prescribed notices sat uncomfortably with many victims and other non-suspects. Therefore, Police developed an alternative – non-legislative – process for obtaining elimination samples by consent. This is outlined in the Police Manual.




  1. Police advise these eight applications comprised one application in respect of a murder, one for wounding with intent, four for aggravated robbery, one for burglary and one for unlawfully taking a motor vehicle. We are uncertain why a sample was obtained under Part 2A for murder, as Part 2A does not apply to prosecutable offences. It is possible that the child was under the age of 10 years old – the age at which a child can be prosecuted for murder: New Zealand Police Annual Report 2017-2018 (October 2018) at 147.
  2. Part 2B enabled a police officer to require a sample from someone aged 14 years and over upon arrest/intention to charge.

49 We discuss using reasonable force to obtain samples under Part 2B in Chapter 11.

  1. Elimination samples are also obtained from investigators in relation to specific cases. These are compared to the Criminal Investigators Elimination Database that is maintained by Police (established under the Policing Act 2008). We discuss this database further in Chapter 10. Police also obtain elimination samples in a number of other situations that are not covered by the Criminal Investigations (Bodily Samples) Act 1995, for instance, from a relative of a missing person, or for the purposes of identifying victims of disasters. See Chapter 10 for further discussion.

51 Criminal Investigations (Bodily Samples) Act 1995, s 6.

145 CHAPTER 8: REFERENCE SAMPLES – DIRECT COLLECTION


Current practice – Police’s elimination sampling process and form


8.25 The Police Manual provides that elimination samples may only be taken from people “who are in no way suspected of the offence. They are not governed by the Criminal Investigations (Bodily Samples) Act 1995”. The Police Manual specifies that samples are obtained when “there is a need to separate the donor’s DNA from other DNA in a crime sample” or there is a possibility of “inadvertent cross-contamination”. It further states that the samples are only to be used “for the particular investigation for which they were taken” and are not taken to obtain a DNA profile for inclusion on the known person databank.52
8.26 Significantly, if a person is even marginally under suspicion, the Police Manual makes it plain that Part 2 of the CIBS Act should be used. This is reinforced by Police’s elimination sampling form, which was updated in 2017. It states:53

MUST NOT BE USED FOR ANY PERSON WHO IN THE CIRCUMSTANCES COULD BE AN

OFFENDER (If in any doubt, take a suspect sample according to Part 2 CIBS Act)

8.27 Police provide this form to any person giving an elimination sample (which is only ever done by mouth swab). The form is used to record the person’s consent and the consent of their parent if they are a young person.
8.28 The form identifies the offence that is under investigation and explains that: “Analysis of the sample is for elimination purposes only and will be used in connection with this investigation only.” It then sets out the person’s rights. The form explains that the person does not need to provide consent, may consult a lawyer and may withdraw consent at any time. It further states that the sample will be analysed on behalf of Police and that the resultant information will be held by Police and may be used in the investigation. It further states that the sample and the information derived from it will be destroyed when no longer required.
8.29 The form does not refer to specific retention periods, but the Institute of Environmental Science and Research (ESR) has advised us that it deals with, and retains, elimination samples (and any resultant DNA profile) in the same way and for the same length of time as suspect samples and profiles. We discuss retention in Chapter 14.

ISSUES – SUSPECT AND ELIMINATION SAMPLES


8.30 We have identified the following main issues with the regimes that govern the direct collection of suspect and elimination samples:

52 Police Manual DNA Sampling at 46.

53 New Zealand Police DNA Elimination Sample Consent Form (DNA 300-08/17).

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collection of biological materials in the health sector.54 If meaningful consent is not possible, what impact might that have on tikanga-based processes?
(d) Elimination sampling: Should this be governed by statute? If so what rules should apply?
(e) Threshold levels: What should the threshold be for suspect and elimination sampling?
(f) Mass screening: This is when Police seek samples from a large group of people. Is this suspect sampling, elimination sampling or something else?
We discuss each of these below.

THE OVERLAP BETWEEN PART 2 AND PART 2B


8.31 If a police officer is actively investigating a person for suspected criminal offending, the question may arise whether to obtain a biological sample under Part 2 of the Act (as a suspect sample) or Part 2B (as a sample for the Temporary Databank). If the officer wants to obtain the sample solely for evidential reasons (that is, just in relation to the case they are investigating/casework), the Police Manual states that Part 2 should be used.55 If the officer wants to obtain the sample solely for intelligence purposes (that is, just for uploading to the Temporary Databank to check against profiles from unsolved past or future cases), the Manual states that Part 2B should be used.56 If, however, the officer wants to obtain the sample for both casework and databank purposes, the situation is less clear.
8.32 Generally speaking, a sample obtained for intelligence purposes (and the results of comparing the resultant DNA profile with profiles on the Crime Sample Databank (CSD) – the “link report”) cannot be used as an evidential sample. It is not admissible in Court.57 Instead, a further reference sample needs to obtained (a suspect sample under Part 2) from the person identified in the link report in order to verify its findings.58 Once a further sample is obtained, ESR can conduct a direct forensic comparison between the profile from the crime scene sample and the profile from the reference/suspect sample in order to verify (or otherwise) the link report findings. The results of that subsequent comparison may then be admissible.
8.33 Instead of always having to obtain two separate samples, the Police Manual advises that one option is for a police officer to ask a person to instead provide a “dual sample” under Parts 2 (the suspect regime) and 3 (the DNA Profile Databank (DPD) regime) by consent.59 The DNA profile generated from such a sample can be used under Part 2 as evidence and under Part 3 as intelligence. This request, however, could be refused by the person, leaving only the possibility of applying for a suspect compulsion order under Part 2.

54 See discussion of Te Ara Tika in Chapters 12 and 14.

55 Police Manual DNA Sampling at 7–8.

56 Police Manual DNA Sampling at 7.

  1. The Criminal Investigations (Bodily Samples) Act 1995, s 71. The exception to this is if a link report does not identify the defendant - then it may be admissible (for instance, if the purpose of producing the link report in a trial is to identify a crime scene sample as belonging to the victim).
  2. Unless an application is made under section 71A of the Criminal Investigations (Bodily Samples) Act 1995. See discussion at [8.40].

59 Criminal Investigations (Bodily Samples) Act 1995, s 33 and Police Manual DNA Sampling at 34.

147 CHAPTER 8: REFERENCE SAMPLES – DIRECT COLLECTION



8.34 The alternative option – if there is already sufficient evidence in the case to charge the person with the offence – is that the officer could require the person to provide a sample for the Temporary Databank under Part 2B. It is obvious why this option might be preferred. There is no question of consent, no need for court involvement and no need to locate the person at a later date to execute a court order. The profile can be used for intelligence purposes, and if the person is ultimately convicted, the profile will automatically be transferred to the DPD.
8.35 Most importantly, the sample obtained under Part 2B can also be used for investigative purposes in the active case. The CIBS Act specifically states that this is permissible.60 The DNA profile generated from the Part 2B sample and a DNA profile from the crime scene sample just need to be uploaded onto the Temporary Databank and the CSD.61
8.36 Ultimately, a police officer may still need to apply for a Part 2 suspect compulsion order in order to use any evidence of a match between the two DNA profiles in court,62 but in the meantime, the charge might have been resolved, for example, through a guilty plea. In any event, the process of obtaining a suspect compulsion order would be very straight-forward if a link report showing a match between the Part 2B known person profile and a crime scene profile already existed.63

The data


8.37 The data tends to suggest that, since Part 2B was inserted into the CIBS Act, the suspect regime in Part 2 has become increasingly redundant.
8.38 First, as noted above, there was a sharp decline in the number of suspect and juvenile compulsion order applications from more than 160 in the two years preceding 2010 to between 43 and 82 applications annually after 2010. In comparison, the number of suspects providing samples by consent is still relatively high (between 545 and 737 samples in the last seven years).64 These trends may be linked to judicial comments that suspect and juvenile compulsion orders are now rarely opposed as the applications are usually always supported by link reports indicating a match between the CSD and the known person databank.65 If suspects have already provided samples under Part 2B or as a databank consent sample under Part 3 of the CIBS Act, they may see little point in opposing an application for a compulsion order or in refusing to simply provide a further sample by consent.
8.39 Second, since 2010, there have been between 50 and 81 cases each year in which there was a match between the Temporary Databank and the CSD where the matching databank and crime scene samples were both obtained in the same case.66 The use of

60 Criminal Investigations (Bodily Samples) Act 1995, s 24R(1)(a).

61 This is ESR’s policy, in accordance with section 24R(1)(a) of the Criminal Investigations (Bodily Samples) Act 1995.

  1. Section 71 of the Criminal Investigations (Bodily Samples) Act 1995 contains the general rule that information obtained under Part 2B is not admissible in criminal proceedings.
  2. In this context, link reports are the results of forensic comparison conducted by ESR in comparing a crime scene sample to a databank containing profiles from known people. The reports are considered “intelligence leads”.

64 In the 2010-2011 year, only 341 samples were obtained. This appears to be more of an outlier.

65 Police v Manu HC Blenheim CRI-2011-406-19, 5 December 2011 at [1].

  1. These matches are reported under s 76(1)(ee) of the Criminal Investigations (Bodily Samples) Act 1995. The exact figures were 73 (2010–2011), 81 (2011–2012), 50 (2012–2013), 62 (2013–2014), 69 (2014–2015), 75 (2015–2016), 72 (2016– 2017) and 54 (2017–2018).

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the Temporary Databank in this way directly undermines Part 2, as it side-steps the involvement of the court.
8.40 Third, section 71A of the CIBS Act empowers a police officer to apply to the District Court to use a databank sample that has been obtained under Part 2B as an “evidential sample”. In effect, it is used as a suspect sample. The application must be made before the sample has been analysed, and it can be made without notice to the person concerned. In the application, the officer must set out their reasons for believing that analysis of the sample would tend to confirm or disprove the person’s involvement in the commission of the offence. Again, this directly undermines Part 2. Unlike a suspect or juvenile compulsion order, under section 71A, the suspect has no opportunity to consent, cannot contest the application and will have undergone the physical sampling process before the court even hears the application. Furthermore, unlike Part 2, section 71A does not contain extensive statutory requirements that the judge must consider.
8.41 Police has not produced any guidelines on the use of section 71A or the circumstances in which applications might be made under this section. Police advises that, in accordance with its general operational guidelines, a Part 2B sample should not be obtained if a person already has a profile on the Temporary Databank or the DPD. However, there is uncertainty as to whether a sample could be obtained from a person in this situation if the intent of doing so was to make an application under section 71A (that is, to enable a Part 2B sample to be used as an evidential sample). Police further advise that this practice has been discouraged, meaning that section 71A is rarely used.

Options for reform


8.42 In light of these observations, we consider that new legislation needs to clarify the relationship between any new suspect sampling regime and any new DNA profile databank regime. In our view, the best way to do this would be to clarify the rules around the DNA profile databanks – specifically the collection criteria for the known person databank. We explore various options for reforming the procedures for obtaining databank samples from suspects in Chapter 11.
8.43 One option to consider is adopting the model used in Canada, Ireland and many jurisdictions in Australia of having a DNA database system containing multiple indices. This could include a suspect profile index, a crime scene profile index and a convicted offender profile index.67 These models have strict rules for permissible matching between the indices. This could limit matching between the suspect and the crime scene indices so that profiles can only be matched within specific cases, or the indices could be compared more broadly. As we explain in Chapter 11, this model would resolve any confusion as to whether to use the suspect regime or the Temporary Databank regime, as there would only be one procedure for obtaining a sample from a suspect. This procedure would be designed to deal primarily with casework, with any additional intelligence uses being a secondary consideration.
8.44 Regardless of the policy decisions made on how suspect DNA profiles should be used, the procedure for obtaining suspect samples also needs to be reviewed and reformed due to a number of issues in the current process with physical collection and consent.


67 See Table 1 in Chapter 4.

149 CHAPTER 8: REFERENCE SAMPLES – DIRECT COLLECTION


THE PHYSICAL COLLECTION PROCESS

Sampling methods


8.45 When Part 2 of the CIBS Act originally came into force, it only permitted blood samples to be taken from suspects. The very detailed procedural rules governing the process for obtaining consent are still in the Act. If the suspect refused, only the High Court had jurisdiction to issue a suspect or juvenile compulsion order, and such an order was only available in relation to specified serious sexual or violent offences. The sample itself could only be taken by a medical practitioner or, if the suspect consented, a registered nurse.
8.46 These restrictions and procedural safeguards recognised that the power in the CIBS Act to compel a suspect to provide a blood sample, by force if necessary, was unprecedented in New Zealand.68 As a point of comparison, under drink driving laws, police officers have never been able to obtain a breath or blood sample by force.69
8.47 When the option of buccal (mouth) sampling was introduced in 2003, the Government described it as “obviously less intrusive” and noted that it would “eliminate the cost of having a medically qualified person to perform the task”.70
8.48 Putting the intrusion on informational privacy to one side, we agree that buccal sampling is much less physically intrusive than blood sampling. However, buccal sampling still involves a search within the body of a person, so bodily integrity is still an issue in a way that it is not when police officers fingerprint or photograph a person. In addition, as was raised by the (then) Minister of Justice in Parliamentary debate, buccal sampling involves taking a sample from the mouth, which is part of a person’s head – a part of the body that is considered particularly tapu in tikanga Māori.71
8.49 We understand that it may be possible to obtain reference samples by applying tape to the back of a person’s hand and analysing the skin cells that attach to the tape (the tape option). Alternatively, it might be possible to analyse the skin cells left behind on the fingerprint scanner following a police officer fingerprinting a person (the fingerprint option). These developments are the result of the increasing sensitivity of DNA analysis kits. The main benefit of these options is that they would not intrude into the person’s body or target their head. This would lessen the intrusions on bodily integrity and tikanga. We are, however, aware that both options raise their own issues and require further thinking.
8.50 We acknowledge that combining the process of fingerprinting with obtaining a biological sample from the fingerprint would be efficient in terms of time and cost, but as explained elsewhere in this paper, we consider biological sampling to be much more intrusive than fingerprinting, given the amount of personal information that can be generated from DNA. Therefore, we are firmly of the view that they should remain distinct processes.
8.51 A further difficulty with obtaining DNA reference samples using either fingerprint or tape is the likelihood of contamination. Unlike blood samples or samples obtained from a
  1. Law Commission “Submission to the Justice and Law Reform Committee on the Criminal Investigations (Blood Samples) Bill 1994.”

69 See the Transport Act 1962, ss 59B–59C (now repealed); and the Land Transport Act 1998, ss 68-73.

  1. Phil Goff (then Minister of Justice) made these comments during the Second Reading of the Criminal Investigations (Bodily Samples) Amendment Bill: (21 October 2003) 612 NZPD 9444.
  2. (21 October 2003) 612 NZPD 9444; Hirini Moko Mead Tikanga Māori: Living by Māori Values (revised ed, Huia Publishers, Wellington, 2016) at 53.

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person’s mouth, a sample taken from someone’s hand is much more likely to be contaminated by a second person’s DNA. The two people may have touched or the DNA may have been transferred from one person to another via an item. This could be alleviated to some extent by cleaning the person’s hand, but such cleaning is unlikely to be effective enough to make these options truly viable from a scientific perspective.
8.52 In light of these observations, it appears that buccal sampling is the least physically intrusive method for biological sampling with the greatest chance of obtaining a viable sample. Given that buccal sampling is already used to obtain all elimination samples and the vast majority of suspect samples, we question whether it is still necessary to include the options of fingerprick and venous sampling in new legislation. Not including these sampling methods in new legislation would reduce the level of physical intrusion permissible by the State, and it would also simplify the Act. Having one sampling method instead of three would require fewer variations in procedure, and the requirements to have medical practitioners involved could potentially be removed.72 However, this will depend in part on what policy decisions are made around reasonable force, as such samples are currently only obtained by fingerprick sampling.
8.53 We also note that, in exceptionally rare cases, a person may have different DNA profiles in different parts of their body due to blood transfusions, transplants or a natural mutation known as “genetic chimerism”.73 In such cases, Police and ESR may need to verify a DNA profile obtained by buccal swabbing by obtaining a blood sample. New legislation could potentially address this issue by making fingerprick or venous sampling available upon application to the court if there is a scientific need for a different sample. This possibility, however, is so rare that it would not require the alternative options to be available in every case.

Reasonable force


8.54 The use of reasonable force to compel a suspect to provide a biological sample has always been controversial.74 In addition to the concerns around physical intrusion discussed above, it is a forcible and grave intrusion on te tapu o te tangata and informational privacy.
8.55 We are considering whether an alternative might be available, such as making it an offence to refuse to comply with a suspect or juvenile compulsion order. This is how the same issue is dealt with under the Land Transport Act in the context of obtaining breath and blood samples under drink driving laws.75
8.56 Another alternative would be allowing the court to draw an adverse inference from a suspect’s refusal to comply. Section 70(1) of the CIBS Act already allows for an adverse
  1. In relation to buccal sampling, the definition of “suitably qualified person” in section 2 of the Act enables a person to undergo specialist training in taking and dealing with buccal samples.
  2. See generally Yi Zhou and others “DNA profiling in blood, buccal swabs and hair follicles of patients after allogeneic peripheral blood stem cells transplantation” (2011) 13 Legal Medicine 47; Eileen Wu and others “Chimerism detected in fraternal twins using ABI AmpFlSTR Identifiler” (2009) 2 Forensic Sci Int Genet Supplement Series 226; Vincent Castella, Maria del Mar Lesta and Patrice Mangin “One person with two DNA profiles: a(nother) case of mosaicism or chimerism” (2009) 123 Int J Legal Med 427; and Cecilia Miozzo and others “A case of chimerism in a paternity study” (2009) 2 Forensic Sci Int Genet Supplement Series 228.
  3. For a discussion of the debate around the power to use reasonable force in the Criminal Investigations (Bodily Samples) Act 1995, see Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at 87–90 and 100–105.

75 Land Transport Act 1998, s 60.

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inference to be drawn from a suspect’s refusal to provide a compelled sample.76 This provision can be used instead of obtaining the sample using reasonable force. For evidence of the suspect’s refusal to be admissible at trial, however, the judge must find that the probative value of that evidence outweighs its “prejudicial effect”.77 Further, the judge may tell the jury that there may be good reasons for the suspect to have refused. There are no reported cases of this provision being used.
8.57 Our concern with these alternatives is that, if there was no option of being able to use reasonable force as a “back-up” or alternative option, depending on the offence under investigation, the legislation could incentivise refusal to comply with compulsion orders. For example, a suspect who knows that their sample will implicate them may well choose to be charged with failing to comply with the order and to risk an adverse inference being drawn at trial. However, this would undermine the presumption of innocence. There may be a multitude of reasons why a person may refuse to provide a suspect sample.
8.58 For drink driving offences, the situation is different. Unlike in most criminal offences where DNA evidence will form only a part of the evidence, for drink driving offences, there may be no other evidence of the offence. The maximum penalty for an excess blood alcohol offence is the same as the maximum penalty for refusing to provide a breath or blood sample upon request.78 This can be justified because the degree of criminality involved in both offences is fairly similar and the maximum penalties are relatively low (three months’ imprisonment and a fine of $4,000 for a first or second offence).
8.59 A possible third alternative would be to combine making it an offence to refuse to comply with the compulsion order with a power for police officers to collect the sample by indirect means, for example, by seizing an item belonging to the suspect, such as a drink bottle. We discuss indirect sampling methods in Chapter 9. Our concern with this option is that it may not be very practical and could raise significant issues with informational privacy and tikanga.
8.60 If the power to obtain a compelled suspect sample by force is retained in new legislation, we consider that the tight restrictions in Part 2 of the CIBS Act should continue to apply. Currently, force can only be used after a judge has independently determined that the criteria for obtaining a suspect sample have been met. Furthermore, there are internal and external reporting obligations that provide accountability. We note that, with these safeguards in place, only one or two samples are obtained by force under Parts 2 or 3 of the Act each year.
8.61 A related issue is whether the use of force should be permissible for obtaining a sample for the Temporary Databank under Part 2B of the Act. Under that Part, there is no judicial involvement and the sample is not taken to further the investigation into a specific offence. Therefore, different considerations are engaged. We discuss this issue in Chapter 11.



76 We are not aware of any situations where this section has been relied upon.

  1. Interestingly, this provision uses the phrase “prejudicial effect” not “unfairly prejudicial effect” - the phrase used in section 8 of the Evidence Act 2006, which contains the general exclusionary rule.

78 Land Transport Act 1998, ss 56 and 60.

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Q12
What methods for obtaining a suspect or elimination sample directly from a
person should be available in new legislation (that is, venous, fingerprick, buccal (mouth) swab, tape and/or fingerprint) and why?
Q13
Do you think that, if a person refuses to comply with a suspect or juvenile
compulsion order, a police officer should be able to use reasonable force to obtain the sample? If so, what legislative safeguards do you think should be in place? If not, what should happen if the person refuses to comply with the order?

CONSENT


8.62 As explained at [8.6] to [8.18], informed consent is a central concept in Part 2 of the CIBS Act. A police officer must attempt to obtain a suspect sample by consent prior to applying for a compulsion order.79 Further, there are very detailed rules around the information that must be given to a suspect, both verbally and in writing. There are additional protections in the Act if the suspect is a young person or child.
8.63 The Court of Appeal has consistently held that non-compliance with these requirements may amount to an unreasonable search and seizure under section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA).80 In emphasising the importance of compliance with the Act, the Court stated in a 2017 decision:81

Parliament has provided a comprehensive and prescriptive regime for obtaining a person’s informed consent... Its mandate of scrupulous compliance recognises the substantial intrusion into an individual’s privacy inherent in exercising the power.

8.64 Despite this strict regime, we are concerned that suspects may not always be in a position to provide “free and informed consent”.82 The three main reasons for this are:
8.65 We have additional concerns about the capacity of children and young persons (who are suspects) to provide informed consent. We note that different issues arise in relation to elimination samples. We discuss each of these matters in turn below.


79 Except if the suspect is a child who may be prosecuted for the offending.

80 R v Shaheed [2002] 2 NZLR 377 (CA) at [6], [166]–[167] and [194]; R v T [1999] 2 NZLR 602 (CA) at 613–614; and R v

Hoare CA310/04, 21 April 2005 at [34]–[42]. Although as Shaheed also held, non-compliance may not necessarily lead to exclusion of the evidence under section 30 of the Evidence Act 2006.

