Liston-Lloyd v Commissioner of Police [2014] NZHC 2615 (23 October 2014)

Last Updated: 30 October 2014

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-1037 [2014] NZHC 2615

UNDER	the Judicature Amendment Act 1972
IN THE MATTER OF	an application for review
BETWEEN	JEANE BARBARA LISTON-LLOYD Applicant
AND	THE COMMISSIONER OF POLICE Respondent

Hearing:	2 July 2014
Counsel:	A Shaw and J Mahuta-Coyle for the Applicant K Laurenson for the Respondent
Judgment:	23 October 2014

_{JUDGMENT OF MALLON J}

Table of Contents

Introduction ....................................................................................................................................... [1] Background........................................................................................................................................ [3]

The legislation .................................................................................................................................... [7] The CIBSA ...................................................................................................................................... [7] The Misuse of Drugs Act 1975 ..................................................................................................... [12] The Summary Proceedings Act 1957 ............................................................................................ [14] The District Courts Act 1947 ........................................................................................................ [15] The Crimes Act 1961 .................................................................................................................... [18]

First issue: “relevant offence” ........................................................................................................ [19] Second issue: the wrong offence .................................................................................................... [44] Remedy............................................................................................................................................. [51]

_{Result ................................................................................................................................................ [53]}

LISTON-LLOYD v THE COMMISSIONER OF POLICE [2014] NZHC 2615 [23 October 2014]

Introduction

[1] This application for judicial review concerns the collection and storage of Ms Liston-Lloyd’s DNA sample following her convictions for sale of a class C drug to a person aged over 18 years. It is said that the sample was collected and stored in breach of the Criminal Investigations (Bodily Samples) Act 1995 (CIBSA) and in breach of the New Zealand Bill of Rights Act 1990 (NZBORA). Ms Liston-Lloyd seeks declarations, an order for destruction of the sample and related orders, and compensation.

[2] There are two issues. The first arises out of the procedure that applied in relation to class C drug offending prior to the Criminal Procedure Act 2011. It is contended that, because the conviction was entered in what was then called the Court’s summary jurisdiction, the offence was not one that was subject to the CIBSA. The second issue concerns a technical error in the description of the offence in the notice issued to Ms Liston-Lloyd under the CIBSA.

Background

[3] Ms Liston-Lloyd was charged with four offences of selling methylone, a class C drug, to a person over the age of 18 years.¹ The four offences related to four dates in May, June and July 2009. Under the criminal procedure at the time, the charges were brought by information laid indictably, two of them on 26 November 2009 and two of them on 11 February 2010. On 15 February 2010 Ms Liston-Lloyd, through her lawyer, pleaded guilty to the offences prior to committal.² Upon receiving those pleas, the District Court entered convictions for the offences.³ The District Court sentenced Ms Liston-Lloyd on 9 April 2010 to five months community detention and

200 hours community work.

[4] On 19 March 2010 the Police served a databank compulsion notice on Ms

Liston-Lloyd. The notice stated that she was required to give a bodily sample because she had been convicted of selling and supplying cannabis. By letter dated

¹ _{Misuse of Drugs Act 1975, s 6(1)(e).}

² _{Summary Proceedings Act 1957, s 160.}

3. As discussed later the convictions were entered by the District Court acting in the summary jurisdiction.

4 May 2010 the Police were informed that a hearing was necessary because the offence stated in the notice was not a relevant offence for which the notice could be issued. This was disputed by the Police in its response dated 6 May 2010. Ms Liston-Lloyd was then advised by her lawyer that notice could be issued for the offences. She did not proceed with her right to a review hearing.

[5] A second databank compulsion notice dated 21 May 2010 was issued. The notice again referred to the offence on which Ms Liston-Lloyd was convicted as selling and supplying cannabis. It required Ms Liston-Lloyd to provide a bodily sample on 6 July 2010. On 7 June 2010 police officers served this notice on Ms Liston-Lloyd at her home. At that time they took a DNA sample by way of buccal swab from her.

