TAIRI V NZ POLICE HC HAM CIV 2006-419-1175

TAIRI V NZ POLICE HC HAM CIV 2006-419-1175 21 December 2006IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV 2006-419-1175UNDER the Judicature Amendment Act 1972 and the New Zealand Bill of Rights Act 1990 IN THE MATTER OF a decision by Police to require a DNA sample from Renick Trevor Tairi BETWEEN RENICK TREVOR TAIRI Applicant AND NEW ZEALAND POLICE Respondent Hearing: 10 November 2006 Appearances: R Ord for the applicant F Sinclair for the respondent Judgment: 21 December 2006JUDGMENT OF STEVENS JThis judgment was delivered by me on 21 December 2006 at 3.45pm pursuant to r 540(4) of the High Court Rules. Registrar/Deputy RegistrarSolicitors/Counsel: R Ord, PO Box 9175, Hamilton F Sinclair, Crown Law Office, PO Box 2858, WellingtonIntroduction[1] The issue for decision in this case concerns the circumstances in which the Police can obtain a bodily sample for the DNA databank under the Criminal Investigations (Bodily Samples) Act 1995 (the Act). The applicant, Mr Tairi, filed an application for judicial review of a decision by a commissioned officer of the Police to require him to give a bodily sample under the Act on 24 August 2006. There are two questions to be determined on review: a) Is the discretionary power of a commissioned officer of the Police to issue a databank compulsion notice in order to obtain a bodily sample subject to judicial review? b) Was the databank compulsion notice requiring the applicant to give a bodily sample properly issued in this case?Statutory background[2] Part 3 of the Act allows the Police to take bodily samples in certain specified situations for use as part of a DNA profile databank maintained by the Police under s 25 of the Act. The databank is used for forensic comparison, which is defined in s 2 of the Act:Forensic comparison means the comparison of a DNA profile stored in a DNA profile databank with another DNA profile, where that comparison is undertaken for the purpose of confirming or disproving the involvement of any person in the commission of an offence[3] Section 2 defines bodily sample and its component parts:bodily sample or sample means a blood sample or a buccal sample blood sample means a fingerprick sample or a venous sample buccal sample means a sample of epithelial cells from inside the mouth taken by a device, or provided by other means, approved for the purpose under section 4B(1)(b).[4] A bodily sample for the DNA profile databank may only be taken with the requisite authority. In this respect, the Act operates as a code. As a result of the Criminal Investigations (Bodily Samples) Amendment Act 2003 (the Amendment Act), the scheme governing the taking of a bodily sample changed in April 2004. Section 29 of the Act is the starting point, outlining the circumstances in which a bodily sample may be taken:29 Authority to take bodily sample for DNA profile databank Subject to section 72 of this Act, a bodily sample may be taken from a person for the purposes of including that person's DNA profile on a DNA profile databank only if— (a) Either— (i) That person consents to the taking of that sample in accordance with section 34 of this Act; or (ii) the sample is taken pursuant to a databank compulsion notice; and (b) The sample is taken in accordance with the procedures set out in Part 4 of this Act.[5] Thus a bodily sample may be obtained under s 29(a)(ii) when a databank compulsion notice is issued. Section 39 of the Act allows for the issue and service of a databank compulsion notice requiring a person to give a bodily sample in certain circumstances:39 Issue and service of databank compulsion notice (1) A commissioned officer of the police may issue a databank compulsion notice requiring a person to give a bodily sample if— (a) the person has been convicted of a relevant offence; and (b) the conviction is one to which this Part applies under section 4. [6] The meaning of relevant offence is set out in s 2:relevant offence means— (a) an offence against any of the provisions listed in Part 1 of the Schedule; or(b) an offence against any of the provisions listed in Part 2 of the Schedule; or (c) an attempt to commit an offence against any of the provisions listed in Part 1 or Part 2 of the Schedule if the offence is not itself specified as an attempt; or (d) conspiring with any person to commit an offence against any of the provisions listed in Part 1 or Part 2 of the Schedule if the offence is not itself specified as a conspiracy; or (e) an offence punishable by a term of imprisonment of 7 years or more; or (f) an attempt to commit an offence of the kind referred to in paragraph (e); or (g) conspiring with any person to commit an offence of the kind referred to in paragraph (e)[7] The offence relied on in this case is theft. Theft is contained in Part 2 of the Schedule to the Act. Section 4(3)(a) of the Act requires that a conviction for an offence specified in Part 2 of the Schedule must have been entered after the commencement of the Amendment Act in order for the Act to apply. The Amendment Act commenced on 15 April 2004. The conviction against Mr Tairi for theft was entered on 2 March 2006. It is therefore a relevant offence to which the Act applies. This gave the respondent the discretionary power to issue a databank compulsion notice, provided it was within six months of the conviction: s 39C(3)(b). [8] A databank compulsion notice may be challenged in the first instance by way of databank compulsion notice hearing, under s 41 of the Act. However, that section only allows for such a hearing on certain, specified grounds:41 Databank compulsion notice hearing may be requested on certain grounds (1) A person served with a databank compulsion notice or required to be served with a databank compulsion notice under section 39(2) may, before the date specified in the notice as the date on which the person to whom the notice relates is to attend to give a bodily sample, request a member of the police to arrange a databank compulsion notice hearing before a Judge of the appropriate court. (2) A databank