Police v Pandey-Johnson HC New Plymouth CRI 2011-443-2 [2011] NZHC 2137 (16 February 2011)

Last Updated: 1 January 2019

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF RESPONDENTS PROHIBITED SAVE IN ACCORDANCE WITH SECTION 14 OF THE CRIMINAL INVESTIGATIONS (BODILY SAMPLES) ACT 1995.

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2011-443-0002

NEW ZEALAND POLICE

Applicant

v

MIKHAIL RAFAEL PANDEY-JOHNSON

Respondent

CRI 2011-443-0003

NEW ZEALAND POLICE

Applicant

v

KARL TEANGIOTAU NUKU

Respondent

Hearing: 16 February 2011 (by telephone)

Counsel: J Marinovich for Applicant P M Keegan for Mr Pandey-Johnson J C Hannam for Mr Nuku

Judgment: 16 February 2011

NEW ZEALAND POLICE V PANDEY-JOHNSON HC NWP CRI 2011-443-0002 16 February 2011

(ORAL) JUDGMENT OF HEATH J

[1] The Criminal Investigations (Bodily Samples) Act 1995 provides a mechanism whereby, if specified criteria are met, a commissioned police officer can seek an order from to compel a suspect to provide a bodily sample for DNA testing. The criteria on which a Judge of this Court must be satisfied to make an order are set out in s 16 of the Act.

[2] In this case, discrete compulsion orders have been sought against Mikhail Rafael Pandey-Johnson and Karl Teangiotau Nuku. Each application arises out of the same incidents. The two applications have been heard together and I give a single judgment for convenience. Orders were originally made on 4 February 2011. Although those orders were made by consent, the two suspects declined to have the samples taken. I recalled my earlier order and I have heard from counsel today by telephone, as to what further order, if any, should be made.

[3] Both Mr Pandey-Johnson and Mr Nuku are alleged to have been complicit in an aggravated robbery committed at Auckland on 5 January 2010, and the murder of Mr Browne in Wellington on 21 January 2010. A third suspect, Mr Rhys Fournier, has supplied a bodily sample voluntarily. All three have been committed for trial in May 2011 on charges arising out of those two incidents.

[4] Police officers located at both scenes and in other places, evidence that contains DNA profiles. After forensic examination, some of the profiles remain unidentified. Orders are sought to ascertain whether any of the unidentified profiles can be matched either to Mr Pandey-Johnson or Mr Nuku. I have read the verified applications, the deposition of Inspector Telford in support satisfies me that the criteria have been met.

[5] I make an order under s 13 of the Act. There are no discretionary factors that would justify refusing an order on those grounds. I order that Mikhail Rafael Pandey-Johnson and Karl Teangiotau Nuku shall each give a bodily sample at 10.30am on 17 February 2011 to a suitably qualified person as defined in the Act. My intention is that the sample be taken initially by buccal swab, but if there is any resistance the provisions of s 54(3) come into play and a prison officer may on a
request made by a member of the Police use or cause to be used reasonable force to assist a suitably qualified person to take a finger prick sample from either of the suspects who fail to co-operate.





P R Heath J

Solicitors:

Crown Solicitor, New Plymouth Counsel:

P M Keegan, New Plymouth J C Hannam, New Plymouth