[6] The circumstances as to the taking of the swab are not agreed. Ms Liston- Lloyd filed an affidavit shortly before the hearing. In that affidavit she says that she was told that if she did not provide the sample the police would arrest her and take the sample by force. At the time of the hearing the Police were not in a position to respond to this.

The legislation

The CIBSA

[7] Under the CIBSA a “bodily sample” can be taken from a person for the purposes of including that person’s DNA profile on a DNA profile databank “only if” the person consents or the sample is taken pursuant to a databank compulsion notice.⁴ At the time of the events at issue in this case, a constable was permitted to issue a databank compulsion notice if a person was “convicted of a relevant offence.”⁵ A “relevant offence” was defined as including “an offence punishable by

_{a term of imprisonment of 7 years or more”.}⁶

⁴ _{Criminal Investigations (Bodily Samples) Act 1995, s 29.}

⁵ Section 39(1)(a). A compulsion notice can now be issued if a person has been convicted of “an imprisonable offence” which is defined as meaning “an offence punishable by a terms of imprisonment; and includes an offence punishable by imprisonment for life” rather than a “relevant offence.”

⁶ Section 2. The CIBSA has since been amended.

[8] There are requirements in relation to the notice. These include:⁷

39A Form and content of databank compulsion notice

(1) Every databank notice must be in the prescribed form.

(2) Every databank compulsion notice must contain the following particulars:

(a) the offence in relation to which the notice is issued:

(b) a place where, and a date on which, the person to whom the notice relates is to attend to give a bodily sample, as specified by a constable who is of or above the level of position of inspector under section 39C:

(c) a statement that the person in relation to whom the notice is issued must attend to give a bodily sample at the place and on the date specified in the order, unless the person and a constable agree that the person may attend to give the sample at a different place, on an earlier date, or at a different place and on an earlier date than that specified in the notice:

...

(e) a statement that the person in relation to whom the notice is issued may request a databank compulsion notice hearing under section 41(1):

...

[9] The person has the option to provide a buccal sample (that is, a mouth swab) or a blood sample taken from a vein or a fingerprick.⁸ The person has the right to request a hearing in respect of the notice on a number of grounds, including that the offence for which the notice has been issued is not a “relevant offence.”⁹

[10] A Judge may, on application, issue a warrant to arrest and detain the person to whom the notice relates.¹⁰ The application must be accompanied by evidence given on oath setting out the grounds for the application. In summary these grounds arise

_{where the Judge is satisfied that the person to whom the notice relates is unlikely to}

⁷ _{Section 39A(2).}

⁸ _{Section 54.}

⁹ _{Section 41(2)(a)(i).}

¹⁰ Section 45(2).

attend to give the sample on the date specified in the notice, or that the person has failed to attend on that date to give the sample.¹¹

[11] A sample taken pursuant to a databank compulsion notice may be included in a database of DNA profiles maintained by or on behalf of the police.¹² It may be used for the purpose of forensic comparison in the course of a criminal investigation by the police.¹³

The Misuse of Drugs Act 1975

[12] Section 6(1)(e) of the Misuse of Drugs Act provides that “no person shall ... sell, or offer to sell, any class C controlled drug to a person of or over 18 years of age”. Section 6(2)(c) provides that “[e]very person who contravenes subsection (1) commits an offence against this Act and is liable on conviction on indictment to ... imprisonment for a term not exceeding 8 years” in the case of class C offending.

[13] Section 6(3) provides that:¹⁴

(3) Notwithstanding anything in section 7 of the Summary Proceedings Act 1957, where any person is summarily convicted of an offence against this section relating to a Class C controlled drug, the District Court may sentence him to imprisonment for a term not exceeding one year or to a fine not exceeding $1,000.