compulsion notice hearing may only be requested on 1 or more of the following grounds: (a) that—(i) the offence in relation to which the databank compulsion notice has been issued is not a relevant offence; or (ii) the conviction for the relevant offence in relation to which the databank compulsion notice has been issued is not a conviction to which this Part applies: (b) that the conviction for the relevant offence in relation to which the databank compulsion notice has been issued— (i) was quashed before the notice was issued; or (ii) was quashed after the notice was issued but before the sample was taken and the police have not notified the person that the notice is of no effect under section 40(2): (c) that all 3 methods available for the taking of a bodily sample will cause serious harm to the person's health on the date specified in the databank compulsion notice as the date on which the person to whom the notice relates is to attend to give a bodily sample: (d) that the date specified in the databank compulsion notice as the date on which the person to whom the notice relates is to attend to give a bodily sample is a date on or before the date that is 14 days after the date on which the notice was served: (e) that the date specified in the databank compulsion notice as the date on which the person to whom the notice relates is to attend to give a bodily sample is,— (i) if the person is not detained under a sentence of imprisonment for the relevant offence in relation to which the notice is issued at the time the notice is served, a date that is on or after the date 6 months after the date the person's conviction for the relevant offence was entered; or (ii) if the person is detained under a sentence of imprisonment for the relevant offence in relation to which the notice is issued at the time the notice is served, a date that is on or after the later of the 2 following dates: (A) the date the person is to be released from being detained under a sentence of imprisonment for the relevant offence; or (B) the date 6 months after the date the person's conviction for the relevant offence was entered: (f) that the person to whom the databank compulsion notice relates was not served with the notice: (g) if the person in relation to whom the databank compulsion notice has been issued is under the age of 17 years,— (i) that person was not served with the notice; or (ii) that all reasonable steps have not been taken to serve the parent or other person having the care of the person with a copy of the notice. [9] While awaiting a databank compulsion notice hearing, s 41A(2) requires that the Police are not to take a bodily sample from the person the subject of the notice.Sections 42 to 43B outline the powers possessed by a Judge presiding over a databank compulsion notice hearing, including the power to declare that the databank compulsion notice is of no effect, and the power to vary or impose conditions on the order. Generally, the role of the Judge at a databank compulsion notice hearing is to ensure that there has been compliance with the requirements of s 41(2) dealing with specified grounds and s 39C(3) and (4) relating to the date and place for taking the sample. [10] Importantly, none of the grounds specified by s 41(2), upon which a databank compulsion notice may be challenged, relate to the exercise of the discretionary power of the Police to issue a databank compulsion notice once it is established that there was a relevant offence to which Part 3 of the Act applies.Factual background[11] On 2 March 2006, the applicant was convicted of theft under $500 under ss 219 and 223(d) of the Crimes Act 1961, for shoplifting groceries totalling $11.90. On 6 March 2006, Acting Detective Sergeant Davenport of the Auckland DNA Squad reviewed the applicant's file in order to determine whether he should be required to give a bodily sample under the Act. [12] As a result of Acting Detective Sergeant Davenport's review, a Detective Inspector issued a databank compulsion notice on 15 March 2006. That notice was served on the applicant on 27 April 2005, and required the applicant to give a bodily sample at Hamilton Police station on 15 May 2006. The applicant did not attend on that date. [13] There followed discussions between the Police and counsel for the applicant. As a result, a databank compulsion notice hearing was held in the District Court at Papakura on 4 July 2006. On 13 July 2006, the Court issued an order under the Act requiring the applicant to give a bodily sample. The sample, by the terms of the order, was to be taken on 28 August 2006.[14] However, on 24 August 2006, the applicant made an application for judicial review of the decision of the commissioned officer of Police to issue a databank compulsion notice. He also applied for interim relief pursuant to s 8 of the Judicature Amendment Act 1972 to prevent the bodily sample being taken. The parties subsequently conferred, with the result that the applicant has given the Police a bodily sample on the condition that the sample will be held pending the outcome of this proceeding. The respondent has agreed that the sample be destroyed, in the event that the proceeding is determined in the applicant's favour.The police review process[15] Evidence regarding the decision making process was received at the hearing, in the form of an affidavit from Acting Detective Sergeant Davenport. He is the supervisor of the DNA Squad for the Auckland Metropolitan Region, having held that position for over 15 months. He has the responsibility for initiating DNA sampling under the Act in that region. [16] Acting Detective Sergeant Davenport deposed as to the process he follows when assessing whether to issue a databank compulsion notice. There are no formal guidelines in place for this process. Moreover, there is no policy requiring automatic testing for all people in a certain category. For each file involving a conviction for a relevant offence under the Act, Acting Detective Sergeant Davenport makes an assessment of whether a bodily sample should be required. He considers: