HOKO V R [2016] NZCA 496 [12 October 2016]

HOKO V R [2016] NZCA 496 [12 October 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA230/2016[2016] NZCA 496BETWEEN RICHARD JOHN HOKOAppellantAND THE QUEENRespondentHearing: 20 September 2016Court: Harrison, Brown and Brewer JJCounsel: Applicant in personI R Murray for RespondentJudgment: 12﷢October 2016 at 10 am﷢﷢﷢﷢JUDGMENT OF THE COURTA The application for leave to appeal is declined.B Publication of this judgment and any part of the proceedings (including theresult) in news media or on the internet or other publicly available database isprohibited until final disposition of trial. Publication in law report or law digestis permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Richard Hoko seeks leave to appeal a pre-trial ruling of Judge D J McDonaldin the Whangarei District Court.1 Mr Hoko faces charges of kidnapping andaggravated robbery. Key to the case against him is DNA evidence. Judge McDonald,having heard evidence (including from Mr Hoko), ruled the DNA evidence to beadmissible in Mr Hoko's trial. Leave of this Court is required to appeal against a pre-trial order about admissibility of evidence pursuant to s 217(2)(b) of the CriminalProcedure Act 2011.Background[2] On 21 January 2013, Mr Hoko was interviewed and arrested for burglary.A DNA sample was taken from him under the compulsory procedures established bypt 2B of the Criminal Investigations (Bodily Samples) Act 1995 (the Act). Mr Hokosubsequently pleaded guilty to the burglary and his DNA profile was added to the DNAprofile databank (the databank).[3] In 2014, police investigated the offences for which Mr Hoko is now charged.DNA was extracted from a sample taken from the crime scene. It was compared withprofiles on the databank and it matched Mr Hoko's profile.[4] The databank is an investigative resource, not an evidential one. For reasonswe do not need to go into, once the police matched the DNA profile from the crimescene with Mr Hoko's profile in the databank they needed to get a further sample fromMr Hoko which could be used as evidence. The procedures for this are established bypt 2 of the Act. One procedure involves obtaining a sample from a suspect if thesuspect consents in accordance with the specified process. This is the procedure thepolice chose in this case.[5] In 2014, Mr Hoko was arrested on the charges he now faces. He was asked togive a further DNA sample. He agreed. A sample was taken and analysed. The result1 R v Hoko [2016] NZDC 5693.was compared to the DNA profile obtained from the crime scene. The comparisonthoroughly implicates Mr Hoko.[6] The first challenge Mr Hoko made was to the taking of the 2013 sample. If thatwas taken unlawfully then he could argue that his DNA profile should never have beenin the databank. Thus, there should have been no match with the profile from thecrime scene sample and no basis for the request for the 2014 sample. The 2014 sampleanalysis would arguably be inadmissible against him as evidence.[7] Mr Hoko's case, when Judge McDonald commenced the hearing on4 December 2015, was that the police did not follow in 2013 the specified procedurefor the taking of a compulsory sample under pt 2B of the Act. Mr Hoko said he didnot understand what the procedure was for (he called this an "absence of informedconsent", although this was a compulsory procedure). In particular, he said he wasnot aware that the analysis of the 2013 sample would be kept on a database whichcould be used for later comparison with DNA obtained as a result of other criminaloffending.[8] During his evidence, Mr Hoko alleged also that the police did not follow thecorrect procedure for explaining why they were asking him for a sample after his arrestin 2014. Again, he said he did not give "informed consent".[9] Judge McDonald dealt with both of Mr Hoko's challenges in his judgment.The District Court decision[10] Judge McDonald first considered whether the 2013 sample was lawfullyobtained. The Judge considered whether the Police had complied with the necessaryprocedure. He found that they had complied:[22] I accept the evidence given to me by Detective Waterhouse andConstable Cox. I find Constable Waterhouse has a clear recollection ofdealing with Mr Hoko. I find that she did go through what was required inrelation to a DNA sample. I find Constable Cox followed his standardprocedure. He struck me as very careful and methodical. I reject Mr Hoko'sevidence. He has no memory whatsoever of being dealt with byConstable Cox. While one might confuse and run together two Police officersof the same gender, there is no way in my view of doing that with DetectiveNatasha Waterhouse and Constable Calvin Cox. Having seen and heardMr Hoko I am firmly of the view that he has tailored his evidence in an attemptto get the 2013 DNA sample excluded. That is no criticism of Mr Fairley.[26] As I have found Mr Hoko was given written notice and the processwas explained to him both by Detective Waterhouse and Constable Cox.He consented to the giving of his sample, he was aware that he was entitled tolegal advice and importantly he was aware that it would be stored on adatabase.[11] The Judge concluded that the 2013 sample had been taken in accordance withthe Act. Therefore, Mr Hoko's DNA profile was lawfully in the databank.[12] The Judge then considered whether the 2014 sample was lawfully obtained.He found that Mr Hoko had consented to the taking of the sample:[31] Detective Sergeant Pilmer went back in to the interview room and at12:32 went through the DNA suspect request forms with Mr Hoko.