The Summary Proceedings Act 1957

[14] At the relevant time criminal procedure provided for summary and indictable offences. Some offences, such as the offence at issue here, could be charged summarily or by indictment at the choice of the prosecutor.¹⁵ There was a preliminary hearing pursuant to which a person charged by indictment would be committed for trial. A defendant could ask to be brought before the District Court, at

_{any time before being committed for trial, to plead guilty.}¹⁶ _{Following such a}

¹¹ _{Section 45(4) and (5).}

¹² _{Section 25.}

¹³ _{Section 27(1)(a).}

14. At the relevant time, s 7 of the Summary Proceedings Act 1957 provided for a maximum term of imprisonment not exceeding five years where a person was summarily convicted.

¹⁵ _{The defendant could still elect trial by jury if charged summarily.}

¹⁶ Summary Proceedings Act 1957, s 160.

request, once the defendant is brought to the Court and has pleaded guilty, s 161(3)

of the Summary Proceedings Act 1957 provided that:

(3) If the defendant pleads guilty, then, subject to section 66(6), the

Court must record the plea and, —

(a) if—

...

(ii) the offence is an indictable offence under any enactment (other than an offence referred to in Part 2 of Schedule 1A of the District Courts Act 1947); or

the Court must either proceed immediately to sentence the defendant, or adjourn the proceedings for the sentencing of the defendant in accordance with section 28F of the District Courts Act 1947:

(b) in any other case, commit the defendant to the High Court for sentence.

The District Courts Act 1947

[15] At the relevant time, s 28F(3) of the District Courts Act 1947 provided:

(3) This subsection applies to any case where—

(a) a person pleads guilty under section 160 or 184J of the

Summary Proceedings Act 1957 ..., to—

...

(ii) any indictable offence under any enactment (other than the offences referred to in Part 2 of Schedule

1A); or

...

(b) The Court accepts jurisdiction.

[16] Section 28F(4) provided:

(4) In any case to which subsection (3) of this section applies,—

(a) Any trial Judge may sentence the person to imprisonment or a fine or both, not exceeding,--

(i) In the case of imprisonment, the maximum term prescribed by law; or

(ii) In the case of a fine, the maximum amount prescribed by law or, if no maximum amount is so prescribed, $10,000:

(b) Any Judge who is not a trial Judge may sentence the person to imprisonment or a fine or both, not exceeding the maximum term or amount prescribed by section 7 of the Summary Proceedings Act 1957.

[17] Section 28G provided:

Notwithstanding section 28F of this Act, in any case to which that section would otherwise apply, the Judge may decline to sentence the offender under that section and instead commit him to the High Court for sentence; ...

The Crimes Act 1961

[18] The Crimes Act defined “convicted on indictment” as follows:¹⁷

For the purposes of this Act, a person shall be deemed to be convicted on indictment if—

(a) he pleads guilty on indictment; or

(b) he is found guilty on indictment; or

(c) he is committed to the High Court for sentence under section 44 or section 160 or 184J of the Summary Proceedings Act 1957; or

(d) after having been committed ... for trial, he pleads guilty under

section 321 of this Act.

First issue: “relevant offence”

[19] Counsel for Ms Liston-Lloyd submits that there was no lawful basis to issue the databank compulsion notice because Ms Liston-Lloyd did not commit a “relevant offence” as defined in the CIBSA. The submission is that:

(a) Under the Misuse of Drugs Act there were two possible tariffs for the offence, one with a maximum of eight years imprisonment and the

_{other with a maximum of one year imprisonment.}

¹⁷ Crimes Act 1961, s 3.

(b) Until a conviction is entered and a Judge determines whether to accept or reject jurisdiction it is not possible to know which is the maximum penalty that will apply.

(c) The Judge’s determination on jurisdiction characterises the conviction as either a conviction on indictment with a maximum of 8 years imprisonment or a summary conviction with a maximum of one year imprisonment.

(d) In the present case, once the District Court Judge accepted jurisdiction under s 28F(3)(b), Ms Liston-Lloyd was summarily convicted of an offence with a maximum penalty of one year imprisonment. She was therefore not convicted of a “relevant offence” under the CIBSA.

[20] The respondent submits that pleading guilty under s 160 of the Summary Proceedings Act, and being summarily convicted, does not alter the maximum penalty for the offence. Rather it provides a jurisdictional limit in the District Court only. The respondent says that the offence remains one that is punishable by seven years or more.