  1. R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [15]. This case concerned obtaining a sample for the known person databank by consent under Part 3 of the Criminal Investigations (Bodily Samples) Act 1995. The requirements concerning consent in Part 2 of the Act are mirrored in Part 3.
  2. Prior to the Criminal Investigations (Bodily Samples) Act 1995 coming into force, the Court of Appeal held that the common law allowed police officers to obtain suspect samples by consent as long as the consent was obtained “without artifice or deception as to the purpose for which the sample is required, from a person in a position to give free and informed consent”: R v Pengelly [1992] 1 NZLR 545 (CA) at 549.

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The power imbalance


8.66 There is an inherent imbalance of power when a police officer asks a suspect to provide a reference sample by consent. The request is made in the context of a criminal investigation by an officer at a police station to a person who is considered to be a suspect. The Police Manual recognises this potential imbalance, noting that consent “must be given freely and willingly. It will not be valid if it is obtained using inducements (e.g. waiving an infringement notice)”.83 In our view, it is problematic that the CIBS Act requires an officer to inform a suspect, in writing and orally, that, if they refuse to provide a sample by consent, the officer may apply for a compulsion order.84 This reinforces the power imbalance and significantly undermines the notion of free choice.
8.67 The rules governing informed consent in the CIBS Act were modelled on the Australian state of Victoria’s Crimes (Blood Samples) Act 1989.85 That Act, in turn, seems to have drawn on the concept of informed consent as understood in the health sector, with the “intention of providing a procedural safeguard to protect personal autonomy”.86 Informed consent is at the heart of the tikanga-based processes developed for use in the health sector.87 Giving consent to collection of a biological sample is the point at which a relationship is developed and safety and comfort is established in tikanga Māori. However, there is some difficulty in taking concepts that are developed in the health context and trying to apply them in the criminal justice context, including these tikanga implications. It is important to note that, in the health context, the aim is “to give subjects of bodily procedures the knowledge and confidence to choose what is best for them”.88 This cannot be said to be the goal of suspect sampling in the criminal context. Commenting on this, the Australian Law Reform Commission noted in 2003:89

83 Police Manual DNA Sampling at 38.

84 Criminal Investigations (Bodily Samples) Act 1995, ss 6(2)(b)(vii) and 7(b)(viii).

  1. (29 November 1994) 545 NZPD 5190. For a discussion of the Victorian Act, see Jeremy Gans “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) 13 Current Issues Crim Just 168 at 170–171.
  2. Australian Law Reform Commission Essentially Yours: the Protection of Human Genetic Information in Australia (ALRC R96, 2003) at [41.6]; see also Greg Horton “DNA Fingerprinting: Informed Consent and the Admissibility of Evidence” [1992] AukULawRw 9; (1992) 7 Auckland U L Rev 165.
  3. Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake – Māori and Indigenous Governance Centre, Hamilton, October 2016) at 14–18.

88 Jeremy Gans “Much Repented: Consent to DNA Sampling” [2007] UNSWLawJl 35; (2007) 30(3) UNSW Law Journal 579 at 606.

  1. Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at 1004–1005.

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8.68 Due to these concerns, the Australian Law Reform Commission ultimately recommended in relation to the Crimes Act 1914 (Cth) that suspect samples should not be obtained by consent and that instead they should only be obtained pursuant to a court order or a statutory power exercised by an authorised officer.90 This recommendation was not acted on by the Australian Government.
8.69 The New South Wales Ombudsman also outlined concerns about the use of informed consent in the context of suspect sampling. In a 2006 report he identified a number of different factors affecting the suspect’s decision, including:91
8.70 Ultimately, however, the Ombudsman did not recommend that suspect sampling should be conducted without consent as a matter of course, as that would represent a significant departure from the NSW legislative regime. His report notes:92

Providing information about a proposed forensic procedure and asking for consent gives suspects a sense of control, as they can participate in the decision about whether to permit this invasion in order to assist law enforcement authorities.

8.71 We consider that, while suspect sampling by consent could instil in some suspects a sense of control, albeit an arguably illusory one, the value of retaining this option should be carefully considered,93 including from a tikanga perspective.

The complexity


8.72 The entire process for obtaining a suspect sample by consent is complicated. First, the police officer must generate the right sampling notice. This is not a straight-forward task. There are four different Parts in the Act under which a sample may be taken (Parts 2, 2A, 2B or 3), different sampling methods (venous, fingerprick and buccal) and four possible age brackets (adult, young person, child (prosecutable) and child (non-prosecutable)). As explained in Chapter 4, in total, 70 possible sampling notices exist, 36 for suspect sampling alone.
8.73 To manage this complexity, Police introduced a computer system called Biotrak in 2010. Biotrak automatically generates the correct sampling notice after an officer enters preliminary information, including the person’s age and the relevant Part of the Act. This ensures that the officer uses the right notice but, arguably, it may also have ‘routinised’ the process, making officers less familiar with the CIBS Act and the notices as they do not
  1. Australian Law Reform Commission Essentially Yours: The Protection of Human Genetic Information in Australia (ALRC R96, 2003) at 1012.
  2. Bruce Barbour DNA Sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 (NSW Ombudsman, 1 October 2006) at 96.

92 At 98.

  1. Jeremy Gans “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) 13 Current Issues Crim Just 168 at 168.

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have to engage directly with the content of the CIBS Act itself in the same way. This may affect their ability to convey the requisite information in an understandable way.
8.74 This problem is not unique to New Zealand. In reviewing the law governing the collection of DNA from suspects in New South Wales, the NSW Standing Committee on Law and Justice noted that the complexity in the legislation made its “implementation ... by police officers more difficult, prevents the easy understanding of the provisions by suspects, and potentially could cause legal uncertainty”.94
8.75 Once the police officer has the right notice, they must give it to the suspect and inform them of the additional oral information. This must be done “in a manner and in a language that the suspect is likely to understand”.95 Again, this is not an easy task. An array of different factors may affect a suspect’s level of understanding. They may have an intellectual, mental health or other disability.96 They may not speak English very well.97 Notably, 60–70 per cent of the prison population have low levels of literacy.98 The percentage may be similar in relation to suspects, and if so, comprehension of the notice may be particularly problematic. This has been recognised by some police officers who read the notices to suspects as well.
8.76 Some of these difficulties might be surmountable if the information the suspect was being asked to digest was relatively simple. It is not. The notice contains details about the investigation, an explanation about the ability to give and withdraw consent and to consult a lawyer, an explanation of deemed refusal, advice about the availability of a compulsion order, advice that the sample will be analysed and the results may be used as evidence, a summary of the sampling method options and the persons who may be present in each scenario, an explanation of the procedures governing analysis and disclosure of the results, advice about the retention and destruction of the sample and the analysis results and advice that, if they are convicted, their profile will be transferred to the known person databank.99
  1. Jeremy Gans “The Quiet Devolution: How the Model Criminal Code Officers’ Committee Botched New South Wale’s DNA Law” (2002) 14 Current Issues Crim Just 210 at 212, discussing the NSW Standing Committee on Law and Justice’s 2002 review.

95 Criminal Investigations (Bodily Samples) Act 1995, s 6(2)(b).

  1. This was the case in R v Te Hau HC Hamilton CRI 2006-419-169, 15 February 2007. R v Te Hau involved a suspect with mental health issues, which raised the concern about his capacity. The High Court relied on the prior knowledge the detective had of the suspect and his capacity and on the fact the suspect had written “no” on the consent form. The Court held this to mean the suspect was sufficiently aware of “his position” and must have understood enough of the contents of the form to refuse. The Court commented that the form was in “readily comprehensible language”. Similarly, in R v Manhire DC Auckland CRI-2004-004-11271, 7 October 2005, the notice was read to the accused because he could not read well. The Court held that this did not mean “he does not understand English when it is spoken to him”. The sample was held to be admissible.
  2. This was the case in R v R [1999] BCL 652 (CA). The suspect was from Africa, but it was unclear from which country he originated or what language he spoke. The Court considered the evidence that police officers and others had attempted over the preceding weeks to determine what language the suspect spoke, that the suspect had misled people as to his language, that he had been heard to speak English and that he appeared to understand English. The Court therefore concluded that the suspect was likely to have understood when he was informed in English of the requirements in the Criminal Investigations (Bodily Samples) Act 1995. The Court held at [13]–[14] that the phrase “likely to understand” clearly intended an objective assessment and that “The prosecution need not prove what [the suspect] actually understood, but whether, in the circumstances, the language used was such that he was likely to understand it”.
  3. Jill Bowman “Assessing the Literacy and Numeracy of Prisoners” (2014) 2(1) Practice: The New Zealand Corrections Journal 39 at 40–41; and Marama Edwards and Stephen Cunningham “Supporting Offenders Into Employment – a joint initiative” (2016) 4 Practice: The New Zealand Corrections Journal 42 at 42.

99 Criminal Investigations (Bodily Samples) Act 1995, s 6 and 7. See discussion at [8.11]–[8.13].

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8.77 Significantly, the notice does not explain what analysis of the suspect sample will involve (at present, traditional STR profiling of non-coding regions of the genome).100 It does not explain what the known person databank is, and it does not explain that the known person databank can be used for familial searching, which could implicate a suspect’s relatives.101 All of this additional information could affect a suspect’s decision and should arguably be provided in order to obtain informed consent.
8.78 An additional problem is that the Police Manual states that, if a suspect has not previously provided a biological sample for the known person databank, the officer should make a “dual request” under section 33 of the CIBS Act.102 This involves asking the suspect to consent to their sample being used both for casework and databank purposes. Again, this increases the volume and complexity of the information the suspect must be told. It also conflates the two requests. While we are not entirely comfortable with informed consent to suspect sampling, we consider that there is an even stronger case that it is inappropriate to obtain databank samples by consent, as we discuss in Chapter 11.

Legal advice


8.79 Although suspects are entitled to legal advice prior to consenting to provide a sample, we are not aware of many people seeking it. In part, this may be because there are very few lawyers available who are familiar with the CIBS Act and are civil legal aid providers. This last factor is important because proceedings under the CIBS Act are civil proceedings for the purposes of the Legal Services Act 2000,103 so only civil legal aid providers could provide advice under the legal aid scheme in this context. There is little cross-over between civil and criminal legal aid providers, and it is the criminal lawyers who are more likely to fully appreciate the broader investigation and prosecution context. Notably, the available pool of lawyers with the requisite expertise may be decreasing, as contested hearings regarding suspect compulsion orders and juvenile compulsion orders are becoming less and less common.

Additional concerns regarding young persons

Ensuring understanding


8.80 As we explained in Chapter 2, legislation needs to be fit for purpose, and as part of that, the CIBS Act (and any replacement legislation) needs to sit comfortably within the wider criminal justice regulatory framework. In that regard, we have particular concerns about how the CIBS Act treats young persons and children.104
8.81 All of the problems that we have identified above concerning informed consent are heightened in respect of young persons and children. For instance, international research has shown that one in five young offenders has a learning disability and, compared with those not involved in the criminal justice system, are three times more likely to have

100 See Chapters 3 and 7.

101 Familial searching is the subject of Chapter 13.

102 Police Manual DNA Sampling at 34.

103 Criminal Investigations (Bodily Samples) Act 1995, s 67.

  1. These concerns are discussed at length in Nessa Lynch and Liz Campbell The Collection and Retention of DNA from Suspects in New Zealand (Victoria University Press, Wellington, 2015) at ch 11.

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experienced a traumatic head injury.105 In addition, persistent young offenders have been found to have “neurological abnormalities, volatile temperament, low intellectual ability, reading difficulties and poor performance on neuropsychological testing”.106
8.82 Within the New Zealand context, 92 per cent of young persons in youth justice residences have difficulties with literacy and numeracy and lower IQ, attention or verbal abilities. In particular, their reading skills are very low – with the mean ability being at the 4th percentile.107 The rates of substance abuse and mental health disorders are present in at least half of young persons who offend. This may also mean their ability to understand or consent in this context is compromised.108
8.83 In addition, young persons and children are particularly vulnerable in criminal investigations. This is recognised by the following youth justice principle in the Oranga Tamariki Act 1989:109

[T]he vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

8.84 Express provisions in the Oranga Tamariki Act set out what is known as “the protective code” that operates for a young person during questioning and investigation by Police.110 These provisions require police officers to explain various matters to the young person prior to interviewing them. The explanations must be given in age-appropriate language. The courts have interpreted these requirements strictly as requiring police officers to ensure that the young person has understood what they have been told.111
8.85 This differs to the CIBS Act, which only requires officers to “inform” the young person of certain matters and to hand them a prescribed notice. Significantly, the notices do not contain language that has been specifically simplified for young persons and children. Instead, the notices are largely the same as the adult notices, with extra information included about the role of parents and caregivers. There is no ability for Police to change the content of these notices without the CIBS Act being amended.
8.86 Even if Police was empowered to simplify the notices, we question whether it would be possible to reframe all of the requisite information into language that could be understood by a person as young as 10 years of age.112 A 2017 research report has found that the child/young person version of the “rights caution” is not readily understood by children and young persons and may not be effective in providing them with the legal



  1. Office of the Prime Minister’s Chief Science Advisor “It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand” (June 2018) at [55]–[56] and [58].
  2. Office of the Prime Minister’s Chief Science Advisor “It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand” (June 2018) at [58].
  3. Office of the Prime Minister’s Chief Science Advisor “It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand” (June 2018) at [55].
  4. Office of the Prime Minister’s Chief Science Advisor “It’s never too early, never too late: A discussion paper on preventing youth offending in New Zealand” (June 2018) at [53].

109 Oranga Tamariki Act 1989, s 208(h).

110 Oranga Tamariki Act 1989, ss 215–219.

111 R v Z [2008] NZCA 246, [2008] 3 NZLR 342 at [35], [39], and [42].

  1. A 10-year-old could be asked to provide a reference sample in relation to a non-prosecutable offence under Part 2A of the Criminal Investigations (Bodily Samples) Act 1995.

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protection that was intended.113 The “rights caution” is much less complicated than the information that needs to be provided in the context of suspect sampling.

Protection of parental consent


8.87 A related issue is whether requiring parental consent provides additional protection for a young person who is asked to provide a suspect sample. The CIBS Act does not require the parent to be present at the time the police officer provides the young person with the requisite written and oral information, nor is there any requirement for the parent to have the information explained to them (except in relation to a request for a sample from a child under Part 2A). Consequently, the parent may not be able to help the young person to understand their rights or even be able to properly consent themselves in an informed way.
8.88 Furthermore, overseas research has shown that parents may simply encourage their children to cooperate with police, so the involvement of an independent adult may actually provide more meaningful protection.114 The quality of a child or young person’s relationship with their parent may also play a part. If the relationship is not good, the protective aspect may be undermined.

Options for reform


8.89 We have identified three broad alternative options for reform of suspect samples in relation to adults, children and young persons. First, retain the ability to obtain suspect samples from adults and young persons by way of informed consent but improve the processes. Second, legislate that suspect samples can only be obtained pursuant to a court order in relation to some or all suspects. Third, introduce a contestable notice regime. It is important to consider consistency with the Treaty of Waitangi, and in particular the principle of equity, in assessing reform options along with consistency with NZBORA, privacy and tikanga issues.

Option 1 – Retain informed consent for adults and young persons


8.90 As explained in Chapter 2, one of our main goals in this review is to simplify the CIBS Act and make it more accessible. By making changes elsewhere, the suspect sampling process may become more straight-forward in future legislation. For example, if there were only one or two sampling methods available, less information would need to be included in the notice. Such changes could alleviate some of our concerns about informed consent. Furthermore, we acknowledge that some of the complexity in terms of the information that needs to be provided to the suspect is unavoidable. The suspect would still need to be informed about the sampling process, analysis and retention even if their sample could only be taken by compulsion.
8.91 In deciding whether the option to obtain suspect samples by informed consent should be retained, we are also considering the following measures:
  1. Frances Gaston “Young People’s Comprehension of the Rights Caution in New Zealand” (Master of Science in Forensic Psychology Thesis, Victoria University of Wellington, 2017) at 3.

114 Nessa Lynch Youth Justice in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) at 105–106.

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also be prepared for persons with intellectual or learning disabilities. This may require some loosening of the legislative requirements to enable a degree of flexibility in language. We note that the Biometrics and Forensics Ethics Group in the United Kingdom has been tasked with preparing similar plain English leaflets.115 A similar oversight body in New Zealand could also perform that task.116
8.92 Retaining the ability to obtain suspect samples by informed consent may be the most cost and time efficient of the three options. Further, it could instil in some suspects a sense of control and potentially enable some of the consent-based tikanga processes used in collecting biological samples in the health sector to be adapted.119 However, the power imbalance would remain problematic, particularly for Māori in the context of over- representation in criminal justice statistics and acknowledged bias in policing.120

  1. Ethics Group: National DNA Database Annual Report of the Ethics Group: National DNA Database 2016 (October 2017) at 12.

116 Oversight options are discussed in Chapter 15.

  1. Bruce Barbour DNA Sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 (NSW Ombudsman, 1 October 2006) at 142-143.

118 See discussion at [8.83]–[8.84].

  1. See for example, Maui Hudson and others He Tangata Kei Tua: Guidelines for Biobanking with Māori (Te Mata Hautū Taketake – Māori and Indigenous Governance Centre, Hamilton, October 2016) at 14–18.
  2. Interview with Mike Bush, Commissioner of Police (Lisa Owen, The Nation, 28 November 2015) transcript provided by Scoop Independent News (Wellington). See also Nicholas Jones “Police Commissioner: Racial profiling perception ‘concern we need to address’” The New Zealand Herald (online ed, Auckland, 8 June 2018).

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Option 2 - Obtain suspect samples only by court order


8.93 Under this option, there would be no ability to obtain a suspect sample by consent. Instead, police officers would need to apply for a suspect compulsion order or a juvenile compulsion order in every case. This option would be administratively burdensome for Police and the courts and onerous for suspects, especially if there was no dispute as to the availability of the order. However, the burden may not be too significant, as there are currently fewer than 800 suspect consent orders obtained per year (see [8.38]). The removal of consent as an option precludes the tikanga-based processes used in collection of biological samples in the health sector being adapted for use, although as we note, there is some difficulty in taking tikanga concepts developed in the health context for use in the criminal justice context.
8.94 A variation on this option would be to allow samples only to be taken from a young person pursuant to a court order. This would align with the protective nature of the youth justice regime. It also may not place too much of a burden on Police and the courts, as few suspect samples are obtained from young persons each year. In effect, this would treat 14 to 17-year-old suspects in the same way as the CIBS Act currently treats 10 to 13 year-olds suspected of very serious offending.
8.95 A further variation on this option would be to dispense with Part 2A of the CIBS Act, which enables police officers to obtain samples from children suspected of non- prosecutable offending and who are in need of care and protection solely by consent. It has only been used 22 times since it was inserted into the legislation 14 years ago.121 This suggests that it is not needed as a tool to help Police to deal with children suspected of offending who are in need of care and protection. Furthermore, of all of the categories of suspects in the CIBS Act, 10 to 13 year-olds are the most vulnerable and the least capable of providing informed consent. Removal of Part 2A would also simplify the Act.
8.96 Another variation on this option would be to follow the Irish model where, if a police officer is of the opinion that a person may not be capable of providing informed consent to suspect sampling, the officer must arrange for the person to be formally evaluated by a registered medical practitioner. If the person is found not to have the capacity to consent for any reason (including age or physical or mental disability), the sample may only be taken pursuant to a court order.122 Such an assessment could be standard practice if a suspect was under a certain age.

Option 3 – A contestable notice regime


8.97 A third option would be to remove consent but, instead of requiring an application to court in all cases, introduce a contestable notice procedure. This would be similar to the databank compulsion notice regime for convicted offenders, which is contained in Part 3 of the Act. As with option 2, this would remove the possibility of adapting tikanga-based processes developed for use in the health context.
8.98 Under this option, the criteria for a suspect or juvenile compulsion notice would be the same as in the current Act in relation to the equivalent orders. An appropriately senior police officer could issue such a notice if they believed that those criteria were met. The

121 See discussion at [8.22]. Part 2A was used eight times in 2017-2018: New Zealand Police Annual Report 2017-2018.

  1. Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), ss 2 definition of “protected persons” and 10.

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suspect would then have a set time within which to contest the notice. If the notice was contested, there would be a hearing before a judge – or potentially an oversight body – to determine whether the criteria had been met.
8.99

2018_4315.png

This option would be more efficient than option 2 (requiring a court order), and it would avoid some of the difficulties of trying to facilitate “free and informed consent”. However, a contestable notice regime would place the onus on suspects to be proactive. Suspects may not have the resources to contest the order, and again, there is a risk that suspects either may not understand the notice (due to literacy or capacity issues) or may not understand the importance of taking action and the implications of not doing so. Other suspects may not contest a notice in a desire to avoid going to court. A less formal procedure involving an oversight body might go some way towards ameliorating that concern. This option, however, would depend in part on the other functions given to an oversight body. If those functions primarily related to systemic as opposed to case- specific matters, a role of reviewing suspect compulsion notices may not be appropriate. Oversight options are discussed in Chapter 15.



Q14
What concerns, if any, do you have about police officers obtaining suspect
samples from adults, young persons (aged 14 to 16)123 and prosecutable children (aged 10 to 13) by consent? How do you think those concerns could be best addressed in new legislation?

ELIMINATION SAMPLES


8.100 As explained, an elimination sample is a reference sample that is obtained, in relation to a particular case, from a person who is not considered to be a suspect, for example, a victim or a third party. The purpose of obtaining the sample is to compare the DNA profile generated from it to profiles generated from a crime scene sample in order to isolate the offender’s DNA. For example, in a case of sexual offending, the crime scene sample may contain the victim’s DNA, DNA from a consensual sexual partner and the offender’s DNA. By obtaining elimination samples from the victim and their partner, a scientist may be able to analyse the mixed crime scene sample to isolate the DNA profile of the offender.
8.101 The leading case in relation to elimination samples is the Court of Appeal’s pre-trial decision in R v Taufa.124

R v Taufa


8.102 The complainant was 12 years old at the time of alleged sexual offending and 13 years old when she gave birth to a baby. Following the birth, the complainant told police officers that she had been raped by her grandfather. In the circumstances, the officers decided to

  1. It is intended that, on 1 July 2019, the Criminal Investigations (Bodily Samples) Act 1995 will be changed to align with the change in the Oranga Tamariki Act 1989 to the age of young persons. If that change occurs, the definition of “young person” will be amended to include those aged 17 years old. (Due to change to 17 years on 1 July 2019 per the Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017, s 7(4)). If that change occurs, the definition of “young person” will be amended to include those aged 17 years old.

