MANOAH v R [2020] NZCA 121

MANOAH v R [2020] NZCA 121 [28 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA31/2020[2020] NZCA 121BETWEEN KANE JOSEPH MANOAHApplicantAND THE QUEENRespondentCourt: Goddard, Mallon and Thomas JJCounsel: W C Pyke for ApplicantA Markham for RespondentJudgment:(On the papers)28 April 2020 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)Introduction[1] Mr Manoah was convicted of burglary at a Judge-alone trial in theWaitakere District Court. An appeal against his conviction was dismissed by theHigh Court.1 He seeks leave to bring a second appeal.2 Leave can be granted only ifthis Court is satisfied that Mr Manoah's appeal involves a matter of general or public1 Manoah v Police [2019] NZHC 3404.2 His application has been heard on the papers pursuant to an earlier direction of this Court in aMinute by Courtney J: Manoah v R CA31/2020, 10 February 2020.importance or that a miscarriage of justice may occur or may have occurred unless theappeal is heard.3 This sets a high threshold.4[2] The issue in the High Court was whether DNA profile evidence obtained viaa suspect compulsion order was admissible at his trial. This profile matched a bloodsample taken from a tool at the crime scene. The profile was obtained eight days afterthe expiry of the order in breach of s 45AA(1) of the Criminal Investigations(Bodily Samples) Act 1995. The District Court ruled that the profile was admissibleevidence, despite this breach, under the balancing test set out in s 30 of theEvidence Act 2006.5 The High Court upheld that decision.6[3] Mr Manoah contends the DNA profile evidence ought to have been excluded.He submits the High Court erred in its assessment of the degree of improprietyinvolved when carrying out the s 30 balancing test, and this gave rise to a miscarriageof justice. He also contends the Court's decision undermines the legislative regimefor taking bodily samples and this raises a matter of general or public importance.Background[4] The burglary charge arose out of events on 13 November 2017. The policealleged Mr Manoah jemmied open the garage at a residential address and stole aYamaha dirt bike valued at $8,000. The police conducted a forensic examination atthe address on 15 November 2017. A blood-like substance was found on a hand sawbelieved to have been used to open the garage. A swab of the substance was taken andanalysed.[5] The DNA profile from the swab corresponded to Mr Manoah's DNA profileon the DNA databank. Evidence of a match with a profile on a DNA databank is notadmissible against a defendant in a criminal proceeding.7 It was therefore necessaryto obtain a suspect compulsion order.3 Criminal Procedure Act 2011, s 237(2).4 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.5 Police v Manoah [2018] NZDC 27523 [Pre-trial ruling].6 Manoah v Police, above n 1.7 Criminal Investigations (Bodily Samples) Act 1995, s 71.[6] On 13 June 2018 a suspect compulsion order was made in the District Court.The buccal sample obtained was not determinative when analysed. The Institute ofEnvironmental Science and Research (ESR) recorded the reason for the failure asunknown. This was discussed in the District Court — the police said that Mr Manoahactively obstructed them and used another person's toothbrush immediately prior tothe mouth swab being taken.8[7] On 6 August 2018 the police made another application for a suspectcompulsion order. The District Court granted this on 9 August 2018.9 The orderspecified that the bodily sample was to be taken at the Mount Eden Remand Centrewithin 14 days of the order being made (that is, by 23 August 2018).[8] The sample was obtained on 31 August 2018. By this time Mr Manoah was atAuckland's Paremoremo Prison. In attendance were two police officers(Constables Kane and Robinson), a police doctor and Mr Manoah's then counsel,Dr Kidd. Members of the prison's riot squad were also present. This was becauseMr Manoah had a history of violence towards police and had been involved in a scufflewhen the earlier sample was obtained.[9] Constable Kane was aware the order had expired. He was unaware the policecould obtain a further order or a variation of the date from the Court. He had liaisedwith Dr Kidd and believed the date could be extended by consent. He providedtransport for Dr Kidd to attend the prison. Constable Kane's notebook recorded that"Dr Kidd advised Manoah to comply and stop delaying the process". According toaffidavits filed in the High Court, Dr Kidd explained to Mr Manoah that he should notdelay the process because the police would be able to obtain another suspectcompulsion order. Dr Kidd's notes recorded that Mr Manoah gave the samplevoluntarily.[10] On 3 August 2018 Mr Manoah had sent a letter to Legal Aid Services seekingto change his legal counsel. Dr Kidd was unaware of this when he attended the prisonon 31 August 2018. Mr Manoah did not tell him or the police officers of this letter nor8 Pre-trial ruling, above n 5, at [10].9 Police v Manoah [2018] NZDC 16558 [Ruling No 1 of Judge Glubb].indicate to them that Dr Kidd was no longer his counsel. New counsel was notassigned until 12 October 2018.[11] The sample was obtained from a finger prick. Analysis of the sample provided"extremely strong" scientific support for a match with the blood sample from the tool.The District Court Judge determined this evidence was admissible. Mr Manoah wasconvicted on the burglary charge, and sentenced to 16 months' imprisonment on thischarge and three charges of stealing petrol with a total value of $190.10The High Court decision[12] Mr Manoah appealed his conviction on the basis that the profile evidenceshould not have been admitted under the s 30 test.11 The Judge noted that s 45AA ofthe Criminal Investigations (Bodily Samples) Act required strict compliance with timelimits. She noted the sample was taken out of time, no arrest warrant was issued andthe date had not been varied by a Judge. No issue was taken with the variation to theplace at which the sample was taken.[13] The Judge turned to the test under s 30. As to the relevant 30(3) factors,the Judge's views were as follows:(a) Mr Manoah did not have an absolute right to the protection of bodilyintegrity since blood samples can be compelled by a statutory process.A blood sample had been authorised here.