[21] Turning to the words of s 6 of the Misuse of Drugs Act:

(a) a person is “liable on conviction on indictment” to an eight year

maximum; but

(b) where a person is “summarily convicted” the District Court “may”

sentence him or her to a term not exceeding one year imprisonment.

[22] The question that arises is whether, once summarily convicted, the offence is “punishable by a maximum term of imprisonment of 7 years or more”. It is not if, at the point of summary conviction, the maximum sentence is one year imprisonment. That would be the position if a District Court Judge’s decision on jurisdiction is the decision that characterises the conviction. That is because, once a District Court Judge accepts jurisdiction, the person can no longer be sentenced to a term of

imprisonment that is greater than one year. This would support the submission for Ms Liston-Lloyd that there are two tariffs for the offence which depend on the type of conviction that is entered.

[23] On the other hand if, at the point of summary conviction, a District Court Judge may still decline jurisdiction and transfer a defendant to the High Court for sentencing, then it is not the type of conviction that determines the maximum punishment but the District Court’s decision on jurisdiction. If that is the case, the respondent’s submission might have more force. I turn then to consider the point at which a summary conviction is entered.

[24] Section 161(3) of the Summary Proceedings Act does not directly answer this question. It provides that the Court “must record the plea” and then there are two options:

(a) to proceed to sentence the defendant immediately; or

(b) to adjourn the sentencing, in which case the sentencing will be in accordance with s 28F of the District Courts Act 1947.

[25] If the latter option is taken, there are again two options:

(a) the District Court “accepts jurisdiction” in which case s 28F(4)

applies; or

(b) the Judge “may decline to sentence the offender” under s 28F and

“instead commit him to the High Court”.¹⁸

[26] Where the District Court Judge declines jurisdiction and commits the defendant to the High Court for sentencing the maximum penalty set out in s 6(2) of the Misuse of Drugs Act will apply. Where the District Court Judge accepts jurisdiction the maximum in s 6(3) of the Misuse of Drugs Act will apply. It is

_{therefore the decision on jurisdiction which determines whether the conviction is one}

¹⁸ District Courts Act 1947, s 28G

on indictment or is a summary conviction. That is, it is the decision on jurisdiction that characterises the conviction, not whether a guilty plea is entered pursuant to the s 160 procedure (which merely initiates the decision on jurisdiction).

[27] That is the approach that has been taken in the authorities. The first of these is R v McLeod.¹⁹ In that case a guilty plea was entered prior to the preliminary hearing (the process which led to committal) on indictably-laid charges of selling cannabis (a class C drug). The District Court Judge sentenced Mr McLeod to two years and three months imprisonment and a fine. This was reduced to one year and nine months imprisonment on appeal to the High Court.

[28] A further appeal to the Court of Appeal was allowed on the basis that the maximum term of imprisonment available was one year imprisonment. This was because the District Court’s actions “by accepting jurisdiction or by declining to sentence and committing the accused to the High Court, will characterise the

conviction.”²⁰ If the Judge had declined to sentence Mr McLeod and committed him

to the High Court for sentencing he would have been “convicted on indictment”.²¹

But, having received the plea, the answer to whether he was “summarily convicted” was “[y]es, if jurisdiction to sentence is accepted by the District Court”.²² As that was the course adopted in relation to Mr McLeod the maximum sentence was that prescribed by s 6(3) of the Misuse of Drugs Act.

[29] The second case is R v Webber.²³ In that case two young men were charged indictably with cannabis offending. They pleaded guilty prior to the preliminary hearing and the District Court Judge noted on the file “[c]onvicted and remanded ... for pre-sentence report and sentence.” At the sentencing hearing another District Court Judge committed them for sentence in the High Court. The High Court Judge considered that the two defendants had been summarily convicted. He sentenced

_{them both to a term of one year imprisonment. A Solicitor-General’s appeal to the}

¹⁹ _{R v McLeod [1988] NZCA 102; [1988] 2 NZLR 65 (CA).}

²⁰ _{At 70.}

21. At 70. See also at 73 preferring the approach that “however the proceedings may have been initiated, it is the method of disposal which finally categorises them.”
22. At 70. The Court was dealing with provisions that were materially the same as those at issue here.

