Liston-Lloyd v the Commissioner of Police

• Jurisdiction: New Zealand
• Judge: Mallon J
• Judgment Date: 22 October 2015
• Neutral Citation: [2015] NZHC 2614
• Docket Number: CIV 2014-485-1037
• Court: High Court
• Date: 22 October 2015

Under the Judicature Amendment Act 1972

In the Matter of an application for review

Between

Jeane Barbara Liston-Lloyd

Applicant

and

The Commissioner of Police

Respondent

[2015] NZHC 2614

CIV 2014-485-1037

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

Application for a declaration that the police had obtained the applicant's DNA sample in breach of her right under s21 of the New Zealand Bill of Rights Act 1990 (NZBORA) (search and seizure) and s22 NZBORA (liberty of the person) had been breached — the police had gone to the applicant's parent's home to enforce a databank compulsion notice requiring her to provide a DNA sample — they attended at the house on a date earlier than that specified — the notice had contained an error in naming the wrong offence — the plaintiff was told that she would be arrested if she did not comply and as a result she signed an agreement varying the date for taking the notice — in an earlier decision the court had held that the sample was unlawfully obtained because the applicant had not committed a relevant offence — whether there had been a breach of s21 New Zealand Bill of Rights Act 1990 (“NZBORA”) (search and seizure) — whether the applicant had been unlawfully detained under s22 NZBORA (liberty of the person) — whether damages should be awarded.

Appearances:

A Shaw for the Applicant

K Laurenson for the Respondent

JUDGMENT OF Mallon J

Table of Contents

Introduction	[1]
The facts	[5]
Background	[5]
The circumstances in which the sample was obtained	[9]
What happened to the sample	[22]
Unreasonable search and seizure?	[28]
Unreasonable detention?	[33]
The legal principles for NZBORA damages	[41]
Approach in relation to a s 21 breach	[41]
A different approach for a s 22 breach?	[48]
My assessment in this case	[53]
Result	[63]

Introduction

1 The issue before me is whether Ms Liston-Lloyd should be awarded damages as a result of the police unlawfully taking from her a buccal (oral) DNA sample pursuant to the Criminal Investigations (Bodily Samples) Act 1995 (the Act). Ms Liston-Lloyd alleges that the police breached her rights under the New Zealand Bill of Rights Act 1990 (the NZBORA) and that an award of damages is necessary to provide an effective remedy for those breaches.

2 This is the second part of Ms Liston-Lloyd's judicial review proceeding, which by agreement of the parties has been heard in two parts. In the first part I determined that the sample was unlawfully obtained. 1 This was because I considered that the offence on which she was convicted was not a “relevant offence” for which a databank compulsion notice, requiring her to provide a DNA sample, could have been issued. There was also an error in the notice in the description of the offence to which it related. A declaration was issued and an order was made for the destruction of the sample.

3 In this second part of the proceeding I am to determine whether this illegality gave rise to a breach of Ms Liston-Lloyd's right under the NZBORA to be secure from unreasonable search and seizure (s 21). Ms Liston-Lloyd contends that it was and that an award of damages is necessary to provide an effective remedy. The Commissioner of Police (the Commissioner) contends that the illegality was technical in nature and, as such, it did not amount to a breach of Ms Liston-Lloyd's right under s 21. The Commissioner also contends that if there was a breach, it does not require a further remedy beyond the declaration already granted by this Court.

4 Ms Liston-Lloyd also contends that her right to be free from unlawful and arbitrary detention (s 22) was breached and that damages must also be awarded for this breach. This concerns the actions of the police in coming to Ms Liston-Lloyd's home to enforce the notice on a date earlier than that specified in the notice. 2 The Commissioner contends that there was no breach. He also contends that if there was

a breach, it was temporary and minimal and compensation is accordingly not appropriate

The facts

Background

5 Ms Liston-Lloyd was convicted on four counts of selling methylone, a class C drug, to a person over the age of 18 years. As a result of those convictions she was served with a databank compulsion notice on 19 March 2010. 3 This notice required her to give a bodily sample to be kept on a DNA profile databank (the databank).

6 Ms Liston-Lloyd initially intended to challenge the notice on the basis that she had not been convicted of a “relevant offence”. The police legal advisor disagreed with that view in discussions with Ms Liston-Lloyd's lawyer at the time. Her lawyer accepted the police view and as a result Ms Liston-Lloyd decided not to proceed with a review hearing. By that time the date in the notice for providing the sample had passed.

