2 Custody, Bail, Prosecution Guidelines, Taser and FA Flashcards
When is a defendant bailable as of right?
If they are charged with an offence
- NOT punishable by imprisonment
- Punishable by LESS than 3 years imprisonment (unless assault on child or MAF)
Is a defendant bailable as of right if they have previously been CONVICTED of a offence punishable by imprisonment?
No - if they are charged with an offence punishable by imprisonment and have previously been convicted of an offence punishable by imprisonment they are NOT bailable as of right
When MUST you release someone who is not bailable as of right?
Must be released by a court on reasonable terms and conditions unless the Court is satisfied there is just cause for continued detention (RIC)
When the Court are considering just cause for continued detention, what MUST they be considering?
Risk that the defendant; - may fail to appear - interfere with witnesses OR evidence - offend while on bail AND - any matter that would make it UNJUST to detain the defendant
When the Court are considering just cause for continued detention, what MAY they take into account?
- Nature of the offence
- Strength of evidence
- Seriousness of punishment
- Character and past behaviour
- History of offending while on bail
- Length of time before matter comes to trial
- Prejudice to defence if RIC
- Any other specific matter that is relevant
When deciding whether to grant bail to a FH defendant, what is the COURTS PRIMARY consideration?
The victim AND any person or people in a family relationship with the victim
When considering an application for bail what MUST the Court take into account?
Views of the victim in accordance with s29 VRA or of a parent or legal guardian of a victim
When considering an application for bail what MUST THE COURT NOT take into consideration?
The fact that the defendant has or may provide any info relating to investigation or prosecution of any offence
However the Court MAY take into account the COOPERATION of the defendant with authorities
Explain s10 Bail Act, restriction on bail re specified offences.
Applies to a defendant 18yrs or older
Or a YOUTH aged 17 who is charged in the DC or HC
Who has been charged with a specified offence
AND
Who has been convicted for one or more specified offences
Cant get bail unless by DCJ or HCJ
Reverse Burdon of Proof - defendant must satisfy Judge that should be bailed
Give some examples of a specified offence.
Sexual violation Sexual conduct with child under 12 Sexual conduct with child under 16 Murder Manslaughter Attempt to Murder Wounding with Intent Injuring with Intent Agg Wounding Using a FA against enforcement officer Kidnapping Agg Burlary Robbery Agg Robbery Assault with Intent to Rob
Cant get bail unless by DCJ or HCJ AND reverse burden of proof applies
What is the reverse burden of proof in bail decisions?
The defendant has to PROVE that they should be released on bail rather than the prosecution proving that the defendant should not be bailed
s12 is further restrictions on bail
Of or over 18
Charged with an offence punishable by 3 or more yrs
AND
at the time was on bail for an offence punishable by 3 yrs
AND
Has previously been sentenced to imprisonment
OR
of or over 18
AND
Charged with an offence punishable by 3 or more yrs
AND
Has prev received 14 or more terms of imprisonment
AND
been convicted of an offence that was committed while on bail for an offence that carries 3 or more years
Cant get bail unless by DCJ or HCJ AND reverse burden of proof applies
AND
Must satisfy Judge that they wont commit any offence involving violence or endanger the safety of any person OR burglary OR serious prop damage (7yrs +)
What does serious property damage mean?
Means an offence against the CA punishable by more than 7 years inprisonment
What are the Court PRIMARY CONSIDERATIONS when considering bail?
The need to protect the safety of the victim or victims of the alleged offending are primary considerations
What does a term imprisonment mean?
Where the defendant has been sent to jail and includes corrective training under the Criminal Justice Act 1985.
Any sentence of imprisonment is counted whether or not it was served concurrently with any other sentence.
A Court MUST release a defendant aged 18 or younger on bail when?
if the defendant is 17yrs or 18yrs AND is charged with or convicted of any offence in the DC or HC AND has NOT previously been sentenced to imprisonment AND
Who can grant bail to a defendant who is charged with a DRUG DEALING offence?
DCJ or HCJ
Who can give Police bail?
Any POLICE EMPLOYEE inc AOs
Charged with an offence
Without warrant
Cant bail FH offender
Primary consideration is need to protect victim AND any person in a family relationship with victim
If a Police EMPLOYEE (INC AO) grant bail what MUST the bail form state?
Full name and address Particulars of the charge Conditions of bail Time and date of Court Any other info required
MUST make sure the defendant understands these conditions and SIGNS the bail form
If you Police bail with conditions how many days before they have to attend Court?
7 days or 14 if no police bail conditions
When bailing a FH offender what bail conditions can you give them?
Any condition that the employee considers REASONABLY NECESSARY to PROTECT the victim and anyone residing or in a family relationship with them
Cant be released on bail during the 24hrs immediately following arrest unless bailed by Court
When can you arrest a person who has been released on bail?