²³ R v Webber [1999] 1 NZLR 656 (CA).

Court of Appeal was allowed and the sentences of imprisonment were increased to

18 months imprisonment.

[30] The Court of Appeal concluded that the District Court Judge’s jurisdiction at the point of taking the guilty plea was confined to recording the plea and adjourning the proceedings to enable the process under s 28F to be followed.²⁴ An integral part of the s 28F process was the District Court’s option to transfer the matter to the High Court for sentencing.²⁵ Where it exercised that option the person was not convicted up to that point. They were “deemed to be convicted on indictment” having been committed for sentence in the High Court.²⁶ This meant that the sentences were to be determined against the eight year maximum.²⁷

[31] The third case is R v Hoe.²⁸ It was concerned with a defendant who pleaded guilty to a charge of cultivating cannabis. The District Court Judge stated a question for the High Court seeking confirmation that the defendant had been summarily convicted. On appeal, the Court of Appeal referred to s 28F(4) which provided that a trial judge may sentence the person to “the maximum term prescribed by law”. It noted that there were two alternative “maximum terms prescribed by law” in the Misuse of Drugs Act for cultivating cannabis which depended on whether the person

was convicted on indictment or summarily convicted.²⁹ It considered McLeod and

Webber and agreed with them. It held that if a District Court Judge accepted jurisdiction then the defendant was summarily convicted and “the maximum prescribed by law” was that set out in s 9(3) of the Misuse of Drugs Act.³⁰

[32] In response to these authorities, the respondent refers to authorities which concern the approach to sentencing when jurisdiction is accepted. The orthodox

_{sentencing approach is to set a starting point on the basis of the aggravating and}

²⁴ At 661. Note that the Judge in the present case purported to enter a conviction when the guilty plea was entered. This is of no moment, however, because at the adjourned hearing the District Court Judge accepted jurisdiction by proceeding to sentence Ms Liston-Lloyd.

²⁵ _{At 661.}

²⁶ _{At 661.}

²⁷ _{At 662.}

²⁸ _{R v Hoe [2001] NZCA 112; [2001] 2 NZLR 633 (CA).}

²⁹ _{At [5].}

³⁰ At [10] and [16]. Note that s 9(3) is similar to s 6(3), except that it relates to cultivation of prohibited plants and provides for a maximum of two years imprisonment rather than one. More recently, these three authorities were applied in the context of similar provisions in the Passports Act 1992 in R v Zanzoul CA297/06, 6 December 2006.

mitigating factors that relate to the offending and to then uplift or reduce that starting point with reference to personal aggravating and mitigating factors.³¹ Relevant to the starting point is the seriousness of the offence as reflected in the maximum penalty.³² In this context it has been held that the starting point for the offending is not set by the jurisdictional limit of the sentencing judge but by the statutory maximum.³³ Therefore a defendant convicted summarily of supplying a class C drug could be sentenced to an end sentence of one year imprisonment, even though that meant beginning with a higher starting point for the offending and then reducing the sentence because the defendant was entitled to discounts for personal mitigating factors (for example, a guilty plea).³⁴

[33] The respondent submits that these sentencing authorities support the point that there is one statutory maximum for supplying a class C drug (namely eight years), and that the one year maximum is not a statutory maximum that applies to the offence but rather is a jurisdictional limit on the sentencing judge. For the purposes of determining whether the offence is a “relevant offence” under the CIBSA, the respondent submits that it is that one statutory maximum that is determinative.