7 A second notice was issued on 21 May 2010. The notice ran to six pages and provided details under various headings about what was required, what Ms Liston-Lloyd's rights were in connection with the notice, how the sample could be taken, and what would happen to it once it was taken. The first page of the notice stated (amongst other things) that Ms Liston-Lloyd:

must attend to give a bodily sample … [a]t Wellington Central Police Station between 7pm and 8pm on 06/07/2010 unless you and a member of the Police agree to vary the place or vary the date to an earlier date, or both.

8 The third page of the notice stated (amongst other things):

Can I be forced to give a bodily sample?

If you refuse to give a bodily sample in compliance with this notice, a member of the Police may use or cause to be used reasonable force to assist a suitably qualified person to take a bodily sample. If you are in a penal institution, a prison officer may also assist the member of the Police.

If force is used, the bodily sample will be taken by a blood sample from a fingerprick.

The circumstances in which the sample was obtained

9 The affidavit evidence about the circumstances in which the sample was obtained was to some extent in dispute. The Commissioner did not seek to adduce further evidence responding to Ms Liston-Lloyd's evidence, it being accepted that Constable Stokes (who is no longer a police officer) would be unable to add to his affidavit evidence, which was based on his records rather than any independent recall of the events. Ms Liston-Lloyd was cross examined on her evidence. 4

10 Ms Liston-Lloyd was living with her parents at the time and was subject to a curfew between 7 pm and 7 am, pursuant to the community detention sentence she was serving for the class C offending. During the day she was working at a café. Because of the curfew, Ms Liston-Lloyd says that there should have been no difficulty serving the notice on her in the evening from 7 pm.

11 Constable Stokes was tasked with serving the notice on Ms Liston-Lloyd. On 3 June 2010 at 10.15 am he went to Ms Liston-Lloyd's parents' address to serve the notice. She was not at home because she was working. He was given a telephone number to make arrangements to serve the notice. This attempt to serve the notice is recorded in Constable Stokes' job sheet. Ms Liston-Lloyd's affidavit evidence is consistent with this.

12 The evidence is in dispute about whether the next contact occurred by telephone or in person. Constable Stokes' evidence is that he telephoned Ms Liston — Lloyd at 2.30 pm on 7 June 2010 but that she was not at home. Again this evidence is based on the note he made in his job sheet. Ms Liston-Lloyd's evidence is that her parents told her that the police had visited her again at a time when she was at work. Although the dispute is not particularly material, I prefer Constable Stokes' evidence that the contact was by telephone. His job sheet is likely to be more reliable than Ms

Liston-Lloyd's recall four years later 5 on the detail of whether her parents told her that the police had visited or telephoned on this second occasion

13 Constable Stokes' evidence, based on his job sheet, is that at 9.20 pm on 7 June 2010 he again telephoned, spoke to Ms Liston-Lloyd and arranged a time for the taking of the sample between 9.30 pm and 10.30 pm that evening. Ms Liston — Lloyd does not recall this conversation. However I accept that this occurred because the police job sheet is likely to be more reliable that Ms Liston-Lloyd's recall four 6 and five 7 years later.

14 Constable Stokes attended Ms Liston-Lloyd's address that night with Constable Sullivan. Constable Stokes' evidence, on the basis of his report of this visit, is that he confirmed Ms Liston-Lloyd's identity and served her with the databank compulsion notice. In addition to the notice he gave Ms Liston-Lloyd three further documents:

• (a) An agreement acknowledging that she agreed to vary the time for taking the sample.

• (b) A notice under s 50 of the Act (concerning her rights to have someone present when the sample is taken).

• (c) An explanation pursuant to s 39(2)(c) of the Act. This document set out 11 points which an officer is directed to ensure that the person understands. This includes that “if the suspect refuses to allow a bodily sample to be taken, a sample may be taken by force under section 54(2) and, if applicable, section 54(3).”

15 It is clear that Ms Liston-Lloyd signed the agreement to vary the date although she does not specifically recall doing so. By the terms of this agreement, Ms Liston-Lloyd confirmed that she was served with a databank compulsion notice

on 7 June 2010 requiring her to supply a DNA sample on “07/06/2010”; 8 stated that she did not wish to review the notice; consented to supply a DNA sample prior to the date specified in the notice; and agreed to supply the DNA sample on 07/06/2010 at her parents' address

16 Ms Liston-Lloyd's evidence is that her mother answered the door and...