124 R v Taufa [2016] NZCA 639.

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obtain elimination samples from other males that the complainant had been in contact with as well. This included Mr Taufa.
8.103 The elimination sampling form that the defendant signed pre-dates the one currently used by Police. It stated that the defendant had been told and understood that:125

Analysis of the samples will either tend to disprove my involvement in the offences or provide a result which may require another request for me to provide a bodily sample to the police.

8.104 The analysis of his elimination sample strongly indicated that the defendant was the father of the complainant’s child. Police officers informed the defendant of the results and asked him to give a voluntary statement. The defendant agreed and admitted to having sex with the complainant once. After a further interview with the complainant, the defendant was charged with four counts of rape and one count of unlawful sexual connection with a young person.
8.105 At a pre-trial hearing, the District Court ruled that the defendant’s admission to police officers was inadmissible. The Judge found that the defendant’s original elimination sample had been obtained lawfully but that it was then improperly used by police officers to obtain the admission.126 The elimination sample could not have been used for evidential purposes, so it should not have been used by Police as if it was a suspect sample. Her Honour emphasised that, after receiving the results of the analysis, police officers could have (and should have) obtained a suspect sample from Mr Taufa under Part 2 of the Act.
8.106 The Court of Appeal declined to determine whether the elimination sample or the admission had been lawfully obtained from the defendant. The Court proceeded on assumption (without deciding) that both were unlawful and dealt with the case under section 30 of the Evidence Act 2006.127 This section provides that improperly obtained evidence must be excluded from any trial, unless the exclusion would be disproportionate to the impropriety. The Court held that exclusion would be disproportionate in this case, particularly given the seriousness of the offending and the genuinely held belief of the police officers that they were acting lawfully.
8.107 In its decision, the Court of Appeal highlighted the “important” issues of interpretation arising from the submissions made on the defendant’s behalf as:128
The Court commented that these may need to be addressed in a future case.

125 R v Taufa [2016] NZCA 639 at [23].

126 R v Taufa [2016] NZDC 16263 at [19]–[21] and [27]–[34].

127 R v Taufa [2016] NZCA 639 at [17].

128 R v Taufa [2016] NZCA 639 at [13]–[16].

129 This submission was based on section 72(c) of the Criminal Investigations (Bodily Samples) Act 1995, which states that:

Nothing in this Act—... (c) shall be taken to limit or affect the circumstances in which any specimen from a person’s body (other than a bodily sample), or any other particulars of a person (including (without limitation) fingerprints and dental impressions) may be taken from any person with that person’s consent. (Emphasis added.)

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8.108 This case highlights the three main issues that we have identified with elimination samples: legal certainty; the relationship between suspect and elimination sampling; and how elimination samples may be used.

Legal certainty


8.109 The common law may already enable police officers to obtain elimination samples by consent. However, given the current legal uncertainty, the degree of intrusion inherent in any biological sampling by the State and the need for accessible and transparent law in this area, we think that this power should be in legislation.
8.110 We note that several Australian jurisdictions, Canada and Ireland all have statutory powers for police officers to obtain elimination samples. In Australia, it is common for legislation to enable officers to obtain “volunteer (limited purpose)” samples. The resultant profiles are stored on DNA profile databases but may only be used in casework. This means that they can be compared to the crime scene sample in the particular case but not to any other sample on the database.130 Canada takes a similar approach to “victim” samples.131 Ireland takes a slightly different approach. Its legislation enables the collection of volunteer samples for use in casework, but these are not automatically stored on a database.132 Volunteer samples can be obtained from anyone who is not in police custody, including a victim. In all instances, the elimination samples can be obtained by consent, but the legislation prescribes the collection process, how the sample may be used and how long the sample and profile will be retained.

The relationship to suspect sampling


8.111 In some cases, as occurred in R v Taufa, there may be a match between the crime scene sample and an elimination sample, which implicates that person as a suspect. The District Court considered that, in this scenario, the appropriate Police action would have been to obtain a second sample using the suspect regime in Part 2 of the CIBS Act. This approach, however, may incentivise the use of the elimination sampling regime in borderline cases.
8.112 At least under current practice, elimination sampling is much less constrained than suspect sampling. Using the less protective regime to generate information that could support a suspect compulsion order seems problematic, even if it is done in good faith. We prefer Police’s current policy, which is that, if there is any doubt that a person could be the offender, the suspect regime must be used.

The use of elimination samples


8.113 Victims and third parties need to be encouraged to provide elimination samples to Police. Without such samples, many investigations would needlessly stall. To provide that encouragement, we think that there need to be strong statutory protections around the use of elimination samples.


  1. See Crimes (Forensic Procedures) Act 2000 (ACT), s 97; Crimes Act 1958 (Vic), s 464ZGI; Crimes (Forensic Procedures) Act 2000, s 93.

131 DNA Identification Act SC 1998 c 37 5.3(1).

132 Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 27.

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8.114 In our view, there are three ways in which these samples could be used to the detriment of the person who provided them. First, there could be a match that implicates the person as a suspect, as in R v Taufa. Second, if a person refuses to provide an elimination sample, this refusal could generate suspicion and be used to support an application for a suspect or juvenile compulsion order. Third, if a mixed crime scene sample is uploaded to the CSD without removing the DNA that is known to be from a victim or third party, that mixed crime scene sample could be found to match another sample on the CSD. This could implicate the victim or third party (who is identifiable because of their elimination sample) in other offending. The solution to this problem largely lies in the criteria for uploading samples to the CSD. However, as we explain in Chapter 10, there would still be a risk of such a match occurring, and this risk would need to be managed.

Options for reform


8.115 We do not think that obtaining elimination samples by informed consent is as problematic as it is for suspect samples. It also enables consent-based tikanga processes to be considered. A person asked to provide an elimination sample should be in a position to give free and informed consent as long as a statutory regime ensures that:
These measures should address the concerns about the inherent imbalance of power that we have noted.
8.116 In terms of the necessary statutory protections, we are considering the following options:

133 We discuss this option and variations on it, in the context of the Crime Sample Databank, in Chapter 10.

  1. The Irish legislation contains a similar provision. The Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 27(9) states that:

A refusal of a person to give consent [to provide a volunteer sample] shall not of itself constitute reasonable cause for a member of the Garda Síochána [the Irish Police] to suspect the person of having committed the offence concerned for the purpose of arresting and detaining him or her ... in connection with the investigation of that offence.

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(c)

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Empowering a court or oversight body to review any case where an elimination sample is unexpectedly found to match a crime scene sample to ensure that all of the decisions in the case were appropriately made. This could be considered as an alternative to a statutory ban on Police using the match to obtain a suspect compulsion order.



Q15
Do you think that a statutory framework should be put in place governing the
collection of elimination samples (that is, samples from victims, third parties and investigators)? If so, what do you think the key features should be?

THRESHOLD ISSUES


8.117 In most instances, police officers can only obtain a suspect or elimination sample if they are investigating an imprisonable offence or the offence of peeping and peering.135 This is similar to the thresholds that apply in the United Kingdom, Scotland and the United States.136 However, Ireland and Canada have a higher threshold. A suspect or elimination sample can only be obtained by Police if they are investigating an offence with a minimum of five years’ imprisonment.137
8.118 Arguments can be made both ways as to whether the current imprisonable offence threshold or an alternative threshold of five years’ imprisonment should be preferred. It is ultimately a judgement call as to which threshold seems proportionate to the degree of privacy intrusion inherent in the sampling process.138 At this stage in our review, it is hard to assess the level of privacy intrusion as there is continuing debate as to what forensic analysis techniques are appropriate, as discussed in Chapter 7.
8.119 Nevertheless, we note that the threshold for casework could justifiably be lower than the threshold for databank purposes. That is because there will be a factual basis for seeking to obtain a suspect or elimination sample in a particular case.139 It is not a speculative process, like databanking. Therefore, suspect and elimination sampling is more likely to result in probative evidence, and this tips the balance towards justifying a greater privacy intrusion. We discuss the threshold that should apply for obtaining a sample for the known person databank in Chapter 11.

MASS SCREENING


8.120 A DNA mass screening (also known internationally as a “DNA dragnet” or “DNA sweep”)140 is when police officers ask a relatively large group of people, who share

135 Criminal Investigations (Bodily Samples) Act 1995, s 6 and Police Manual DNA Sampling at 46.

  1. Police and Criminal Evidence Act 1984 (UK), ss 62-63; Criminal Procedure (Scotland) Act 1995, s 18; for an analysis of state laws in the United States see <http://www.ncsl.org/Documents/cj/ArresteeDNALaws.pdf> .
  2. Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland); Criminal Code RSC 1985 c C-46, s 487.04-487.05 (Canada).
  3. This proportionality assessment is required under section 21 of the New Zealand Bill of Rights Act 1990. For further discussion see Chapter 2.

139 The exception is mass screening which we discuss at [8.120]–[8.132] below.

140 Sheldon Krimsky and Tania Simoncelli Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties

(Columbia University Press, New York, 2011) at 47.

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particular characteristics, to provide reference samples by consent to assist with an investigation. The characteristics will be ones that the investigators believe that the offender also shares. For instance, police officers may ask all males between the ages of 20 and 30 years old who live in a particular town to provide a reference sample by consent. Such screenings have occurred infrequently in New Zealand but regularly occur in the United States and the United Kingdom.
8.121 The first DNA mass screening occurred in the late 1980s in England. Blood and saliva samples were obtained by consent from approximately 4,000 men aged between 17 and 34 who lived close to where two 15-year-old girls had been raped and murdered. No match resulted, but it was eventually discovered that the perpetrator had paid a co- worker to give a sample on his behalf.141
8.122 There have been at least three mass screenings in New Zealand, some of which were conducted over a number of years. Two pre-dated the CIBS Act and involved investigations into suspected serial rapists. In the first, approximately 700 samples were voluntarily obtained, and Joseph Thompson was successfully identified as the offender.142 In the second in 1995, seven rapes and a homicide in South Auckland were linked together due to DNA testing. Samples were obtained by consent from several thousand men, but there was no match to the crime scene sample. Malcolm Rewa was later arrested after another attack on a young woman. His DNA profile matched the other linked crimes.143 The third case related to the murder of six-year-old Teresa Cormack in 1987. At the time, there was insufficient biological material to generate a DNA profile from the crime scene sample.144 However, scientific developments enabled a profile to be generated in 2001, and this was compared to over 800 reference samples that were obtained by consent from people who had been nominated as suspects during the investigation.145 We understand that, where people agreed, dual samples were obtained for both casework and databank purposes. As a result, Jules Mikus was identified and later convicted.
8.123 Police has advised that it does not currently have a specific policy in respect of mass screenings.








  1. This became known as the “Pitchfork” case. This case is summarised in Sheldon Krimsky and Tania Simoncelli Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties (Columbia University Press, New York, 2011) at 48– 49.
  2. Institute of Environmental Science and Research A Brief History of Forensic DNA 1990-2010: Marking 20 years of DNA analysis for the New Zealand criminal justice system (February 2010) at 5.
  3. Institute of Environmental Science and Research A Brief History of Forensic DNA 1990-2010: Marking 20 years of DNA analysis for the New Zealand criminal justice system (February 2010) at 5.
  4. Institute of Environmental Science and Research A Brief History of Forensic DNA 1990-2010: Marking 20 years of DNA analysis for the New Zealand criminal justice system (February 2010) at 7 and 13.
  5. Mikus v R [2011] NZCA 298 at [17]–[20]. It is not clear from the judgment whether all these samples were obtained under Part 2 as suspect consent samples or whether some were obtained voluntarily from people (outside of the legislative regime).The reference sample obtained in 2002 from Mr Mikus was obtained under Part 2 of the Criminal Investigations (Bodily Samples) Act 1995 by consent.

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Issue


8.124 The difficulty with DNA mass screening is that it does not neatly fall into the category of elimination or suspect sampling. If police officers are conducting a mass screening, the hope is that one of the reference samples obtained will belong to the offender. This makes mass screening different from elimination sampling. However, if the officers have no reason to suspect any particular person of the offending, the suspect regime also does not seem like a comfortable fit.146
8.125 We note that Part 2 of the CIBS Act could currently be used to conduct a mass screening. That is because section 2 of the CIBS Act defines a “suspect” as:

suspect, in relation to an offence, means any person whom it is believed has, or may have, committed the offence, whether or not –

(a) that person has been charged with that offence; or
8.126 Under this definition, a police officer may ask any person to provide a suspect sample by consent as long as they believe that the person “may have” committed the offence. 147 If that person refuses, however, a compulsion order would not be available in the context of a mass screening because individualised suspicion is required.
8.127 Notably, if we reform the suspect regime to remove consent or to require particularised suspicion before asking for a suspect sample by consent, mass screenings would become unlawful. This raises the question: Should there be a statutory power to conduct a mass screening – either as a variation on the power to obtain a suspect sample or as an entirely separate power? In answering this question, it is important to recognise that mass screenings raise separate concerns about informed consent due to the additional societal pressure to comply with the police sampling request.148

The Irish model


8.128 Ireland has addressed this issue by creating a bespoke statutory power for Police to conduct a mass screening.149 The provision enables the Chief Superintendent of the Irish Police to formally authorise a mass screening in relation to a “class of persons”. The authorisation may be given if there are reasonable grounds for believing that the mass screening is likely to further the investigation and that it is “a reasonable and proportionate measure to be taken in the investigation of the offence”. The class of person may be determined by reference to sex, age, kinship, geographic area, time of an activity and/or any other matter considered appropriate.
8.129 Once the authorisation is obtained, a police officer may ask anyone falling within that class of persons to consent to providing a reference sample. The officer must inform the person about the authorisation, the reason for the mass screening, their ability to refuse and withdraw consent and the analysis, use and destruction of the sample. Further, if
  1. Police advises that its own research has established that sampling in mass screenings is not random or indiscriminate. Those sampled are potential suspects that have been identified through the investigation (including through techniques such as criminal behaviour analysis).

147 Criminal Investigations (Bodily Samples) Act 1995, s 6(1).

  1. Sheldon Krimsky and Tania Simoncelli Genetic Justice: DNA Data Banks, Criminal Investigations, and Civil Liberties (Columbia University Press, New York, 2011) at 50-52; and Jeremy Gans “Something to Hide: DNA, Surveillance and Self-Incrimination” (2001) 13 Current Issues Crim Just 168 at 170.

149 Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 29.

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they refuse, their refusal “cannot be used as a reason, in and of itself” to arrest or detain the person in respect of the offending.

Options for reform


8.130 Something akin to the Irish model could be introduced into any new DNA legislation. The Act could empower a suitably senior police officer (as in Ireland) or a court or an independent oversight body to consider NZBORA, Treaty of Waitangi, privacy and tikanga Māori issues and to authorise a mass screening in cases of very serious offending if there are reasonable grounds for believing that the mass screening is likely to further the investigation. To recognise the Treaty principles of rangatiratanga, partnership and equity, it is important to ensure that Māori interests are central to governance and decision making about mass screening. The legislative provision could include a safeguard to protect against a person’s refusal being used against them. This could be framed in the same way as the Irish legislation or in stronger terms (for instance, by removing the phrase “in and of itself”) to address concerns that mass screening undermines free consent.
8.131 Alternatively, if the authorisation was given by the court, the court could simply compel any individual falling within the class of persons to comply.150 There could be an offence for refusal to give a sample. This approach would address our concerns about informed consent, but there is a risk of breaching section 21 of NZBORA because it would amount to compelled sampling in the absence of individualised suspicion. It could also impact on whanaungatanga and would need to be assessed carefully for consistency with the principles of the Treaty of Waitangi.
8.132

2018_4316.png

An alternative option, given that there have only been a handful of mass screenings in New Zealand, would be to leave this matter to be resolved in the design of the suspect regime. The suspect regime could be reformed in a way that makes mass screenings unlawful. If mass screening is lawful under a new suspect regime, Police could deal with it by developing a publicly available protocol (in conjunction with an oversight body with capacity to consider NZBORA, Treaty of Waitangi, privacy and tikanga Māori issues).




Q16
How do you think mass screenings should be regulated in New Zealand?












  1. This option is preferred by Gans and is discussed at length in his article: Jeremy Gans “Catching Bradley Murdoch: Tweezers, Pitchforks and the Limits of DNA sampling” (2007) 19 Current Issues Crim Just 34.

169 CHAPTER 9: REFERENCE SAMPLES – INDIRECT COLLECTION

CHAPTER 9



Reference samples – indirect collection


INTRODUCTION


9.1 In Chapter 8, we looked at how police officers can obtain reference samples directly from suspects and other known persons. In this chapter, we explore a related topic: the rules around indirect suspect sampling. This is when a police officer obtains a biological sample from a secondary source – rather than from the suspect themselves. There is a range of ways this can be done, including use of:
9.2 None of these indirect sampling methods are covered by the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act), and their relationship to Part 2 of that Act is unclear. A further significant point to note is that none of these methods involves direct interference with the suspect’s bodily integrity.
9.3 As we explained in Chapters 2 and 4, the policy behind the original CIBS Act and subsequent amendments focused heavily on having appropriate mechanisms in place to protect bodily integrity and physical privacy. Those concerns do not arise in relation to indirect suspect sampling, but other legal issues are raised, including in relation to informational privacy.
9.4 This chapter looks at the legal status of the biological sample in the context of indirect sampling. Is a biological sample “property”? If so, who “owns” it? Does a person have any actionable privacy interest in their DNA? What about the DNA of their relatives? We then look at indirect sampling methods and explain the circumstances in which each method might be of use to New Zealand Police in investigating crime, as well as exploring options for managing the competing legal issues associated with these methods.

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THE LEGAL STATUS OF THE BIOLOGICAL SAMPLE


9.5 In Chapters 5 and 6, we discussed the legal status of biological samples collected from crime scenes. We explained that a crime scene sample contains personal information and therefore the information privacy principles in the Privacy Act 1993 apply. We also explained that any analysis of a crime scene sample is probably a search in terms of section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA). That is because it arguably intrudes upon a person’s reasonable expectation of privacy.
9.6 However, analysis of a crime scene sample is unlikely to breach section 21, because of the close connection between the sample and the offence under investigation. This connection is likely to justify the privacy intrusion, making the search a reasonable one. Furthermore, the crime scene sample will have been originally collected pursuant to a search warrant or a statutory search power or by consent. The authority under which a search is conducted also affects the reasonableness of the overall search.1
9.7 Biological samples that are not found at crime scenes raise slightly different legal issues. These samples still contain personal information and their analysis could still intrude upon a person’s reasonable expectation of privacy. However, unlike crime scene samples, there may not be a lawful basis upon which to collect them without informed consent.
9.8 It is uncertain whether the common law provides a power for a police officer to arrange for DNA analysis of a biological sample sourced from a discarded item. It is also unclear whether a search warrant is available under the Search and Surveillance Act 2012 in respect of a biological sample. All of this uncertainty stems from the possible existence of a variety of different legal interests in a biological sample.
9.9 This chapter begins by looking at international case law relating to indirect covert DNA sampling (also known in some jurisdictions as “abandoned” sampling). These cases illustrate a number of the legal issues that arise in the context of indirect sampling. We then look at the likely position in New Zealand based on our current case law and legislation. Indirect sampling is not a common police practice in New Zealand. However, we conclude that there are situations where its use could be justified.

International case law relating to covert indirect sampling

Australia


9.10 There have been several cases of covert DNA sampling in Australia2 where a police officer has collected an item discarded by a suspect in public and used it to generate a DNA profile. The courts have held that, since Australian DNA legislation only regulates the collection of a reference sample directly from the body of a suspect, other means of collection are lawful.3 Accordingly, Australian courts have held that, in a situation where a suspect has declined to provide a sample on request, it was lawful for police officers to collect a cup from a police station rubbish bin for the purpose of DNA profiling.4 In another case, it was held to be lawful for police officers to collect a cigarette butt that

1 See Chapter 6.

  1. R v White [2005] NSWSC 60; and NSW Ombudsman DNA sampling and other forensic procedures conducted on suspects and volunteers under the Crimes (Forensic Procedures) Act 2000 (October 2006), at [9.2].

3 R v Phuc [2000] VSC 242 at [16]; R v Kane [2004] NSWCCA 78, (2004) 144 A Crim R 496 at [13]; R v White [2005]

NSWSC 60 at [28]; and R v Fleming [2007] NSWSC 328 at [15]. See also R v Nicola [2002] NSWCCA 63 at [50].

4 R v Nicola [2002] NSWCCA 63.

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had been dropped on a footpath and use it for DNA analysis.5 The New South Wales Court of Appeal also held that it was lawful for police officers to use covert DNA sampling to generate DNA profiles for six “persons of interest” in a case to help to narrow down from a list of 20 persons.6

The United States and Canada


9.11 Unlike Australia, the United States and Canada both have constitutional protections that are similar to section 21 of NZBORA. These protect individuals against unreasonable search and seizure by the State. As in New Zealand, this protection is only engaged if the State action intrudes upon the individual’s “reasonable expectation of privacy”.7 Therefore, in cases of covert indirect DNA sampling – which is known as “abandoned sampling” in North America – the legal issue is: Does the suspect have a reasonable expectation of privacy in relation to the item they discard?
9.12 In answering this question, the North American jurisprudence focuses heavily on where the item is found. For instance, the North Carolina Court of Appeal held that a suspect had a reasonable expectation of privacy in a cigarette butt that he had thrown on his patio, because the patio was part of his house.8 In other cases the courts have held that a police officer may lawfully collect a suspect’s discarded cigarette butts, chewing gum, hair, spit, coffee cups, straw and empty cans, as long as they have been thrown away in public.9 The North American courts have also held that police officers may encourage suspects to abandon biological material in public. On that basis, a fake chewing gum survey,10 a fake Pepsi taste test challenge11 and a fake law suit12 have all been held to be lawful ways for Police to collect a suspect’s DNA. In the case of the fake law suit, police officers posed as a law firm seeking parties for a class action to recover traffic fines. Their letter required recipients to respond by post, and the suspect’s saliva was recovered from the envelope.
9.13 In the United States, this reasoning extends beyond public places to police stations and prison cells.13 In the 2014 case of Glenn Joseph Raynor v State of Maryland, police

5 R v Nicola [2002] NSWCCA 63; and R v Jason Michael Kane [2004] NSWCCA 78, (2004) 144 A Crim R 496 at [13].

6 R v White [2005] NSWSC 60.

  1. See United States Constitution, amend IV and Canadian Charter of Rights and Freedoms, pt 1 of the Constitution Act 1982, being sch B to the Canada Act 1982 (UK), s 8.
  2. State of North Carolina v Blake J Reed 182 NC App 109, 641 SE 2d 320 (NC 2007). The police officers in this case were lawfully on the property when they collected the cigarette butt, but the Court held that it had not been “abandoned” because it was still on the suspect’s patio.
  3. People v Rolando N Gallego 190 Cal App 4th 388 (Cal 2010) (cigarette butt); Commonwealth v. Raul Cabral 69 Mass App Ct 68, 866 NE 2d 429, 16 May 2007 (spit on the sidewalk); R v Giovanni D'Amico (Cour du Québec), 18 March 2013– (Reasons judgment) (coffee cup); R v Marini O.J. 6197, 71 W.C.B. (2d) 727, Ontario, 6 October 2005 (empty cans in a bin at a courthouse); R v Grywacheski 2004 MBQB 64, 182 Man. R. (2d) 278, 61 W.C.B. (2d) 113 (Manitoba, 9 March 2004 (cigar butt in an ashtray at the entry to a courthouse); R v Paul O.J. No. 1333, 117 C.R.R. (2d) 319, 61 W.C.B. (2d) 163, Ontario, 4 March 2004 (cups and straws); R v Payne BCSC [1998] B.C.J. No. 1372, 39 W.C.B. (2d) 9, British Columbia, 28 May 1998 (gum and hair).

