THE QUEEN v ANTHONY TODD SMITH [2000] NZCA 343 (22 November 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca 389/00

THE QUEEN

V

ANTHONY TODD SMITH

Hearing:	22 November 2000
Coram:	Richardson P Robertson J Goddard J
Appearances:	G J Foley and J G Robertson for Appellant K Raftery for Crown
Judgment:	22 November 2000

judgment of the court delivered by RICHARDSON P

[1] This is an application for leave to appeal against a pre-trial ruling that DNA evidence is admissible at the forthcoming trial of the applicant, Mr Anthony Todd Smith, on a charge of breaking and entering certain premises in Auckland on or about 27 July 1999.

[2] Unlawful entry was obtained to the premises through a smashed glass louvre window.Police found blood at the point of entry.A blood sample taken was found to match a Databank DNA profile which had been obtained from Mr Smith on 12 February 1997.

[3] The police did not locate Mr Smith until 26 November 1999, four months after the break in.He denied involvement but agreed to provide a suspect's sample for DNA comparison for evidential purposes.Blood subsequently taken returned a DNA profile match against the blood sample obtained from the scene.The statistical analysis suggests that the likelihood ratio is 10,000 million to 1 that the blood at the scene of the burglary originated from Mr Smith.

[4] On the s344A application in the District Court, Mr Robertson, counsel for Mr Smith, challenged the admissibility of the DNA evidence.He submitted that for three reasons the DNA profile from the 12 February 1997 sample was inadmissible.The first was that the Crown could not produce and provide the Form 4 Notification of Request to Give Blood Sample for DNA Profile Databank, allegedly signed by Mr Smith on that date, and that in its absence there was no record and no proper proof of Mr Smith's consent to the taking of the blood sample.The second was that as it was a "Databank Voluntary" sample, Mr Smith had the right to waive his consent to its taking but was never advised of the right.The third was that no conviction or sentence having been entered by Mr Smith for an alleged offence on 21 August 1996, to which the blood sample related, the blood sample should have been destroyed by 12 February 1998.In fact it was destroyed on 25 January 2000 but the DNA profile remained intact and so was available for comparison with the blood sample from the scene of the burglary but, it was submitted, should have been deleted earlier.

[5] It was common ground that there was no evidence at the scene of the alleged offence of 21 August 1996 to link Mr Smith to that offence and the District Court Judge concluded that the sample taken on 12 February 1997 was a voluntary sample given by Mr Smith, not a suspect's sample.It followed that the DNA profile result could be held by the authorities in the ESR Databank indefinitely unless the provider, Mr Smith, requested pursuant to s36 of the Criminal Investigations (Blood Samples) Act 1995 that the sample be destroyed and Mr Smith had not withdrawn consent to its retention.

[6] And as to the third issue, neither s60 nor s62 required destruction of the sample or of the profile obtained from the sample within a specific time.

[7] The District Court Judge went on to hold that in the absence of the original Form 4 any relevant evidence was admissible.The constable involved, Constable Moore, said she had a clear recollection of completing the form, which she identified as a Form 4, and reading it to Mr Smith who confirmed his consent.She said, "I explained the form to him, and on completion of that, he signed the form consenting to the voluntary sample, I gave him [Mr Smith] a copy and the other was retained by myself".She said that she had looked in the police file and her records but had not been able to locate the form.The District Court Judge concluded that there was an abundance of uncontested evidence given by Constable Moore supporting actual completion of the form and, as well, there was a corroborating note in her notebook, signed personally by Mr Smith:

IS: Requested blood sample for DNA Profile Databank

HS: (Consented)Yes.

(Signed) A T Smith

[8] We should add that, consistently with that evidence, the completed Form 725, dated 12 February 1997 and signed by the registered nurse who took the blood sample and witnessed by Constable Moore, records that she [the nurse] was introduced to Mr Smith;the blood sample was taken by consent not pursuant to a compulsion order;Mr Smith advised that he wished it to be taken by venous not fingerprick sample;and that the blood sample was provided to Constable Moore.

[9] The admissibility of the DNA profile in respect of the sample taken on 26 November 1999 was challenged on two grounds.The first is that Mr Smith was not accorded his rights under the Criminal Investigations (Blood Tests) Act when he was requested to consent and did consent to giving a blood sample.The second was that in breach of his rights under s52(2)(a) a police officer involved in the investigation was "present during the taking of the sample".

[10] The sample taken on 26 November 1999 was the suspect's sample, for comparison with the blood stain at the scene of the burglary.Section 6 required the police on making a request to hand to the suspect a written notice containing the particulars specified in s7(b).Mr Smith was not given the standard notice when Constable Jones asked Mr Smith to accompany him to the Police Station.However, the Judge found that omission was rectified some 15 minutes later at the Police Station by the issue of a further request and by the police then supplying him with a copy of the relevant form and explaining its contents to him.The constable's evidence was that he handed the form to Mr Smith, asked him to read it, that Mr Smith completed the appropriate block relating to consent to the taking of the sample "Yes", and added his signature in the appropriate place, immediately below. That was done before Mr Smith was taken to the medical centre for the actual taking of the sample.The Judge categorised the initial breach as minimal and not affecting admissibility.

