2. Custody, Bail, Prosecution Guidelines, TASER & Firearms

Question 1

What is s.7 of the Bail Act 2000?

Answer 1

Rules as to granting bail

(1) A defendant is bailable as of right who is charged with an offence that is not punishable by imprisonment.

(2) A defendant is bailable as of right who is charged with an offence for which the maximum punishment is less than 3 years’ imprisonment, unless the offence is one against section 194 of the Crimes Act 1961 (which relates to assault on a child, or by a male on a female) or against section 194A of the Crimes Act 1961 (which relates to assault on a person with whom the defendant is, or has been, in a family relationship).

(3) Repealed.

(4) Despite anything in this section, a defendant who is charged with an offence punishable by imprisonment is not bailable as of right if the defendant has been previously convicted of an offence punishable by death or imprisonment.

(5) Subject to sections 9 to 17, a defendant who is charged with an offence and is not bailable as of right must be released by a court on reasonable terms and conditions unless the court is satisfied that there is just cause for continued detention

Question 2

What is s.8 of the Bail Act 2000?

Answer 2

Consideration of just cause for continued detention.

(1) In considering whether there is just cause for continued detention, the court must take into account—

(a) whether there is a … risk that—

(i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or

(ii) the defendant may interfere with witnesses or evidence; or

(iii) the defendant may offend while on bail; and

(b) any matter that would make it unjust to detain the defendant.

(2) In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:

(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:

(b) the strength of the evidence and the probability of conviction or otherwise:

(c) the seriousness of the punishment to which the defendant is liable, and the severity of the punishment that is likely to be imposed:

(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:

(e) whether the defendant has a history of offending while on bail, or breaching court orders, including orders imposing bail conditions:

(f) the likely length of time before the matter comes to hearing or trial:

(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:

(h) any other special matter that is relevant in the particular circumstances.

(3) Repealed.

(3A) In deciding, in relation to a defendant charged with a family violence offence, whether or not to grant bail to the defendant or to allow the defendant to go at large, the court’s primary consideration is the need to protect—

(a) the victim of the alleged offence; and

(b) any particular person or people in a family relationship with the victim.

(3B) Subsection (3A) is subject to subsection (3C).

(3C) In deciding, in relation to a defendant charged with an offence against section 112 of the Family Violence Act 2018, whether or not to grant bail to the defendant or allow the defendant to go at large, the court’s paramount consideration is the need to protect every person who, in relation to the protection order, is a protected person

(4) When considering an application for bail, the court must take into account any views of a victim of an offence of a kind referred to in section 29 of the Victims’ Rights Act 2002, or of a parent or legal guardian of a victim of that kind, conveyed in accordance with section 30 of that Act.

(4A) When considering an application for bail, the court must not take into account the fact that the defendant has provided, or may provide, information relating to the investigation or prosecution of any offence, including any offence committed or alleged to have been committed by the defendant.

(4B) However, despite subsection (4A), the court may take into account the cooperation by the defendant with authorities in the investigation or prosecution of any offence if that cooperation is relevant to the court’s assessment of the risk that the defendant will fail to appear in court, interfere with witnesses or evidence, or offend while on bail.

(5) Repealed.

Question 3

What is S.10?

Answer 3

Restriction on bail if defendant with previous conviction for specified offence charged with further specified offence.

(1) This section applies to a defendant of or over the age of 18 years who is charged with a specified offence (as defined in subsection (2)), and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences).

(1A) This section also applies to a defendant aged 17 years who is charged in the District Court or the High Court with a specified offence and who has 1 or more previous convictions for a specified offence (whether those convictions were for the same specified offence or for different specified offences).

(2) In this section, specified offence means any offence against any of the following provisions of the Crimes Act 1961:

(a) section 128B (sexual violation):

(b) section 132 (sexual conduct with child under 12):

(c) section 134 (sexual conduct with young person under 16):

(d) section 167 (murder):

(e) section 168 (murder):

(f) section 171 (manslaughter):

(g) section 173 (attempt to murder):

(h) section 188 (wounding with intent):

(i) section 189 (injuring with intent):

(j) section 191 (aggravated wounding or injury):

(k) section 198A (using any firearm against law enforcement officer, etc):

(l) section 198B (commission of crime with firearm):

(m) section 208 (abduction for purposes of marriage or sexual connection):

(n) section 209 (kidnapping):

(o) section 232 (aggravated burglary):

(p) section 234 (robbery):

(q) section 235 (aggravated robbery):

(r) section 236 (assault with intent to rob).]

(3) No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.

(4) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

(5) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit any offence involving violence against, or danger to the safety of, any other person.

(6) In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.

Question 4

The Bail Act was amended in 2013 to make it what?

Answer 4

More difficult for those accused of serious offences to be granted bail. As shown above, the number of situations has risen where a defendant will be subject to a reverse burden of proof in bail decisions, whereby the defendant has to prove that he or she should be released on bail, rather than the prosecutor proving that the defendant should not be released on bail.

Question 5

What is s.12 of the Bail Act?

Answer 5

Further restriction on bail in certain cases.

(1) This section applies to a defendant if—

(a) the defendant is of or over the age of 18 years and—

(i) is charged with an offence under the Crimes Act 1961 that carries a maximum sentence of 3 or more years’ imprisonment; and

(ii) at the time of the alleged commission of the offence was remanded at large or on bail awaiting trial for another offence under the Crimes Act 1961 that carries a maximum sentence of 3 or more years’ imprisonment; and

(iii) has at any time previously received a sentence of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002); or

(b) the defendant is of or over the age of 18 years and—

(i) is charged with an offence that carries a maximum sentence of 3 or more years’ imprisonment; and

(ii) has previously received 14 or more sentences of imprisonment (within the meaning of that term in section 4(1) of the Sentencing Act 2002); and

(iii) has previously been convicted of an offence that was committed while the defendant was remanded at large or on bail and that carries a maximum sentence of 3 or more years’ imprisonment (whether or not the conviction resulted in any of the [sentences of imprisonment] referred to in subparagraph (ii)).