a) The criminal and police history of the person involved (i.e. their previous convictions and interactions with the police); and b) Any information about their associates; and c) Whether there are any alerts on the Police intelligence system; and d) The offender's age; and e) The nature of the charge; andf) The circumstances behind the charge. [17] By way of an example of the application of such factors, Acting Detective Sergeant Davenport referred to the situation of a guilty plea for being unlawfully on premises. In some circumstances, such a plea might mean that the person convicted has avoided a conviction for burglary and the case would be assessed in that light. Similarly, if a notorious rapist did not have a sample in the DNA profile databank because the offending pre-dated the legislation, consideration would be given to requiring that person to give a bodily sample, if such person were convicted of a relevant offence, even if of a minor nature.Applicant's submissionsIs this a matter for review?[18] This application for judicial review was filed under the Judicature Amendment Act 1972 and the common law. Counsel for the applicant submitted that the High Court has the jurisdiction to judicially review the Police power to issue a databank compulsion notice because it is an administrative decision, citingDown v Van de Wetering [1999] 2 NZLR 631. Various grounds were advanced as a basis for such review.Was the discretion correctly exercised?[19] In summary, the grounds for review were that the decision to require a bodily sample from the applicant was: a) Improperly considered: i) Irrelevant considerations were taken into account:− a perception that the applicant's DNA might fortuitously match up with DNA taken from scenes of serious offences;− the lack of difference in the anonymity rights held by someone not charged with an offence versus an alleged offender charged with an indictable offence;− the applicant's historic, minor offending which does not contain relevant offences in itself; ii) There was a failure to take into account relevant considerations;− the number of similar offenders who will not have a DNA sample taken;− the de minimis nature of the offending; b) Unreasonable: i) No reasonable databank collector, collecting DNA from known serious offenders, would require DNA from citizens guilty of low level offences; ii) No reasonable databank collector would see a link between serious offending and shoplifting; c) Predetermined: i) There was a predetermination to collect the DNA from all offenders of relevant offences regardless of the nature of the offending; d) In breach of legitimate expectations; and e) An error of law: i) There was an error of law in that the Police failed to properly interpret the Act (as amended) from its text in the light of its purpose and in light of the New Zealand Bill of Rights Act 1990; ii) To be non-discriminatory the Police would be required to sample every convicted shoplifter in 2003. [20] The counsel's pleading initially characterised point (e) as unfairness, but counsel subsequently referred to it as an error of law. [21] Essentially, the main thrust of the submissions was that Parliament only intended to require bodily samples from people convicted of serious crimes, and theinclusion of theft was intended to capture those who had committed serious offending punishable by over seven years' imprisonment. The Police should in this case have looked harder at the relevant offence than the applicant's criminal history. Counsel described the offending as de minimis and further submitted that it was not a relevant offence within the meaning of the Act. [22] In the application for review, the applicant stated that the police discretion to issue a databank compulsion notice should be read consistently with the New Zealand Bill of Rights Act 1990. Specifically, the right that the applicant referred to was s 21, which provides:21 Unreasonable search and seizure Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.[23] The applicant's submission was essentially that the right to be secure against unreasonable search and seizure could only be balanced against the right to take a bodily sample in cases of serious indictable offending. Generally, there was a consistent theme in the applicant's submissions that the discretionary power in s 39 of the Act could only be exercised by a commissioned officer in the case of serious examples of the relevant offence concerned.Respondent's submissionsIs the power reviewable?[24] Counsel for the respondent outlined the conflicting authority of Down v Van de Wetering and Police v Nahi (1997) 15 CRNZ 300 on the point of whether the discretionary power to issue a databank compulsion notice is a statutory power of decision pursuant to s 3 of the Judicature Amendment Act 1972. The current position was said to be arguable, particularly in light of the recent amendments to the Act, which came into effect after both Van de Wetering and Nahi.[25] Counsel for the respondent emphasised the traditional approach to discretionary Police powers, submitting that the exercise of this power was close to the operational choices on the part of the Police, in respect of which the Court has traditionally been reluctant to interfere. In R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118 at 136, Lord Denning remarked:Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law.Was the discretion correctly exercised?