POLICE v G [2020] NZHC 2869

POLICE v G [2020] NZHC 2869 [2 November 2020]IN THE HIGH COURT OF NEW ZEALANDDUNEDIN REGISTRYI TE KŌTI MATUA O AOTEAROAŌTEPOTI ROHECRI-2018-012-000260[2020] NZHC 2869BETWEEN NEW ZEALAND POLICEApplicantAND GDeceasedRespondentHearing: On the papersJudgment: 2 November 2020JUDGMENT OF NATION J[1] Shona Louise Low of Dunedin, an Inspector of Police at the Dunedin CentralPolice Station, has made application to extend the period for which a bodily sample,obtained from G,1 under Part 2 of the Criminal Investigations (Bodily Samples) Act1995 (the Act), and any associated records that would otherwise be required to bedestroyed, may be retained.[2] Judge Kevin Phillips made an order in the District Court at Dunedin on 29August 2018 under which the Police obtained a bodily sample from G to which theapplication relates. The application arose out of the murder of David Ian Clarke andAnastasia Margaret Neve on 22 January 2018. A person, River,2 has been chargedwith their murder. He is scheduled to stand trial in 2021.1 I make an order for suppression of the Respondent's name.2 The defendant's name is suppressed. This is an anonymised name.[3] The Police obtained the order allowing them to obtain a bodily sample from Gon the basis she was suspected of being an accessory after the fact to that murderthrough the way she might have assisted River to dispose of evidence linking him tothe deaths of the deceased.[4] G was formally interviewed on three occasions in connection with the matter.Subsequent to those interviews and the Police obtaining a bodily sample from her, shedied on 31 March 2019. Her death is still being dealt with by the Coroner. She hadnot been charged with any offence at the time she died.[5] I was familiar with the circumstances of Clarke and Neve's death, and whatRiver had to say about his conduct around that time through dealing with pre-trialadmissibility issues as to Police interviews with him.3 At the same time, I dealt withissues as to the admissibility of the Police interviews with G through hearsay evidence.[6] In accordance with s 61(2)(c), inspector Low's application was made on awithout notice basis.[7] Relevantly, s 60(1)(a)−(d) of the Act provides, subject to s 61:The Commissioner shall ensure that—(a) every bodily sample taken pursuant to Part 2; and(b) every record of any analysis of any such bodily sample carried out onbehalf of any constable; and(c) every record, to the extent that it contains—(i) information about the sample; and(ii) particulars that are identifiable by any person as particularsidentifying that information with the person from whom the samplewas taken,—is destroyed,—(d) subject to section 61, as soon as practicable after the expiry of the periodof 24 months beginning on the date on which the sample is taken, if theperson is not charged with the offence in relation to which the samplewas taken, or a related offence, before the expiry of that period; 3 R v River [2019] NZHC 363.[8] Section 61 of the Act provides that a High Court Judge may, upon applicationby the Police, extend the period for which the Police may retain the bodily sample andrelated information, where s 60(1)(d) applies.[9] Relevantly, s 61 states:(3) An extension or, as the case requires, a further extension of the relevantperiod may be granted under this section only if the District Court Judgeor High Court Judge is satisfied—(a) that the person from whom the bodily sample was taken has notbeen charged with the triggering offence, or a related offence; and(b) either of the circumstances mentioned in subsection (3A) exists.(3A) The circumstances referred to in subsection (3) are—(a) that there is still good cause to suspect that the person committedan offence referred to in subsection (3)(a) and—(i) there is a good reason for the person not having been charged;and(ii) it is important to the investigation of the offence that thebodily sample, and any records that would otherwise berequired to be destroyed, be retained; or(b) that—(i) there is not, or no longer, good cause to suspect that the personcommitted an offence referred to in subsection (3)(a); but(ii) it is important to the investigation of the offence, or tocriminal proceedings in relation to that offence, that the bodilysample, and any records that would otherwise be required tobe destroyed, be retained.[10] In her application of 22 October 2020, Inspector Low however referred to thegrounds for an extension of the period, as set out in both s 61(3A)(a) and (b).[11] Inspector Low provided an affirmation in support of the application, settingout the background to the obtaining of the order for a bodily sample to be taken fromG and reasons why G was suspected of having been an accessory after the fact to themurder of Clarke and Neve.[12] From my knowledge of all she said in the Police interviews of her and of whatRiver had said in his interviews with the Police, I was concerned the Police could nolonger have had a reasonable belief that G had been accessory after the fact so that theapplication for an extension would have to be justified on the grounds referred to in s61(3A)(b).[13] Inspector Low has confirmed to me that the application should be consideredon the grounds referred to in s 61(3A)(b).[14] I have been told by Inspector Low that, since the Police obtained the order fromJudge Phillips and a bodily sample from G, there has been a DNA analysis of thosesamples. There has also been an examination of particular items which might havebeen connected to the circumstances in which Clarke and Neve died and with whichG might have been associated if she had been involved as an accessory after the fact.Through those investigations, no evidence has been found which would implicate Gin being involved in that way. She is thus no longer suspected of being an accessoryafter the fact.[15] The application for an extension was made primarily because counsel for thedefendant River had asked that the samples and information relating to them beretained. That request must have been made because River and his counsel believethat retaining the samples and associated information might be necessary in theinterests of his defence.[16] With that request having been made, I am satisfied that it is important tocriminal proceedings, in relation to the suspected offence in connection with whichthe bodily sample was obtained, that the bodily sample and any records that wouldotherwise be required to be destroyed, be retained.[17] Pursuant to s 61(4), an extension, or as the case requires a further extension,can be granted only for a period up to six months commencing from the day after theexpiry of the earlier period at the end of which the sample had to be destroyed.[18] Accordingly, on the grounds referred to, I make an order extending the timefor the bodily sample and information relating to it to be retained to 25 April 2021.Solicitors:RPB Law, DunedinJ M Ablett-Kerr QC, Barrister, DunedinJ A Westgate, Barrister, Dunedin.