(2) For the purposes of subsection (1), a sentence of imprisonment is counted whether or not it was served concurrently with any other 1 or more sentences.

(3) No defendant to whom this section applies may be granted bail or allowed to go at large except by order of a High Court Judge or a District Court Judge.

(4) No defendant to whom this section applies may be granted bail or allowed to go at large unless the defendant satisfies the Judge that bail or remand at large should be granted.

(5) In particular (but without limiting any other matters in respect of which the defendant must satisfy the Judge under subsection (4)), the defendant must satisfy the Judge on the balance of probabilities that the defendant will not, while on bail or at large, commit—

(a) any offence involving violence against, or danger to the safety of, any other person; or

(b) burglary or any other serious property offence.

(6) For the purposes of subsection (5), serious property offence means an offence against Part 10 of the Crimes Act 1961 punishable by imprisonment for a term of more than 7 years.

(7) In deciding whether or not to grant bail to a defendant to whom this section applies or allow the defendant to go at large, the need to protect the safety of the public and, where appropriate, the need to protect the safety of the victim or victims of the alleged offending, are primary considerations.

(8) For the purposes of this section, a reference in this section to a sentence of imprisonment includes a sentence of corrective training imposed under the Criminal Justice Act 1985 or any former Act.]

Question 6

What is s.15 of the Bail Act?

Answer 6

Granting of bail to defendant who is 18 years of age or younger.

(1) A court that remands a defendant at any stage of the proceedings for the offence with which the defendant is charged, including for sentence, must release the defendant on bail or otherwise subject to such conditions as it thinks fit if—

(a) the defendant appears to the court to be 18 years of age; and

(b) the defendant has not previously been sentenced to imprisonment.

(2) Subsection (1) is subject to—

(a) sections 7 (except subsection (5)), 9 to 12, and 16 [to 17A] of this Act; and

(b) section 175 of the Criminal Procedure Act 2011,—

but no other enactment.

(2A) A court that remands a defendant at any stage of the proceedings for the offence with which the defendant is charged, including for sentence, must release the defendant on bail or otherwise subject to such conditions as it thinks fit if—

(a) the defendant is 17 years old; and

(b) the defendant is charged with, or convicted of, any offence in the District Court or the High Court; and

(c) The defendant has not previously been sentenced to imprisonment.

(2B) Subsection (2A) is subject to –

(a) sections 7 (except subsection (5)), 9 to 12, and 16 to 17A; and

(b) section 175 of the Criminal Procedure Act 2011.

(3) Subject to sections 171(1) and 172(1) of the Criminal Procedure Act 2011 and to the Oranga Tamariki Act 1989, this section applies in respect of a defendant who is under the age of 17 years and who is charged with or convicted of any offence in the District Court or the High Court.

Question 7

What is s16 of the bail act?

Answer 7

Judge only may grant bail for drug dealing offence

A defendant who is charged with or convicted of a drug dealing offence may be granted bail by order of a High Court Judge or District Court Judge but not otherwise.

Question 8

What is s.21 of the bail act?

Answer 8

Section 21 – Police employee may grant bail

(1) Any Police employee may, if he or she considers it prudent to do so, grant bail (Police bail) to a defendant who is charged with an offence and has been arrested without a warrant.

(2) Subsection (1) does not apply in any case to which any of section 9, 9A, 10, 12, 16, or 17A applies.

(2A) In determining whether it is prudent to grant Police bail to a defendant charged with a family violence offence, the Police employee must make the primary consideration to need to protect—

(a) the victim of the alleged offence; and

(b) any particular person or people in a family relationship with the victim

(2B) Subsection (2A) is subject to subsection (3)

(3) In determining whether it is prudent to grant Police bail to a defendant charged with an offence against section 112 of the Family Violence Act 2018, the Police employee must make the paramount consideration the need to protect every person who, in relation to the protection order, is a protected person.

(4) Despite section 7, no person is entitled to be granted Police bail under this section as of right.

Question 9

What is s21A of the bail act?

Answer 9

Notice of Police Bail

(1) A Police employee who grants Police bail must ensure that a notice of Police bail is completed in accordance with subsection (2).

(2) A notice of Police bail must—

(a) state —

(i) the defendant’s full name and address; and

(ii) the particulars of the charge; and

(iii) the conditions of bail, including the time, date, and place for attendance by the defendant before a court; and

(iv) any other information required by rules made under section 386 of the Criminal Procedure Act 2011 to accompany a summons to a defendant issued under that Act; and

(b) be dated.

(3) A Police employee who grants Police bail must—

(a) give the notice of Police bail to the defendant; and

(b) ensure that the defendant understands the conditions of bail; and

(c) ensure that the defendant authenticates the notice.

(4) The date for attendance by the defendant before a court must not be later than 14 days from the date of the notice.

Question 10

What is s 21B of the bail act?

Answer 10

Section 21B – Condition of Police bail

(1) It is a condition of every grant of Police bail that the defendant must attend personally before a court at the time, date, and place specified in the notice of bail.

(2) A Police employee who grants Police bail may impose, in addition to the condition imposed by subsection (1), any condition of the bail that might be imposed by a judicial officer under section 30(2) or (4).

(3) However, subsection (2) applies only if—

(a) the time stated in the notice of Police bail for the appearance by the defendant before a court is less than 7 days from the date of that notice; or

(b) the court that the defendant must attend will be closed for more than 7 consecutive days after the date of the defendant’s arrest.

Question 11

What is s 22 of the bail act?

Answer 11

Section 22 – Conditions of Police bail granted to defendant charged with family violence offence

A police employee who grants Police bail to a defendant changed with a family violence offence may impose as a condition of the bail (in addition to the condition or conditions imposed under section 21B) any condition that the employee considers reasonably necessary to protect—

(a) the victim of the alleged offence; and

(b) any particular person residing, or in a family relationship, with the victim.