[26] Counsel submitted that, even if the power were reviewable, no grounds for review have been made out. The discretionary power was not constrained by internal policy, nor was it made in bad faith. It cannot be described as a decision that no reasonable Police officer could have made. The discretion was characterised by the respondent as involving "subtle judgements", for which "crude" categories such as sampling only those responsible for serious offences would prove to be too broad an approach. Moreover, the approach to the decision-making task in this case had not been shown to have involved any irrelevant considerations, a failure to consider relevant factors, unreasonableness, pre-determination or unlawfulness. [27] The respondent argued that the "serious indictable crime" test propounded by the applicant in terms of consistency with the s 21 NZBORA right to be secure against unreasonable search and seizure did not accord with the clear and unambiguous terms of the statute. The respondent further submitted that the ability to take samples from offenders convicted of minor theft was a clear and unambiguous addition to the Act made in 2004 by Parliament. In thosecircumstances, there was no room to read the Act consistently with s 21 of the NZBORA. [28] It was the respondent's submission that, in any case, sampling minor offenders did not constitute an unreasonable limit on the right protected by s 21. This submission was based on a comparison with the broad sampling scheme carried out in the United Kingdom under the Criminal Justice and Public Order Act 1994, which allowed bodily samples to be taken in a wide range of circumstances. The respondent suggested that in the United Kingdom, the occasions on which the Police may take a bodily sample are roughly equivalent with the circumstances in which a fingerprint may be taken. By comparison, the New Zealand system of bodily sampling as described by Acting Detective Sergeant Davenport is restrained and protective of the rights of individuals against unreasonable search and seizure, as well as protective of their privacy.The course of the argument[29] As submissions developed at the hearing, the applicant's case came down to several main points. First, the applicant's counsel sought to emphasise that Parliament's intent, as demonstrated by excerpts from Hansard, was that the bodily samples regime was only intended to cover those who had committed "serious offences". The applicant's submission was that this was not a ground taken into account by the Police when making the decision to require a bodily sample from him under s 39 of the Act. [30] Furthermore, the applicant's counsel submitted that Police had, by their own admission, considered the applicant's prior convictions, which were irrelevant. The other irrelevant consideration alleged by the applicant to have been taken into account included the fact that in the past, less serious offences have been linked to serious offending. This was irrelevant because there was no demonstrable link between serious offending and minor theft, besides which "serious offending" was undefined.After the hearing[31] I invited counsel to submit a memorandum on a number of points subsequent to the hearing. Counsel for the respondent helpfully submitted a number of cases in which R v Commissioner of Police of the Metropolis; ex parte Blackburn has been applied in New Zealand, in order to illustrate what types of decisions the Court will not generally interfere with. These cases, Thompson v Attorney-General (2000) 17 CRNZ 628 and Bow & Anor v Police & Anor (1989) 5 CRNZ 276, usefully outline the scope of the prosecutorial discretion, which is an area of discretion in which the Courts will not interfere. [32] Counsel for the applicant added a further analogy to his original submissions, based on the notion that taking a DNA sample is analogous to police surveillance. Relying on the United States authorities Berger v New York 388 US 41 (1967) andCommonwealth v Ricci 440 Mass. 1106 (2003), the applicant's counsel submitted that in surveillance situations the Police have a duty to minimise their eavesdropping in respect of 'non-pertinent' material. This raises a further question for the Court, it was submitted: is this surveillance through DNA based on "pertinent" evidence of appropriate criminality?A reviewable power?[33] Is the discretionary power of a commissioned officer to issue a databank compulsion order under s 39 of the Act a decision that is amenable to judicial review? Section 4 of the Judicature Amendment Act 1972 establishes which decisions are able to be reviewed:4 Application for review (1) On an application which may be called an application for review, the High Court may, notwithstanding any right of appeal possessed by the applicant in relation to the subject-matter of the application, by order grant, in relation to the exercise, refusal to exercise, or proposed or purported exercise by any person of a statutory power, any relief that the applicant would be entitled to, in any one or more of the proceedings for a writ or order of or in the nature of mandamus, prohibition, or certiorari or for a declaration or injunction, against that person in any such proceedings.(2) Where on an application for review the applicant is entitled to an order declaring that a decision made in the exercise of a statutory power of decision is unauthorised or otherwise invalid, the Court may, instead of making such a declaration, set aside the decision. [34] Statutory power (and statutory power of decision) are defined by s 3 of the Judicature Amendment Act 1972:Statutory power means a power or right conferred by or under any Act or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate— (a) to make any regulation, rule, bylaw, or order, or to give any notice or direction having force as subordinate legislation; or (b) to exercise a statutory power of decision; or (c) to require any person to do or refrain from doing any act or thing that, but for such requirement, he would not be required by law to do or refrain from doing; or (d) to do any act or thing that would, but for such power or right, be a breach of the legal rights of any person; or (e) to make any investigation or inquiry into the rights, powers, privileges, immunities, duties, or liabilities of any person: Statutory power of decision means a power or right conferred by or under any Act, or by or under the constitution or other instrument of incorporation, rules, or bylaws of any body corporate, to make a decision deciding or prescribing or affecting— (a) The rights, powers, privileges, immunities, duties, or liabilities of any person; or (b) The eligibility of any person to receive, or to continue to receive, a benefit or licence, whether he is legally entitled to it or not.