[11] As to the second ground, the Judge found as a fact that the police officer was not physically present in the same room during the taking of the sample. He was in a corridor outside the curtained off consultation cubicle where the sample was taken and was at least 3 metres distance away and out of sight of Mr Smith.The Judge referred to the observation of Randerson J in R v L (Auckland Registry, T 277/98, judgment 9 April 1998) that "the reason for this provision is that there should be no opportunity or suggestion that the police investigating the case have influenced the process for the taking of the sample or have expressly or impliedly intimidated the suspect" and concluded:

The Accused would not have known where Constable Jones had gone except that he, Constable Jones, had left the room.No evidence was given by or on behalf of the Accused that he was in any manner aware or influenced by the presence of Constable Jones and in my opinion there was no opportunity or indeed any suggestion that the presence of Constable Jones, three metres away from the room and out of sight from the Accused where the blood sample was being taken, in any manner was intimidatory or influential on or to the Accused.

[12] On the argument of the application for leave to appeal Mr Foley has submitted that the Judge erred in ruling the evidence of the two DNA results admissible.In relation to the sample taken on 12 February 1997, he relied on the loss or misplacement of Form 4.He did not pursue the other two grounds which failed before the District Court Judge.In relation to the sample taken on 26 November 1999 he relied on both grounds advanced and rejected in the District Court.In respect of all three alleged breaches, Mr Foley relied on the decision of this court in R v T [1999] 2 NZLR 602, 613 where the court, reading the Act as a code, held that "unless a particular breach is minimal, in the sense that the Crown demonstrates that it can have no material impact upon the statutory process and therefore upon the rights of the suspect, the consequent unlawfulness must lead to the exclusion of the evidence of the blood sample".

[13] The first ground advanced is that the failure of the Crown to produce the consent form was fatal.Section 34(1) states:

(1) No consent to the taking of a blood sample in response to a databank request shall be valid unless--

(a) It is in writing and signed by the person giving the consent;

[14] Mr Foley submitted that Form 4 is essential not only because it certifies the status under which the blood is to be given and sets in motion various legal consequences as a result, but also for the ongoing operation of the file in order that the person might at his request be afforded his rights under the Act;the form must be available to be referred to in the event the person chooses to withdraw his/her consent (s36(c)(ii));the loss or misplacement of the form creates for the accused a situation where he is unable to exercise his lawful rights in relation to requesting that the sample and all particulars associated with it be destroyed;and the intention of the legislature to safeguard the privacy of the accused is breached by the loss or misplacement of the form.

[15] We are satisfied that these submissions must fail and that the District Court Judge was correct in refusing to rule the evidence inadmissible on this ground.First, there is nothing in the case to warrant rejecting the evidence of Constable Moore that she gave a copy of the form to Mr Smith.As well, she said, she had a clear recollection of completing the form, of reading it to Mr Smith, who confirmed his consent, and it is also clear that he signed her notebook confirming his consent to the giving of the blood sample. Second, and as this court held recently in R v T and B (CA 190/00, CA 191/00, judgment 23 August 2000) at para [51] in relation to a search warrant lost or misplaced by the District Court, the mere absence of the original record should not necessarily of itself entail the drastic penalty of invalidity.The court went on to say that in principle and reflecting relevant policy considerations where the original document is lost or unavailable secondary evidence may be given in the usual way and it will be for the court considering the challenge to assess the weight to be given to that evidence.On the material before the District Court the only reasonable conclusion was that Mr Smith gave his written and signed consent to the taking of the blood sample.

[16] Next, Mr Smith had agreed to go to the Police Station and to give a blood sample and at the Station was again requested to give a blood sample and was handed the relevant written notice and consented to the taking of the blood sample.The statute does not preclude the making of a fresh complying request.On the evidence it cannot be argued that Mr Smith might have been lured to the Police Station by a pretext or was other than willing to go there.In these circumstances the District Court Judge was well entitled to conclude that the initial failure had no continuing effect and, if viewed as a breach, it was minimal only having no material impact on the statutory process and so on his statutory rights to be appropriately informed.

[17] The third point raised is essentially answered by the findings of fact in the District Court and on those findings we cannot possibly say the Judge erred in his interpretation and application of the straightforward test under the section.

[18] We should add that as a secondary submission Mr Foley submitted that the Judge failed to articulate the burden and standard of proof he applied in both considering the material before him and coming to his findings.But, as Mr Raftery for the Crown responded, proof on the balance of probabilities is the appropriate test in inquiries of this kind involving findings of preliminary fact (The Police v Anderson [1972] NZLR 233, 249;and cf s68 providing for questions of fact on applications under the Act to be determined on the balance of probabilities).Had the Judge applied the stricter test of beyond reasonable doubt, that would have been more favourable to Mr Smith.

[19] For the reasons given the application for leave to appeal is dismissed.

Solicitors

Crown Solicitor, Auckland