Question 12

What is s.23 of the bail act?

Answer 12

Bail and breach of protection order

(1) If a person is arrested under section 113 of the Family Violence Act 2018 and charged with an offence against section 112 of that Act, the person must not be released on bail by a Police employee under section 21 during the 24 hours immediately following the arrest.

(2) Nothing in subsection (1) limits or affects the obligation of the police to bring a person who is charged with an offence before a court as soon as possible.

(3) If a person to whom subsection (1) applies is not brought before a court during the 24 hours immediately following the arrest, the person may, at the expiry of that period, be released on bail by a Police employee under section 21.

(4) If a person to whom subsection (1) applies has also been charged with 1 or more other offences arising out of the same incident, the person must not be released on bail by a Police employee under section 21 in respect of any of those offences during the 24 hours immediately following the arrest for an offence against section 112 of the Family Violence Act 2018.

Question 13

What is s.35 of the bail act?

Answer 13

Defendant on bail may be arrested without warrant in certain circumstances

(1) Any constable may arrest without warrant a defendant who has been released on bail by a court or Registrar or Police employee if the constable believes on reasonable grounds that—

(a) the defendant has absconded or is about to abscond for the purpose of evading justice; or

(b) the defendant has contravened or failed to comply with any condition of bail.

(2) A defendant who is arrested under subsection (1) must,—

(a) if released on bail by the District Court, a Registrar, or a Police employee in relation to a category 1, 2, or 3 offence, be brought before the District Court as soon as possible, unless the Solicitor-General has assumed responsibility for the proceedings in accordance with section 187 of the Criminal Procedure Act 2011; or

(b) if released on bail in any circumstances to which paragraph (a) does not apply, be brought before a High Court Judge or a District Court Judge as soon as possible.

(3) In any such case, the judicial officer, on being satisfied that the defendant had absconded or was about to abscond or has contravened or failed to comply with any condition of bail, must reconsider the question of bail.

(4) After a defendant has been arrested under subsection (1), the defendant cannot be bailed as of right and is bailable only under section 7(5).

(5) This section does not apply if section 36 applies.

(6) Nothing in this section prevents a constable from seeking a warrant to arrest a defendant under section 37.

(7) Sections 215 to 232 of the Oranga Tamariki Act 1989 apply to a defendant aged 17 years who—

(a) has been charged with, or convicted of, any offence (except a drug dealing offence) in the District Court or the High Court; and

(b) has been released on bail for the offence, or the alleged offence, by a court, a Registrar, or a Police employee; and

(c) is arrested without warrant under subsection (1).

Question 14

What is s.37 of the bail act?

Answer 14

Issue of warrant to arrest defendant absconding or breaching bail condition or who fails to answer bail.

(1) A judicial officer or Registrar may issue a warrant for the arrest of a defendant if—

(a) the judicial officer or Registrar is satisfied by evidence on oath that—

(i) the defendant has absconded or is about to abscond for the purpose of evading justice; or

(ii) the defendant has contravened or failed to comply with any condition of bail; or

(b) the defendant—

(i) does not attend personally at the time and place specified in the notice of bail or, as the case may be, the bail bond; or

(ii) does not attend personally at any time or place to which during the course of the proceedings the hearing has been adjourned.

(2) A warrant to arrest a defendant under this section must be directed to a constable by name or generally to every constable.

(3) The warrant may be executed by any constable.

(4) For the purpose of executing a warrant issued under this section, the constable executing it may at any time enter on to any premises, by force if necessary, if the constable has reasonable grounds to believe that the defendant against whom it is issued is on those premises.

(5) The constable executing the warrant—

(a) must have the warrant, or a copy of it, with him or her; and

(b) must produce it, or a copy of it, on initial entry and, if requested, at any subsequent time; and

(c) if he or she is not in uniform, produce evidence that he or she is a constable.

(6) If a defendant is arrested under a warrant issued under this section,—

(a) section 35(2) to (4) apply as if the defendant had been arrested under section 35(1); and

(b) in the case of a person who is charged with or convicted of a drug dealing offence and who has been released on bail in relation to that offence, section 36(2) to (6) apply as if the defendant had been arrested under section 36(1).

(7) In this section, judicial officer or Registrar means, in relation to proceedings for the offence with which the defendant is charged,—

(a) for proceedings in the District Court, a judicial officer or Registrar of the District Court:

(b) for proceedings in the High Court, a Judge or Registrar of the High Court:

(c) for proceedings in the Court of Appeal or the Supreme Court, a Judge or Registrar of the High Court.

Question 15

What does the case R v Bryant [2001] 2 NZLR 319 (CA) “prudent”; s51 SPA, s21 Bail Act tell us?

Answer 15

Bryant challenged the admission of the statements taken on 27 September and on the following morning. As Bryant was bailable as of right, the argument was that the Police should not have detained him as they did until taking him to court the next morning, and that because of that resulting unlawful detention the two statements obtained in breach of his rights should be held inadmissible.

Held

s51 Summary Proceedings Act 1957 (repealed, now s21 Bail Act 2000) confers the authority while not derogating from the duty to bring the defendant before the court; Police are to consider whether a defendant can be safely released until he or she becomes the responsibility of the court; the two bail regimes operate in tandem but are separate and apply at different points in time; application to appeal granted but appeal dismissed.

Question 16

One of the coroner’s roles is to determine cause of death. They have the legislative authority to what?

Answer 16

To determine the need for a post-mortem to assist them determine cause of death.

Question 17

What is s43 Coroners Act 2006 ?

Answer 17

Restriction on release if no post-mortem directed

(1) A coroner who decides not to direct a pathologist to perform a post-mortem of a body under section 31 must not authorise its release under section 42 earlier than 24 hours after notifying a constable of the decision.