Applies to Court and Police bail
RGTB defendant
has absconded
is about to abscond for purpose of evading justice
OR
Contravened OR failed to comply with a condition of bail
If the Court has issued a warrant to arrest a defendant who has failed to appear or breach a bail condition - what does the warrant give you the power to do and what do you have to do?
May be executed by any constable
May at any time enter onto any premises
By force if necessary
IF RGTB defendant is on premises
MUST
have a the warrant or copy of it
produce it on entry and if requested
if not in uniform produce ID
If person is found and arrested must be taken to Court and not bailed
Explain R v BRYANT bail
Man seen masturbating in park.
He was interviewed and denied it
Was arrested after interview
While officer was doing file, offender interviewed on two other matters
faced 6 charges in court the next morning
Admissibility of 2nd and 3rd statements challenged
As defendant bailable as of right
Court found cop had exercised ‘discretion’ not to grant bail
Police had considered weather the defendant could SAFELY be released until they become the RESPONSIBILITY of the COURT
Under s43 of the Coroners Act 2006 what is one of the Coroners roles?
To determine cause and circumstances of death, thus they have the legislative authority to determine the need for a PM to assist with determining COD
If a Coroner decides NOT to direct a PM when can they direct the release of the body?
Cannot release the body earlier that 24hrs AFTER notifying Police
Police can agree not to have a PM, Snr Sgt or above will confirm to Coroner that no PM is required and that THERE ARE NO POTENTIAL CRIME CONCERNS or SUSPICIOUS CIRCS
If a Coroner decides NOT to direct a PM can Police oppose this?
Yes - but there needs to be an EVIDENTIAL BASIS to support this refusal, this would usually amount to evidence that the Coroner has not previously been provided with.
Can the Coroner release a body with out being formally IDed?
No and Police are responsible for obtaining sufficient evidence of ID
Mosque shooting we had to do comparison report and have a hearing to establish ID before they could be released
Is visual ID the only method of ID of a deceased person?
NO - there is a hierarchy of ID considerations
Visual ID
Fingerprints - req authority from Coroner
Odontology (dental) - req authority from Coroner
Comparison Report - DVI staff
DNA - - req authority from Coroner
If the person does not look in death like they looked in life visual ID is NOT appropriate
Should Police be making comment to the media around sudden deaths?
NO - it is the Coroners role to determine circumstances of death and not appropriate for Police to make premature comment
Seek advice from Media team or consult with the responsible coroner in relation to an active colonial investigation
If you are taking identifying particulars off someone who has been detaind for committing an offence, WHEN can they be used?
Identifying particular info can be used NOW or in the FUTURE by Police for any LAWFUL purpose
When can you take identifying particulars?
Only if someone who is in LAWFUL CUSTODY AND is DETAINED FOR COMMITTING AN OFFENCE either at the Police station or at any other place being used for police purposes
How can you take identifying particulars?
In a manner that is reasonable in the circumstances
AND
may ONLY use reasonable force that my be necessary to secure them
What happens if someone refuses to give their identifying particulars?
Must caution them
If they fail to comply
Commit an offence
6mths or $5000 fine or both
What are identifiable particulars?
Biographcal details - name, address and DOB
Photograph or visiual image
Fingerprints, palm prints
Footprints
Can you take identifying prints of someone you intend to summons?
Yes - you can detain them at ANY place in order to take identifying particulars AND only for the period necessary to take them
If you find someone drunk in a PUBLIC PLACE or trespassing on PRIVATE PROPERTY what can you do with them?
Can DETAIN and take into CUSTODY
IF
RGTB
Incapable of protecting themselves from physical harm
OR
Likely to cuase physical harm to someone else
OR
Likely to cause significant property damage
AND
not practical to provide for care and protection by taking them HOME or to a TEMPORARY SHELTER
How long can you detain a drunk person for?
12 hours
MUST be released as soon as sober
MUST not be detained for longer than 12 hours
If still not sober after 12 hours health practitioner can authorise another 12hours but no more than that
Health practitioner must be satisfied that person
Remains intoxicated
Incapable of protecting themselves
Does not have any health needs that need medical attention
Cant provide for their care and protection by taking them home or to a shelter
What are the two tests that prosecution must satisfy in order to initiate or continue a prosecution?
Prosecutions - evidential sufficiency and provide a reasonable prospect of conviction
Public Interest - pros is required in public interest
Each aspect of the test must be considered separately
The EVIDENTIAL test must be satisfied before the PUBLIC Interest test
To satisfy the EVIDENTIAL test what must you satisfy?