[34] In support of this submission the respondent refers to Tittleton v Police.³⁵

That case concerned a similar issue to the present case except that the issue was whether the offence was a “qualifying instrument forfeiture offence” for the purposes of the Sentencing Act 2002. The defendant was convicted of cultivating cannabis and possession of cannabis for supply. He was sentenced to come up if called upon within 12 months. An instrument forfeiture order for 50 per cent of the value of Mr Tittleton’s house was also made. That order was appealed on the basis that the offence was not a “qualifying instrument forfeiture offence” because it was not “an

offence punishable by a maximum term of imprisonment of five years or more.”³⁶

The High Court Judge concluded that it was such an offence because “[t]he reduced

sentences in s 6(3) and s 9(3) of the Misuse of Drugs Act are about choice of

_{procedure and forum, not about the maximum penalty for the offence.”}

³¹ _{R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).}

³² _{Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [SA8.02].}

³³ _{At [SA8.04(3)].}

³⁴ _{Cameron v Police HC Wellington AP17/03, 18 March 2003.}

³⁵ _{Tittleton v Police [2012] NZHC 994.}

³⁶ Sentencing Act 2002, s 4.

[35] In reaching this view the Judge said:

[14] [Section 9(3)] does not say that the offence is only punishable up to a maximum of one year. It says the maximum on summary procedure is one year. The limitation is based not on the offence but on the forum. At all times, the maximum punishment for each offence remained seven years and eight years respectively. For the purposes of construing the meaning of the definition of qualifying offence, the limitation is on the District Court, not on the offence at all. If a greater penalty was felt to be appropriate by the District Court Judge, this could be achieved by the administrative expedient of removing the matter to the High Court.

[36] The Judge then referred to the approach taken in the sentencing authorities that, for the purposes of sentencing, the maximum penalty is set by reference to the statutory maximum and not the jurisdiction in which the court is called upon to sentence.³⁷ The Judge also considered that the interpretation he favoured was supported by a purposive approach.³⁸

[37] However the Judge was not referred to the McLeod, Webber and Hoe line of authorities. The Judge did not therefore focus on the point that it was the Judge’s decision on jurisdiction that characterised the conviction. In my view, ss 6(3) and

9(3) do not involve a choice about procedure and forum. Rather, those provisions apply once a person has been summarily convicted and that will only occur once a decision on jurisdiction has been made. The decision on jurisdiction is made in light of an assessment about the gravity of the offending and therefore the potentially appropriate end sentence. Once a decision on jurisdiction has been made, if that decision is not to transfer the defendant to the High Court for sentencing, the one year maximum is no longer permissive. It becomes the maximum for the summary offence.

[38] I consider that the authorities concerning the approach to sentencing are not directly applicable.³⁹ The decision on jurisdiction takes into account what the end sentence is likely to be. The starting point can be set with reference to the higher tariff (which enables the culpability of the offending to be properly assessed against other offending of the same kind), but the offence remains a summary one subject to

_{a maximum end sentence of one year imprisonment.}

³⁷ _{At [15] and [16].}

³⁸ _{At [17] and [18].}

³⁹ Discussed in [32] above.

[39] The respondent submits that there will be anomalies if a summary conviction for the offence means that it is not a “relevant offence”. The respondent notes that the summary conviction is only available if the guilty plea is entered prior to committal. The timing of the plea, rather than the nature of the offending, therefore would determine whether the offending was a “relevant offence” for the purposes of the CIBSA or a “qualifying instrument forfeiture offence” for the purposes of the Sentencing Act 2002. That is not, however, necessarily unfair. Early guilty pleas, which are beneficial to the system and show that the offender takes responsibility for the offending, warrant favourable treatment, as is seen in the form of a discount from the sentence.

[40] That said, I accept that interpreting “relevant offence” as not including offences to which the limits in ss 6(3) and 9(3) apply does give rise to anomalies. For example if a Judge declines jurisdiction and transfers the matter to the High Court the defendant is then convicted on indictment. At that point they have committed a “relevant offence” for the purposes of the CIBSA. Yet, as can occur, the High Court Judge may conclude that the appropriate end sentence is a sentence that was within the jurisdiction of the District Court Judge. The potential for this kind of anomaly to arise does emphasise the importance of the decision on jurisdiction.