[35] Prior to the amendments to the Act in 2003, the Police needed to obtain judicial authority for the databank compulsion notice in the form of the databank compulsion order. Section 40 of the Act relevantly provided:40 Judge to authorise blood sample to be taken (1) On the hearing of an application for a databank compulsion order, the Judge shall make an order requiring the respondent to give a sample of the respondent's blood if the Judge is satisfied— (a) That the respondent has been convicted of the relevant offence to which the application relates; and (b) That the conviction has not been quashed. [36] Post 2004, the Police are able themselves to require a person to give a bodily sample by issuing a databank compulsion notice, under the amended version of s 39.A judicial databank compulsion order is no longer required. In Police v Nahi, Anderson J held that a decision made under s 39(1) to apply for a databank compulsion order under the then applicable statutory scheme did not involve the exercise of a statutory power or a statutory power of decision. Rather, he characterised it at 302 as a "statutory entitlement", and further said that whether that entitlement is availed of is a matter of administrative decision. As a result, the decision of the Police was not considered amenable to judicial review as a decision constrained by public law principles. [37] Nahi was followed by Down v Van de Wetering. That case also involved an application to review a decision made by the Police under the then applicable s 39(1). However, at the hearing the Crown conceded that the decision was in fact a statutory power of decision within the meaning of the Judicature Act 1972, meaning that the approach in Nahi could not be applied. Eichelbaum CJ went on to say at 635 that:the legislature does not appear to have given the Court any discretion to reject an application [by the Police for a databank compulsion order], once the conditions precedent are established. This is an additional reason for declining to construe the statute as ousting judicial review in respect of the applicant officer's discretion to apply, see in this respect Police v Hita[1997] DCR 30.In Hita at 36, Judge Doogue determined that the District Court had no discretion to decide whether or not to grant a databank compulsion order under s 40 of the Act as it was then (see [34]), where the discretionary decision to apply had already been made by the Police. [38] The question is now whether, following the 2004 amendment to s 39 of the Act, the power of a commissioned officer of Police to issue a databank compulsion notice is reviewable. On a basic interpretation of s 4 of the Judicature Amendment Act 1972, this discretionary power appears to be a decision that is a statutory power of decision: it is a power or right conferred under s 39 of the Act affecting the rights of a person, namely the applicant. It is also noted that the appeal or review rights (as provided by the Act) from this decision have been exhausted. As outlined above, a databank compulsion order hearing having been held in the District Court at Papakura.[39] While Nahi states that the old power of requesting the issue of a databank compulsion order under s 39(1) is a statutory entitlement, this section has since changed. In any case, Van de Wetering cast doubt on Nahi by pointing out that the District Court had no power other than to grant the application. While there is now an opportunity to challenge the databank compulsion notice through the databank compulsion notice hearing, the District Court has no power to address any of the factors involved in the exercise of the discretion to issue any such notice. The District Court is constrained by the restricted grounds for requesting a hearing as outlined in s 41 which, as mentioned at [10] above, do not relate to the discretionary aspect of a databank compulsion notice. As a result, if the statutory procedure has been followed correctly and there is, for example, no risk of harm to the person's health, the Court is essentially still in a position to do little, other than allow the databank compulsion notice to continue in force. [40] There has been a trend over recent years to allow increased access to judicial review. In this context, questions have arisen whether the distinction between purely administrative decisions (decisions that are a "statutory entitlement") and statutory powers still exists: see for example McGechan on Procedure at JA3.05.02. The rights affected by the statutory power under s 39 plainly affect the privacy rights of the subject. The interests of the individual concerned are finely balanced with the role of the Police and the State in the detection and prevention crime in our society. Accordingly, I conclude that the type of statutory power of decision embodied in s 39 of the Act is such it could be expected to be amenable to judicial review.Does the nature of the decision preclude review?[41] The respondent submitted that, even if this discretionary power were held to be a statutory power of decision subject to judicial review, it was not in fact reviewable because of its nature. Lord Denning recognised in Blackburn that the Police make some discretionary decisions with which the law will not interfere. He gave the examples, at 136, of decisions to pursue enquiries, to make an arrest or to bring a prosecution. These types of matters were conveniently referred to as "operational decisions" by counsel for the respondent, in an attempt to characterisethe decision to take a bodily sample as similarly operational. In support of this proposition, the respondent relied on the case of Thompson v AG. [42] In Thompson, the Police declined to grant diversion to a young first offender, in circumstances that, according to Panckhurst J at 632, would probably have warranted diversion. However, the decision was not reviewable, as it was not a statutory power of decision as required by the Judicature Amendment Act 1972. Even if it had been, Panckhurst J found that