10 R v Delaa [2006] A.J. No. 948, Alberta, 9 June 2006.

11 People v Raul LaGuerre J 29 AD 3d 82, 815 NYS 2d 211, New York, 16 May 2006.

12 State of Washington v John Nicholas Athan 160 Wash2d 354, 10 May 2007.

  1. State of North Carolina v Donald Eugene Borders (Court of Appeals of North Carolina Robert N Hunter Jr September 2 2014) 762 SE 2d 490; Glenn Joseph Raynor v State of Maryland 440 Md 71, 99 A 3d 753; John Paris, v. Dale Artus, Superintendent of Clinton Correctional Facility District Court, ED, New York Vitaliano, District Judge December 1 2010 Not reported in F Supp 2d, No. 08-CV-1785 (ENV); Kelroy Williamson v State of Maryland 413 Md 521, 993 A 2d 626; The People of the State of New York v. Mark C. Sterling 57 AD 3d 1110, 869 NYS 2D 288; Kevin Piro v State of Idaho 146

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officers had interviewed a suspect at a police station.14 The officers asked the suspect to provide a sample by consent. He refused. When the suspect left the police station, the officers rubbed a swab against the armrest of the chair he had been sitting in. The officers then sent the swab away for DNA analysis. The Maryland Court of Appeal held that the officers’ actions were lawful and emphasised that the analysis only examined 13 areas of the suspect’s “junk” DNA.15 In a dissenting judgment, Justice Adkins stated:16

The Majority’s approval of such police procedure means, in essence, that a person desiring to keep her DNA private must conduct her affairs in a hermetically sealed hazmat suit.

9.14 In Canada, a distinction is drawn between items discarded by a person in police detention and items discarded by a person who is not in police detention. In R v Stillman, the Supreme Court of Canada stated that, while a person will have “a lower expectation of privacy following his or her arrest and subsequent custody”, whether a person has “abandoned [an] item and relinquished any privacy interest in [it] will have to be determined on the particular facts presented in each case”.17 In Stillman, the suspect was being detained at a police station and refused to provide a biological sample by consent. The Court stated that his expectation of privacy was “not so low as to permit” a police officer to seize his used tissue from the police station rubbish bin and to use that to obtain a DNA profile.18 It held that a person in police detention “cannot prevent those samples... being taken” and that it was a violation of the suspect’s right to be free from unreasonable search and seizure.19 The Court said that police should not be able to profit from “the inevitable consequence of the normal functioning of the human body”.20 On the other hand, if an item is thrown away after a person leaves a voluntary police interview, they have no reasonable expectation of privacy in it.21

Ireland


9.15 The courts in Australia and North America have taken a property-based approach to covert DNA sampling, focusing on the location of the discarded item and the person’s intention to exert control over that item. This suggests that the item, and by extension the biological material on it, are owned by the person in some way.
9.16 The Irish Supreme Court has a different approach to the issue.22 In Director of Public Prosecutions v Wilson, the suspect was detained in police custody. The suspect had refused to give samples by consent so police officers collected cigarette butts that the suspect had discarded at the police station and used them to generate a DNA profile.

Idaho 86, No. 33409, 190 P3d 905; Commonwealth v. Lee Perkins 450 Mass 834, 883 NE 2d 230; Commonwealth v Jeffrey Bly (Supreme Judicial Court of Massachusetts, Suffolk Spina J March 7 2007) 448 Mass 473, 862 NE 2d 341; Commonwealth v Melvin B Ewing (Appeals Court of Massachusetts, Barnstable Smith J, October 6 2006) 67 MassAppCt 531, 854 NE 2d 993; The People of the State of New York v Anthony Ayler Supreme Court, Kings County, New York James P Sullivan J, September 22 2004) 799 NYS2d 162, 5 Misc 3d 1020(A); Commonwealth v Jordan Martel Rice (Supreme Judicial Court of Massachusetts, Plymouth Spina J) March 24 2004 441 Mass 291, 805 NE 2d 26.

14 Glenn Joseph Raynor v State of Maryland 99 A 3d 753 (440 Md 71 2014) at 754.

15 Glenn Joseph Raynor v State of Maryland 99 A 3d 753 (440 Md 71 2014) at 754-768.

16 Glenn Joseph Raynor v State of Maryland 99 A 3d 753 (440 Md 71 2014) at 775.

17 At [62].

18 At [61].

19 At [60].

20 R v Stillman [1997] 1 SCR 607 at [58]. This case was followed in R v Nguyen 57 OR (3d) 589 (ONCA).

21 R v Stillman [1997] 1 SCR 607.

22 Director of Public Prosecutions v Wilson [2017] IESC 54.

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9.17 The Irish Supreme Court found that, whether in custody or not, a person has the same substantive right to privacy, which encompasses the “intimate information about an individual contained in DNA”.23 The Court observed that shedding DNA is involuntary:24

[The suspect] could not have exercised a “choice” not to shed cells containing DNA in the station. It is an aspect of human biology that humans shed cells containing DNA. Cells are rubbed off and deposited in clothing, or fall off the skin onto a chair. Saliva may be deposited on drinking vessels or (as in this case) cigarettes or by licking an envelope. A hand holding any item may leave DNA in sweat. These are not matters of choice and do not depend on the freedom or detention of the individual.

9.18 In addition, the Court distinguished between the item discarded and the DNA information on the item, stating that:25

We would accept that, while he had relinquished all interest in the physical cigarette butts, Mr. Wilson continued to retain a privacy interest in the information contained in the DNA deposited on them.

9.19 However, the Court continued, that privacy interest is not absolute. It is subject to the “compelling public interest that exists in relation to the investigation of serious crimes”.26 It noted that, under the statutory regime, the police officers could have opted to take the sample directly from the suspect by force but that:27

it would clearly be contrary to public policy to hold that the Gardaí [(Irish police officers)] were in the circumstances constrained to use force, thereby risking injury to both the suspect and themselves, and that a failure to use force rendered the picking up of the discarded items unlawful.

The likely position in New Zealand


9.20 Under New Zealand law, it is not clear what legal status a biological sample has once it has been separated from its “owner”. The international case law suggests that the owner may retain some form of property interest, privacy interest or both depending on the circumstances.

Is there a property interest?


9.21 New Zealand courts have held that there is no property in a dead body28 and no property in genetic material extracted from a body.29
9.22 The question of extraction arose in Re Lee, where the High Court had to consider whether a woman had a property right in her deceased partner’s sperm.30 In finding that she did not, the Court looked to a 2009 English case, Yearworth v North Bristol NHS Trust.31 Yearworth turned away from the approach taken in the leading case of

23 At [4.22] and [4.31].

24 At [4.28].

25 At [4.32].

26 At [4.23].

27 At [4.35].

28 Takamore v Clarke [2012] NZSC 116, [2013] 2 NZLR 733.

29 Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [90].

30 Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731.

  1. Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, [2010] QB 1. The conclusion in Re Lee differs from the very recent Supreme Court of Queensland decision Re Cresswell [2018] QSC 142, which considered whether to grant a woman the right to extract and use her deceased partner’s sperm. The Judge concluded that the common law

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Doodeward v Spence from 1908, which held that there can be property in a body or body part to which someone has applied skill or work.32 The High Court agreed with the approach in Yearworth, stating that “[t]he suggestion that there is no property in a dead body, but there could be property in a body part to which some had applied skill or work seems incongruous”33 and that:34

Although, in some other jurisdictions, emphasis has been placed on asserted property rights, the question whether they exist in New Zealand must be judged against the statutory framework in force in this country.

9.23 In Re Lee, the High Court seems to suggest that property interests may be capable of being recognised where the “owner” is still alive:35

In [Yearworth], the sperm had been donated by living males who were about to undergo chemotherapy. As they were still alive, it is understandable that the [English] Court of Appeal considered that they retained control over the stored semen, and had a right to sue for breach of bailment when the samples, through inadvertence, perished when the amount of liquid nitrogen in the tanks fell below the requisite level. Nevertheless, I leave open the question whether, as a matter of New Zealand law, an action for breach of bailment could be maintained in the circumstances disclosed in that case.

9.24 This statement suggests that, depending on the circumstances, a person may have an actionable property interest in a biological sample as long as they are still alive. This aligns, to some extent, with the property approach taken to covert indirect DNA sampling in Canada. What matters is where the sample is found and whether the person still intends to exert control over it.

Is there an informational privacy interest?


9.25 The Irish Supreme Court recognised that a person may retain a privacy interest in DNA information extracted from a discarded item while relinquishing any interest in the discarded item itself. Case law suggests that this approach may find favour in New Zealand courts.
9.26 In a 2017 decision, the New Zealand Supreme Court considered what constitutes a reasonable expectation of privacy in information as part of assessing the reasonableness of a search in terms of section 21 of NZBORA:36

The reasonable expectation of privacy is directed at protecting “a biographical core of personal information which individuals in a free and democratic society would wish to maintain and control from dissemination by the state” and includes information “which tends to reveal intimate details of the lifestyle and personal choices of the individual”.

9.27 It is clear that a biological sample can be analysed to reveal intimate personal details about a person. Therefore, we consider that section 21 of NZBORA is engaged. The analysis of a biological sample to generate a DNA profile is a search and must be conducted reasonably.

recognises that sperm removed from a deceased individual, to which work and skill is applied, is capable of being property. The Judge noted that this is an exception to the principle that there is no property in a corpse and an extension of the principles in Doodeward v Spence [1908] HCA 45; (1908) 6 CLR 406.

32 Doodeward v Spence (1908) 6 CLR 40.

33 Re Lee [2017] NZHC 3263, [2018] 2 NZLR 731 at [84].

34 At [28(d)].

35 At [91].

36 R v Alsford [2017] NZSC 42, [2017] 1 NZLR 710 at [63].

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9.28 As we discussed in Chapter 6, it is useful to draw an analogy to searches of electronic devices. In that context, the Supreme Court has held that, because of “the nature and extent of information” electronic devices can hold – including information that the owner is not aware of – unique privacy interests are engaged and special search and surveillance rules should apply.37 The same is arguably the case with DNA analysis.
9.29 Further, in the context of providing a databank consent sample for the known person databank (under Part 3), the Court of Appeal stated in R v Toki that:38

... 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.

The information privacy principles


9.30 As well as the informational privacy protection afforded by section 21 of NZBORA, the information privacy principles in the Privacy Act 1993 are engaged. That is because, as discussed in Chapter 6, by collecting and analysing a biological sample, a police officer is gathering personal information.39
9.31 Principles 2 and 4 are particularly relevant in the context of indirect sampling. Principle 2 states that an agency must collect personal information directly from the person concerned. There are, however, exceptions to this principle, including that an agency may collect the information indirectly:40
9.32 Principle 4 states that an agency must not collect information by means that, in the circumstances of the case, are unfair or intrude to an unreasonable extent upon the personal affairs of the individual concerned.

Is there a collective privacy interest?


9.33 The Treaty reinforces the Crown’s obligation to accommodate tikanga to the fullest extent possible in the exercise of kāwanatanga.41 The Treaty also requires the Crown to actively protect taonga, which may include whakapapa (genealogical) information.42
  1. Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [57] per Elias CJ and [191]–[194] per McGrath, William Young, Glazebrook and Arnold JJ.

38 R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 at [24].

39 At [6.30]–[6.33].

40 Privacy Act 1993, s 6 Information privacy principle 2.

  1. Legislation Design and Advisory Committee Legislation Guidelines (March 2018) at [3.4] states that – independently of the Treaty – new legislation should, as far as practicable, be consistent with fundamental common law principles and tikanga. The Guidelines further note at [5.3] that “care should be taken where legislation may affect practices governed by tikanga”. Notably, the Law Commission also has a statutory obligation to take te ao Māori (the Māori dimension) into account in all law reform projects: Law Commission Act 1985, s 5(2)(a).

42 See discussion in Chapter 6.

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9.34 Whakapapa information is considered tapu and has been described as a taonga. This includes not only substantive whakapapa knowledge but also mātauranga Māori ways of knowing, collating, storing and imparting that knowledge, which is traditionally communicated orally. Access to whakapapa information is often carefully guarded, and custodians may hold it on behalf of their whānau, hapū or iwi. Therefore, while the usual focus of human rights-based privacy analysis is on living individuals, from a Māori perspective, DNA could be considered private information relating to a group, which may include deceased persons.43 This suggests that there could be a collective privacy interest in a person’s DNA.
9.35 Recognising a collective privacy interest in DNA may also accord with international developments in privacy law. As explained in Chapter 6, personal information is information that is “about an identifiable individual”, but the same information can be about more than one person.44 What matters is whether the information can be used alongside other information to identify the person.45 As we explain below and also look at in Chapter 13, DNA information about one person is increasingly being used by police around the world to identify a close genetic relative as a suspect. This too suggests there may be a collective privacy interest in DNA.

WHAT SEARCH POWERS ARE CURRENTLY AVAILABLE TO POLICE?


9.36 In light of the various legal interests that a person may have in their biological material, it seems likely that, under New Zealand law, indirect sampling would constitute a search in terms of section 18 of NZBORA. To ensure that a search is not “unreasonable”, there needs to be a lawful basis for it.46
9.37 At present, there are two options available to police. They could rely on the common law, which enables a police officer to do what any member of the public may lawfully do, or they could apply for a search warrant. Both options are problematic at present for different reasons.

The common law


9.38 As explained in Chapter 5, the common law enables a police officer investigating an offence to do what any member of the public may lawfully do.47 This raises the question: Would it be lawful for a member of the public to obtain another person’s biological sample and send it away for DNA analysis without informed consent? And if so, is it therefore lawful for Police to do so?





  1. See Law Commission Privacy Concepts and Issues: Review of the Law of Privacy Stage 1 (NZLC SP19, 2008) at [5.28]– [5.30] and Khylee Quince “Māori Concepts and Privacy” in Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thompson Reuters, Wellington, 2010) 29 at 32–33.

44 Office of the Australian Information Commissioner “What is personal information?” (May 2017) <www.oaic.gov.au> at 12.

45 See the discussion in Chapter 6.

  1. See Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (2nd ed, LexisNexis, Wellington, 2015) at [18.17.1].

47 See the discussion in Chapter 5

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9.39 In New Zealand, the answer to this question is far from clear. Depending on the surrounding circumstances, this could be an offence under the Human Tissue Act 2008 or a breach of the common law tort of privacy.48

The Human Tissue Act 2008


9.40 The purpose of the Human Tissue Act is three-fold – to ensure that the collection and use of human tissue:49
9.41 In relation to living persons, the Act defines “human tissue” as “material collected from a living individual [that] is or includes human cells”.50 “Collect” is defined as “to remove or take that tissue from a living ... body”.51 Statutory examples of “human tissue” include organs, blood, hair, nails, skin, mucus and urine. The Act distinguishes between human tissue that is collected during a health-care procedure and tissue that is not collected in that way. “Non-health-care tissue”52 can only be sent away for “donor analysis” if there is informed consent.53 It is an offence under the Act to collect non-health-care tissue for donor analysis and to carry out such analysis without informed consent.54 “Donor analysis” is defined as: “analysis for the purpose of providing information (including genetic information) about an actual or potential condition or trait of the individual whose tissue was collected”.55
9.42 Applying these provisions to the scenario in which a member of the public collects a biological sample and sends it away for analysis without informed consent much depends on how the person obtains the human tissue/sample. If it is not taken directly from the other person, it is not “collected” under the Act. Therefore, the person sending the tissue away for analysis without first obtaining informed consent may not commit an offence but the person conducting the analysis might. We understand that in practice, however, no laboratory would conduct DNA analysis of any human tissue submitted by a member of the public without first seeing evidence of informed consent.
9.43 The Human Tissue Act does specifically recognise an exception for a police officer exercising a legal search power. However, the exception does not create a search power in and of itself.56
  1. Given the broad definition of “agency” in the Privacy Act 1993 (which under section 2 includes a private individual) it could also involve a breach of the information privacy principles discussed, as an individual obtaining a biological sample of another may be considered to be collecting information about that person.

49 Human Tissue Act 2008, s 3.

50 Human Tissue Act 2008, s 7(1)(a)–(b).

51 Human Tissue Act 2008, s 6 definition of “collect”.

52 “Non-health-care tissue” is defined in section 6 as:

human tissue that is, or is derived from, human tissue that is collected from a living individual, but is neither– (a) collected from a consumer in the course of a health care procedure; nor (b) derived from human tissue collected in that way.

53 Human Tissue Act 2008, s 19(1).

54 Human Tissue Act 2008, s 23.

55 Human Tissue Act 2008, s 6 definition of “donor analysis”.

56 Human Tissue Act 2008, s 20(a)(i).

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9.44 Therefore, it would appear unlikely that Police could rely on the Human Tissue Act to provide the lawful basis to obtain a biological sample and have it analysed without consent.

The tort of privacy


9.45 It also appears that arranging for the analysis of someone else’s DNA without consent may also breach the common law tort of privacy. The requirements of this tort are:57
9.46 As discussed, there is a strong case that a person has a reasonable expectation of privacy in the information that can be revealed by their DNA. If DNA information was obtained by a person and presented in court, that would amount to publicity.58 The more contentious issue is whether the publicity would be “highly offensive to an objective reasonable person”. This would depend on the extent of DNA analysis of both the reference sample and the crime scene sample, because once there is a match, all of the extracted DNA information is attributable to the same person. Some information would be unlikely to be considered highly offensive if publicised – for example, a person’s eye or hair colour. However, publicity of other DNA information, such as health or familial information,59 could potentially be used for a discriminatory purpose if disclosed, for example, to an insurer or an employer. This could be highly offensive to a reasonable person.

Summary


9.47 It is unclear whether it would be lawful for a member of the public to arrange for another person’s DNA to be analysed without their informed consent. The power for a police officer to do the same is also legally uncertain.
9.48 The situation is somewhat clearer in the United Kingdom, where an offence of “DNA theft” was introduced in 2004. The offence prevents members of the public from collecting and analysing DNA without consent unless there is an “excepted purpose”. However, the “prevention or detection of crime” is an excepted purpose.60


57 Hosking v Runting [2004] NZCA 34; [2005] 1 NZLR 1 (CA) at [117].

  1. Stephen Penk and Rosemary Tobin (eds) Privacy Law in New Zealand (2nd ed, Thomson Reuters, Wellington, 2016) Privacy Law in NZ at [4.3.3].

59 As mentioned in Chapter 3and Chapter 12, this sort of analysis is not currently undertaken.

  1. Human Tissue Act 2004 (UK), s 45(1)(a)(ii) and sch 4, cl 5(1)(d). In 2003, the Australian Law Reform Commission recommended the creation of an offence relating to non-consensual genetic testing: Australian Law Reform Commission Essentially Yours; The Protection of Human genetic Information in Australia (ALRC R96, 2003) at ch 12. Subsequently, in 2008 the Model Criminal Law Officers’ Committee issued a discussion paper that suggested an offence for taking bodily samples and having them genetically tested without the knowledge or consent of the person from whom they were obtained. The Committee considered that the existing legal framework in Australia did not adequately address the potential for harm arising from non-consensual genetic testing. Like the law in the United Kingdom, the Australian proposal includes an exception for law enforcement purposes. This proposal has gone no further at this stage: see Model Criminal Law Officers’ Committee Discussion Paper: Non-Consensual Genetic Testing (November 2008).

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Is a search warrant available under the Search and Surveillance Act?


9.49 The other possibility in relation to biological samples not found at crime scenes is that Police could obtain a search warrant under the Search and Surveillance Act 2012. Before this Act came into force, two Court of Appeal cases held that search warrants were available to enable a police officer to seize a personal item belonging to a suspect and to arrange for DNA analysis of the items. The cases were R v T in 199961 and R v C in 2001.62
9.50 The suspect in R v T had provided a reference sample by consent in relation to a rape investigation. A court later found that the reference sample had not been obtained in accordance with the CIBS Act and that there was no jurisdiction to issue a suspect compulsion order. The suspect refused to provide a second sample by consent. Police officers then applied for a warrant to search the suspect’s house. They seized the suspect’s razor and toothbrush, from which biological samples were obtained and analysed and a DNA profile created. The High Court found that this was neither an abuse of process nor an unreasonable search and seizure. Police acted reasonably in applying for the search warrant and in executing it.63 This finding was upheld by the Court of Appeal.64
9.51 R v C involved an allegation of incest. A reference sample obtained directly from the suspect had been ruled inadmissible, and the suspect refused to provide a second sample by consent. A police officer applied for and obtained a search warrant and seized the suspect’s underpants. A DNA profile was obtained from the underpants that strongly suggested the suspect was the offender. The Court of Appeal stated that the CIBS Act is not a code for the obtaining of all samples “by other non-invasive means”. It was open to Police to pursue such lawful means, and they acted reasonably in doing so.65
9.52 At the time of R v T and R v C, section 198(1)(b) of the Summary Proceedings Act 1957 provided the authority to issue a search warrant in respect of “any thing which there is reasonable ground to believe will be evidence as to the commission of any such offence”.
9.53 The High Court in R v T considered the meaning of “thing” and the significance of the distinction between the clothing or personal items seized and the bodily material potentially on them from which a DNA result could be obtained. Panckhurst J noted that:66

The things belonging to the accused could not scientifically, or otherwise, be directly related to the commission of the offence. Rather, the things were a possible source of material from which a genetic imprint could be obtained. Thus the search was for a sample, rather than evidence of the kind customarily encountered under [s 198(1)(b)]. This caused me to pause. In the end result however, I consider this distinction is not of moment.