That there is an IDENTIFIABLE person
Credible Evidence
Evidence which the Prosecution can adduce - reliable and admissible
Could reasonably be expected to satisfy
BRD - Prosecutor must satisfy high standard of proof
Commission of a criminal offence - ID the offence
To satisfy the PUBLIC INTEREST test what must you satisfy?
Once the EVIDENTIAL test has been satisfied
Take into account
Serious nature of offending
Serious or significant violence
Offence is likely to be repeated or continued
Defendant has relevant prev convictions, warnings
Committed the offence while on bail or subject to sentence
Offence is prevalent
Defendant is a ring leader
offence was premeditated
Offence was carried out by a group
offence was incident of organised crime
Victim of offence or their family are in fear
Serious risk of harm
Serious financial loss
Defendant was in position or authority of trust
Committed by a person serving the public, ie Dr
Defendant took advantage of difference in age or development of victim
Offence motivated by hostility due to race, ethnicity, gender, sexual orientation, disability, religion
Element of corruption
What are some PUBLIC INTEREST considerations AGAINST a prosecution?
Court is likely to impose a small or nominal penalty
Loss or harm can be described as minor
Unlikely to be repeated
Long passage of time between offence and likely trial
Where prosecution is likely to have a detrimental effect on MH of victim
Defendant is elderly
Defendant is a youth
Defendant has no prev convictions
Defendant was suffering significant MH
Defendant has rectified loss or harm
Recovery of proceeds of crime can be more effectively done in a civil matter
Info made public could disproportionately harm source of info
Alternative action are available
COST is also a relevant factor
If the prosecutor decides it is not in the public interest to prosecute and a decision of NO PROSECUTION is taken can the person be charged at a later date?
Yes - A decision of ‘no prosecution’ does not preclude any further consideration of a case by the prosecutor, if new and additional evidence becomes available, or a review of the original decision is required.
This would however be RARE.
When a Taser is USED what steps must a supervisor take?
Talk to user and see if you need to attend (face time)
Scene is preserved
Evidence inc cartridges, wires, probes and 4-5 cartridge identification tags CIT
Ensure taser subject is examined by a Dr or qualified ambo officer
AND POL42 Post Taser Medi Exam Form completed
Update Taser register
Tatical Options Report TOR
Upload and categorise Taser footage
Share Taser footage with supervisor
Review footage and TOR
When a Taser is SHOWN what steps must a supervisor take? ARCING
Submit TOR Taser register Upload and categorise Taser footage Share Taser footage with supervisor Debried officer Review footage and TOR
If defence request a copy of the taser footage should you disclose this?
Yes but OC MUST liaises withe District CJSU
A request for Taser DATA is made under the PRIVACY Act or an OIA and forwarded to the National Manager of Response and Operation at PNHQ to be actioned
Regarding FA checks and ensuring compliance with the Arms Act what do Police focus and tailor interventions on?
Level of risk
Actual or potential consequences
Behaviour and attitude of FAL holder
In terms of RISK around compliance of the Arms Act what TWO ASPECTS of RISK do Police focus on?
Magnitude of the consequences that may eventuate
Likelihood of that event occurring
With regard to FAL holders complying with the Arms Act what do Police expect?
That FAL holders will OPERATE SAFELY, SECURELY AND RESPONSIBLE
What are some barriers to FAL holders operating safely, securely and responsibly?
Lack of awareness or understanding
Some ppl will only make effort to comply because of the risk of NON COMPLIANCE
Some ppl will NOT comply at all
What are the polices aims and objectives in regard to FAL holders and checks?
To make COMPLIANCE as easy as possible
Assist those that are TRYING to comply
Encourage compliance through intervention
Use the full force of the regulatory process for those unwilling to comply or negligent
The nature OR level or risk may require regulatory action by Police
What does compliance mean re FAL holders?
Meeting or exceeding the requirements of the regulatory framework.
Police seek the highest possible level of voluntary compliance
Police compliance activities are aimed at having the maximum impact on outcomes: personal and public safety, security of, and the responsible use of firearms.
Decisions in regard to FAL holders being complaint with the law and any Police INTERVENTIONS will be want?
Logical, timely and considered
Evidence based
Impartial without fear, favour or bias
Sufficiently robust and well documented
Proportionate to the risk of non compliance
Consistent with the law, public interest, Police policy and values
What are some of the options regarding Police interventions for FAL holders?
Warning letters
Improvement notices
Prescribe conditions on a dealers or firearms licence
Issue a temporary suspension
Revoke a firearms or dealers licence or endorsements
Police will determine the appropriate interventions/s based on consideration or risk, attitude, behaviour and capability.
Assessment against the factors above, and attitude to compliance, will support a decision about the best course of action. There is a continuum of possible interventions (refer ‘Interventions principles’):
• From – an approach based on information, engagement, education to support and encourage compliance.