the nature of the decision itself precluded review, as it was a decision intimately bound up with the decision to prosecute, as in Blackburn. [43] The other case relied on by the respondent was that of Bow & Anor v Police & Anor. It involved a Police decision to prosecute two officers for assault. Again, the decision was not reviewable because it was within the prosecutorial discretion of the Police. [44] Both cases noted that, if for example a blanket policy were used when making a decision, then it may be reviewable on the grounds that no decision had actually been made. In Hallett v AG (No 2) [1989] 2 NZLR 96 at 102, the Court of Appeal, relying upon the authority of Blackburn, said that the application of a blanket policy would mean that there was a failure to consider the prosecution question at all.Reviewability of the power[45] In my judgment, the discretionary power of a commissioned officer of Police in s 39 of the Act is reviewable because it is not in the nature of a decision to prosecute. The scope of the prosecutorial discretion is reasonably well defined, and revolves around the initiation of prosecutorial action. Tompkins J noted in Bow at 280 that these decisions are akin to prerogative powers, which are not reviewable:Prichard J [in Saywell v AG [1982] 2 NZLR 97] pointed out that the right exercised by the Crown in presenting an indictment, even though it be the exercise of a statutory power is a power of a very special kind not to be equated in any way with those decisions and actions of officials and statutory bodies whose exercise of their statute-given power is commonlysubject to review. He adopted what was said by Wilson J in Barton v R(1980) 32 ALR 449, 470, when he described the presentment of an indictment as: "a very distinctive type of a statutory power retaining its relationship to the process of criminal justice something of the nature of a prerogative power. As such it is a power which does not lend itself to supervision by the Courts, including those Courts whose jurisdiction related to the trial of proceedings so initiated."[46] Whilst counsel for the respondent sought to persuade the Court that all police "operational decisions" are exempt from judicial review, no authority was cited other than those regarding the scope of the prosecutorial discretion. Therefore, I conclude that there is no basis for a broader category of "operational" decision including the exercise of the power under s 39 of the Act, which is immune from judicial review. [47] The decision to require a sample for the DNA database may eventually result in a decision to prosecute, if the DNA matches any from the scene of any offence. But in and of itself, it is not a decision to prosecute. Whilst the existence of a DNA profile databank is undoubtedly important in the detection and prosecution of offenders, it is in my view more difficult to characterise it as an investigation tool in a traditional sense. The step of requiring a person to give a bodily sample is not being used for the purpose of any particular investigation: rather, it is for the purpose of adding to the data in the DNA profile databank. As a result, I consider that the discretionary power to issue a databank compulsion notice under s 39 of the Act is a reviewable statutory power of decision.DiscussionIrrelevant considerations[48] At the hearing, the applicant's submissions raised two irrelevant considerations which had allegedly been taken into account by the Police in this case. The first of these was that the prior convictions of the appellant should not have been taken into account. It was not contested that this was a ground on which the Police based the decision to issue a databank compulsion notice. Indeed, it appears from the evidence of Acting Detective Sergeant Davenport that this was oneof the central considerations, even tipping the balance in this case towards issuing a databank compulsion notice. As stated in the affidavit at paragraph 17:Renick Trevor Tairi was on the cusp of being passed over for a sample request, but I considered there was sufficient in his previous history of convictions to warrant a sample being taken.[49] The other alleged irrelevant consideration was the notion that the applicant's DNA would match up with a DNA profile from the scene of a serious offence. Again, it seems that this was in the Acting Detective Sergeant's mind when he made the decision to issue a databank compulsion notice. As noted in paragraph 17 of his affidavit:I am aware of occasions when people tested for less serious offending have been linked to serious crimes.[50] Even though these were pleaded as two separate irrelevant considerations, they appear to be closely connected. To determine whether such considerations are irrelevant in determining whether to issue a databank compulsion notice, it is helpful to consider what factors determine the scope of relevant considerations in a particular statute. Professor Joseph, in Constitutional and Administrative Law in New Zealand (2ed 2001), at 21.2 states:Where criteria are not exhaustive, or where none is specified, considerations relevant to the exercise of the discretion must be construed from the subject matter, scope and purpose of the Act. The inference is to be drawn having regard to the objects of the Act "as ascertained from the whole of its provisions": Keam v Minister of Works v Development [1982] 1 NZLR 319 at 327 (CA).