(2) Subsection (1) does not apply if a constable of the level of position of senior sergeant or above agrees to the coroner authorising the release of the body within the 24-hour period referred to in that subsection.

By the time the coroner sends a request to Police (usually to the DCC) under s43(2) called a COR 30, the Pol 47 and Police documentation will have explicitly outlined that there are no suspicious circumstances or potential crimes identified or being investigated by Police.

Whether Police sign a COR 30 principally involves this consideration: Are Police satisfied a post-mortem is not required because there are no potential crime concerns.

It is not a question of whether the police think cause of death can’t be ascertained in the absence of a post-mortem as that is an issue for the coroner.

If Police wish to refuse to sign a COR 30 there needs to be an evidential basis to support this refusal. This would in effect amount to evidence that the coroner has not previously been provided with.

Question 18

Who is responsibly for identifying the body?

Answer 18

The coroner cannot release the body until satisfied with the identification of the deceased. You are responsible for obtaining sufficient evidence of identification. Visual identification is usually sufficient. However, the rule of thumb is that if the person does not look in death like they did in life, visual identification is not appropriate. Then non-visual identification methods are required.

Q. What is the Hierarchy of identification ?

1. Visual ID - If visually identifiable and there is an appropriate person to complete. At the time of identification, consider attaching a photograph of the deceased to the Statement of Identification to illustrate the appearance of the deceased.
2. Fingerprints
3. Odontology
4. Comparison ID Process
5. DNA

Question 19

What is a Nonvisual ID?

Answer 19

When visual identification cannot be established consult with your District DVI team who are trained in comparison identification procedures. Keep the Duty Coroner informed of steps you are taking to identify the deceased. Do this through NIIO.

Question 20

Police staff may be approached by media for comment in the aftermath of a sudden death(s).

Media interest around the circumstances of death in some cases may be high (and persistent). It is important for police to recognise what?

Answer 20

A. the restrictions on discussing matters that are before a coroner. It is the coroner’s role to determine circumstances of death and it is therefore not appropriate for Police to make premature comment.

You should:

• seek advice from the Police Media Team

• consult with the Responsible Coroner in cases when Police wish to make comment in relation to an active coronial investigation.

Question 21

What is s.32 of the Policing Act?

Answer 21

Identifying particulars of person in custody

(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.

(2) For the purpose of this section, a constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is—

(a) at a Police station; or

(b) at any other place being used for Police purposes.

(3) A constable—

(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and

(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.

(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—

(a) commits an offence; and

(b) is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.

(5) In this section and section 33,—

identifying particulars means, in relation to a person, any or all of the following:

(a) the person’s biographical details (for example, the person’s name, address, and date of birth): (b) the person’s photograph or visual image:

(c) impressions of the person’s fingerprints, palm-prints, or footprints

place includes any land, building, premises, or vehicle.

Question 22

What is s.33 of the Policing Act?

Answer 22

(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.

(2) For the purpose of this section, a constable who has good cause to suspect a person of committing an offence and who intends to bring proceedings against the person in respect of that offence by way of summons, may detain that person at any place—

(a) in order to take the person’s identifying particulars; and

(b) only for the period necessary to take the person’s identifying particulars.

(3) A constable—

(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and

(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.

(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—

(a) commits an offence; and

(b) is liable on conviction to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.

Question 23

What is Section 36 of the Policing Act?

Answer 23

Care and protection of intoxicated people

(1) A constable who finds a person intoxicated in a public place, or intoxicated while trespassing on private property, may detain and take the person into custody if—

(a) the constable reasonably believes that the person is—

(i) incapable of protecting himself or herself from physical harm; or

(ii) likely to cause physical harm to another person; or

(iii) likely to cause significant damage to any property; and

(b) the constable is satisfied it is not reasonably practicable to provide for the person’s care and protection by—

(i) taking the person to his or her place of residence; or

(ii) taking the person to a temporary shelter.

(2) A person detained under subsection (1)—

(a) must be released as soon as the person ceases to be intoxicated:

(b) must not be detained longer than 12 hours after the person is first detained, unless a health practitioner recommends that the person be further detained for a period not exceeding 12 hours.

(3) A health practitioner must not recommend the further detention of a person detained under subsection (1) unless the health practitioner satisfies himself or herself that—

(a) the person remains intoxicated and is incapable of protecting himself or herself from physical harm; and

(b) the person does not have health needs that may require medical attention; and

(c) it is not reasonably practicable to provide for the person’s continuing care and protection by—

(i) taking the person to his or her place of residence; or

(ii) taking the person to a temporary shelter.

(4) In this section,—

intoxicated means observably affected by alcohol, other drugs, or substances to such a degree that speech, balance, co-ordination, or behaviour is clearly impaired

temporary shelter means a place (other than a place operated by the Police) that is capable of providing for the care and protection of an intoxicated person.

(5) Section 31 of the Crimes Act 1961 applies in respect of the power to detain and take a person into custody under this section as if the power were a power of arrest.

Question 24

Discuss the The test for prosecution 5.1 and 5.2

Answer 24

Prosecutions ought to be initiated or continued only where the prosecutor is satisfied that the Test for Prosecution is met. The Test for Prosecution is met if:

• The evidence which can be adduced in Court is sufficient to provide a reasonable prospect of conviction – the Evidential Test; and

• Prosecution is required in the public interest – the Public Interest Test.

Each aspect of the test must be separately considered and satisfied before a decision to prosecute can be taken. The Evidential Test must be satisfied before the Public Interest Test is considered. The prosecutor must analyse and evaluate all of the evidence and information in a thorough and critical manner

Question 25

What is the evidential test 5.3 & 5.4?

Answer 25

A reasonable prospect of conviction exists if, in relation to an identifiable person (whether natural or legal), there is credible evidence which the prosecution can adduce before a court and upon which evidence an impartial jury (or Judge), properly directed in accordance with the law, could reasonably be expected to be satisfied beyond reasonable doubt that the individual who is prosecuted has committed a criminal offence.