61 R v T (1999) 17 CRNZ 63 (HC). This was upheld by the Court of Appeal: R v T CA174/99, 11 June 1999.

62 R v C CA381/00, 19 February 2001.

63 R v T (1999) 17 CRNZ 63 (HC) at 73–74.

64 R v T (1999) BCL 759 (CA).

65 R v C CA381/00, 19 February 2001 at [8].

66 R v T (1999) 17 CRNZ 63 (HC) at 70. The Courts in both R v T and R v C relied on a statement made in R v Sanders

[1994] 3 NZLR 450 (CA) at 461 where Fisher J stated in relation to s 198(1)(b) that:

[A] thing will constitute evidence of the commission of an offence if its form or existence would directly or indirectly make one or more of the factual elements of the offence itself more likely.

On this basis, the Courts found that the items seized were within the scope of the warrant, the search and seizure was reasonable and the DNA evidence was admissible.

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9.54 In 2007, the Law Commission published a substantial report on the law relating to the search and surveillance powers of law enforcement agencies. We considered the use of a search warrant to obtain a personal item that may contain a biological sample in the cases of R v T and R v C. We noted that:67

A sample that provides a genetic profile may provide circumstantial evidence of identity, but to produce evidence of the commission of an offence, the genetic profile must be compared with other forensic material. Given the relevant human rights values, particularly privacy, we doubt that section 198 is adequate to authorise the seizure of samples for genetic analysis .... Judicial authority can be relied on, but we think that an express legislative authorisation is preferable.

9.55 In 2012, the Search and Surveillance Act (SSA) came into force, replacing section 198 of the Summary Proceedings Act with section 6(b) of the SSA. Under section 6(b), an issuing officer can issue a search warrant in respect of a place, vehicle or other thing if the issuing officer is satisfied that there are reasonable grounds:

to believe that the search will find evidential material in respect of the offence in or on the place, vehicle, or other thing specified in the application.

9.56 “Evidential material” is defined in section 3 of the Act as “evidence of the offence, or any other item, tangible or intangible, of relevance to the investigation of the offence”. Section 110(d) of the SSA allows a police officer executing a search warrant to “seize anything that is the subject of the search or anything else that may be lawfully seized”. This raises the issue of whether a biological sample can fall within the ordinary meaning of “anything” and “item”. It is our view that a receptacle containing a biological sample may fall within these definitions, but the sample itself may not.
9.57 In 2015, the High Court in T v R touched on the issue of whether DNA or biological samples (in that case, blood) can be a “thing” under section 6 of the SSA.68 Although the Court ultimately did not have to decide the issue, the judge noted that, in the SSA, both “evidential material” and “thing” were deliberately framed in broad terms, and:69

Plainly evidential material can encompass DNA, which is often used as evidence in criminal proceedings. The more difficult issue is whether an appropriate interpretation of “thing” here can encompass a human body, or the blood of a human. This raises two main questions. First, whether Parliament intended “thing” to extend to such matters in light of the words immediately preceding “thing”, being “place or vehicle” (the statutory interpretation issue). Second, whether the SSA ought to apply to human tissue (be it a deceased human body or blood) in light of the tightly prescribed regime dealing with such matters (the policy issue).

9.58 The case was considered by the Court of Appeal in 2016.70 The Court of Appeal also noted the question of whether human tissue could come within the definition of “thing” in section 6 of the SSA but found that the issue did not have to be resolved for the purpose of the appeal.71
9.59 This leaves the question of whether Police could apply for a search warrant to seize biological material for DNA analysis somewhat uncertain, although we note that, earlier this year, a search warrant was issued to enable police officers to pose as potential buyers of the suspect’s flat in order to covertly collect the suspect’s hat and comb to

67 Law Commission Search and Surveillance Powers (NZLC R97, 2007) at [3.52].

68 T v R [2015] NZHC 1588 at [79]–[83]. We discuss this case in more detail at [9.84].

69 At [81].

70 T v R [2016] NZCA 148.

71 At [62].

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obtain a biological sample to send to The Institute of Environmental Science and Research (ESR) for DNA analysis.72

Summary


9.60 In respect of indirect suspect sampling, there appears to be a gap in the law. It is unlikely Police can rely on the common law to provide powers of search, and as we have identified, there is also uncertainty in relation to the use of the Search and Surveillance Act.
9.61 This gap is not only relevant to indirect collection of suspect samples. It extends to other situations where Police may seek to obtain a sample from a known person who cannot or will not consent, for example, due to age or mental capacity or a simple refusal to provide a sample to Police.73

PERSONAL BELONGINGS AND DISCARDED ITEMS


9.62 In light of the analysis above, we consider that a suspect has a privacy interest (and may have a property interest) in their biological material, no matter where it is found. That does not mean that any item with a suspect’s biological material on it should be off limits to Police at all times. Rather, to comply with section 21 of NZBORA, a police officer may need to apply for a search warrant in order to obtain and arrange for analysis of the item, although as we have noted above and discuss further below, there may be difficulties with this. Further, to comply with the information privacy principles, the decision to undertake indirect – as opposed to direct – suspect sampling would need to be justified. This could be done using similar exceptions to those to information privacy principle 2, either on the basis that direct sampling would “prejudice the investigation” or on the basis that it would “not be reasonably practicable in all the circumstances”.74
9.63 There may be sound law enforcement reasons to opt for indirect suspect sampling in some cases. For example, it may be that direct suspect sampling could prejudice an ongoing undercover operation, pose an undue risk of the suspect absconding or not be possible if the suspect cannot be found. In such circumstances, it could well be appropriate for a police officer to seek a search warrant in respect of personal items belonging to the suspect or items known to have been discarded by them.
9.64 However, as discussed above, there is uncertainty as to whether a biological sample can amount to a “thing” under section 6 of the Search and Surveillance Act for the purposes of obtaining a search warrant. If a warrant can be obtained, another difficulty lies in determining whether an item found during a search is relevant to an investigation. Section 112 of the Search and Surveillance Act permits a police officer to remove an item for analysis, but as we discussed in Chapter 5, analysis of the item alone would not establish its value to the investigation. To establish its value, the item would need to be compared to a reference sample. Arguably, section 112 does not envisage this situation.75
  1. Sam Sherwood “Undercover cops pose as potential buyers at open home to get murder suspect's DNA” Stuff (online ed, 13 February 2018).
  2. In the case of incapacity, Police would be reliant on relatives to consent on the victim’s behalf. This would be different if foetal tissue were involved.

74 Privacy Act 1993, s 6 information privacy principle 2.

75 See discussion in Chapter 5.

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9.65 A further difficulty in relation to discarded items is that search warrants are issued with reference to a location (that is, a place, vehicle or thing). It may not be easy to predict where a suspect may discard an appropriate item or what that item will be. The exception is that a suspect may well bring personal belongings to a police station or touch items there that could be analysed, but it is not possible for a police officer to obtain a search warrant for a police station and there are limited circumstances in which warrantless search powers would be available to search the suspect or their belongings.76

Options for reform


9.66 There may well be situations where it is not possible to obtain a biological sample directly from a suspect and it may be appropriate to indirectly obtain a biological sample to create a DNA profile. However, the parameters around this need to be clear. Certainty, transparency and accountability around the use of search warrants to indirectly obtain biological samples could be increased in a number of ways.

Amend the search warrant provisions in the Search and Surveillance Act


9.67 As explained in Chapter 5, the intention behind the Search and Surveillance Act was to consolidate police search powers. Therefore, it may be preferable to amend that Act to clarify that biological material may be the subject of a search warrant. If section 112 of the Act was also amended in the way proposed in Chapter 5, it would be plain that a police officer can obtain a search warrant in respect of a suspect’s personal belongings.
9.68 This would clarify the existing law, but it would not draw an issuing officer’s attention to the high privacy interests in DNA or to the existence of the direct suspect sampling regime and the need to use that regime unless there is a good reason not to. To rectify this, the Search and Surveillance Act could expressly cross-reference the legislation governing direct suspect sampling. Alternatively, Police could adopt a policy of routinely including this information in search warrant applications.

Create a search power to enable DNA analysis of discarded items


9.69 Even if the Search and Surveillance Act is clarified, it still may not be possible to obtain a search warrant in relation to items that a suspect may discard or “abandon”. That is because a police officer may not be able identify where the suspect will discard an appropriate item or what that item will be.
9.70 One option to improve clarity is to create a statutory search power allowing police officers to arrange for analysis of a discarded item if certain criteria have been met. However, given that this is a covert action that side-steps the direct suspect sampling process, it would seem more appropriate for the officer to obtain a court order. This would align with the need to have a search warrant for the suspect’s personal belongings.
9.71 A covert DNA sampling order could state that any item that a police officer has lawfully obtained from a public place may be analysed by ESR in the absence of informed consent. This would reflect that it is the analysis of the item that engages property and privacy interests, not the collection of the item itself.

76 R v Lucas [2015] NZHC 1944 at [25]–[29] and [59].

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9.72 This regime could be included in any new legislation replacing the CIBS Act or in the Search and Surveillance Act. The benefit of including the regime in DNA legislation would be that the relationship between direct and indirect suspect sampling could be made plain on the face of the Act. This would make the law in this area more accessible, but as noted above, it would undermine the Search and Surveillance Act’s goal of consolidating police search powers. If a covert DNA sampling regime was inserted into the Search and Surveillance Act, cross-referencing to DNA legislation could be included to ensure that the preference for use of the direct suspect sampling regime was made clear.

Policy statement


9.73 Police could issue a policy statement governing indirect sampling to provide additional transparency. It could indicate best-practice approaches from a range of perspectives and establish a hierarchy of possible items that could be seized that may yield a biological sample capable of DNA analysis. For example, from a scientific perspective, a toothbrush is preferable to a hairbrush; from a privacy perspective, a toothbrush is preferable to underpants; from a tikanga perspective, samples of saliva are preferable to blood samples; from a wider systems perspective, medical samples should only ever be used as a last resort to avoid undermining valuable medical regimes (as we discuss further below).
9.74 A policy statement could be developed in partnership with Māori and with the involvement of the Privacy Commissioner and/or an oversight body with capacity to consider Treaty of Waitangi, NZBORA, tikanga and privacy issues. A policy statement could also help to explain the relationship between the CIBS Act and the Search and Surveillance Act if the search powers remain governed by the Search and Surveillance Act alone.

Supplementary auditing and/or reporting


9.75 Indirect suspect sampling squarely engages information privacy principle 2: Where an agency collects personal information, the agency shall collect the information directly from the individual concerned. It therefore might be appropriate for the Privacy Commissioner to have an auditing role to ensure that indirect suspect sampling is only undertaken in cases where it is justified.
9.76

2018_4315.png

Alternatively, reporting obligations in relation to indirect suspect sampling could be included in new legislation. An oversight body could then monitor any trends in the increased use of indirect, as opposed to direct, suspect sampling.




Q17
Instead of obtaining a reference sample directly from a suspect, do you think that
a police officer should be able to seize a personal item belonging to the suspect or something that they have touched in order to compare it to a crime scene sample? If so, in what circumstances do you think this would be appropriate?

NEWBORN BLOOD SPOT CARDS


9.77 Additional legal and policy issues arise in relation to the use of biological samples that have been collected from the suspect for a different purpose, such as medical samples. Indirect suspect sampling that targets these samples has the potential to undermine the

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purpose for which the sample was originally collected. A prime example of this is Police use of the blood spot cards that are stored by the Ministry of Health following newborn metabolic screening.

Background


9.78 The Newborn Metabolic Screening Programme was established in 1969 as a national programme to screen babies for certain serious metabolic disorders.77 Early detection and treatment of these disorders is important in reducing morbidity and mortality.78 The programme has a nearly 100 per cent population coverage, and approximately 45 babies each year are identified as having a disorder.79
9.79 To undertake the testing, a blood sample is collected, with parental consent, from the baby’s heel onto a blood spot card. The card is sent to the laboratory for testing. The residual blood spot sample on the card is stored indefinitely unless the family requests its return. Usable DNA information can be obtained from the blood spot cards, so the stored cards provide a unique source of DNA information relating to hundreds of thousands of New Zealanders.
9.80 According to Ministry of Health information, the blood spot cards that are retained may be used for: 80
9.81 Forensic use of the blood spot cards is governed by a Memorandum of Understanding between Police and the Ministry of Health (the MOU).81 In accordance with the MOU, Police may only seek access to newborn blood spot cards for:
9.82 The MOU provides that Police can apply for a search warrant in the normal way to seize the biological sample on a blood spot card to create a DNA profile if they require it for
  1. This includes cystic fibrosis, congenital hypothyroidism, congenital adrenal hyperplasia and severe combined immune deficiency.
  2. When metabolic disorders are diagnosed early, treatment can be started straight away. This can reduce the chance that the baby will experience brain or other permanent damage, which in some cases can be life-threatening.

79 National Screening Unit “About the Newborn Metabolic Screening Programme” (1 December 2014) <www.nsu.govt.nz/>.

  1. National Screening Unit “Frequently asked questions” <www.nsu.govt.nz/pregnancy-newborn-screening/newborn- metabolic-screening-programme-heel-prick-test/frequently-asked>.
  2. New Zealand Police and Ministry of Health Memorandum of Understanding “The disclosure of newborn blood spot samples and related information” May 2014.

<https://www.nsu.govt.nz/system/files/page/schedule_2._moh_and_nz_police_may_2014_0.pdf>

82 At [2.2].

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“any criminal investigation other than one in which the request relates to a victim and is for the purpose of identification”.83
9.83 The overriding principle enshrined in the MOU is that:84

The blood spot card and information associated with it is collected for health purposes only. Any use of the blood spot card for any non-health related purposes is exceptional. The police should have recourse to the blood spot cards and associated information only rarely, and as a last resort.

T v R


9.84 The use of search warrants to obtain access to blood spot cards was discussed in the 2016 case of T v R.85 This case involved a baby who was suspected to have been the product of incest. The baby died, and during the post mortem, a police officer asked the pathologist to obtain a biological sample to enable Police to check whether the baby was the product of incest. There was other evidence suggesting that incest had occurred, and Police had previously collected samples from both parents.86 There was no suggestion that incest was relevant to the cause of the baby’s death, and the parents successfully argued that Police and the pathologist had no authority to obtain a separate sample from the baby during the post mortem for the purpose of investigating the incest.
9.85 In its judgment, the Court of Appeal considered other lawful ways in which Police could have potentially obtained a biological sample from the baby for DNA analysis. The Court discussed obtaining a search warrant for biological samples that had been legitimately taken from the baby during the post mortem and obtaining a search warrant in respect of the baby’s belongings in the house. The Court also discussed the possibility of obtaining a search warrant for the baby’s blood spot card. Technically, if this had occurred, the blood spot card would not have been used to identify an otherwise unknown victim (as per the MOU) but would instead have been used to identify whether the baby was a victim. In effect, it would also identify the baby’s parents as offenders. We note that, for this reason, incest cases are unusual in that the sample could be used to identify the victim or the suspect or both.

Issues


9.86 Putting to one side the issue of whether a search warrant is technically available under the Search and Surveillance Act, we have some concerns about Police using newborn blood spot cards in criminal investigations.
9.87 First, in terms of tikanga, some biological samples are more tapu than others. For example, a saliva sample taken from a toothbrush may not attract the same level of tapu as a personal or medical item with blood on it. The purpose for and circumstances in which a medical sample is taken may also impact on this, and birth, in particular, is a time

83 At [3.1.2(c)].

84 At [2.1].

85 T v R [2016] NZCA 148.

  1. The parents already had one conviction for incest, which related to the baby’s older sister. In light of that conviction, their DNA profiles were both on the known person databank. Accordingly, a DNA profile from the baby could have been uploaded onto the Crime Sample Databank, which would then have been compared to the known person databank to reveal the match. Alternatively, police officers could have applied for suspect compulsion orders under Part 2 of the Criminal Investigations (Bodily Samples) Act 1995.

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of heightened tapu. Recognition of the cultural and spiritual implications of obtaining human tissue is also central to the philosophy behind the Human Tissue Act.87
9.88 Second, we share the concerns raised by the Privacy Commissioner about the impact that police use of newborn blood spot cards may have on public trust and confidence in the Newborn Metabolic Screening Programme.88 We acknowledge that the Privacy Commissioner was consulted on the current MOU and that, in 2013, the Health Information Privacy Code was amended to improve protections around use of the cards.89 Despite this, the National Screening Unit, which administers the screening programme, still has a number of concerns.
9.89 The Screening Unit’s concerns relate to the prospect of a police officer obtaining a search warrant for a blood spot card for the purpose of identifying a suspect as opposed to a victim. The Unit is of the view that, if the public were aware that there is a mechanism by which Police could access the blood spot cards for this purpose, fewer people would consent to their babies participating in the Newborn Metabolic Screening Programme, thus jeopardising the societal utility that the screening programme brings. We understand that parents often ask the Unit about this possibility, which is why the Unit fears that this information may have an impact on consent, even though families are told that they may request to have the blood spot card returned following screening.
9.90 The Screening Unit is also mindful of events in Western Australia where, in 1997, a hospital destroyed its entire collection of blood spot cards following Police seizure of a card pursuant to a search warrant. Western Australia subsequently implemented a rule that blood spot cards must be destroyed after two years.90
9.91 While Police note that the circumstances in which it would consider the use of a blood spot card would be rare, it does consider that it is important to retain the ability to use the search warrant process to access blood spot cards to assist in identifying a suspect. In T v R, the Court of Appeal noted that it may not have been possible to be sure that any DNA obtained from the baby’s belongings was definitely attributable to the baby, given the number of people living at the house. The Court commented that “issues of proof of whose bedding and whose clothing items could have arisen”.91 These comments suggest that, in the Court’s view, where indirect suspect sampling is justified as a last resort in a case, a blood spot card may be the best source of DNA definitively attributable to the suspect.

Options for reform


9.92 Broadly speaking, there appear to be two options for reform: enshrine the MOU in legislation or prohibit the use of blood spot cards to identify suspects.




87 Human Tissue Bill 2007 (82-2) (explanatory note) at 3.

88 Marie Shroff “NZ Doctor Series – Privacy Matters (#32)” (25 April 2013) Office of the Privacy Commissioner

<www.privacy.org.nz>.

89 See Health Information Privacy Code 1994 Amendment No. 7 (30 April 2013).

90 Department of Health Government of Western Australia “Your baby’s newborn bloodspot screening test”

<www.healthywa.health.wa.gov.au>.

91 T v R [2016] NZCA 148 at [60].

187 CHAPTER 9: REFERENCE SAMPLES – INDIRECT COLLECTION

Enshrine the MOU in legislation


9.93 The MOU states that, to use a blood spot card in a criminal investigation (for a purpose other than identifying a victim), a police officer must obtain a search warrant, and this may only be done as a last resort. By giving the MOU legislative standing, the legal position would be clear and it would be easier for the Screening Unit to explain to parents. Judges would also be required to determine that other investigative avenues had been exhausted prior to issuing the warrant.
9.94 However, this option would not address the Screening Unit’s concern that parents may refuse to let their babies be screened due to fears that the blood spot cards could later be used by Police to identify their child as a suspect in a future criminal investigation. It is likely to be extremely rare for Police to use the blood spot cards for this purpose, and potentially additional education around this could alleviate parental concerns. However, if the law enforcement need for this power is such a remote possibility, there is a question as to whether it needs to be available at all.

Prohibit use of the blood spot cards to identify suspects


9.95 Under this option, use of blood spot cards to identify a suspect would be prohibited, but the cards would still be available for the identification of victims in criminal investigations. We understand that this is usually dealt with by consent. This could be set out in a statutory provision to provide legal certainty and transparent assurance to participants in the screening programme.
9.96 A separate decision would need to be made in relation to incest cases, like T v R. In those cases, the reason for obtaining the blood spot card is to identify whether the child is a victim, but in doing so, the card identifies the suspect. As identification of the suspect is secondary, technically the card is not being used to the direct detriment of its “owner”. The policy considerations in these cases are different.
9.97

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This option would protect against any further decline in public confidence in the Newborn Metabolic Screening Programme. However, it is already used as a last resort and only with pre-approval from a judge in the form of a search warrant, and prohibition would remove an investigative tool from Police where there may be no other avenues.



Q18
Instead of obtaining a reference sample directly from a suspect, do you think that
a police officer should be able to obtain access to the suspect’s newborn blood spot card in order to compare it to a crime scene sample? If so, in what circumstances do you think that would be appropriate?

SEARCH POWERS RELATED TO DRUG AND ALCOHOL TESTING


9.98 Another biological sample that could be used by Police for indirect suspect sampling is the saliva or blood that is collected during breath or blood alcohol testing. Police might also obtain hair samples to test for exposure to drugs and routinely take fingerprints from people in custody for identification. These samples are scientifically capable of being analysed to create a DNA profile.

DNA - DNA IN CRIMINAL INVESTIGATIONS 188



9.99 The New Zealand Court of Appeal touched on this issue in the 1992 case R v Salmond.92 The Court held that the use of blood samples taken under the Transport Act 1962 must be confined to a purpose that served the object of the Act – road safety. This approach was discussed by the Supreme Court in R v Ngan, which noted that the court in Salmond:93

may have been influenced by the fact that the taking of the blood sample (“a sensitive matter of great public concern because of the invasion of individual privacy and bodily integrity”) was an action which would have been unlawful, a trespass to the person, if not authorised by statute for a limited purpose.

9.100 In light of Salmond and more recent jurisprudence around section 21 of NZBORA, we consider that, if a police officer obtained a biological sample from a suspect for one purpose, such as breath testing, and then used it to generate a DNA profile, that would probably amount to an unreasonable search.
9.101 However, we note that, in Australia, the courts have held that it was lawful for police officers to conduct a “random” breath test to obtain a reference sample from a suspect.94 The court did state, however, that it would only condone the use of powers for an ulterior motive in exceptional cases. In the United States, the courts have also held that it was lawful to obtain DNA profiles from saliva left on police equipment following evidential breath tests.95
9.102 The current position whereby this would be unlawful in New Zealand seems appropriate and we are unaware of any law enforcement need to change this.