[51] The Act itself contains no express provision outlining its purpose or function. In R v T [1999] 2 NZLR 602 (CA) Blanchard J, giving the judgment of the Court, stated at 613 that Parliament was precise in laying down what is a detailed code for the taking of bodily samples. It is clear from an overview of the Act that it is comprehensively detailed, providing lengthy provisions for the taking of bodily samples either from persons voluntarily or through issuing a databank compulsion notice. It carefully prescribes the manner in which the samples may be gathered, and it prescribes remedies for breaches of those provisions. The Act appears to balance carefully the need for a DNA databank in order to detect and prosecute serious crimewith the need to protect and maintain the privacy and other rights of the individual. The legislature plainly undertook a careful and delicate balancing process. [52] In R v T, Blanchard J at 613 characterised the taking of a sample as "a substantial intrusion into the privacy of an individual". Moreover, Ronald Young J in Taylor v AG HC WN CIV-2005-485-530 4 May 2005 at [14] called the Act a "protective regime". Further, he said at [13]:It has been observed that this Act is a code prescribing the process for the collection of bodily samples. It therefore mandates by statute the invasion of the body of a citizen and it requires citizens to provide evidence that may be used to convict them of a crime.[53] The question then is how does such protective regime affect the exercise of the discretion on the part of the Police to issue a databank compulsion notice? Certainly the rights of the individual would require that this discretion be exercised in a careful and considered manner. Some considerations will never be legitimate or relevant, for example sampling on the basis of race. The nature of the relevant offence is, of course, a relevant consideration – the more minor the offence, the less likely it is that the offender will re-offend or have offended seriously prior to the inclusion of a bodily sample in the DNA database. [54] Similarly, I consider that the previous criminal history of an offender convicted of a relevant offence must be a relevant consideration. This may show the offending in a different light, and suggest that even though minor, the offending was part of a broader trend or pattern of offending or risk of future re-offending. A recidivist offender will no doubt be considered more likely to commit a crime in the future. Hence, the value of holding his or her DNA on the database would be greater than that of a first offender. [55] The hope or expectation that the sample will end up matching a DNA databank sample from the scene of a serious crime will probably be in the mind of every officer who examines a file with a view to obtaining a bodily sample. Detection and prevention of crime is fundamental to the policing process. However, I am not persuaded that this was a consideration that influenced the Acting Detective Sergeant in this case. Certainly he mentioned the potential links between the testedminor offenders and samples contained within the DNA database. However, this did not appear to influence his decision making one way or another. If that had been his approach then one might expect the Police to be approaching the exercise of the discretionary power in s 39 of the Act by issuing all minor offenders who have committed a relevant offence a databank compulsion notice. This is clearly not the case. On the evidence of Acting Detective Sergeant Davenport, he was approached the decision-making exercise required by s 39 of the Act in an open way and on a case by case basis. I find on the evidence that he considered Mr Tairi's case on an individual basis.Relevant considerations[56] The applicant further alleged that the Police had failed to take into account a relevant consideration, namely the de minimis nature of the offending. I agree that the nature of the relevant offence may be a relevant consideration for the Police in deciding whether to issue a databank compulsion notice. The nature of offending or offence itself is one of the considerations that was taken into account, as outlined by the Acting Detective Sergeant at paragraph 9 of his affidavit:the offence itself is one of a number of factors that might be weighed.[57] Whilst this aspect was not stated as being a factor in every case, from the explanation of the Acting Detective Sergeant I am satisfied that it will be. He spoke in his affidavit about looking beyond the conviction for the offence to the circumstances of the offending in any given case, or speaking to the officer in charge of the case. Therefore I consider it implicit that the nature of the relevant offence and the circumstances of the offending itself, though not overriding, will be a factor to be considered when exercising the discretionary power to issue a databank compulsion notice. [58] Was the nature of the offence considered in this particular case and given the correct weight? As mentioned at [48], the Acting Detective Sergeant deposed at paragraph 17 of his affidavit that he knew of occasions when people tested for lessserious offending have been linked to serious crime. At paragraph 14, he outlined that in his initial look at the applicant's file, he considered:the Caption Summary, the Information, the prosecution cover sheet[59] All these factors relate to the relevant offence. While the de minimis nature of the offending was not decisive in this particular case, I conclude that it was taken into account, in what was a balanced way, taking into account a number of relevant issues. The applicant cannot of course sensibly suggest that every minor shoplifter must not have a databank compulsion order issued in his or her name, but there may be other circumstances personal to that offender that make it desirable that the Police seek to require a bodily sample. This is a basic element of a discretionary decision. I find that this relevant consideration was properly taken into account. [60] Related to this argument was the submission propounded by the applicant that Parliament only intended that serious offending be subject to the bodily sampling regime. The applicant based such reliance on a number of parliamentary papers and excerpts from Hansard to support this submission. However, in the end those supplementary materials provided me with little assistance because the wording of the statute is quite clear. [61] Section 5 of the Interpretation Act 1999 gives statutory guidance for the interpretation of statutes:5 Ascertaining the meaning of legislation (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.