It is necessary that each element of this definition be fully examined when considering the evidential test in each particular case.

Question 26

What is an identifiable individual?

Answer 26

There will often be cases where it is clear that an offence has been committed but there is difficulty identifying who has committed it. A prosecution can only take place where the evidence sufficiently identifies that a particular person is responsible. Where no such person can be identified, and the case cannot be presented as joint liability there can be no prosecution.

Question 27

What is credible evidence?

Answer 27

This means evidence which is capable of belief. It may be necessary to question a witness before coming to a decision as to whether the evidence of that witness could be accepted as credible. It may be that a witness is plainly at risk of being so discredited that no Court could safely rely on his/her evidence. In such a case it may be concluded that there is, having regard to all the evidence, no reasonable prospect of obtaining a conviction. If, however, it is judged that a Court in all the circumstances of the case could reasonably rely on the evidence of a witness, notwithstanding any particular difficulties, then such evidence is credible and should be taken into account.

Prosecutors may be required to make an assessment of the quality of the evidence. Where there are substantial concerns as to the creditability of essential evidence, criminal proceedings may not be appropriate as the evidential test may not be capable of being met.

Where there are credibility issues, prosecutors must look closely at the evidence when deciding if there is a reasonable prospect of conviction.

Question 28

What is evidence that a prosecution can adduce?

Answer 28

Only evidence which is or reliably will be available, and legally admissible, can be taken into account in reaching a decision to prosecute.

Prosecutors should seek to anticipate even without pre-trial matters being raised whether it is likely that evidence will be admitted or excluded by the Court. For example, is it foreseeable that the evidence will be excluded because of the way it was obtained? If so, prosecutors must consider whether there is sufficient other evidence for a reasonable prospect of conviction.

Question 29

What does Could reasonably be expected to be satisfied mean?

Answer 29

What is required by the evidential test is that there is an objectively reasonable prospect of a conviction on the evidence. The apparent cogency and creditability of evidence is not a mathematical science, but rather a matter of judgment for the prosecutor. In forming his or her judgment the prosecutor shall endeavour to anticipate and evaluate likely defences

Question 30

What does beyond reasonable doubt mean?

Answer 30

The evidence available to the prosecutor must be capable of reaching the high standard of proof required by the criminal law.

Question 31

What does Commission of a criminal offence mean?

Answer 31

This requires that careful analysis is made of the law in order to identify what offence or offences may have been committed and to consider the evidence against each of the ingredients which establish the particular offence.

Question 32

What is the public interest test?

Answer 32

Once a prosecutor is satisfied that there is sufficient evidence to provide a reasonable prospect of conviction, the next consideration is whether the public interest requires a prosecution. It is not the rule that all offences for which there are sufficient evidence must be prosecuted. Prosecutors must exercise their discretion as to whether a prosecution is required in the public interest.

In a time honoured statement made in 1951 Sir Hartley Shawcross QC MP, the then United Kingdom Attorney-General, made the following statement to Parliament in relation to prosecutorial discretion:

“It has never been the rule in this country … that suspected criminal offences must automatically be subject of prosecution.”

Broadly, the presumption is that the public interest requires prosecution where there has been a contravention of the criminal law. This presumption provides the starting point for consideration of each individual case. In some instances the serious nature of the case will make the presumption a very strong one. However, prosecution resources are not limitless. There will be circumstances in which, although the evidence is sufficient to provide a reasonable prospect of conviction, the offence is not serious and prosecution is not required in the public interest. Prosecutors for instance should positively consider the appropriateness of any diversionary option (particularly if the defendant is a youth).

Question 33

What are some public interest considerations for prosecution?

Answer 33

The following may be relevant and require consideration by a prosecutor when determining where the public interest lies in any particular case. The following list is illustrative only.

The predominant consideration is the seriousness of the offence. The gravity of the maximum sentence and the anticipated penalty is likely to be a strong factor in determining the seriousness of the offence;

· Where the offence involved serious or significant violence;

· Where there are grounds for believing that the offence is likely to be continued or repeated, for example, where there is a history of recurring conduct;

· Where the defendant has relevant previous convictions, diversions or cautions;

· Where the defendant is alleged to have committed an offence whilst on bail or subject to a sentence, or otherwise subject to a Court order;

· Where the offence is prevalent;

· Where the defendant was a ringleader or an organiser of the offence;

· Where the offence was premeditated;

· Where the offence was carried out by a group;

· Where the offence was an incident of organised crime;

· Where the victim of the offence, or their family, has been put in fear, or suffered personal attack, damage or disturbance. The more vulnerable the victim, the greater the aggravation;

· Where the offender has created a serious risk of harm;

· Where the offence has resulted in serious financial loss to an individual, corporation, trust person or society;

· Where the defendant was in a position of authority or trust and the offence is an abuse of that position;

· Where the offence was committed against a person serving the public, for example a doctor, nurse, member of the ambulance service, member of the fire service or a member of the police.

· Where the defendant took advantage of a marked difference between the actual or developmental ages of the defendant and the victim;

· Where the offence was motivated by hostility against a person because of their race, ethnicity, gender, sexual orientation, disability, religion, political beliefs, age, the office they hold, or similar factors; Where there is any element of corruption.

Question 34

What are some Public interest considerations against prosecution 5.9.1-5.9.13

Answer 34

· Small penalty

· Minor loss or harm

· Unlikely to be repeated.

· Long passage of time

· Prosecution likely to have a detrimental impact on victim or witness.

· Elderly

· Youth

· No QHA

· Civil recourse

· Harm sources of info, national security etc

· Defendant suffers from mental health.

· Alternatives to a prosecution available

Question 35

If the prosecutor decides that there is insufficient evidence or that it is not in the public interest to prosecute, a decision of what happens?

Answer 35

‘no prosecution’ will be taken.