CLOSE GENETIC RELATIVES


9.103 Relatives share a similar genetic makeup. The closer the relation, the greater the amount of genetic material they will share. A family member of a suspect, for example, their parent, child or sibling, may consent to giving a sample if the suspect themselves is unavailable – for instance, if they have left the country. A DNA sample from a genetic relative could be used to inculpate or exculpate a suspect.96
9.104 Currently, there is nothing in the Act that prohibits Police obtaining a databank consent sample from a family member (under Part 3 of the CIBS Act). The DNA profile generated from that sample could then be uploaded to the known person databank and compared to the CSD. If there is a near match to the crime scene profile in question, it may implicate




92 R v Salmond [1992] 3 NZLR 8 (CA).

93 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48 at [36].

94 R v Daley [2001] NSWSC 1211.

  1. Tonto Corbin v State of Maryland 428 Md 488, 52A 3d 946 (MD 2012): The Court held that the defendant, who was on probation for a drunken driving offence, had no legitimate expectation of privacy in DNA taken from saliva that he left on a straw in the course of complying with an alcohol monitoring programme. In The People v Troy Corsby Thomas 200 Cal App 4th 338, 132 Cal Rptr 3d 714 (Cal 2011), the Court held that the defendant had no privacy in a mouthpiece used for a breath test.
  2. Obtaining a DNA sample from a close genetic relative of a suspect is distinct from the practice of familial searching, which is discussed in Chapter 13. Familial searching is when there is no suspect and all other leads in a case have been exhausted and a crime scene sample is then compared to the databank of known people. Both practices are based on the fact that siblings, parents and children will have genetic material in common.

189 CHAPTER 9: REFERENCE SAMPLES – INDIRECT COLLECTION



the person’s close relatives. We are not aware of this ever having occurred in New Zealand.97

Issues


9.105 The intrusion associated with the State obtaining a reference sample from a person who has no direct connection to the offence under investigation is a major issue. There could be significant privacy implications for the relative as well as for the suspect. Because DNA is shared by close relatives, use of this method raises questions around whose information a relative is giving, and it fails to address a collective interest in the DNA information. This has particular implications for Māori, currently over-represented in the criminal justice system and more likely to be adversely affected by use of discretionary powers. There are also tikanga and privacy concerns with the collective interest in whakapapa information.
9.106 There are also real questions around whether it is possible to give meaningful informed consent to such a process. We note that the situation may be different if a genetic relative is volunteering a sample in order to exculpate a relative. This may be a place for informed consent, but any consent process would need to be carefully considered in order to address concerns as to whose information is being volunteered. It is always possible that a well-intentioned relative may inculpate rather than exculpate a suspect. Informed consent is discussed in Chapter 8.
9.107 The relationship between this method of indirect sampling and the direct sampling methods in the CIBS Act is also unclear.

Options for reform


9.108 There are a number of options to address these issues:




  1. As we note in Chapter 8, Police do obtain elimination samples from relatives of a missing person or for the purposes of identifying victims of disasters. However, these samples are not to be used for any other purpose.
  2. Chapter 15 outlines various options for the establishment of such an oversight body and explores how it might operate in practice.


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DNA - DNA IN CRIMINAL INVESTIGATIONS 190




Q19
Instead of obtaining a reference sample directly from a suspect, do you think that
a police officer should be able to obtain a reference sample from one of the suspect’s close relatives in order to compare it to a crime scene sample? If so, in what circumstances do you think this would be appropriate?

GENEALOGICAL WEBSITES


9.109 It may be possible for police officers to find a lead in an investigation by matching publicly available DNA information, such as from a publicly available genealogical website, with DNA recovered from victims and crime scenes.99 The finding of some shared genetic material between the two profiles may indicate a genetic relationship.100
9.110 There have been high-profile uses of this technique by law enforcement agencies overseas,101 including the discovery of the identity of the “Golden State killer” in California in April 2018. The name was given to a serial killer, rapist and burglar allegedly responsible for at least 12 murders, more than 50 rapes and more than 120 burglaries from 1976 to 1986. It was not until years later that DNA methods connected the crimes to the same offender. The forensic DNA databases maintained by law enforcement did not contain the offender’s profile. The task force hunting the offender uploaded a DNA profile from one of the crime scenes onto GEDmatch, a publicly available genealogy website launched in 2010.
9.111 GEDmatch is not a genetic testing service. Instead, its users upload a DNA profile already obtained from a commercial genealogy website.102 The GEDmatch software then searches the database and finds other profiles that share some genetic material.103
  1. See Chapter 13 for a discussion of familial searching, which uses a similar process but in relation to a search of the known person databank.
  2. This process is similar to familial searching, which is discussed in Chapter 13 but with an important distinction. The genetic information contained in databases (such as the known person databank in New Zealand and those maintained by law enforcement authorities in other jurisdictions) is currently limited to a number of particular sites in the genome called STRs. This enables identification of only close relatives. Consumer genetics services by contrast use SNPs, which provide a greatly increased ability to identify genetic relationships. In contrast, as the Chief Science Officer of My Heritage put it, in an SNP database, “You are a beacon who illuminates 300 people around you”: Benjamin Oreskes, Joseph Serna and Richard Winton “False starts in search for Golden State Killer reveal the pitfalls of DNA testing” Los Angeles Times (online ed, Los Angeles, 4 May 2018). See Chapter 3 for a discussion of both of these analysis techniques.
  3. GEDmatch had already been a source of genetic leads for law enforcement who had sought help from genealogists to develop the information received. The “Buckskin girl” case in April 2018 involved the use of GEDmatch to identify a long-deceased homicide victim: DNA Doe Project “Buckskin Girl” (10 April 2018) <www.dnadoeproject.org>. Other cold cases since progressed in this way include investigations in Pennsylvania in June 2018 (the 1992 murder of Christy Mirack) and in Indiana in July 2018 (the 1988 murder of April Tinsley).
  4. For example, Ancestry.com or 23andMe. Those commercial services state that they will not supply genetic information to law enforcement unless required by a court order, search warrant or subpoena: see the privacy statement for Ancestry.com at Ancestry “Your Privacy” (April 30, 2018) <www.ancestry.com> and for 23andMe at 23andMe “Privacy Highlights” <www.23andme.com>. Neither accept data from other sources, and both require clean saliva samples for testing which limits any potential use by law enforcement authorities. Both publish transparency reports annually that contain the number and status of law enforcement requests. Our research indicates that no successful requests have been made. In July 2018, the Future of Privacy Forum in cooperation with genetic testing companies published Privacy Best Practices for Consumer Genetic Testing Services (July 2018), described as a “policy framework for the collection, retention, sharing and use of Genetic Data generated by consumer genetic and personal genomic testing services”: at 1.
  5. GEDmatch requires the potential user seeking to upload their genetic data to register a name and email address (which will be visible in GEDmatch lists) and a password. The user then receives a confirmation email from GEDmatch and adds

191 CHAPTER 9: REFERENCE SAMPLES – INDIRECT COLLECTION



9.112 In the Golden State killer case, GEDmatch found profiles that shared some DNA with the crime scene sample profile.104 Law enforcement officers used this information to construct family trees and develop lists of possible suspects. Once they focused in on a key suspect, Joseph DeAngelo, enforcement authorities conducted surveillance on him and reportedly obtained DNA evidence from sweat left on his car door and from tissues discarded in his rubbish. He was arrested in April 2018 and is now awaiting trial on multiple murder and rape charges.
9.113 GEDmatch terms and conditions at the time contained no information about possible use of the database by law enforcement authorities. The privacy policy was amended in May 2018 and now expressly contemplates “[f]amilial searching by third parties such as law enforcement agencies to identify the perpetrator of a crime, or to identify remains”. 105

Issues


9.114 Concerns have been raised about the use of information from genealogical websites as an alternative to legislative schemes that regulate the use of DNA analysis for law enforcement purposes, for example, the genetic privacy implications since DNA is by its very nature shared information, the normalisation of the use of familial searching as an investigative tool without constraints and the fact that these databases hold much more comprehensive genetic information than forensic databases currently do and are not subject to legislative or other constraints in terms of collection of samples or searching.106
9.115 In New Zealand and overseas, use of genealogical websites for law enforcement purposes is currently unregulated.
9.116 As with asking a genetic relative to provide a reference sample, consent is a significant issue with indirect profile matching using genealogy websites. GEDmatch’s privacy policy says its tools are “for comparison and research purposes” and “if you require absolute privacy and security, we must ask that you do not upload your data to GEDmatch”. However, as New York University law professor Erin Murphy, who researches forensic technology, commented in a 2018 article in the Washington Post:107

Even the people who consent by uploading their DNA often don’t imagine the ways their information will be used. ... They aren’t really thinking through the implications of creating this treasure trove of data that can be mined ... Even if [users are] content with making that trade-off with their personal data, they’re also making that trade-off with their extended family, their children, their children’s children ... And they’re not just making it for 2018, but for 2020 and 2040, when data from the genome could be used in all sorts of different ways.

the code supplied to complete registration and upload the data. The actual process is not completely clear in the absence of actual registration, but it appears that a user certifies that the DNA data was their own or belonged to someone for whom they were the legal guardian or that they had “obtained authorization” to upload the data. The user then attaches a DNA data file and sets privacy options. Results are processed and appear on the user’s home page. See GEDmatch.com “Terms of Service and Privacy Policy” (20 May 2018) <www.gedmatch.com/tos.htm>.

  1. At the time, GEDmatch contained nearly 900,000 profiles, which meant a search of the genetic information of a very large group of individuals but without any suspicion that a particular individual was connected to the particular crime.
  2. GEDmatch.com “Terms of Service and Privacy Policy” (20 May 2018) <www.gedmatch.com/tos.htm>. It also advised users not to provide raw data or to remove data already provided if users found this use ‘unacceptable’.
  3. See Natalie Ram, Christi J Guerrini and Amy L McGuire “Genealogy databases and the future of criminal investigation” (2018) Science 360(6393) 1078 at 1078 and Erlich Y and others “Identity inference of genomic data using long-range familial searches” (2018) Science 362(6415) 690.
  4. Justin Jouvenal and others “Data on a genealogy site led police to the ‘Golden State Killer’ suspect. Now others worry about a ‘treasure trove of data’” The Washington Post (online ed, Washington, 27 April 2018).

DNA - DNA IN CRIMINAL INVESTIGATIONS 192

Options for reform


9.117 There is little that can be done to regulate the privacy policies or informed consent procedures of a genetic information service such as GEDmatch based in another jurisdiction. The DNA information is generated lawfully by other people and is publicly available, so Police use of it probably would not amount to a “search” for the purposes of NZBORA either. It would be difficult to maintain a reasonable expectation of privacy in genetic data that is voluntarily shared.
9.118 The information privacy principles may apply though, meaning that again Police would need a reason not to opt for direct sampling and must collect the information by means that are fair and that do not intrude to an unreasonable extent upon the personal affairs of the individuals concerned.
9.119 Police has stated in response to the public interest created by the Golden State killer investigation that “Police has not and is not considering the use of genetic information contained on consumer genealogical websites”.108
9.120

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There may be benefits in Police developing a policy statement to explain to the public the circumstances in which this technique would ever be used. The statement could be developed in consultation with Māori, the Privacy Commissioner and/or an oversight body. Alternatively, an oversight body could be given a monitoring role to ensure that the collective privacy of individuals was being given adequate weight in making investigative decisions.



Q20
Do you have any concerns about Police using information that is publicly available
on genealogical websites as an investigative tool to help identify potential suspects in criminal investigations?






















  1. Deena Coster “Law commission review of DNA law will look at use of genealogical websites” Stuff (online ed, 12 August 2018).
















Part C


The databanks































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DNA - DNA IN CRIMINAL INVESTIGATIONS 194

CHAPTER 10



Crime Sample Databank




10.1 The Institute of Environmental Research (ESR) maintains the Crime Sample Databank (CSD) on behalf of New Zealand Police. It contains DNA profiles generated from biological samples collected from crime scenes. The Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) clearly regulates the known person databank,1 but the existence of the CSD is something that the reader can only infer.
10.2 In this chapter, we describe the CSD and how it is used and regulated. We begin by describing Police and ESR policies, agreements and practices that govern the CSD. We then discuss applicable legal principles, identify areas for improvement and suggest options for reform in order to:

POLICE AND ESR POLICIES, AGREEMENTS AND PRACTICES RELATING TO THE CSD


10.3 The section below describes Police and ESR policies, agreements and practices that govern the use of the CSD. The description is based on information and documentation provided to us by Police and ESR, including the Forensic Science Services Agreement between Police and ESR 2018–2021.2 As some of these documents have been provided to us on a confidential basis or are commercially sensitive, we are unable to quote from them. We have provided references where possible. We have also relied on the PhD dissertation of Catherine Gardner: “Does Police Culture Prevent the New Zealand Police from Making the Best Use of DNA Technology to Investigate Crime?”3

When do Police send crime scene samples to ESR for analysis?


10.4 Not all criminal investigations involve a crime scene examination, and not all crime scene examinations result in biological samples being sent to ESR for analysis. There is a significant difference between the overall number of incidents that occur and the number


1 The known person databank is discussed in Chapters 11, 12 and 13.

2 See Key terms and actors at the beginning of the issues paper for discussion of this agreement.

  1. Catherine Gardner: “Does Police Culture Prevent the New Zealand Police From Making the Best Use of DNA Technology to Investigate Crime?” (PhD Dissertation, Auckland University of Technology, 2014). Gardner is a Police employee.

195 CHAPTER 10: CRIME SAMPLE DATABANK



of cases in which a usable DNA profile is generated. This number diminishes at each step in the process, as illustrated below:4

Incident occurs

Crime scene examination with a forensic

specialist

Crime scene sample collected

Crime scene sample submitted for analysis

Profile


Categories for analysis: “non-suspect volume crime” and “priority crime”


10.5 If a decision is made to send crime scene samples to ESR in a particular case, the case will be categorised as either “non-suspect volume crime”, for which a fast-track service is available, or “priority crime”. Volume crime is the term used to describe general theft, burglary or vehicle crime. (Vehicle crime includes unlawful taking of, and theft from, vehicles.) Non-suspect volume crime refers to cases of volume crime where police officers do not have a reference sample from a suspect for analysis. Priority crime refers to all other cases where crime scene samples are sent to ESR for DNA analysis, including sexual and violent offences.
10.6 Over 98 per cent of the profiles currently on the CSD relate to individuals. These are known as single contributor DNA profiles. The remaining profiles relate to multiple people.5 Most of the cases that Police refer to ESR for DNA analysis involve non-suspect volume crime. At present, 77 per cent of the single contributor DNA profiles on the CSD relate to cases of non-suspect volume crime. For non-suspect volume crime, Police has agreed to limit the number of samples it sends for analysis in each case to five or fewer. As a result, although the priority cases are fewer in number, they take up more of ESR’s time because there is no limit on the number of samples Police may ask ESR to analyse.

When does ESR upload DNA profiles to the CSD?

The quality threshold for single contributor DNA profiles


10.7 Due to the variable nature and quality of crime scene samples, it is common for ESR to only be able to generate a partial DNA profile from the sample. Therefore, having a quality threshold is very important.

4 Crime scene examinations are discussed in more detail in Chapter 5.

  1. These profiles are generated from mixed crime scene samples that could not be resolved using STRmix (a software program). A more detailed explanation of mixed crime scene samples and STRmix can be found in Chapter 3.

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10.8 If the quality threshold was not met and, for example, a profile with only one STR was uploaded to the CSD, this may result in matches to hundreds of other profiles on the CSD and the known person databank. This information would be of little practical use to police officers or, in the worst-case scenario, could lead to a false positive or adventitious match (that is, a match to the profile of a known person who had the same STR but was not the owner of the profile).6
10.9 ESR has a policy of strongly recommending that no single contributor7 crime scene profile is uploaded to the CSD unless it meets the quality threshold of a minimum number of STRs or alleles.8 These STRs or alleles must have a sufficiently high degree of cross-over with the STRs targeted by the analysis kits ESR has previously used.9 This ensures that meaningful comparisons can be made to other profiles, including profiles from cases where older analysis kits were used.10
10.10 At 30 June 2019, there were 40,553 single contributor crime scene profiles on the CSD. It is clear from data provided to us by ESR that the vast majority meet the quality threshold. Table 1 shows the types of DNA analysis kits that were used to generate these profiles, the maximum number of alleles that a kit could analyse if the samples had been of good quality (not degraded) and how many alleles were present in the actual crime scene profiles that were uploaded.

Table 1: Quality of DNA profiles on the CSD

DNA ANALYSIS KIT USED
NUMBER OF PROFILES ON THE CSD
NUMBER OF ALLELES POSSIBLE
RECOMMENDED QUALITY THRESHOLD
RANGE OF ALLELES
AVERAGE NUMBER OF ALLELES
SGM
824
14
N/A
10–14
13.7
SGMPlus
18,950
22
10
10–22
21.4
Identifiler
20,090
32
15
7–32 (although only two have fewer than 10)
30.6
Globalfiler
688
46
N/A
24–46
44.4
  1. As noted in Chapter 3, by “adventitious match” or “false positive”, we mean that, purely by chance, the STRs in both profiles (the crime scene profile and the DNA profile of the known person) are the same at each locus tested – yet the crime scene profile did not come from the known person but from a different person. This is possible within a large population group. As the number of loci tested has increased, the risk of adventitious matches has reduced. However, if a crime scene profile is degraded or partial, this increases the chance of an adventitious match.
  2. A “single contributor profile” is where the crime scene profile only contains the DNA of one person (whose identity is at that point unknown). This is as opposed to mixed crime scene profiles.
  3. An allele is one of many forms that a genetic marker at a particular locus may take. In the context of STR profiling, this is the difference in the number of repeats of the DNA sequence at that locus. The data (for any given person) typically shows two allele sizes (shown as numbers) at each locus: one allele contributed by the person’s biological mother and the other allele contributed by the biological father. STRs are described in more detail in Chapter 3; see also the Glossary at the beginning of this issues paper. A different quality threshold applies for unresolved mixed crime scene profiles, as we explain further at [10.24] to [10.28].
  4. That number depends on the type of kit that is used. The Identifiler kit is usually used to analyse crime scene samples. ESR currently uses the Globalfiler kit to analyse samples from known persons.

10 The different kits that have been used by ESR over time are explained in more detail in Chapter 3.

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10.11 ESR has advised us that it very rarely uploads DNA crime scene profiles to the CSD that do not meet the quality threshold. We understand that this only occurs where ESR and Police have carefully considered the merits of this approach, in light of the quality of the particular crime scene profile and the overall circumstances of the case. ESR explained that the profile is uploaded to the CSD, compared to the other profiles on the known person databank and then immediately removed. This means that ESR in effect undertakes a one-off comparison between the crime scene profile and the databank in these cases, rather than storing the profile on the CSD.

Non-suspect volume crime cases – the fast-track service


10.12 The fast-track service that ESR offers for non-suspect volume crime cases involves analysing the crime scene sample, uploading any resultant profile to the CSD, looking for a match within the CSD or with a profile on the known person databank and reporting the results back to Police within five days. ESR has established three criteria for the analysis request to qualify for this service:
10.13 With non-suspect volume crime cases, if ESR’s quality threshold for a crime scene profile is met, the profile is automatically uploaded to the CSD.

Priority crime


10.14 All other criminal cases in which samples are sent to ESR for DNA analysis are categorised as priority crime. These are predominantly cases involving violent and sexual offending or volume crime cases where a reference sample has been obtained from a suspect. For priority crime, the decision whether to upload a single contributor profile to the CSD is made by ESR using internal guidelines. The guidelines establish two criteria for making this decision:
ESR’s assessment of the second criteria is based on information provided by Police regarding the circumstances of the case.

Looking for and reporting matches


10.15 If a decision is made to upload a single contributor DNA profile to the CSD, the first step is for an ESR scientist to compare the profile to elimination profiles obtained from investigators. This step is designed to swiftly identify any profile that may be the result of accidental contamination of the crime scene sample.11
10.16 ESR maintains two elimination databanks for this purpose. One contains profiles from ESR staff and people who have visited ESR’s forensic laboratories. The second is the Police
  1. As we discussed in Chapter 7, the advent of trace DNA analysis means that crime scene profiles can now be generated from items that people have merely touched at crime scenes. This means that, even if samples are handled carefully, contamination is possible.

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Criminal Investigators Elimination Database (CIED).12 This contains profiles from Police employees and other forensic practitioners.
10.17 In addition to these two databanks, elimination samples may be submitted to ESR for analysis in relation to specific cases.13 These elimination samples could be from investigators or other people who have had legitimate access to the crime scene, such as a complainant or victim, or third parties – for instance, consensual sexual partners, family members or flatmates.
10.18 If there is a match between a new crime scene profile and a profile on the ESR or Police CIED, the new profile is ‘quarantined’ and not uploaded to the CSD. Quarantined profiles are investigated at a later date. New profiles that match any elimination sample sent to ESR for analysis in relation to the specific case are also set aside. Only profiles that do not match any elimination profiles are uploaded to the CSD.
10.19 After uploading the single contributor profile, ESR runs a comparison of the new profile against the other profiles already on the CSD. If there is “correspondence” between the new profile and any existing profile on the CSD, an internal report is generated. ESR will then run a comparison between the CSD and the known person databank. Again, if there is a correspondence between the new profile and a profile on a known person databank, another internal report is generated.
10.20 At the end of this comparison process, the scientist prints out, examines and codes each internal report. Broadly, ESR’s internal coding options are as follows:14



  1. Section 82 of the Policing Act 2008 provides that Police employees and associates may voluntarily provide a biological sample for DNA profiling. The Policing Act does not, however, expressly mention the Police Criminal Investigators Elimination Database (CIED). Section 83(2) sets out restrictions regarding the use of a DNA profile obtained pursuant to section 82. The Police Manual states it must be used only for matching against other information held by Police for the purpose of eliminating the person from being considered in the investigation of crime and the profile is not admissible in evidence in any proceedings against the person even after they cease to be a Police employee or Police associate. The providing of samples for inclusion on the CIED is voluntary. Police employees and other selected forensic practitioners (such as pathologists) have two options: to provide an elimination sample for a specific case or for inclusion on the CIED for comparison against future cases. There is a right to withdraw consent. If an individual withdraws consent or leaves Police, the DNA profile and related information will be removed from the elimination database. Police Manual DNA Sampling at 49.

