New Zealand Police v FG [2020] NZYC 328

Published 07 August 2020

Admissibility of evidence — DNA sample — aggravated robbery — unlawfully getting into motor vehicle — nominated person — rights of child — Oranga Tamariki Act 1989, ss 5, 208, 215-224, & 247 — Criminal Investigations (Bodily Samples) Act 1995, ss 7, 8, 24K-24R, 26, 48A, 49, 49A, 50A, 54A & 60A — New Zealand Bill of Rights Act 1990, s 23 — Evidence Act 2006, s 30 — UN Convention on the Rights of the Child, arts 7 & 40 — UN General Comment on Child Justice — Beijing Rules — Havana Rules — Ridyadh Guidelines — R v Z [2008] NZCA 246, [2008] 3 NZLR 342 — Campbell v R [2014] NZCA 376, [2015] DCR 237 — R v T [1999] 2 NZLR 602 (CA) — TV3 v R HC Auckland CRI-2005-092-14652, 7 July 2006 — Pouwhare v R [2010] NZCA 268, (2010) 24 CRNZ 868 — Salduz v Turkey Grand Chamber, ECHR 36391/02, 27 November 2008 — Panovits v Cyprus ECHR 4268/04, 11 March 2009 — Dutch Supreme Court, ECLI: NL: HR: 2009: BH3081, 30 June 2009 — Dutch Supreme Court, ECLI: NL: HR: 2010: BN7727, 11 November 2010 — Dutch Supreme Court, ECLI: NL: HR: 2013: CA2555, 6 June 2013 — Dutch Supreme Court, ECLI: NL: HR: 2014: 133, 21 January 2014. The young person faced three charges of aggravated robbery and one of unlawfully getting into a motor vehicle. The police had arrested the young person and spoken to him and his mother (as his nominated person) at the police station and subsequently at the young person's house, where they also obtained a DNA sample from the young person. At issue was whether the DNA evidence was admissible pursuant to the Criminal Investigations (Bodily Samples) Act 1995 (CIBS Act) as well as written statements under ss 215-224 of the Oranga Tamariki Act (OTA). A child's vulnerability as a young person entitles them to special protection. The young person was found to have a narrow window of time in which he was able to focus (around 20 minutes), and had comprehension difficulty with regards to concepts and words relating to legal proceedings, such as "victim", "not denied" and "guilty". With regards to the written statements the police were required to explain to the young person his rights, rather than just inform him of them. This requirement was not satisfied simply by virtue of them having a nominated person present, who in this case had been flustered having just finished work when arriving at the police station and subsequently in their home was distracted by her other young child and household tasks. With regards to the DNA sample, the officers had also failed to explain properly to the young person his rights and had not done so in a manner and language that he was likely to understand. The young person should have been given legal advice before consenting to the DNA sample. This was supported by various international conventions, rules and case law. The written statements and DNA sample were therefore deemed inadmissible. Judgment Date: 29 June 2020. * * * Note: names have been changed to comply with legal requirements. * * *