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. It is anticipated that such a step will be rare.

Question 36

Whenever a TASER is shown or used, the operator must what?

Answer 36

Notify a supervisor as soon as practicable. In the case of employees in rural or remote locations, notify the nearest on duty supervisor.

Question 37

When notified of an operational use of the TASER, the supervisor should follow what steps?

Answer 37

1. Consult with operator- are you required at scene.
2. Aftercare where necessary
3. Scene is preserved and photographed. All evidence secured, probs, cartridges etc
4. Medical exam – Pol 42 – medical exam form
5. Complete TASER register
6. TOR
7. Operator uploads to evidence.com
8. Review TASER footage and TOR

Question 38

What Supervisor’s action after an operational TASER show?

Answer 38

· Ensure the operator or individuals submit a TOR

· Operator completes details in the TASER register.

· Ensure the operator upload the incident to evidence.com.

· Categorises the uploaded data including the TOR details

· Shares the event and evidence.com with their supervisor

· Debrief the officer involved of the incident and reviewed the Taser footage along with the TOR and determine whether the show the Taser was in accordance with the instructions.

Question 39

Disclosure of TASER is the responsibility of who?

Answer 39

The officer in charge (OC) of a file.

The Police Prosecution Service may assist in assessing disclosure if requested by the OC, or an application for disclosure under section 30 of the Criminal Disclosure Act 2008 is made.

When required for disclosure, the OC must liaise with the District CJSU.

Question 40

If a request for TASER data is made under the Privacy Act 1993 or Official Information Act 1982, forward the request to who?

Answer 40

The National Manager: Response and Operations at PNHQ to be actioned.

Question 41

As the Regulatory Authority, New Zealand Police is responsible for ensuring compliance with the what?

Answer 41

The Arms Act 1983. To achieve this, Police will focus and tailor interventions in line with:

• the levels of risk

• the actual or potential consequences

• and the behaviour, attitude and capability of firearms licence holders.

Question 42

Police focus on two aspects of risk in relation to firearms, what are they?

Answer 42

• the magnitude of the consequences that may eventuate should an event occur

• the likelihood of that event occurring.

Question 43

Police expect firearms licence holders to operate safely, securely and responsibly. Police know what?

Answer 43

That

• barriers such as a lack of awareness, or understanding, or capability may prevent some people from operating in a safe or secure, or responsible manner

• some people will make efforts in these areas only because they see risk from Police of non-compliance

• some people will not comply at all

Question 44

In relations to firearms, Police Aim to?

Answer 44

make compliance as easy as possible for those who can and those who want to comply

• assist those who are trying to comply but are not succeeding

• encourage compliance through interventions for those who are reluctant to comply

• use the full force of the regulatory process for those who do not want to comply or are wilfully negligent.

Question 45

Police will be more likely to take action where what?

Answer 45

Attitude and risk coincide, and the response is more likely to be at the higher end of the intervention spectrum. Where there are low risks and good attitudes Police are more likely to focus on providing information, warning, education and encouragement.

Sometimes there will be high risks irrespective of attitudes, particularly where the consequences or outcomes of an event are or potentially are very serious. In these instances, the nature or level of the risk may require regulatory action by Police.

Question 46

What is the Police approach to compliance?

Answer 46

Compliance means meeting or exceeding the requirements of the regulatory framework. It is designed to ensure personal and public health and safety, security of, and the responsible use of firearms. Police seek the highest possible level of voluntary compliance

Question 47

Police compliance activities are aimed at having what?

Answer 47

The maximum impact on outcomes: personal and public safety, security of, and the responsible use of firearms.

The priority is on achieving these outcomes rather than commencing enforcement action against licence holders for every technical breach of relevant law.

The section on Interventions principles sets out the criteria for decision-making on appropriate interventions.

Police aim to be consistent in their decision-making, however this does not mean uniformity of decision-making. Each case is unique, and the Police response must be applicable to the facts of the particular event.

Question 48

Decisions regarding Police interventions will take into account the attitude towards compliance and be what?

Answer 48

• logical, timely and considered

• evidence-based

• made impartially and without fear, favour, bias, prejudice or improper motive

• sufficiently robust and well documented, to withstand judicial review

• proportionate to the risk posed by the non-compliance behaviour

• consistent with the law, the public interest and Police policies and values.

Question 49

The range of interventions available enables Police to what?

Answer 49

• provide information and educational material to firearms licence applicants

• issue warning letters

• issue an improvement notice requiring corrective action if the licence holder is failing, has failed or likely to fail to comply with a provision of the Arms Act 1983, or regulations made under this Act, or any conditions on a licence, an endorsement, or a permit

• prescribe conditions on a dealer’s or firearms licence

• issue a notice of temporary suspension or notice of consideration of revocation of a firearms licence

• revoke a firearms or dealer’s licence, or an endorsement.

Question 50

Police will determine the appropriate interventions/s based on what?

Answer 50

Consideration or risk, attitude, behaviour and capability.

Question 51

Factors for consideration are set out below. Application of these factors requires expertise and experience. The factors apply to the process of weighing up which intervention tool might be most applicable. What are the factors?

Answer 51

The extent of harm or risk or risk of harm. This includes the danger of self harm or harm to others. Actions that create risks but do not actually lead to harm occurring can still be serious and require a firm response.

2. Conduct. Conduct in this context means the behaviours, intent and capability of the licence holder whose actions are being considered.
3. Public interest. Public interest can be described as something being in the interest of the wider public or of public importance. It is more than simply interest from the public or expectation from the public of action. Considerations include whether the event reflects A widespread problem and can be usefully addressed by highlighting the need for compliance.
4. Attitude to compliance. Typically, the nature of the response will be informed by and tailored to the attitude of the licence holder involved towards compliance. This helps ensure that the interventions chosen will have their desired effect. That does not, however, prevent significant action from being taken for other reasons. Even when attitude is acceptable.

