THE QUEEN v GARY COOPER [2001] NZCA 24 (19 February 2001)

PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S139 CRIMINAL JUSTICE ACT 1985. ORDER PROHIBITING PUBLICATION OF NAME OR PARTICULARS IDENTIFYING APPELLANT UNTIL AFTER TRIAL

IN THE court of appeal of new zealand

ca381/00

THE QUEEN

V

GARY COOPER

Coram:	Gault J Thomas J McGrath J
Judgment (On the papers):	19 February 2001

judgment of the court DELIVERED BY GAULT J

[1]The appellant is charged with 14 counts of rape or sexual violation of his daughter over a period of more than a decade.Prior to the appellant's trial the Crown made an application under s344A of the Crimes Act 1961 to determine the admissibility of certain DNA evidence.The trial judge ruled the evidence admissible and the appellant now appeals against that ruling to this Court.
[2]The appellant applied for legal aid in respect of this appeal. The Registrar declined the application after the necessary consultation under s15 of the Legal Services Act 1991.The appellant has filed written submissions and the appeal is determined on the basis of them.
[3]It is alleged that between 1 April 1984 and 31 December 1995 the appellant repeatedly raped and sexually violated his daughter.The appellant denies all charges against him.In 1992 the complainant gave birth to a son.The appellant is stated to be the father of that child.Analysis of a blood sample taken from the appellant supported this allegation.However, the evidence was ruled inadmissible at the appellant's trial for technical reasons.The police requested another blood sample from the appellant in accordance with the Criminal Investigations (Blood Samples) Act 1995.The appellant refused. Therefore the police applied for and obtained a search warrant pursuant to s198 of the Summary Proceedings Act 1957.
[4]On 25 July two police officers executed the search warrant at Mount Eden Prison, where the appellant was being held awaiting trial.A number of items were seized including, in particular, a pair of underpants being worn by the appellant.The items were later delivered to the Environmental Science and Research (ESR) Laboratory in Mount Eden.The underpants were found to contain semen staining.A DNA profile was obtained from this sample.The appellant's profile was compared with DNA profiles obtained from blood samples provided by the complainant and her child.On examining the resulting statistical analysis the ESR officer concluded that the results very strongly supported the appellant as the father of the complainant's child. As such the evidence is strongly supportive of the Crown case against the appellant.
[5]The appellant objected to the evidence on the grounds that:

(a) The search and seizure were beyond the scope of the search warrant and therefore illegal; and
(b) The search and seizure were unreasonable and in breach of section 21 of the Bill of Rights Act 1990, i.e an unreasonable intrusion on the privacy of the appellant.

[6]With regard to the first ground, the appellant submitted (inter alia) that the underpants seized did not come within any of the three categories in s198(1) of the Summary Proceedings Act 1957 as the object of the police in seizing them was not to obtain the underpants per se but what might be contained in them.Therefore the underpants were not either in their form nor in their existence "evidence as to the commission" of the offences as required by s198.Accordingly it was said that the seizure of the underpants was outside the scope of the warrant and unlawful.
[7] The Judge did not consider that there was any logical basis for holding that the underpants were not capable of being evidence of the commission of an offence.We agree.As was said by Fisher J in this Court in R v Sanders [1994] 3 NZLR 450, applied recently in this Court in the case of R v Haanstra CA340/00, 27 September 2000:
... 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.

We are of the view that the items seized in the present case are within this definition and thus within the scope of the warrant.Whether the appellant had sexual connection with the complainant will clearly be in issue at the appellant's trial.The sample of the appellant's semen, albeit indirectly through scientific evaluation, constitutes evidence highly relevant to that issue and therefore to the commission of the offence itself.The evidence is not inadmissible on this basis and accordingly this ground of appeal must fail.
[8] Two submissions were made in relation to the appellant's second contention that the search and seizure were unreasonable and in breach of the Bill of Rights.Firstly it was said that the seizure of the underpants was essentially to circumvent the limits imposed by the Criminal Investigations (Blood Samples) Act 1995 and was thus unreasonable.However as the trial Judge pointed out, the Act provides for the obtaining of invasive intimate samples, if necessary by force.It does not purport to provide a code for the obtaining of all such samples by other non-invasive means.We consider that it was open to the police to pursue such lawful means to obtain a sample and that they acted reasonably in doing so:see R v T, CA174/99, judgment 11 June 1999.
[9] Secondly it was submitted that as the application for the search warrant was based in part on the earlier inadmissible blood sample evidence the subsequent search was unreasonable.While the trial Judge accepted that the application did indeed contain full details of the inadmissible evidence he went on to hold that the evidence was nevertheless admissible.His Honour stated:
From my perusal of the application there are other grounds stated therein sufficient to justify the granting of the warrant.I refer in particular to paragraphs 4-6 and 26-30 inclusive.This information is quite independent from the further inadmissible evidence relating to the earlier analysis of the blood samples from the accused.
In the present case the police were seeking to avail themselves of an alternative procedure to the invasive procedures provided by the Blood Samples Act.In my view it is reasonable to suppose that when considering such an application the judicial officer considering the same could well wish to know why the police had not availed themselves of the Blood Samples Act procedures before applying for the search warrant.An explanation as to why not was therefore relevant to the consideration to be given as to whether or not the warrant should issue.
[10] For the reasons given by the trial judge we consider that the inadmissible evidence was properly included in the application as being relevant to the issue of the warrant.We are also of the view that the evidence was not required to provide a basis for the issue of the warrant and that as such the warrant was not obtained as a result of the inclusion of the inadmissible evidence.This ground of appeal also fails.
[11] Leave to appeal is granted, but the appeal is dismissed.
Solicitors
Crown Law Office, Wellington