[41] However, as was said in Hoe about another anomaly in these provisions:⁴⁰

It is entirely anomalous, but the provisions with which we are concerned are replete with anomalies and the particular anomaly in this case arises not from the timing of the conviction but from its nature.

[42] “Very early legislative consideration” was recommended in 1998 in Webber.⁴¹

In Hoe the Court of Appeal noted that there had been no legislative response following that recommendation and that “[r]egrettably, this appeal requires us to again venture into the legislative morass”.⁴² The Criminal Procedure Act has now removed these problematic provisions and therefore has brought an end to these

_{anomalies. CIBSA has also been amended so that a databank compulsion notice can}

⁴⁰ _{R v Hoe, above n 28, at [14].}

⁴¹ _{R v Webber, above n 23, at 662.}

⁴² R v Hoe, above n 28, at [2].

be issued in respect of any imprisonable offence. However, as in Webber, the existence of anomalies arising in matters that pre-date these amendments does not justify departing from the approach taken in McLeod, Webber and Hoe to the issue that arises here.

[43] I therefore accept Ms Liston-Lloyd’s position. There are two tariffs: one that applies if a person is convicted on indictment and one that applies if a person is summarily convicted. Ms Liston-Lloyd was summarily convicted. That is because she entered her guilty plea before committal and the District Court Judge accepted jurisdiction. At that point the maximum term of imprisonment that could be imposed was one year imprisonment. Her summary conviction was not for an offence punishable by imprisonment of seven or more years. It was not a “relevant offence” for the purposes of the CIBSA. It follows that the taking of the buccal sample was unlawful.

Second issue: the wrong offence

[44] The second ground on which the taking of the sample is said to have been unlawful concerns the reference to the wrong offence in the notice. The notice stated that because Ms Liston-Lloyd has been “convicted of the offence of Selling and Supplying Cannabis” she was required to give a bodily sample. There is no such

offence⁴³ and the offence on which Ms Liston-Lloyd was convicted was sale of a

class C drug, namely methylone, to a person over the age of 18 years.

[45] The requirements of the CIBSA are mandatory. A bodily sample may be taken “only if” the person consents or the sample is taken pursuant to a databank compulsion notice and in accordance with procedures set out in Part 4 of the Act.⁴⁴

In this case the police purported to take the sample pursuant to a databank compulsion notice (rather than by consent). The requirements of a notice are

_{mandatory: it “must” be in the prescribed form; and it “must” contain certain}

⁴³ Section 6(1) of the Misuse of Drugs Act creates two distinct offences namely: to supply or administer, or offer to supply or administer, a class C drug to a person under 18 years of age (s 6(1)(d)); and to sell, or offer to sell, a class C drug to a person of or over the age of 18 years (s 6(1)(e)).

⁴⁴ Criminal Investigations (Bodily Samples) Act 1995, s 29(b).

particulars.⁴⁵ One of the particulars that it must include is “the offence in relation to which the notice is issued”.⁴⁶

[46] The notice served on Ms Liston-Lloyd did not comply with the mandatory requirement to include the offence in relation to which the notice was issued. The notice was issued in respect of the supply of a class C controlled drug, namely methylone, to a person over the age of 18 years (not Selling and Supplying Cannabis). As such it was an invalid notice and the sample was obtained unlawfully (that is, not in compliance with the Act) as a result.

[47] The respondent does not seek to submit otherwise. Instead it submits that the error can be corrected by s 5 of the Judicature Amendment Act 1972. That provides as follows:

5 Defects in form, or technical irregularities

On an application for review in relation to a statutory power of decision, where the sole ground of relief established is a defect in form or a technical irregularity, if the Court finds that no substantial wrong or miscarriage of justice has occurred, it may refuse relief and, where the decision has already been made, may make an order validating the decision, notwithstanding the defect or irregularity, to have effect from such time and on such terms as the Court thinks fit.