[32] I accept the evidence of Detective Sergeant Pilmer that that is indeedwhat he did. At page 32 of my notes Detective Sergeant Pilmer outlines theprocess that he followed. I find that he did that. Mr Hoko signed thedocuments that he understood the information explained in the notice andimportantly that he wrote yes he consents to the bodily sample being takenthen signed and dated it.[33] I have no doubt whatsoever Detective Sergeant Pilmer knowing howimportant the taking of this DNA sample would be from Mr Hoko that he wentthrough it in a careful and methodical way. He explained all that was requiredto be explained. He made sure that Mr Hoko understood the notice. Mr Hokonot only signed that he understood the information but also that he consentedto the taking of the sample. I reject entirely Mr Hoko's assertion that the fourthpage of the form was just placed in front of him and he was told where to sign,what to tick and what to write.[13] The Judge therefore found that the 2014 sample was obtained lawfully andruled it admissible.Our assessment[14] The considerations taken into account by this Court when deciding leaveapplications for pre-trial appeals are well settled.2 This Court does not grant leave ifthe proposed appeal has no reasonable prospects of success.2 Hohipa v R [2015] NZCA 73 at [24]–[31].The 2013 sample[15] Judge McDonald heard the evidence of the police officers and of Mr Hoko.Importantly, he took into account that the police had supplied Mr Hoko with theexplanatory form containing the advice specified in s 24N of the Act and that Mr Hokohad both ticked a box signifying that he understood the information explained in theform and had then signed the form. The Judge was entitled to accept the evidence ofthe police officers as to the procedures they followed and the advice they gave toMr Hoko. The Judge was entitled to reject Mr Hoko's account of what happened.[16] An appeal against Judge McDonald's ruling on the lawfulness of the taking ofthe 2013 DNA sample cannot succeed.The 2014 sample[17] As we have said, in order to obtain a bodily sample by consent the Police hadto adhere to the process set out in pt 2 of the Act. That involved giving Mr Hoko awritten form which complied with s 7 of the Act and explaining to Mr Hoko in amanner and with language he was likely to understand the particulars specified unders 6(2)(b) of the Act.[18] Mr Hoko signed a form in which he signalled his consent to the taking of thebodily sample. He admitted before Judge McDonald that the signature was his.The form he signed complied with the requirements of s 7 of the Act.3 There can beno dispute that this aspect of the process was complied with.[19] The next issue is whether the Judge was correct to find that the Police hadexplained in the appropriate way the particulars required by s 6(2)(b) of the Act.The Judge, as quoted at [12] of this judgment, was firmly of the view that DetectiveSergeant Pilmer explained all that was required to be explained.3 The form Mr Hoko signed was Form 1 under the Schedule to the Criminal Investigations (BodilySamples) Regulations 2004, which was amended under s 80 of the Act by the CriminalInvestigations (Bodily Samples) Amendment Regulations 2011 in compliance with the form andcontent prescribed by s 7(b).[20] Detective Sergeant Pilmer recorded on the relevant job sheet that at 12:32 pmhe went "through DNA suspect request forms with Hoko". He then recorded that herequested and received Mr Hoko's consent to provide the bodily sample at 12:35 pm.Based on that document, it appears that Detective Sergeant Pilmer spentapproximately three minutes going through the form with Mr Hoko. We consider thatthis would have been sufficient time to explain the particulars required by s 6(2)(b).They are not complicated, particularly when explained in layperson's terms. In plainlanguage, s 6(2)(b) requires the police to inform the suspect:(i) of the offence in respect of which the request is made;(ii) that the police believe on reasonable grounds that the bodily samplewill tend to confirm or disprove the suspect's involvement in theoffence;(iii) that the suspect is under no obligation to give the sample;(iv) that if the suspect consents to the taking of the sample, the suspect canwithdraw that consent at any time before the sample is taken;(v) that the suspect can consult a lawyer before deciding whether to giveconsent;(vi) that the sample will be analysed and may provide evidence that can beused in criminal proceedings; and(vii) that if the suspect refuses to consent to the taking of the sample, thepolice can apply to a District Court Judge for an order requiring thesuspect to give a bodily sample.[21] We consider that it was clearly open to the Judge to reject Mr Hoko's assertionthat the process was not properly explained to him. We conclude that the Judge'sfindings were available on the evidence and there is no basis for disturbing them onappeal.Result[22] In view of our assessment of the application, we have concluded that, patently,an appeal would be devoid of merit.[23] Accordingly, leave to appeal is declined.[24] To protect Mr Hoko's fair trial rights, publication of this judgment and anypart of the proceedings (including the result) in news media or on the internet or otherpublicly available database is prohibited until final disposition of trial. Publication inlaw report or law digest is permitted.Solicitors:Crown Law Office, Wellington for Respondent