[62] The traditional approach to the use of extrinsic aids such as Hansard or other parliamentary material is exclusionary. Since 1984, this rule has been somewhat relaxed in New Zealand and other common law jurisdictions, though not without controversy (see for example the history of the rule contained in Burrows, Statute Law in New Zealand (3ed 2003) at Chapter 9(d)). However, it will only provide help in interpretation where the meaning of the text is not clear. Here, the text within the Act and its meaning is clear: theft is an offence contained within the schedule to the Act. It is quite possible that Parliament could have chosen to specify what types oftheft were to be tested by reference to the various levels of sentence for theft. It has chosen not to do so. Therefore I cannot read in any limitation of seriousness on the basis suggested by counsel for the applicant.Other grounds[63] In this case, there is no evidence to suggest that there is a blanket policy requiring that all those people convicted of relevant offences will have samples taken. On the contrary, the evidence was that careful consideration is given to each case on an individual basis. Therefore the decision is not reviewable on that ground. [64] None of the other grounds that the applicant outlined in the original application for judicial review (see [19]) have been made out. There was nothing unlawful in the manner in which the Police went about exercising this power, nor has any discernable error of law been established. It is clear from the evidence and I so find that the Police exercised this discretionary power in good faith, making this decision in the manner described at [16]. Therefore, there are no grounds upon which the discretionary power of the Police to issue a databank compulsion notice in the case of Mr Tairi can be reviewed.Unreasonable search and seizure: s 21 NZBORA[65] There is clear authority to the effect that the taking of a blood sample from a person may constitute an unreasonable search and seizure in terms of s 21 NZBORA. For example, in R v T, the Court of Appeal held that breaches of the Act in the taking of a sample, except where the breach was a minimal procedural default, meant that the sample became inadmissible evidence, in breach of s 21. [66] Essentially, counsel for the applicant advanced the argument that the discretion should be limited to serious indictable crimes in order to read the Act in accordance with the rights protected under the NZBORA. Relevantly, sections 4, 5 and 6 provide:4 Other enactments not affectedNo court shall, in relation to any enactment (whether passed or made before or after the commencement of this Bill of Rights), - Hold any provision of the enactment to be impliedly repealed or revoked, or to be in any way invalid or ineffective; or Decline to apply any provision of the enactment – by reason only that the provision is inconsistent with any provision of this Bill of Rights. 5 Justified limitations Subject to s 4 of this Bill of Rights, the rights and freedoms contained in this Bill of Rights may be subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 6 Interpretation consistent with Bill of Rights to be preferred Wherever an enactment can be given a meaning that is consistent with the rights and freedoms contained in this Bill of Rights, that meaning shall be preferred to any other meaning.[67] However, as counsel for the respondent pointed out, the interaction between the Act and the NZBORA has already been discussed to some extent in Van de Wetering. In that case, Eichelbaum CJ recognised, on the authority of Quilter v AG[1998] 1 NZLR 523, 581, that ss 5 and 6 NZBORA do not authorise a strained interpretation of the Act. While the application of these sections is not uncontroversial (see Moonen v Film & Literature Board of Review [2000] 2 NZLR 9, Butler and Butler The New Zealand Bill of Rights Act: A Commentary(2005) at Chapter 7 and Rishworth et al The New Zealand Bill of Rights (2003) at Chapter 4), it is apparent that in this situation, Parliament has given a clear statutory directive regarding which offences are relevant, qualifying offences. This means, in terms of s 6 NZBORA, no other meaning can be given.Police surveillance analogy[68] The Federal Law of the United States requires that any wiretap order to intercept conversations be "conducted in such a way as to minimize [sic] the interception of communications not otherwise subject to interception": 18 USC § 2518(5). On this basis, and with the accompanying case law from Massachusetts, counsel for the applicant propounded an analogy, arguing that DNA sampling was analogous to surveillance, and therefore should be limited by reference to 'pertinent' evidence of appropriate criminality.[69] This argument holds little weight. Whether or not the DNA databank might in fact be analogous to surveillance is irrelevant: the maintenance, by or on behalf of the Police, of a DNA profile databank has been expressly authorised by s 25 of the Act. This surveillance analogy in reality is another assertion that the crime must first be "appropriate", or serious enough to qualify as the basis for a compulsion notice under s 39 of the Act. Yet Parliament has specified with particularity in the schedule to the Act those crimes that it considered to be relevant offences. Further, there is evidence that the Police do consider the particular crime and its background circumstances in the exercise of their discretionary power under s 39 of the Act. It is clear that the consideration of the nature of the offending is in itself a relevant consideration, amongst others, in an Act that carefully balances and respects the rights of the individual.Decision[70] The applicant has established no grounds for judicial review of the exercise in this case of the discretionary power to issue a databank compulsion notice under the Criminal Investigations (Bodily Samples) Act 1995. The application for judicial review is therefore dismissed.Costs[71] Leave is reserved to the respondent to apply for costs. If counsel cannot agree on the question of costs, I will entertain memoranda from counsel. _________________________ Stevens J