(b) The impropriety was limited to a failure to comply with the time limit.In the Judge's view the police had not acted in bad faith. Nor had theybeen reckless. The police had involved Mr Manoah's legal counsel andthe sample had been taken after advice from his counsel. While thesight of corrections officers in riot gear could have been intimidating,Mr Manoah did not say that he had been intimidated despite having hadthe opportunity to give evidence to this effect. Having officers presentin riot gear was reasonable given the scuffle on the earlier occasion.10 Police v Manoah [2019] NZDC 5828 [Sentencing notes].11 Applications for leave to appeal out of time and to file affidavit evidence were granted.(c) The nature and quality of the evidence strongly favoured admissibility.It was reliable, scientific evidence providing extremely strong evidencelinking Mr Manoah to the burglary.(d) The offending was moderately serious.(e) The Criminal Investigations (Bodily Samples) Act permits the date fortaking the sample to be varied by a Judge.12 It also permits a furtherapplication for a suspect compulsion order to be made for the sameoffence.13 Either method would have allowed the police to obtain thesample after the second order had expired. Constable Kane should haveknown this, but it was understandable that he thought consent fromMr Manoah was sufficient. This was therefore a neutral factor.(f) There was no urgency.[14] Turning to whether the exclusion of the evidence would be disproportionate tothe impropriety, the Judge accepted that an important right was involved and there wasno urgency. However, balanced against those factors were the following:14(a) the impropriety was modest given the invasion of Mr Manoah's rightshad been authorised by Judge Glubb, the police were transparent withhim and facilitated his legal advice. While Mr Beach says Mr Manoahwas intimidated, Mr Manoah himself has not provided any evidencehe was.(b) the nature and quality of the evidence favours admission and theevidence is central to the police case;(c) the charge of burglary is a moderately serious offence, favouringadmission.[15] Agreeing with the District Court, the Judge concluded that exclusion of theevidence would be disproportionate to the impropriety. The appeal against convictionwas dismissed.12 Criminal Investigations (Bodily Samples) Act, s 47(1) and (3).13 Section 17.14 Manoah v Police, above n 1, at [35].The intended appeal grounds[16] Mr Manoah says the High Court erred in its assessment of the degree ofimpropriety involved in obtaining the DNA sample. He submits the impropriety wasserious because:(a) The police officer was grossly reckless in not reading and obeying theterms of the order, which specified the date by which the sample had tobe obtained, and in being "ignorant" of the legislation. This legislationrequires scrupulous compliance.(b) The impropriety was aggravated by the officer using Dr Kidd tofacilitate taking the sample unlawfully. Dr Kidd was second guessingwhat a later Court might do when faced with a third application on amatter that was much delayed. His advice put improper pressure tobear on Mr Manoah at a time that he was being housed inNew Zealand's maximum security prison. Moreover, the High Courtfound that Mr Manoah accepted Dr Kidd's advice when this was notsupported by the evidence.(c) The right to protection of bodily integrity is important. Taking a samplewithout lawful authority was an affront to Mr Manoah's personalintegrity and dignity and it was therefore serious.[17] Mr Manoah submits that the factors favouring admitting the evidence do notoutweigh the impropriety when that is correctly assessed. He therefore contends thatthe evidence should have been excluded and a miscarriage of justice has occurred.He also says an issue of general and public importance arises because the credibilityof the protections provided under the Criminal Investigations (Bodily Samples) Actare undermined if the non-compliance in this case is excused under s 30 of theEvidence Act.Our assessment[18] We are not satisfied there is a risk of a miscarriage of justice. The balancingof factors under s 30 is fact-specific. The District and High Courts reached the sameconclusion on those facts, namely that exclusion would be disproportionate to theimpropriety.[19] We do not agree that the High Court Judge underweighted the impropriety.We agree that the officer ought to have known that a variation of the order or a neworder was necessary once the date in the order had passed. However, we agree withthe High Court Judge that the officer was not acting in bad faith or reckless incircumstances where he had raised the issue with Mr Manoah's counsel and facilitatedcounsel providing advice to Mr Manoah about it. Counsel was right to point out toMr Manoah that, if he refused the sample, in all likelihood he would just be delayingmatters. We consider it was virtually inevitable that a variation to the date of thesecond order would have been given against the background of the difficulties withthe first sample, and the short period between the expiry of the second order and thedate when the sample was to be taken.[20] We also do not agree that the Judge underweighted the importance of the rightat stake. There is no doubt that the right to protection of bodily integrity is of highimportance. As we have said, however, strict adherence to the statutory regime wouldnot have assisted Mr Manoah. The legislation allows suspect compulsion orders to bemade. The police had strong grounds for suspecting that Mr Manoah's DNA was onthe hand saw because of the match with his profile on the databank. The legislationpermits variations to be made to the date in the order. It also permits furtherapplications to be made in relation to the same offence. While the police should haveutilised either of these methods before obtaining Mr Manoah's sample, the outcomefor Mr Manoah would have been the same.[21] We agree that scrupulous compliance with the legislation is important. But thatis not to say that the evidence invariably must be ruled inadmissible when this doesnot occur. Section 30 requires a fact-specific evaluation and that is what occurred inthe two lower courts. No matter of general or public importance arises.Result[22] The application for leave to bring a second appeal is dismissed.Solicitors:Crown Law Office, Wellington for the Respondent