NEW ZEALAND POLICE V DANIEL GEORGE MAHE BOWMAN HC PMN CIV-2009-454-22

NEW ZEALAND POLICE V DANIEL GEORGE MAHE BOWMAN HC PMN CIV-2009-454-22 30 June 2009IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY CIV-2009-454-22BETWEEN NEW ZEALAND POLICE Applicant AND DANIEL GEORGE MAHE BOWMAN Respondent Hearing: 30 June 2009 Counsel: P L Murray for the Police No appearance for the Respondent Judgment: 30 June 2009JUDGMENT OF JOSEPH WILLIAMS JThis judgment was delivered by the Hon. Justice Joseph Williams on 30 June 2009 at 11.30am pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar Date:[1] This judgment deals with an application for a Suspect Compulsion Order against the respondent, Mr Bowman.Background[2] The respondent is charged with two counts under s 188(1) Crimes Act 1961, of wounding with intent to cause grievous bodily harm. [3] The police allege that on the night of 12/13 April 2009, that the respondent was involved in fighting at the Mangatera Hotel, Dannevirke, and caused injury tothe complainant. It is first alleged that in the hotel's garden bar, the respondent swung a bottle and hit the complainant on the left side of the head, causing two cuts around the complainant's left eye (Count 1). It is alleged that the respondent subsequently left the area, then returned with a clear glass bottle which he threw at the complainant. A further fight broke out, during which it is alleged that the respondent stabbed the complainant with a clear glass bottle causing a wound to his left cheek (Count 2). [4] The respondent was spoken to by police and gave a statement on video in which he has acknowledged:• Being at the hotel and getting into a fight in the garden bar;• Getting kicked out of the pub and becoming involved in a further fight;• Leaving, going to a cousin's house, obtaining a glass bottle, returning to the hotel and becoming involved in another fight;• Throwing a bottle which hit someone. The respondent described himself as "very pissed". [5] DNA swabs taken from broken glass at the scene matched a profile held in the DNA database for the respondent.Relevant principles[6] The police have applied for a Suspect Compulsion Order under the Criminal Investigations (Bodily Samples) Act 1995 ("the Act"). The enabling provision is s 16 which reads:16 Judge may authorise bodily sample to be taken(1) On the hearing of an application for a suspect compulsion order, a High Court Judge may make an order, requiring the respondent to give a bodily sample if the Judge is satisfied that—(a) There is good cause to suspect that the respondent (being a person who is of or over the age of 17 years) has committed the relevant offence to which the application relates; and (b) material reasonably believed to be from, or genetically traceable to, the body of a person who committed the offence has been found or is available— (i) at the scene of the offence; or (ii) on the victim of the offence; or (iii) from within the body or from any thing coming from within the body of the victim of the offence that is reasonably believed to be associated with, or having resulted from, the commission of the offence; or (iv) on any thing reasonably believed to have been worn or carried by the victim when the offence was committed; or (v) on any person or thing reasonably believed to have been associated with the commission of the offence; and (c) There are reasonable grounds to believe that analysis of a bodily sample taken from the respondent would tend to confirm or disprove the respondent's involvement in the commission of the offence; and (d) The respondent has refused to consent to the taking of a bodily sample in response to a suspect request made in respect of the offence, or a related offence; and (e) In all the circumstances, it is reasonable to make the order. (2) In considering whether or not to make a suspect compulsion order, the Judge shall have regard to— (a) The nature and seriousness of the offence to which the application relates; and (b) Any reasons given by the respondent for opposing the making of the order sought; and (c) Any evidence regarding the importance, to the investigation of the offence, of obtaining a bodily sample from the respondent; and (d) Any other matter that the Judge considers relevant. (3) Without limiting the generality of subsection (2) of this section, in considering whether or not to make a suspect compulsion order, the Judge shall also have regard to the following matters: (a) Whether or not the respondent has offered, or been given an opportunity, to give a specimen from his or her body (other than a bodily sample) from which a DNA profile may be obtained for thepurpose of confirming or disproving the respondent's involvement in the commission of the offence to which the application relates, or a related offence: (b) If such an offer has been made, or such an opportunity has been given, whether or not the respondent has given such a specimen: (c) If the respondent has given such a [specimen], whether or not a suitable DNA profile has been obtained from [that specimen] for the purpose referred to in paragraph (a) of this subsection.[7] Before making a Suspect Compulsion Order therefore, I must be satisfied that: (a) Mr Bowman is over 17 years (s16(1)(a)); (b) There is good cause to suspect that he has committed the offences of wounding with intent to cause grievous bodily harm which is a relevant offence listed in the schedule to the Act (s 16(1)(b)); (c) Material reasonably believed to be from the body of the person who committed the offence has been found on a thing believed to be associated with the commission of the offence (s 16(1)(c )); (d) There are reasonable grounds to believe that analysis of bodily sample taken from Mr Bowman would tend to confirm or disprove his involvement in the commission of the offence (s 16(1)(c )); (e) Mr Bowman has refused to consent to the taking of a bodily sample in response to a suspect request (s 16(1)(d)); and (f) It is reasonable in all the circumstances to make the order (s 16(1)(e)). [8] I note that factors (a) and (e), that Mr Bowman is over 17 years and that he has refused to consent to the taking of a bodily sample, are not contested, and it is not contested that an offence under s 188(1) Crimes Act is a "relevant offence". [9] In considering whether to make an order I am required, under s 16(2), to have regard to the nature and seriousness of the offence, reasons given for opposing theorder, evidence as to the importance of obtaining a bodily sample in this case, and any other relevant matter.Discussion[10] The phrase "good cause to suspect" is well settled in law. It is a question of fact to be decided by reference to all the surrounding relevant circumstances (Police v Anderson [1972] NZLR 233 (CA) at 241). It requires an objective determination by the Court, but it patently does not require proof beyond reasonable doubt. [11] As noted above, the respondent has made acknowledgements in relation to the alleged offending in terms of his presence at the hotel and involvement in the events which occurred. Furthermore DNA analysis of the blood from broken glass at the scene has been matched to Mr Bowan's DNA. Pursuant to s 13(4) of the Act, I may take that into account in considering this application, notwithstanding that the material in the DNA databank cannot be used at trial. In light of these factors, the appropriate conclusion is that s 16(1)(a) is satisfied and there is good cause to suspect that Mr Bowman committed the offences with which he is charged. [12] I am also satisfied in terms of s 16(1)(b) that material reasonably believed to come from the body of the person who committed the offence has been found on a thing believed to be associated with the commission of the offence. Here, the evidence is that glass was broken by the offender in the course of the fighting. The blood on broken glass found at the scene satisfies the s 16(1)(b) requirement. Again, the fact that this blood has been found to match Mr Bowman's DNA means I am satisfied that an analysis of a bodily sample would tend to confirm or disprove his involvement in this offending (s 16(1)(c)). [13] None of the factors listed in subsections (2) and (3) lead me to conclude that it would be inappropriate to grant the order. I am not aware of any reasons given by the respondent for opposing the making of the order sought.Conclusion[14] In all these circumstances, the appropriate conclusion is that the requirements of s 16 have been met and it is appropriate to take the view that I am satisfied that a bodily sample should be given. The application will accordingly be granted. [15] The bodily sample is to be taken between 11.00am and 12 midday on Tuesday, 7 July 2009 at the Dannevirke police station, 15 Gordon Street, Dannevirke. "Joseph Williams J"Solicitors: Crown Solicitor, Palmerston North