Question 52

What are available compliance interventions?

Answer 52

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.

Question 53

The approach chosen should be one that what?

Answer 53

Best deals with the matters being addressed – engagement need not necessarily occur prior to enforcement.

Question 54

What is section 22H of the Arms Act 1983?

Answer 54

A person is disqualified from holding a firearms licence if they have within the previous 10 years been convicted, or released from custody after being convicted, of any of the following offences:

• sections 16(4), 16A, 44A, 50A, 50D, 51A, 53A, 54, 54A, 55, 55A, 55D, 55E, or 55Fof the Arms Act 1983

• a serious violent offence as defined in section 86Aof the Sentencing Act 2002

• an offence under section 92, 98, 98A, 189A, 199, 202C, 238, 267(1), 269(1) and (3), or 306of the Crimes Act 1961

• an offence under section 6, 9, 10, 11, 12, 12A, 12AB, or 12Fof the Misuse of Drugs Act 1975, or

• the person has, or has had within the previous 10 years, a protection order made against them pursuant to section 79the Family Violence Act 2018 or section 14 the Domestic Violence Act 1995.

Question 55

Custody should be interpreted as what?

Answer 55

When the person is in a custodial facility while serving the sentence of imprisonment, and ending when they are released, for example because their sentence has ended, or they have been released on parole.

Question 56

Discuss revocation if holder becomes disqualified?

Answer 56

Clause 10 of new Part 2, Schedule 1 of the Arms Act 1983 clarifies that section 22H does not apply to the previous convictions of a person who is an existing firearms licence holder at the date of the commencement of section 22H. This means:

• 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

• an existing licence holder, convicted of an offence specified in section 22H in Feb 2021, or who has a protection order made against them after 24 December 2020, is a disqualified person because the conviction occurred, or the protection order was made after the commencement of section 22H (24 December 2020)

• a person who is not a firearms holder, convicted of an offence specified in section 22H within the last 10 years, or who has had a protection order made against them within the last 10 years is a disqualified person, regardless of whether the conviction occurred or protection order was made against them before or after the commencement of section 22H.

Question 57

Police should give the licence holder written notice of what?

Answer 57

The revocation promptly after the disqualifying event occurs (to ensure that it can be proved that they have the requisite knowledge that they are no longer licenced to possess firearms) and their firearms and licence demanded and collected under section 28. The notice is to be served on, or given to the licence holder pursuant to section 72A.

The licence holder cannot apply for a review or appeal to the District Court in relation to this kind of revocation (s27B(2)).

Question 58

Discuss basis for belief in failure of a provision of the Arms Act?

Answer 58

The Police employee must reasonably believe that the licence holder:

• is failing,

• has failed, or is

• is likely to fail

• to comply with a provision of the Arms Act, regulations made under the Act or any condition on a licence, an endorsement, or a permit.

There needs to be an objective and credible basis for the belief. The belief should be based on evidence which can be proved to the civil standard of “on the balance of probabilities”.

Question 59

discuss Fit and proper person under the act?

Answer 59

Section 24 of the Arms Act 1983 still requires that a firearms licence applicant must be a fit and proper person to be in possession of a firearm or an airgun. The grounds for firearms licence revocation or suspension pending revocation include where the licence holder is not a fit and proper person to be in possession of a firearm or airgun. (s27and 60A)

This section is only about whether a person is fit and proper to possess firearms or airguns. There are different fit and proper considerations that apply when considering whether a person is fit and proper to be issued with an endorsement or a dealer licence.

Question 60

Previously the only additional statutory guidance on what it meant to be a fit and proper person to possess a firearm or airgun was contained in a few provisions such as what?

Answer 60

Section 27A which provided that a commissioned officer could decide that a person was not fit and proper to possess a firearm or airgun if a protection order was in force or there were grounds for a protection to be made against the person.

• Regulation 14 which provided (and still does) that a firearms licence applicant needs to pass the required tests.

Question 61

From 24 December 2020, section 24A of the Arms Act 1983 provides more detailed statutory guidance on the sorts of matters that are relevant to what?

Answer 61

Whether a person is fit and proper to possess firearms or airguns. These factors are relevant considerations when assessing whether a person is or remains a fit and proper person to possess firearms or airguns. They are not an exclusive list – section 24A(2)(c) makes it clear that Police may take into account any other relevant matters considered appropriate.

Question 62

The purpose of the act is to?

Answer 62

• promote the safe possession and use of firearms and other weapons

• impose controls on the possession and use of firearms and other weapons.

These aims must be kept at the forefront of assessment when determining a person’s ongoing fit and proper status as a licence holder.

Question 63

A person’s fit and proper status is a crucial consideration with regard to whether their firearms licence should be issued, suspended or revoked. For the purposes of the revocations part of the Arms Chapter, if a licence holder is considered not fit and proper, consider what?

Answer 63

• temporary suspension (s60A(1)) while revocation is considered under s27C, or

• revocation (s27(2)).

Question 64

Police will review a person’s fit and proper status, and correspondingly the continuation of their firearms licence when they demonstrate what?

Answer 64

• unlawful, dangerous, or unsafe behaviour, or

• non-compliance with licence, endorsement or permit conditions, or

• behaviour which indicates lack of judgement, or

• poor decision making.

Question 65

Factors covered under section 24A(1) and (2), and may be used as possible grounds for the suspension and revocation of firearms licence under sections 60A, 27C and 27(2)(a).

The assessment of a person’s fit and proper status requires consideration under a two-stage process, what is it?

Answer 65

1. 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
2. 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

Question 66

what is the Fit and Proper person assessment?

Answer 66

In most cases, for a person to be found not fit and proper to be in possession of a firearm or airgun, they will have to meet one or more of the circumstances listed here.