13 See the discussion of elimination samples in Chapter 8.

14 This is the broad process but does not cover all scenarios and aspects that an ESR scientist may take into account.

  1. ESR has told us that an assessment of “low evidential value” would only ever occur with a crime scene to crime scene correspondence (when there is limited information present in the profiles) and not when the known person databank is involved.

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10.21 At the end of the coding process, ESR will generate a databank link report for all of the confirmed matches. ESR will then send the link reports to Police’s district forensic intel email mailboxes and to the officer in charge of the relevant investigation. The link reports are then reviewed, and police officers are tasked to undertake further inquiries where appropriate.

Removal of profiles from the CSD


10.22 Generally, all profiles uploaded to the CSD will remain on the databank indefinitely – regardless of the outcome of the associated case.17 This means that, even if a case is resolved – including if a decision is made not to lay any charges – the crime scene profile will continue to be compared to all profiles that are subsequently uploaded to the CSD and to the known person databank indefinitely.
10.23 There are two exceptions to this. First, as discussed at [10.11], ESR will remove a crime scene profile immediately after conducting a one-off comparison process if the profile was below the quality threshold but the comparison was nonetheless considered useful. Second, Police may ask ESR to remove a profile if it is later discovered that the profile belongs to a person who legitimately had access to the relevant crime scene – for example, the victim, a third party or an investigator. We understand, however, that such requests are rare.

Mixed crime scene profiles


10.24 As discussed in Chapter 3, approximately half of all crime scene samples analysed by ESR contain DNA from more than one contributor. ESR’s policy is that mixtures that contain DNA from up to four contributors can be resolved using a software program called STRmix and that the resultant profiles can be uploaded (as single contributor profiles) to the CSD. However, some mixtures cannot be fully resolved, and the mixture may be uploaded to the CSD as a mixed crime scene profile.
10.25 STRmix software is then used to compare each profile on the known person databank to each of the mixed crime scene profiles. The program calculates how likely it is that each known person was one of the contributors to each mixture. This results in a match likelihood ratio. If any match likelihood ratio between a known person and a mixture is over 1:1,000,000, a link report is generated and sent to Police in the same way as link reports generated in relation to single contributor DNA profiles.
10.26 If a match likelihood ratio in any given case is less than 1:1,000,000, ESR may still decide to provide a link report. This decision will depend on the exact match likelihood ratio and all of the circumstances of the case. If such a link report is supplied, ESR’s policy is to include in the report a warning about the risk of a false positive or adventitious match – put simply, a chance match to the wrong person.18
  1. The different kits used by ESR to analyse biological samples to generate DNA profiles are described in more detail in Chapter 3.

17 Police Official Information Act response at [32]–[33] in Police v SJ [2017] NZDC 17314, [2018] DCR 587.

  1. As noted in Chapter 3, by “adventitious match” or “false positive”, we mean that, purely by chance, the STRs in both profiles (the crime scene profile and the DNA profile of the known person) are the same at each locus tested – yet the

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10.27 ESR began uploading unresolved mixed crime scene profiles to the CSD in 2013. There are now 673 mixed profiles on the CSD, 68 per cent of which relate to priority crime and 32 per cent to non-suspect volume crime.
10.28 The links generated from mixed crime scene profiles are not taken into account in calculating the link rate, which is used to measure the effectiveness of the CSD. The link rate is discussed further below.

POLICE USE OF THE CSD


10.29 Since 2005, ESR has sent between 1,300 and 3,400 link reports to Police each year.19 The number of links reported each year is recorded in Police annual reports.20 However, Police does not routinely monitor what happens after it receives the link reports. This means that, while it is clear how many investigative leads are generated using the CSD, it is not clear to what extent those leads are of value in resolving criminal investigations.
10.30 A PhD dissertation submitted in 2014 aimed, in part, to address this gap in the available data.21 The dissertation, undertaken by a Police employee, involved an analysis of all available case files in the Auckland City District from 2005 where DNA was found at the crime scene and ESR reported a match to Police22 – 302 case files met the applicable criteria but only 146 were available to be used in the research. The dissertation also drew on interviews with 27 Police employees of varying levels of seniority and an ESR employee.
10.31 Despite its age, this research (which we refer to as the Auckland City District Study) remains the most comprehensive data available. We understand that, although changes have been made to the CIBS Act and to Police policies in the intervening years, many of the problems identified are likely to be same today. This conclusion is supported by an internal follow-up study Police conducted in 2017. As a consequence, Police has established a National Clearances Steering Group to improve case clearances and resolutions.

The Auckland City District Study


10.32 The Auckland City District Study illustrates how DNA is only collected from a small percentage of crime scenes, and even when it is collected, a DNA profile created and a link report generated, ESR’s identification of a suspect may not result in apprehension of the offender. The overall picture that emerged from the 146 cases is illustrated in Table 2.

crime scene profile did not come from the known person but from a different person. This is possible within a large population group. As the number of loci tested has increased, the risk of adventitious matches has reduced. However, if a crime scene profile is degraded or partial, this increases the chance of an adventitious match.

19 For exact figures, see Chapter 11.

  1. Pursuant to subsections 76(1)(ee), (ed), (g) and (h) of the Criminal Investigations (Bodily Samples) Act 1995, Police must report on how many times in a given year there have been matches (links) between DNA profiles obtained under different Parts of the Act and crime scene profiles.
  2. Catherine Gardner “Does Police Culture Prevent the New Zealand Police From Making the Best Use of DNA Technology to Investigate Crime?” (PhD Dissertation, Auckland University of Technology, 2014).
  3. In most of these cases, it appears that the CSD was involved. At the time, there seems to have been a policy of automatically uploading a crime scene profile to the CSD if it met the quality threshold, despite the facts of any particular case. However, in some cases (particularly the sexual and violent cases), the match may have been independent of the CSD, that is, the match was between the crime scene sample and a reference sample provided by the suspect. It is not possible to tell from the wording used in the thesis.

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Table 2: Reported crime in Auckland city district 2005

OFFENCE TYPE
TOTAL NUMBER OF REPORTED CRIMES IN THE SUBJECT DISTRICT
NUMBER OF CASE FILES THAT INVOLVED A DNA MATCH AND WERE AVAILABLE FOR ANALYSIS
NUMBER OF CASE FILES WHERE CHARGES WERE LAID
Theft from car, general theft and criminal damage
9,589
11
6
Burglary
8,920
84
51
Violent offences
5,031
10
6
Unlawful taking or getting into a motor vehicle
4,423
33
11
Sexual offences
328
7
Other (DNA not relevant)
25,324
1
0
Total
53,615
146
78

10.33 From the information in this table alone, it appears that DNA profiling only led to charges being laid in just over 0.1 per cent of the investigations in Auckland city district in 2005. However, because 156 of the files involving DNA profiling were not available for analysis, the figure is likely to be higher.
10.34 To understand what was happening in the available cases, the Auckland City District Study broke the investigation process down into four stages:
10.35 The study found that the weak point in the investigative process in New Zealand was between stage three (identification of a match) and stage four (detection of the potential offender). In 68 of the 146 cases where there was a link report, no charges were laid. Even more significantly, in 55 of those 68 cases, the potential offender was never interviewed by Police about the match, despite being in police custody in the intervening period.
10.36 The Auckland City District Study put forward several possible reasons for police officers not following up on link reports:24
  1. In an additional case, the DNA link report exonerated the suspect as the crime scene sample linked to another person (the victim’s consensual sexual partner).
  2. Catherine Gardner “Does Police Culture Prevent the New Zealand Police From Making the Best Use of DNA Technology to Investigate Crime?” (PhD Dissertation, Auckland University of Technology, 2014) at ch 4.

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10.37 In addition, the Auckland City District Study noted that, in several instances, the link report made little difference to the outcome of the investigation. Some offenders had been apprehended at the scene of the offence (meaning their presence at the crime scene was already confirmed), and others had pleaded guilty at the outset.25
10.38 The author commented:26

The difference between the ESR identifying a potential offender and the offence being resolved is still great. The real challenge is establishing the number of files resolved due to the use of DNA evidence and it is this information that tends to elude the police.

APPLICABLE LAW


10.39 As noted, the CSD is not mentioned in the CIBS Act or any other legislation. Further, given that the CSD is purely an investigative tool,27 there is very little case law that expressly refers to it. However, the CSD was the focus of a 2017 District Court case: Police v SJ.28



  1. The Auckland City District Study contains 12 illustrative case studies. This includes 10 of the 17 case files concerning violent and sexual offending. Three are of particular note here. Aggravated robbery – The offender in this case was apprehended at the scene of the offence. When he was interviewed by Police, he admitted to the offending. A month later, investigators received a report from ESR linking the offender to the crime scene. Wounding with intent to cause grievous bodily harm – The complainant in this case was severely beaten by a man he knew. There were several witnesses to the incident. The offender surrendered to Police the following day. He pleaded guilty to the assault. It appears that, following his conviction, the offender provided a biological sample for the known person databank. When ESR uploaded the resultant profile to the known person databank and ran their routine check against the CSD, the offender’s profile matched the crime scene profile from the original assault. This link did not assist Police as the offender had already been convicted of the assault. Burglary – This case file related to a prolific burglar whose offending spanned from 1997 to 2001. There were 98 related files. He was charged with 26 counts of burglary on 23 January 2001, seemingly after being apprehended at the scene of an offence. The Crown case consisted of CCTV footage, eyewitness accounts and fingerprint evidence. He pleaded guilty to the charges. In June 2001, ESR sent Police a databank link report linking the offender to 15 of the burglaries.
  2. Catherine Gardner “Does Police Culture Prevent the New Zealand Police From Making the Best Use of DNA Technology to Investigate Crime?” (PhD Dissertation, Auckland University of Technology, 2014) at 87.
  3. A match between the crime scene profile and the known person databank cannot be presented as evidence in Court (section 71 of the Criminal Investigations (Bodily Samples) Act 1995). Instead, after a suspect has been identified based on a link report, a police officer will obtain a reference sample from the suspect (either by consent or compulsion) under the Criminal Investigations (Bodily Samples) Act 1995. The comparison between the crime scene sample and the reference sample then forms the basis for the ESR scientist’s evidence in court.

28 Police v SJ [2017] NZDC 17314, [2018] DCR 587.

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Police v SJ


10.40 Police v SJ focused on decisions to upload and retain a crime scene profile on the CSD. The case related to two different incidents: a burglary in 2015 (the 2015 burglary) and an alleged rape in 2014 (the 2014 rape allegation).
10.41 In July 2015, a house was burgled. The offender broke a window, entered a house and stole two laptops. During the crime scene examination, police officers found blood on the window sill and obtained a biological sample for analysis. The resultant crime scene profile did not match any profiles on the known person databank, but it did match another profile on the CSD. The matching profile on the CSD had been obtained in relation to an allegation of rape from more than a year earlier when SJ was 15 years old.
10.42 In 2014, a 15-year-old girl had complained to Police that she had been raped by SJ the previous night. As is standard practice, a specialist doctor medically examined the complainant after her initial Police interview. During that examination, the doctor obtained a biological sample from a semen stain on her underwear. An ESR scientist later extracted male DNA from this sample and was able to generate a DNA profile. This profile was uploaded to the CSD but did not match any other profiles on the CSD or the known person databank at that time.
10.43 In the meantime, a police officer spoke to SJ who admitted to consensual sex with the complainant but declined to provide a reference sample or make a formal statement. After further inquiries, police officers decided to discontinue the investigation. The officers considered that the complainant was not a credible witness and there was insufficient evidence to prosecute SJ.
10.44 After the link between the 2015 burglary and the 2014 rape allegation was identified, a police officer asked SJ to provide a suspect sample by consent in relation to the burglary. SJ refused. A police officer then applied to the District Court for a suspect compulsion order under Part 2 of the CIBS Act. The only evidence put forward by Police in support of the application was the link between the crime scene profile from the 2015 burglary and the profile generated in relation to the 2014 rape allegation.

The Court decision


10.45 The Judge accepted that there was good cause to suspect that SJ had committed the burglary and that the seriousness of the offending and the reliable nature of the evidence weighed in favour of granting the application. He further noted that there was no suggestion that investigators had acted in bad faith or engaged in misconduct.
10.46 The Judge observed, however, that there were “aspects of the application which give rise to a real sense of unease”.29 Specifically:

29 Police v SJ [2017] NZDC 17314, [2018] DCR 587, at [30].

30 At [34].

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without laying charges. If that profile had been removed, there would have been no evidence linking SJ to the 2015 burglary.
10.47 His Honour concluded that, in all the circumstances of the case, it would not be reasonable to grant the application for the suspect compulsion order. The Judge stated that any collection of a biological sample from a person is a significant intrusion on the privacy rights of the individual. The intrusion would be even more significant in SJ’s case because of his age and the fact that he had never provided such a sample to Police before. The Judge also commented that compelling SJ to provide the suspect sample would amount to an unreasonable search and seizure under section 21 of the New Zealand Bill of Rights Act 1990 (NZBORA).31

The Privacy Act 1993


10.48 The “unease” felt by the District Court Judge in Police v SJ stemmed largely from Police retaining the crime scene profile from the 2014 rape allegation for longer than necessary, given that the investigation was quickly resolved.
10.49 As we explained in Chapters 6 and 7, we consider that crime scene profiles are “personal information” for the purposes of the Privacy Act 1993. Therefore, the information privacy principles in that Act apply. This includes principle 9, which states: “An agency that holds personal information shall not keep that information for longer than is required for the purposes for which the information may lawfully be used”.32
10.50 The following information privacy principles are also of particular note:



31 At [38].

32 Privacy Act 1993, s 6.

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IS THERE A NEED FOR REFORM?


10.51 We consider that there is room for considerable improvement in the way the CSD currently operates. Specifically we are concerned with the following:
10.52 The remainder of this chapter discusses each of these issues alongside the options for reform.

ACCESSIBILITY AND TRANSPARENCY


10.53 One of the most significant problems with the current CIBS Act is that it only tells part of the story about the use of DNA in criminal investigations in New Zealand. It clearly regulates the known person databank, but the existence of the CSD is something that the reader can only infer. Further, the Act contains no indication that ESR uploads mixed crime scene profiles or maintains elimination databanks. This creates uncertainty for Police and ESR and lacks transparency, which could impact on public trust.
10.54 One way to address these concerns is to include provisions governing the CSD and elimination databanks in any new legislation enacted to replace the CIBS Act. There is, however, considerable room for debate as to how prescriptive any provisions should be.

The tension between certainty and flexibility


10.55 Highly prescriptive statutory rules governing the CSD would promote certainty and accessibility but could stifle the ability to capitalise on developments in DNA profiling technology.
10.56 The use of mixed crime scene profiles is a prime example. If the CIBS Act had contained detailed rules around the structure of the CSD and permissible matching with the known person databank, these might have prevented the use of STRmix to generate investigative leads in cases that would otherwise have stalled. On the other hand, STRmix uses algorithms to calculate match likelihood ratios. At present, there is considerable public concern and debate around the use of algorithms in public sector decision making,

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particularly in the area of criminal justice.33 As discussed in Chapter 5, we do not have concerns about the scientific validity of STRmix, but greater transparency and oversight around these practices would provide reassurance to the public.
10.57 Another example of this tension are two proposals that ESR has put forward to Police:
Police has declined the first proposal but has recently agreed to the second.
10.58 At present, the profiles on the known person databank and the CSD are generated using traditional STR profiling. As discussed in Chapter 3, traditional STR profiling focuses on the autosomal chromosomes, which are found in all humans. By contrast, Y-STR profiling targets the Y chromosome, which is generally only found in males. One of the main benefits of this kind of profiling is that it can be used to isolate male DNA from female DNA in a mixed crime scene sample. Therefore, it is particularly useful in sexual assault cases where the complainant is female and the alleged offender is male. By focusing only on the Y chromosome in such cases, it is often possible to generate a Y-STR profile that relates only to the alleged offender.
10.59 ESR routinely generates Y-STR profiles when analysing crime scene samples in casework. These profiles can easily be stored on the CSD, and since Police gave approval, ESR has started to add Y-STR profiles to crime scene samples being uploaded to the CSD. This enables ESR to look for Y-STR profile matches between different crime scenes samples on the CSD.
10.60 As noted above, Police did not approve ESR’s proposal to conduct Y-STR analysis on samples obtained for the known person databank (and from there upload the profiles to the known person databank). However, were this agreed to in the future, ESR could look for Y-STR profile matches between the CSD and the known person databank as well. We understand that some jurisdictions in the United Kingdom and Australia are already experimenting with including Y-STR profiles on crime scene and known person databanks.
10.61 The inclusion of Y-STR profiles on the known person databank could also facilitate forensic DNA phenotyping34 and familial searching.35
10.62 Arguably, there is nothing in the CIBS Act that would prevent Police from having ESR routinely include Y-STR profiles on the known person databank. Indeed, as noted, Police has approved their inclusion in respect of the CSD. The absence of statutory regulation enables this flexibility. However, the lack of Parliamentary mandate and oversight is troubling.
10.63 The Y chromosome passes down the male line largely unchanged. This means that close male relatives will often have the same Y-STR profile. As such, Y-STR profiles are nowhere near as efficient at distinguishing between individuals as traditional STR profiles. While for traditional STR profiling the likelihood ratios are often in the range of 1:1 million
  1. See for example Vanessa Blackwood “Algorithmic transparency: what happens when the computer says no?” (29 November 2017) Privacy Commissioner <www.privacy.org.nz>; The Chief Archivist’s Report on the State of Government Recordkeeping: Managing public sector information and data and why it matters (2016-2017) (Archives New Zealand, 7 March 2018) at 15–16; and Clare Curran and James Shaw “Government to undertake urgent algorithm stocktake” (press release, 23 May 2018).

34 Discussed in Chapter 6.

35 Discussed in Chapter 14.

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or 1:1 billion, the highest recorded likelihood ratio for matching Y-STR profiles in New Zealand is currently 1:430, so there appears to be a risk of policing families as opposed to policing individuals. Potentially this issue could be addressed by placing rules around uploading profiles to the CSD and how information about a match could be used by Police. However, again, the ethical concerns highlight why additional statutory controls could be beneficial.

The crime scene index model


10.64 As indicated in Chapter 4, we can see the benefits of the DNA database model that has been adopted in Canada, Ireland and Australia. In each of those countries, the legislation governing the use of DNA in criminal investigations establishes a DNA database system consisting of multiple indices, including a crime scene index and – in the case of Ireland – multiple elimination indices containing profiles from investigators.36 The legislation then places strict rules around what matching is permissible within and between the indices.
10.65 Whether it is called a crime scene index or a crime scene databank, the important point is that Canada, Ireland and Australia all recognise and define the crime scene index in legislation. By way of example, the Irish legislation states that the crime scene index:37

... shall comprise the DNA profiles of persons generated from samples of biological material found at, or recovered from, a crime scene whether before or after the commencement of this section.

10.66 The definition of “DNA profile” in the Irish legislation is broad enough to include Y-STR profiles but would exclude the storage of mixed crime scene profiles.38 A different definition could easily be adopted in New Zealand if a policy decision was made to continue to upload mixed profiles to the CSD.
10.67

2018_4316.png

We consider that, at the very least, new legislation in New Zealand should recognise and define the Crime Sample Databank and the elimination databanks. Beyond that, the tension between certainty and flexibility becomes more difficult to reconcile. If the rules around the CSD are too prescriptive, the legislation will quickly become outdated. DNA profiling technology may be moving too fast for rigid rules. However, as we discuss below, further legislative guidance or at least a statutory requirement for publicly accessible policies may be required in relation to the criteria for uploading, matching and retaining crime scene profiles as well as in respect of reporting requirements and other accountability measures.




Q21
Do you think that the Crime Sample Databank (CSD) should be expressly referred
to in legislation? If so, what level of detail do you think would be appropriate?

36 See Table 1 in Chapter 4.

37 Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 61(1)(a).

38 Criminal Justice (Forensic Evidence and DNA Database System) Act 2014 (Ireland), s 2 states:

“DNA profile” in relation to a person, means information comprising a set of identification characteristics of the non-coding part of DNA derived from an examination and analysis of a sample of biological material that is clearly identifiable as relating to the person and that is capable of comparison with similar information derived from an examination and analysis of another sample of biological material for the purpose of determining whether or not that other sample could relate to that person.

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UPLOADING CRIME SCENE PROFILES


10.68 As indicated above, we consider that there is insufficient transparency around the nature of the crime scene profiles that are being, or may be, uploaded to the CSD. In addition, we have the following concerns about the current practices around uploading crime scene profiles to the CSD:
Uploading profiles to the CSD without a case-specific reason to do so is problematic for four reasons:
(i) It arguably breaches the privacy principles because – while the profile was collected to identify the offender – it is not being used for that purpose.
(ii) The crime scene profile is generally retained indefinitely and can be inappropriately matched to another profile on the CSD – as occurred in Police v SJ.
(iii) It increases the link rate (which, as we discuss below, is used to measure the success of the CSD) even though the offender’s identity was already known to Police and the link was of little or no value to the investigation.
(iv) It may create unnecessary work for ESR and expense for Police.
(b) DNA profiles of victims and third parties may be inadvertently uploaded to the CSD. The risk of this occurring is also likely to increase. That is because DNA profiling kits are becoming more sensitive.
As discussed in Chapter 7, the advent of trace DNA analysis means that crime scene profiles can now be generated from items that people have merely touched at crime scenes. In turn, it seems likely that many of these profiles will belong to innocent third parties. Further, as explained, unresolved mixed crime scene samples are now being added to the CSD. The likelihood of these profiles containing DNA from victims and/or third parties is particularly high.
The difficulty with uploading these profiles to the CSD is that victim and third-party profiles may be matched to other profiles on the CSD. This may implicate the victim or third party as a suspect in relation to other offending. In relation to victims, this issue was the focus of an inquiry conducted by the New South Wales Legislative Council in 2009.40
The Council identified two conflicting imperatives: the desirability of encouraging victims to report offending and cooperate with police investigations by providing elimination samples on one hand and the desirability of supporting Police to apprehend offenders on the other. To recognise both imperatives, the Council considered that there should be legislative protections in place to ensure that all
  1. See [10.37] and discussion at [10.40]. This may be a particular problem in non-suspect volume crime cases, as there is no need for investigators to decide explicitly whether to use the CSD or not.
  2. New South Wales Legislative Council Standing Committee on Law and Justice Use of Victim’s DNA (Report 41, December 2009).

