In Criminal Jurisprudence, a person accused of offence is considered innocent until proven guilty. There may be occasions when a person has been questioned by the Police for gathering information. In such situations, remaining silent by exercising the Bill of Rights is an option? Not really. The ‘Search and Surveillance Bill’ passed in Parliament has somewhat changed the situation. For example, drivers of a motor vehicle are required to provide the name, address and details of the owner, when questioned by the Police. Such information can be used as evidence in a court of law. Of course, the defence is entitled to submit that the Police have not proved their case on the evidence presented. On the other hand the Police arguably would seek the the best form of evidence to prove the case through a bodily sample.
In relation to the bodily samples, New Zealand Parliament passed “Criminal Investigations (bodily samples) Act 1995” (“Act”) as amended. The Act, is a code and complicated. It spells out the rights of suspects while giving a ‘sample.’
The Act aims to reinforce the fact that Parliament is aware that taking bodily samples involves invasion of the privacy of a suspect and that the absence of free consent would breach legal provisions.
Body Sample’ can be obtained as venous sample, finger prick sample or buccal sample. In terms of the Act, blood samples can be taken only by authorised persons, such as a medical practitioner or a registered nurse.
Body Sample can be taken from a suspect only if the specified conditions of the Act are met. The Courts may exclude the evidence if they are any breaches or alleged breaches of the prescribed procedures.
The officer concerned must inform the nature of the offence and the reasons to believe that the analysis of a bodily sample taken from the suspect would tend to confirm or disprove the suspect’s involvement in the offence.
The suspect is under no obligation to give the bodily sample. If the suspect consents to provide the sample, the Police must then follow a series of rules and regulations. If the suspect refuses, the Police may file an application to the High Court for a compulsion order.
While giving a sample,
The suspect is entitled to have certain other persons present, such as a lawyer. The suspect is entitled to consult privately with a lawyer relating to the request for a sample.
If the suspect is less than 17 years of age, a parent or caregiver should be present.
As soon as a suspect consents to provide a bodily sample and before the sample is taken, the Police must ascertain whether the suspect wishes to exercise the right conferred on that person by the Act.
The key issue behind this provision is that no Police officer involved in the investigation of the offence is present while the sample is taken.
Merely signing the consent form by the suspect in itself is not sufficient to suggest that the suspect has understood the contents of the notice. The suspect must be given sufficient time to read and understand it thoroughly.
The Act also requires the concerned officials to provide additional oral advice on basic matters relating to the sampling. If such advice is not given, it may amount to breach of law.
Ram Sastry is a Barrister specialising in Criminal , Immigration, Traffic and Family Laws. He can be contacted on (09) 2708607 Mobile 021-2307222