• To – an approach that may lead to enforcement interventions such as the issuing of an improvement notice, a warning, a temporary suspension notice or the revocation of the firearms licence.
If you are considering enforcement action against a FAL holder what attributes should you possess?
Expertise and experience
So that you can weigh up the
Extent of harm or risk or risk of harm - danger to self or others
Conduct - behaviour, intent and capability
Public Interest
Attitude to Compliance - so interventions will have desired effect
When can someone be automatically be disqualified from holding a FAL? s22H
If they have within the previous 10 years
Been convicted or released from custody after being convicted of a
serious violent offence, alcohol or drugs
Game Animal Act
Wild Animal Act
Wild Animal Control
Has a temporary PO served on them
Grounds for a PO
Previously non complied with Arms Act, regs or conditions
Showning signs of MH, physical symptions that may adversely affect their ability to safelty have a FA
Abuse of alcohol (dependant)
Uses drugs in a way that affects their judgement or behaviour
Member of or close affiliatin with a GANG or ORGANSISED CRIMINAL GROUP
Promotes extreme hatred, violence or extremism
Risk to states national security
Has or had within the previous 10 yrs had a protection order made against them
Various MODA and CA offences
an existing licence holder, convicted of an offence specified in section 22H in March 2020, or who previous to 24 December 2020 had a protection order made against them, is not a disqualified person because the conviction occurred, or the protection order was made before the commencement of section 22H
The Arms Act still requires a person to be what to hold a FAL?
A FIT and PROPER PERSON to be in POSSESSION or a FA or airgun
What is the purpose of the Firearms Act?
The purposes of the Act are to:
• promote the safe possession and use of firearms and other weapons
• impose controls on the possession and use of firearms and other weapons.
What should you do if a FAL holder is not considered to be a fit and proper person?
Consider:
Temporary suspension while revocation is considered
Revocation
The assessment of a person’s fit and proper status requires consideration under a two-stage process:
- Whether a firearms licence holder is involved in specific behaviours, offending or circumstances defined in s24A(1)(a)-(n) or 24A(2) or as considered relevant. Then
- Whether the severity and recency of the circumstance(s) (specific behaviours, offending listed above) individually at first, and then collectively when considered overall. One significant matter may suffice, or more less significant matters. This includes all other matters deemed relevant
When would you consider a person is not a fit and proper person to be a FAL holder? Examples
When they demonstrate: Unlawful Dangerous Unsafe behaviour Non compliance with licence Behaviour which indicates a lack of judgement Poor decision making
Before a licence holder can be considered not fit and proper, Police should consider:
• the severity and recency of the circumstance(s) (specific behaviours, offending), both individually and then
• collectively when considered overall. This takes into account all other matters deemed to be relevant.
When deciding if a person is a fit and property Person what IS considered?
that the applicant has a sound knowledge of safe POSSESSION and USE of FAs Understands the LEGAL OBLIGATIONS AND Other criteria AND Other relevant matters
For example, a licence holder with multiple offences involving threatening behaviour may be brought under the legislative regime through this provision if deemed to meet the purposes of the Act.
Seriousness of failure
- type of conduct
- specific conduct alleged
- risk of harm
- multiple incidents/breaches
- History of compliance/non compliance
- Escalation in offending/harmful behaviour
- Risk of harm
Who or what can you search if you invoke s18 SAS Act?
RGTS
Person who is in POSSESSION or has in their CONTROL
Is in BREACH of the arms act
By reason of their physical or mental condition is not capable of having proper control
OR
may kill or cause bodily injury
OR
PO or PSO is in place
OR
Grounds to make an application for a PO exist
YOU CAN ENTER SEARCH PERSON or anything in their control (inc vehicle) SEIZE any FAs or FAL
What is the criteria for finding someone is NOT a fit and property person to be in possession or a FIREARM OR AIRGUN? Give examples
If the MEMBER of POLICE is satisfied that 1 or more exist
- CHARGED with or CONVICTED of an offence punishable by imprisonment
- Can be in NZ or OVERSEAS
- charged with or convicted of an offence against
- 231A Crimes Act
- Game Animal Council Act
- Wildlife Act
- Wild Animal Control Act
- has or had a TEMPORARY protection order against them
- has inflicted or is inflicting FH against another person and that person has GROUNDS for a temp PO
- has had a restraining order against them
- non compliance with this act
- shows signs of mental illness that may adversely effect their ability to safely possess a Firearm
- abusing alcohol to an EXTENT that it effects their judgement or behaviour
- abusing drugs (prescription or non prescription) to the effect that it impairs that judgement of behaviour
- member of or close association with a gang or organised criminal group
- promotes violence, hatred or extremism
- risk to states national security
