Unlawfully taken DNA likely to wreck case
‘Careless’ cop dooms home invasion prosecution, appeal judges decide
Aprosecution against an alleged tomahawk-wielding robber is likely to fail after police unlawfully obtained his DNA.
The Court of Appeal yesterday dismissed a Crown appeal and commended a District Court judge’s ruling that Ian Toki’s DNA was illegally taken and stored in the police databank.
The decision also criticised police reliance on the databank, which in 2011 seemingly had samples acquired using incomplete forms that omitted several statutory rights.
In August 2011, when Toki was 17, he was interviewed by Constable Judith van de Lande at the Kerikeri Police Station charged with stealing a car, court documents show.
Van de Lande requested a bodily sample and provided Toki with a copy of the police template for giving DNA.
He initialled each page, but, unknown to Toki, she had given him an illegal form used at the time which for “unexplained reasons” omitted several rights under the Criminal Investigations Act. One of those rights was the ability for someone to withdraw consent to police use of the sample.
Toki, who was under no legal obligation to give a sample, took a mouth swab under the officer’s supervision.
Van de Lande did advise Toki verbally that his sample would be stored in the databank and could be used to investigate future crimes.
But she failed to inform him about how he might withdraw his sample from the databank.
There is a five-month window in which he could have exercised that right.
Toki was convicted on February 2012 and under law the conviction extinguished his right to withdraw consent to the sample. Then in April 2015 he was charged after two men forced entry into a Christchurch home with a tomahawk.
“The principal offender assaulted three of the occupants with varying degrees of severity. Apart from punching them, he struck one in the head with a frying pan,” the appeal judges’ decision reads.
Witnesses identified the alleged lead attacker as drinking a bottle of beer which was left on the home’s doorstep.
DNA from the bottle matched that of Toki in the databank, police found.
During a pre-trial application last year in the Christchurch District Court, the Crown sought to introduce Toki’s DNA as evidence. But Toki objected, arguing he did not give his informed consent.
When ruling on the Crown application, Judge Brian Callaghan rejected Toki’s claim but did find he was not advised of the specifics of withdrawing his sample, nor the process to effect that.
Judge Callaghan said the police were “careless” and it was “not an attractive option for the defendant to escape conviction on serious charges” because the evidence is inadmissible.
“But if he is to be convicted, which he may well be, there will always be a question that his self-incrimination arose from an unlawfulness.”
After the Court of Appeal hearing on October 25, Justices Stephen Kos, Rhys Harrison and Murray Gilbert endorsed Judge Callaghan’s finding.
They said the prosecution against Toki was likely to fail without the DNA sample.
“An effective and credible system of justice will not tolerate lightly the reliance of the police on the DNA profile databank if the underlying sample was taken . . . in abrogation of the person’s rights.”
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