R v TAUFA [2016] NZCA 639

R v TAUFA [2016] NZCA 639 [22 December 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.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS, OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA486/2016[2016] NZCA 639BETWEEN THE QUEENAppellantAND FINAU TAUFARespondentHearing: 18 October 2016 (further submissions received on 2 November2016)Court: Cooper, Brewer and Peters JJCounsel: I R Murray for AppellantC M White for RespondentJudgment: 22 December 2016 at 11 amJUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is allowed. The statement of Mr Taufa to police on 2 October2015 is admissible at his trial.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Taufa is to stand trial in February 2017 on four charges of rape and onerepresentative charge of sexual conduct with a young person. All charges relate to P,who was 12 years old at the time of the alleged offending.[2] When P was 13 years old she gave birth to a baby girl. She told the police thather grandfather was the baby's father and that she had been raped. In the course ofthe investigation the police decided to get DNA samples from other males with whomshe had had contact. One was Mr Taufa. He was not a suspect and he gave a samplevoluntarily for elimination purposes.[3] To the surprise of the police, the analysis of Mr Taufa's sample suggestedstrongly that he was the father of the baby girl. The police interviewed Mr Taufa on 2October 2015 and informed him of the DNA test result. Mr Taufa said that on oneoccasion when he was drunk he had sex with P.[4] Subsequently, the police spoke to P about Mr Taufa's DNA test results. P saidshe had not identified Mr Taufa because she was scared of him. She then made theallegations against Mr Taufa that found the charges he now faces.[5] Judge Bergseng, in the Manukau District Court, ruled that the analysis ofMr Taufa's DNA sample was inadmissible for evidential purposes as it had not beenobtained in compliance with the Criminal Investigations (Bodily Samples) Act 1995("the Act"). As a consequence, Mr Taufa's admission that he had had sex with P wasalso inadmissible. The Judge gave reasons for that decision on 25 August 2016.11 R v Taufa [2016] NZDC 16263.[6] The Crown now seeks leave to appeal Judge Bergseng's decision.2Approach to the appeal[7] The appeal was argued before us largely on the proper construction of the Act.The Crown's position was:6. The Judge was correct in determining that:6.1 the Bodily Samples Act does not limit the ability to takevoluntary samples from non-suspects ('elimination' samples);6.2 the respondent gave informed consent to the taking of theelimination sample and it was taken voluntarily;6.3 in the circumstances, the elimination sample was lawfullyobtained but inadmissible for evidential purposes.7. The Judge was wrong to conclude that, because the lawfully obtainedelimination sample was inadmissible for evidential purposes, ittainted the respondent's police interview (which occurred after thesample was taken and analysed, but before the Crown sought to admitit as evidence). The statement was not improperly obtained. Even ifthe statement was improperly obtained, the Judge incorrectlyexercised the balancing exercise under s 30 of the Evidence Act 2006("the Evidence Act").[8] The argument for Mr Taufa was:1 The respondent submits that the Judge was correct to conclude that:(1) there is a direct causative link between the DNA analysis fromthe elimination sample and the respondent's statement;(2) the elimination sample tainted the respondent's statement;(3) the respondent's statement was improperly obtained; and(4) exclusion of the statement is proportionate to the impropriety.2 The respondent submits that the Judge was incorrect in determiningthat:(1) the Bodily Samples Act does not limit the ability to takevoluntary samples from non-suspects; and(2) the elimination sample was lawfully obtained.2 Section 217 of the Criminal Procedure Act 2011 requires leave to appeal against pre-trial decisionson the admissibility of evidence.[9] In the course of the hearing before this Court the applicability of the HumanTissues Act 2008 was raised. Counsel had not anticipated having to make submissionson it. Accordingly, by minute of 18 October 2016, we directed the filing of furthersubmissions and gave a timetable.[10] There was another point that we considered might have a bearing on the appeal.The Crown had obtained another DNA sample from Mr Taufa under the compulsorysuspect samples procedure of the Act. It had not been analysed by the time of thehearing. We directed:3. Also by 2 November counsel are to advise the current position withrespect to the further sample that was taken from the respondent andwhether the issues raised in argument are still alive between theparties.[11] Crown counsel, by memorandum of 3 November 2016, advised:2. The results of the DNA analysis were received by counsel today andconfirm the results of the earlier 'elimination' sample.[12] Following a further inquiry from us as to whether any live issues in the appealremained, Crown counsel, by memorandum of 15 December 2016, told us that all ofthe issues argued are live.[13] The issues of interpretation of the Act raised by the parties are important ones.In summary, the Act does not provide for the taking of voluntary DNA samples fromnon-suspects for the purpose of eliminating them as suspects. The request by thepolice to Mr Taufa for a DNA sample was not a request authorised by the Act. Theargument for Mr Taufa is that the Act is a code and s 72(c) limits the taking of samples:Nothing in this Act—(c) shall be taken to limit or affect the circumstances in which anyspecimen from a person's body (other than a bodily sample), or anyother particulars of a person (including (without limitation)fingerprints and dental impressions) may be taken from any personwith that person's consent.