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reasonable steps are taken not to upload victim profiles to the CSD and to ensure that any such victim profiles are removed from the CSD as soon as they are identified.41 It also recommended that there should be a statutory ban on prosecuting victims for unrelated offending based on an internal match within the CSD, except in cases of serious offending.
(c) There are no transparent safeguards in place around low-quality crime scene profiles. As noted above, on rare occasions, ESR has conducted a one-off match between a low-quality crime scene profile, the CSD and the known person databank.
This may not be consistent with information privacy principle 8, which requires agencies to ensure that personal information is sufficiently complete that it may be used for its lawful purpose without being misleading. Depending on exactly how incomplete a crime scene profile was, this matching process could generate large numbers of misleading investigative leads. We are also unsure as to whether this could amount to a form of familial searching.
Familial searching is the subject of Chapter 13. Here we simply note that if, for example, a crime scene sample only had three STRs and those STRs were also in a profile on the known person databank, potentially this could suggest that the known person or one of their close relatives was responsible for the crime scene profile.
(d) Crime scene profiles are being uploaded to the CSD in relation to relatively minor volume crimes (such as theft of an item valued at under $500 from a vehicle), and resultant link reports are not being followed up by Police. This was identified as a problem in the Auckland City District Study for numerous reasons, including poor administrative processes. We note that this issue may now have been addressed by changes to Police’s file management system.
We remain concerned that it may not be appropriate to use the CSD to resolve investigations into minor volume crimes, such as unlawful interference with a motor vehicle. There are three main reasons:
(i) In terms of proportionality, we are not convinced that the level of criminality warrants the intrusion on privacy.
(ii) From a purely practical level, we question whether the crime scene profiles have much evidential value in these cases. Innocent explanations for touching the outside of a car would be hard to disprove, so unless the profile came from inside the car, it could only play a small part in the Crown case.
(iii) If Police does not have the resources to follow up on link reports, it is hard to justify the cost of the forensic analysis in the first place.
(e) The rules around unidentified human remains could be clearer. It is sometimes necessary for a police officer to identify a dead body. If it appears that the person’s death may be associated with criminal offending, the officer will be able to obtain a biological sample from the body to send to ESR for analysis. Any resultant profile could be compared to the profiles on the CSD and the known person databank.
There is nothing in the current law to stop Police from using the CSD to identify victims, as opposed to potential offenders, when it appears that a person’s death
  1. In New South Wales, a formal Victims Protocol, signed by the Minister of Health and the Attorney General in 2007, already contained this policy, but the Legislative Council considered that the Protocol should have legislative standing: at 55.

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may be associated with criminal offending. However, if there is no indication that the death was associated with criminal offending, the databanks could not be used in this way. We understand that this can be problematic in cases where police officers are trying to identify victims of disasters and individuals who have died of natural causes.
The United Kingdom, the United States, Canada, Australia and Ireland all use their DNA profile databank systems to assist in resolving missing person cases and in disaster victim identification as well as criminal cases. Most of these countries maintain a DNA database system that has separate indices for unidentified human remains and for the relatives of missing persons. There are then strict rules around permissible matching between the indices.
This issue is outside our terms of reference.42 However, we note that there could be merit in extending New Zealand’s DNA databank system to enable its use in missing person cases and disaster victim identification. This would alleviate any confusion as to the appropriate course of action for Police to take upon discovery of an unidentified human body where a DNA profile might assist in identification.

REMOVING CRIME SCENE PROFILES


10.69 Compounding our concerns about crime scene profiles being inappropriately uploaded to the CSD is the current policy of retaining profiles indefinitely. The only profiles that are removed relate to individuals who police officers later discover had “legitimate access to the crime scene”. Police v SJ suggests that this information is not always communicated to ESR.43 We explore this issue in depth in Chapter 14, which looks at the retention periods for biological samples and DNA profiles more generally.

Options for reform


10.70 As noted, it could be counter-productive to enact highly prescriptive statutory rules around when a profile may be uploaded to the CSD. Some flexibility is required to accommodate scientific developments. To promote flexibility, it may be better to address the issues that we have identified by introducing an active role for an oversight body and/or by placing statutory obligations on Police and ESR. Those obligations could include requirements to maintain publicly available policy statements and/or to report on certain matters, such as NZBORA and Treaty of Waitangi consistency, and consideration of privacy and tikanga issues. We discuss oversight at Chapter 15.
10.71 One option would be to give an oversight body overall responsibility for monitoring use of the CSD. This could include approving policy statements developed by Police and ESR around standard use. These statements could explain the rules around matters such as:

42 A copy of the terms of reference can be found in Appendix 1.

43 Police v SJ [2017] NZDC 17314, [2018] DCR 587.

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10.72 The oversight body could then monitor compliance with those statements and potentially approve any one-off non-standard use of the CSD that falls outside the scope of the policy statements.
10.73 A similar approach could be taken in respect of victim and third-party profiles. ESR and Police could publish policy statements explaining the steps that each intends to take to ensure that these profiles are not uploaded to the CSD. The oversight body could then have a monitoring and compliance role. This could include audits.
10.74 However, when it comes to victim and third-party profiles, there is a particular need for certainty and transparency. It can be argued that victims and third parties need to know that any biological sample they provide to Police (either as a crime scene sample or an elimination sample) will not be used to implicate them in unrelated offending. If there are insufficient protections in place, there is a risk that these individuals will not want to provide elimination samples. For this reason, Canada has, in 2018, introduced an index into its DNA profile database that is reserved purely for victim profiles. The Canadian legislation states that a match between a profile in the victim index and any other profile on the database may only be reported to investigators if it relates to the offence for which the profile was originally obtained.44 Similarly, a number of Australian jurisdictions have a volunteer (limited purpose) index, which contains victim and third-party profiles that have been generated from elimination samples provided in specific investigations. Again, legislation provides strict matching rules.45
10.75 It may be appropriate for legislation in New Zealand to similarly protect against inappropriate use of victim (and potentially third-party) profiles. Legislation could obligate Police to take all reasonable steps to ensure that such profiles are not uploaded to the CSD. Alternatively, it could place limits around permissible matching, as occurs overseas. A third option would be to enact a statutory ban on using an internal match within the CSD to prosecute a victim or third party for unrelated offending, unless it is particularly serious. This is what was recommended by the NSW Legislative Council in 2009. We note that this has not yet been acted upon in that jurisdiction and, in addition, could still potentially impact on the willingness of victims and third parties to provide samples.
10.76 The other area where the transparency of legislation (as opposed to a policy statement) may be required is the use of the CSD in cases that involve relatively minor offending. As explained in Chapter 2, it is important that the purpose of the DNA databank regime is made clear in legislation. That purpose is reflected, in part, by the choices that are made around uploading profiles to the CSD. The investigations where a profile is uploaded to the CSD are the ones that have the potential to be resolved using the databank regime. It is also important that the need for proportionality is transparently recognised. The privacy intrusion inherent in using the databank regime must be proportionate to the societal interest in resolving the investigations.
10.77 To reflect these considerations, any new legislation could set a threshold for the level of seriousness of the offence before a crime scene profile can be uploaded to the CSD. For example, if the threshold was a maximum penalty of 10 years’ imprisonment, burglary would be included but other volume crimes would not. Alternatively, if the threshold was


44 DNA Identification Act SC 1998 c 37, s 6(1)(a).

45 See Table 1 in Chapter 4.

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a maximum penalty of seven years’ imprisonment, theft of items valued at more than

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$1,000 would be included but theft of less valuable items would not.46


Q22
Do you have any particular concerns about victim and third-party profiles being
uploaded to the CSD? If so, how do you think those concerns would best be addressed?
Q23
Do you have any concerns about low-quality crime scene profiles being uploaded
onto the CSD? If so, how do you think those concerns would best be addressed?
Q24
What type of offending do you think we should aim to resolve using the CSD? Put
another way, do you think that DNA profiles associated with any level of offending should be able to be uploaded onto the CSD, or should there be a seriousness threshold? If so, what level of seriousness do you think would be appropriate?

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MEASURING EFFECTIVENESS


10.78 In order to measure the effectiveness of New Zealand’s DNA databank regime, ESR monitors the “link rate” within the CSD and between the CSD and the known person databank. The link rate is the percentage of profiles that have matched another profile on one of the databanks. The match may occur when the profile is first uploaded to the CSD or at a later date when new profiles are added to the CSD or the known person databank. The link rates are aggregates, so they tend to improve over time.
10.79 At present, the crime to crime link rate is 32 per cent. This means that 32 per cent of the profiles that have been uploaded to the CSD have matched another profile on the CSD. The crime to person link rate is 70 per cent. This means that 70 per cent of the profiles that have been uploaded to the CSD have matched a profile on the known person databank. These figures are often cited to support two propositions: one, New Zealand has the most effective DNA databank regime in the world; and two, the “right people” are on the known person databank.
10.80 However, as noted by an Australian Law Reform commentator:47

Statistics on the number of “matches” between DNA profiles and crime scene stains are, however, misleading in some crucial respects. Firstly, “matches” do not signify guilt, nor do they represent arrests made or convictions secured. A match simply means that a particular person may have been – but was not necessarily – present at a particular crime scene at some particular point in time.

10.81 As explained above, the link rates are aggregates. We know that some of the matches that contributed to New Zealand’s high link rate related to victims, third parties and offenders who had already been identified by Police. Those matches were of little or no value in resolving the associated investigations. On the other hand, we are aware of other cases, which will also have had an impact on the link rate, where the match marked a crucial turning point in the investigation and resulted in a conviction for serious

46 Crimes Act 1961, ss 223 and 231.

47 Ben Saul “Genetic Policing: Forensic DNA in New South Wales” (2001) 13 Current Issues in Criminal Justice 74 at 93.

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offending.48 What is missing from the data is a systemic sense of exactly how effective link reports are in assisting in the resolution of criminal investigations.
10.82 The reporting obligations in section 76 of the CIBS Act require Police to report on the number of link reports each year. Police is not required to monitor use of those reports. However, section 76 does require Police to report on how often reference samples obtained under Part 2 of the CIBS Act are offered in evidence at trial and how many of those trials resulted in a conviction.49 Theoretically, this could give a sense of the effectiveness of the databank system, as often the reference samples obtained under Part 2 are obtained as a result of a link report.50 Police reported these figures between 2004 and 2007.51 In all other years, Police stated that the data was not available.
10.83 There are a number of difficulties inherent in trying to measure effectiveness of DNA databanks on conviction numbers alone. For example:
10.84 Despite these difficulties, international commentators have identified an “urgent need” for more empirical evidence to be collected to measure the effectiveness of DNA profile databanks.52 They argue that the policing and forensic science community is “flying blind in terms of the true impact of its work” and that the continuing expansion of the databanks cannot be justified without more concrete evidence as to their utility.53 As a result, numerous academic studies have been initiated in the United Kingdom and



  1. For example, in three of the 12 illustrative case studies in the Auckland City District Study, the link report appears to have been central in identifying the offender. One case study provides a particularly clear demonstration of how useful the CSD can be. In this case, a complainant was raped by a stranger in Auckland City and received life-threatening head injuries during the assault. The complainant’s medical examination kit was sent to ESR for analysis. The resultant crime scene profile was uploaded to the CSD and linked to a potential offender who had been released from prison on the day of the rape. He denied having been in Auckland. This was inconsistent with the DNA evidence and witness accounts. The offender was convicted of rape and wounding with intent to cause grievous bodily harm.

49 Criminal Investigations (Bodily Samples) Act 1995, s 76(1)(d).

  1. A link report cannot be offered in evidence at a trial; a reference sample must be obtained under Part 2 to confirm the match instead: Criminal Investigations (Bodily Samples) Act 1995, s 71. See also discussion in Chapter 8 of the relationship between Parts 2 and 2B of the Criminal Investigations (Bodily Samples) Act 1995.
  2. In those years, the evidence was offered in trials on seven, seven and 23 occasions. Those trials resulted in convictions seven, seven and 14 times, respectively.
  3. Roberta Julian and others “What is the value of forensic science? An overview of the effectiveness of forensic science in the Australian criminal justice system project” (2011) 43 Australian Journal of Forensic Sciences 217 at 218. Sally Kelty, Roberta Julian and Robert Hayes “The Impact of Forensic Evidence on Criminal Justice: Evidence from Case Processing Studies” in Kevin J Strom and Matthew J Hickman (eds) Forensic Science and the Administration of Justice: Critical Issues and Directions (SAGE Publications, California, 2015) 101; and Marcus Smith and Monique Mann Recent Developments in DNA Evidence (Australian Institute of Criminology, 2015).
  4. Roberta Julian and others “What is the value of forensic science? An overview of the effectiveness of forensic science in the Australian criminal justice system project” (2011) 43 Australian Journal of Forensic Sciences 217 at 220.

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Australia with a goal of figuring out how best to measure effectiveness. 54 In New Zealand, the new Evidence Based Policing Centre may be well placed to contribute to this research and to build on the insights already gained from the Auckland City District Study.55
10.85

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What is important, in our view, is increased transparency and accountability rather than the exact form in which this information is presented. We are conscious that it may not be possible to draft a statutory reporting requirement that both provides a meaningful measure of the utility of link reports and avoids Police incurring significant administrative costs in compliance. Because of this, we consider that it may be appropriate for an oversight body with the capacity to consider Treaty of Waitangi, NZBORA, privacy and tikanga issues to be responsible for working with Police to identify how best to monitor use of link reports and the overall effectiveness of the CSD. An oversight body and/or Police could then report on these matters annually. The broad requirement for such annual reporting could be established in legislation, leaving the details of how best to monitor and report on effectiveness able to be adjusted to reflect changes in institutional practice and lessons emerging from New Zealand and international research.



Q25
Do you think that additional steps should be taken to measure how effective New
Zealand’s DNA profile databanks are in helping to resolve criminal investigations? If so, what do you think those steps should be?





















  1. See the summary in the Auckland City District Study at 68–74. See also Aaron Amankwaa and Carole McCartney “The UK National DNA Database: Implementation of the Protection of Freedoms Act 2012” (2018) 284 Forensic Science International 117 at [3.2.3] and [4].
  2. The Evidence Based Policing Centre was established last year and is a joint partnership between Police, ESR and the University of Waikato. Staff from these organisations will use the Centre to collaborate on research projects, designed to improve Police’s frontline capabilities. See New Zealand Police “Strong partnerships at core of new Evidence Based Policing Centre” (press release, 14 December 2017).

215 CHAPTER 11: KNOWN PERSON DATABANK – COLLECTION

CHAPTER 11



Known person databank – collection


INTRODUCTION


11.1 This chapter is about collecting biological samples and uploading the resulting DNA profiles to the known person databank. We deal with the issues around how long profiles are retained on the known person databank in Chapter 14.
11.2 There are four ways in which a person’s profile may end up on the known person databank. There is considerable overlap between these different collection methods and little guidance in the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act). To fill that gap, New Zealand Police has developed guidance in its Police Manual. This chapter describes the legislative framework, provides an overview of the guidance in the Police Manual and then examines the available data to highlight some broad trends.
11.3 Having reviewed the law and current practice, we discuss issues in relation to who currently qualifies for databank sampling, how police officers decide to obtain such samples and whether it is appropriate to obtain databank samples at the time of arrest/intention to charge. We also discuss two discrete issues concerning the physical collection process.
11.4 Finally, we consider the options for reform. This includes a discussion of a universal databank.

TERMINOLOGY


11.5 At the outset, it is worth reiterating how we use certain phrases in this issues paper. The CIBS Act establishes two databanks: the Temporary Databank (under Part 2B) and the DNA Profile Databank (DPD) (under Part 3). However, when it comes to comparing these databanks to the Crime Sample Databank (CSD),1 they are treated in exactly the same way. For that reason, we refer to the Temporary Databank and the DPD collectively as the known person databank. We use DPD and Temporary Databank when we are referring to provisions in the CIBS Act.



  1. As we discuss in Chapter 10 and elsewhere in this issues paper, the Crime Sample Databank is a databank containing crime scene profiles that is maintained by ESR on behalf of Police. It is not regulated as it was not established by the Criminal Investigations (Bodily Samples) Act 1995.

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THE CIBS ACT


11.6 The CIBS Act is a code when it comes to obtaining DNA profiles for the known person databank.2 It provides four different ways in which a person’s DNA profile may end up there:
11.7 We briefly discuss each of these means of populating the databank.

Suspect profile transfer


11.8 An adult, young person or prosecutable child3 may provide a suspect sample in relation to a specific case. This is governed by Part 2 of the CIBS Act. The sample may be obtained by consent or under a suspect or juvenile compulsion order. If that person is later convicted of the triggering offence (that is, the offence for which they gave the suspect sample) or a related offence, their DNA profile is transferred to the DPD.4

Required at the time of arrest/intention to charge


11.9 Under Part 2B of the CIBS Act, a police officer may require an adult or young person to provide a biological sample for the purpose of generating a DNA profile to add to the Temporary Databank. Certain criteria must be first met. For adults, the criteria are:
11.10 The term “imprisonable” can be misunderstood to mean any offence where a person is ultimately sentenced to a term of imprisonment. This is not the case. The threshold is much lower. It is any offence where a term of imprisonment could theoretically be imposed. For example, the offence of littering is imprisonable, but only the worst possible repeat littering offender would be at risk of any prison sentence being imposed.
11.11 The criteria for obtaining samples from young persons are slightly different. A young person must have been arrested or a policer office must intend to charge the young person with a “relevant offence” (as opposed to an imprisonable offence or the offence
  1. The case of R v T [1992] 2 NZLR 602 (CA) held that the Act is a code. R v Shaheed [2002] 2 NZLR 377 (CA) and the more recent case of R v Toki [2017] NZCA 513, [2018] 2 NZLR 362 confirmed that position in the context of seeking databank requests.
  2. The prosecutable offences are murder or manslaughter, if the child is 10 years old or older; offences punishable by 14 years’ imprisonment or more, if the child is 12 years old or older; or offences punishable by 10 years’ imprisonment or more, if the child is 12 years old or older and a previous offender. For definitions of “adult”, “young persons” and “child”, see Glossary at the front of this paper.
  3. Section 26(a) of the Criminal Investigations (Bodily Samples) Act 1995 states that such a profile may be transferred to the DPD unless the conviction is subsequently quashed. If the conviction is for a “related offence” (as opposed to the triggering offence), that offence must also be an imprisonable offence or the offence of peeping and peering. In practice, if a person’s profile is already held on the databank, then another profile will not be transferred.

5 Criminal Investigations (Bodily Samples) Act 1995, s 24J.

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of peeping and peering). A “relevant offence”, in summary, includes serious sexual or violent offences, offences punishable by seven years’ imprisonment or more (or attempts and conspiracies to commit these offences) or one of the 23 less serious offences specified in the Schedule to the CIBS Act.6
11.12 Before any sample is taken pursuant to Part 2B, the adult or young person must be handed a written notice in a prescribed form and provided with oral advice on certain matters.7 These matters are similar to those that must be brought to the attention of a suspect when seeking consent to take a sample under Part 2 but are more limited in their scope, given consent is not required.8
11.13 Part 2B is structured very differently to Parts 2 and 3 of the CIBS Act. Unlike Parts 2 and 3, there is no reference to consent and no oversight role for the courts. An officer may simply “require” the person to provide the sample (and is entitled to use reasonable force to obtain it if necessary).9 Also, an adult is not entitled to have a support person or a lawyer present.10
11.14 After two months, any DNA profile obtained under Part 2B must be destroyed unless the person is charged with the triggering offence or a related offence.11 If the person is charged with such an offence, their DNA profile is uploaded onto the Temporary Databank until the court proceedings have concluded.12 If the person is acquitted or the charge is withdrawn, their profile is removed from the Temporary Databank.13 If the person is convicted, their profile is transferred to the DPD.14
11.15 However, there is no difference between the Temporary Databank and the DPD when it comes to forensic comparisons. Both are compared to the CSD the same way. Therefore, in effect, any person whose DNA profile is obtained under Part 2B is on the known person databank as soon as they have been charged with the triggering offence or a related offence. Their profile will be removed if they are acquitted, but it may be on the Temporary Databank for a year or more before that occurs.
  1. Criminal Investigations (Bodily Samples) Act 1995, ss 2 (definition of “relevant offence”) and 24K. The definition of “relevant offence” under Criminal Investigations (Bodily Samples) Act 1995, s 2 now incorporates all the offences listed in the three Parts that comprise the Schedule to the Act – which, in summary, include serious sexual and violent offences; offences punishable by seven years’ imprisonment or more (as well as attempts and conspiracies); and selected offences under the Animal Welfare Act 1999, the Arms Act 1983, the Crimes Act 1961, the Land Transport Act 1998 and the Summary Offences Act 1981 (peeping and peering). Of the relevant offences, 23 have a maximum penalty of less than seven years imprisonment. Twenty of these are listed in Part 3 of the Schedule added in 2009. See discussion in Chapter 4 as to how the definition of “relevant offence” has changed since 1995.
  2. Criminal Investigations (Bodily Samples) Act 1995, ss 24M and 24N. The matters set out include particularising the triggering offence; providing information regarding the storage of the biological sample and DNA profile and when they may be destroyed or the profile transferred to the DPD; a summary of the procedures for taking the sample, including that the sample may be taken by reasonable force; information concerning analysis of the sample and access and disclosure of information retained on the Temporary Databank and DPD; and a statement that a DNA profile derived from the sample cannot be used against the person as evidence in criminal proceedings.

8 Discussed in Chapter 8.

9 Criminal Investigations (Bodily Samples) Act 1995, s 54A.

10 Criminal Investigations (Bodily Samples) Act 1995, ss 50–50D.

  1. Criminal Investigations (Bodily Samples) Act 1995, s 60A(3)(a). However, it should be noted that it is Police practice not to send a sample to ESR for analysis until any charges are filed and therefore there would be no profile generated and none to destroy. Section 60A(2) provides that a sample must be destroyed “as soon as practicable after a DNA profile is obtained from the sample”. See Chapter 14 for further discussion.

12 Criminal Investigations (Bodily Samples) Act 1995, s 24P.

13 Criminal Investigations (Bodily Samples) Act 1995, s 60A(3)(b).

14 Criminal Investigations (Bodily Samples) Act 1995, s 26 (ab) and (ac).

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Databank compulsion notice


11.16 Under Part 3 of the CIBS Act, a police officer of the rank of Inspector or above may issue a databank compulsion notice if an adult, young person or child has been convicted of an imprisonable offence or the offence of peeping and peering.15 Since a child can only be convicted of a limited number of very serious offences,16