[48] The respondent submits that an officer issuing a databank compulsion notice is exercising a statutory power of decision. The respondent accepts that the CIBSA is a code but says that this does not oust s 5.⁴⁷ The respondent says this is similar to defects in search warrants regularised by a similar provision in s 204 of the Summary Proceedings Act.⁴⁸ In this case the error caused no prejudice to Ms Liston- Lloyd. She must have been aware why the notice was issued given that she had no other convictions and she had received legal advice in respect of the first databank compulsion notice that was issued.

[49] I accept that naming the wrong offence in the notice is a technical error. I

_{also accept that, in the circumstance that arose here, it is unlikely to have caused any}

⁴⁵ _{Section 39A.}

⁴⁶ _{Section 39A(2)(a).}

⁴⁷ _{Taylor v Attorney-General HC Wellington CIV-2005-485-530, 4 May 2005 at [13].}

⁴⁸ Attorney-General v Dotcom [2014] NZCA 19; [2014] 2 NZLR 629 (CA) at [54]- [55] (an appeal to the Supreme

Court has been heard but the decision is presently reserved).

difficulties for Ms Liston-Lloyd in understanding what was required of her and why, and what rights she had. However it is not clear that the power in s 5 is available to correct errors in a databank compulsion notice. As the Court of Appeal noted in R v Shaheed:⁴⁹

There is a clear inference from the prescriptive terms of the 1995 Act – blood samples may be taken “only if” there is compliance – that Parliament was not prepared to allow this crime fighting mechanism to be used unless the very strict conditions and restraints it laid down were scrupulously complied with. We have previously held in R v T that there is no residual discretion. Possibly that was too broadly stated and should be reconsidered. But in the face of the Act’s prescription and the guarantee contained in s 21 of the Bill of Rights, any implied discretion would be exercised very sparingly, such as in the very extreme case illustrated in the example given by Lord Steyn in Attorney-General’s Reference. And even in such a case the Court would have to take full account of the seriousness of the breaches of the Act and the invasive character of the search and seizure.

[50] In this case, even if the s 5 power is available, I would decline to exercise it. The issue is better addressed as part of an assessment of whether the unlawful search was an “unreasonable” one.⁵⁰

Remedy

[51] Ms Liston-Lloyd has established that the sample was taken unlawfully. This was because it could only be taken if she had committed a “relevant offence” and she had not committed such an offence. It was also unlawful because the notice did not comply with the mandatory requirements of the notice. Ms Liston-Lloyd is therefore entitled to a declaration that the sample was taken unlawfully and an order that the respondent destroy the sample.

[52] Ms Liston-Lloyd also claims that the unlawful taking of her sample was a breach of her right to be free from an unreasonable search.⁵¹ In respect of that claim she seeks a declaration that the sample was taken in breach of that right. She also seeks compensation to denounce that breach. However because, at the time of the hearing, the parties were not able to agree on the facts relating to the circumstances

_{in which the sample was taken, the parties agreed that this issue should be adjourned.}

⁴⁹ _{R v Shaheed [2002] 2 NZLR 377 (CA) at [166].}

⁵⁰ _{New Zealand Bill of Rights Act 1990, s 21.}

⁵¹ Section 21.

Result

[53] Ms Liston-Lloyd succeeds on her first and second causes of action. Accordingly:

(a) I make a declaration that the compulsion notices dated 19 March 2010 and 21 May 2010 were unlawful and that as such there is no legal basis for continuing to hold Ms Liston-Lloyd’s DNA sample in the DNA profile databank.

(b) I order that her sample held in the DNA profile databank be destroyed and any document in the respondent’s possession, power or control that records or reproduces information containing or describing her DNA is also to be destroyed.

[54] I do not consider it is necessary to make the other consequential orders that Ms Liston-Lloyd seeks (providing proof and advice about steps taken) because I expect that the respondent will attend to those matters in a proper and cooperative way as a result of the declaration and orders that I have made.

[55] The third cause of action is adjourned to a hearing to be fixed by the registry in consultation with counsel.

[56] I reserve the issue of costs. If they cannot be resolved by agreement, the parties have leave to file brief memoranda (say, no more than three pages) confined to the issues in dispute. Such memoranda should be filed within one month of the date of this judgment.

Mallon J