Section 24A(1)(a)-(n) (1) For the purposes of this Act, a member of the Police may find a person is not a fit and proper person to be in possession of a firearm or an airgun if the member of the Police is satisfied that 1 or more of the following circumstances exist

(a) charged with or has been convicted of an offence in New Zealand or overseas that is punishable by a term of imprisonment (including, but not limited to, an offence involving violence, drugs, or alcohol):

(b) charged with or has been convicted of an offence under this Act:

(c) charged with or has been convicted of an offence against—

(i) section 231A of the Crimes Act 1961; or

(ii) the Game Animal Council Act 2013; or

(iii) the Wildlife Act 1953; or

(iv) the Wild Animal Control Act 1977:

(d) has, or has had at any time, a temporary protection order made against them under—

(i) section 79 of the Family Violence Act 2018; or

(ii) section 14 of the Domestic Violence Act 1995:

e. has inflicted or is inflicting family violence against another person in the other person has grounds under the family violence at 2018 to apply for a protection order in respect of that violence

f. has or has at any time had at any time a restraining order made against them under the Harassment Act 1997.

g. Has engaged in any conduct involving non compliance with any requirements of the Act or regulation made under the Act.

h. has recently shown symptoms of mental or physical illness.

I. abuses alcohol was dependent on alcohol,

j. uses drugs

k member of close affiliations with the gang,

l. has shown patterns of behaviour to demonstrating, tendency to exhibit, encourage or promote violence, hatred or extremism.

M. Has been assessed as a risk to national security

N satisfies any criteria prescribed in regulations 74(1)(bb)

Question 67

What is section 24 A(2)?

Answer 67

In determining whether, for the purposes of this act, a person is fit and proper person to be in possession of a firearm or any gun, the member of police may take into account.

A. Whether the applicant

i. has a sale, knowledge of the safe position and use of firearms,

ii. understands the legal obligations of the holder of the firearms licence, including the endorsements they may be made on a foreign licence

B. and any other criteria prescribed in the regulations, and

C. any other relevant matter the member of police considers appropriate.

Question 68

The list of factors in section 24A(1) are not exclusive. Section 24A(2)(c) allows a wide ambit and may be used by Police to consider any other relevant matter they consider appropriate towards review of a person’s fit and proper status. For example, what?

Answer 68

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.

Question 69

Q. Meeting one or more of the considerations set out under section 24A(1) or (2) is the first stage in the assessment of a person’s fit and proper status. Falling into one of the legislative categories listed above does What?

Answer 69

Does not, alone, prescribe that a person is no longer fit and proper.

Question 70

Once it has been established that a person has fallen under one of the provisions under section 24A(1) or (2), the fit and proper assessment can continue.

Before a licence holder can be considered not fit and proper, Police should consider what?

Answer 70

• 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.

Question 71

Factors that Police should consider but are not limited to include what?

Answer 71

Seriousness of failure

• Type of conduct (for example consider maximum penalty of relevant offence if an offence is involved, risk to safety)

• Specific conduct alleged

• Risk of harm

Question 72

Factors that Police should consider but are not limited to include what?

Answer 72

Circumstances surrounding the offending

• Recency

• Assessment of all information available, e.g. health practitioner’s report

• Other mitigating or aggravating circumstances around offending / behaviour

Question 73

Factors that Police should consider but are not limited to include what?

Answer 73

Totality of behaviour

• Multiple incidents / breaches

• History of compliance / non-compliance

• Escalation in offending / harmful behaviour

• Risk of harm

Question 74

Each case will have its own set of specific and unique circumstances meaning that the decision maker will need to identify the applicability of relevant factors and what weighting to give to them on a case by case basis. The final consideration in the fit and proper assessment requires what?

Answer 74

Police to review the totality of the specific behaviour/offending by the licence holder, in the context of the aims of the Act, in order to reach a fair and justifiable decision.

Question 75

When a licence holder is no longer considered fit and proper to possess a firearm or airgun, they will have met what?

Answer 75

The threshold for consideration of suspension (pending revocation) or revocation and either a notice of temporary suspension section 60A(1) or notice of consideration of revocation of firearms licence section 27(2) may be issued

Question 76

There will also be instances where Police decide that based on the totality of the specific behaviour/ offending, the licence holder does not meet the threshold for consideration of revocation, and remains, however marginally or otherwise, a fit and proper person to possess a firearm or airgun. Police may what?

Answer 76

Instead issue a warning letter to the licence holder setting the relevant facts and corresponding legislative grounds under section 24A that may risk the licence holder’s fit and proper status and the consequence of potential revocation of the firearms licence for any subsequent offending/behaviour.

Question 77

what is s.18 S&S Act

Answer 77

Warrantless searches associated with arms

(1) A constable who has reasonable grounds to suspect that any 1 or more of the circumstances in subsection (2) exist in relation to a person may, without a warrant, do any or all of the following:

(a) search the person:

(b) search anything in the person’s possession or under his or her control (including a vehicle):

(c) enter a place or vehicle to carry out any activity under paragraph (a) or (b):

(d) seize and detain any arms found:

(e) seize and detain any licence under the Arms Act 1983 that is found.

(2) The circumstances are that the person is carrying arms, or is in possession of them, or has them under his or her control, and—

(a) he or she is in breach of the Arms Act 1983; or

(b) he or she, by reason of his or her physical or mental condition (however caused),—

(i) is incapable of having proper control of the arms; or

(ii) may kill or cause bodily injury to any person; or

(c) that, under Family Violence Act 2018

(i) a protection order or a police safety order is in force against the person; or

(ii) there are grounds to make an application against him or her for a protection order.

(3) A constable may, without a warrant, enter a place or vehicle, search it, seize any arms or any licence under the Arms Act 1983 found there, and detain the arms or licence if he or she has reasonable grounds to suspect that there are arms in the place or vehicle—

(a) in respect of which a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983 has been committed, or is being committed, or is about to be committed; or

(b) that may be evidential material in relation to a category 3 offence, a category 4 offence, or an offence against the Arms Act 1983