(Emphasis added.)[14] Counsel for Mr Taufa argues also that if the Act does not limit the taking ofsamples, the police have no independent power to request voluntary DNA samples foranalysis in the course of an investigation.[15] If the Act does not limit the taking of voluntary DNA samples fromnon-suspects, and if the police in the absence of statutory authority may neverthelessrequest them, then there is an issue as to whether the provisions of the Human TissuesAct as to informed consent apply and, if so, what that might mean in this context.[16] It might be that these issues will in some future case fall to be decided by aPermanent Court. However, in the factual circumstances of this case, we do not needto do so.[17] That is because we are satisfied that, even taking the view most favourable toMr Taufa, the evidence is properly admissible under s 30 of the Evidence Act 2006.For that reason, we do not need to determine the lawfulness of voluntary eliminationsamples. Our analysis proceeds on the assumption (without deciding) that the takingof the original sample from Mr Taufa was unlawful and that, as a result, the interviewin which the police put the test results to him was also unlawful.Discussion[18] Having made those assumptions, Mr Taufa's statement to the police will beinadmissible unless the exercise of s 30 of the Evidence Act provides to the contrary.[19] Where a Judge has found on the balance of probabilities that evidence wasimproperly obtained the Judge must:3 determine whether or not the exclusion of the evidence is proportionate tothe impropriety by means of a balancing process that gives appropriate weightto the impropriety but also takes proper account of the need for an effectiveand credible system of justice.3 Evidence Act 2006, s 30(2)(b).[20] Judge Bergseng held the exclusion of the statement as evidence isproportionate to the impropriety.4 We have reached the opposite view.[21] The police acted genuinely and within what was believed to be the lawfulparameters of their investigation. Mr Taufa did not have to give a DNA sample. Heknew that. He gave one voluntarily. If, as we have assumed, there was a breach ofthe Act, then the impropriety was not deliberate, reckless or done in bad faith.[22] Mr Taufa is charged with serious offences. The nature of the evidence is anadmission of the physical component of rape and of the charge of unlawful sexualconduct. The quality of the evidence is high given that it is supported by the resultsof the DNA analysis of the second sample.[23] One factor going against admission is that when the police asked Mr Taufa togive a DNA sample they provided him with a form that he signed. The form said (inpart) that Mr Taufa had been advised and understood that:b. Analysis of the samples will either tend to disprove my involvementin the offences or provide a result which may require another requestfor me to provide a bodily sample to the police.[24] There might be an implication that if the analysis does not tend to disproveinvolvement then the only response by the police might be another request for a sample(as a suspect and pursuant to the Act).[25] However, when the police interviewed Mr Taufa he had been arrested becauseof the DNA analysis. He had been told the reason for his arrest and his rights underthe New Zealand Bill of Rights Act 1990 had been explained to him. Prior to thecommencement of the interview these rights were again given to him. Mr Taufa knewwhat the police wanted to ask him about and he knew that he did not have to talk tothem. He chose to do so.[26] Judge Bergseng considered that the police breached an important right ofMr Taufa by seeking to rely on his elimination sample as a suspect sample.5 That is4 R v Taufa, above n 2, at [63].5 At [37]–[39] and [57].because the Act is prescriptive as to what a suspect must be told when asked to give asample.6 The suspect must be told that he or she is a suspect and, among other things,that the results of the analysis may be used as evidence in criminal proceedings. TheJudge pointed out that the elimination sample was effectively used as a suspect samplewithout Mr Taufa being given this advice.[27] We agree with Judge Bergseng's analysis. But we do not give it the sameweight. That is because the police acted genuinely in asking for the sample. Mr Taufawas not a suspect at that time.[28] Judge Bergseng was influenced also by the availability of an alternative meansof obtaining the evidence.7 The police could have looked at the analysis, formed theview that Mr Taufa was a suspect and asked for a further sample (or obtained onecompulsorily in the event of refusal). We agree that the police could have done this— and indeed have now done so. Of course, if the obtaining of the first DNA samplewas unlawful, then it is arguable that any use of it against Mr Taufa, including havingit analysed, was also unlawful. In our view, this point is valid but not of significantweight.[29] Under these circumstances we do not see unfairness to Mr Taufa in admittinghis statement as evidence. A surprising outcome of an analysis of a voluntary DNAsample led to Mr Taufa making a voluntary admission to the police. Even on theassumption that the taking of the sample was unlawful and the subsequent statementwas therefore unlawfully taken, our view is that excluding the statement as evidencewould not be proportionate to the impropriety.Result[30] The application for leave to appeal is granted. The appeal is allowed.Mr Taufa's statement to the police of 2 October 2015 is admissible at his trial.6 Criminal Investigations (Bodily Samples) Act 1995, ss 6 and 7.7 R v Taufa, above n 2, at [43] and [61].[31] For fair trial reasons we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for AppellantPublic Defence Service, Manukau City for Respondent