2. NZ Bill of Rights Act

Question 1

What are the important rules for the BORA?

Answer 1

• may ask questions of people but must not suggest it is compulsory for the person to answer them
• if sufficient evidence to charge a person with an offence, must caution the person before inviting them to make a statement/answer questions
• if arrest/detain a person, must caution them, even if already given caution prior to arrest/detention
• no power to detain a person for questioning or to pursue enquiries

Question 2

When will a person be regarded as ‘detained’?

Answer 2

• there is physical deprivation of a persons liberty
• there are statutory restraints on a persons movement
• they have a reasonably held belief, induced by police conduct, that they are not free to leave

Question 3

What encouragement or persuasion may be applied to encourage a suspect to answer questions when they have asserted a right to silence?

Answer 3

• there is no absolute prohibition on further questioning by the police after the right to silence has been asserted
• rights earlier asserted may be waived, provided the waiver is informed and a voluntary one
• where police have agreed with the lawyer that no discussion will occur with the accused without the lawyer being present, an informed voluntary waiver must be given if discussion is to continue
• where suspect has received advise to assert their right to silence, police may not take steps to undermine this advice
• where a suspect has exercised their right to silence but is then further questioned, the suspects rights are not necessarily subverted or eroded

Question 4

What is considered reasonable assistance in finding a lawyer?

Answer 4

must make a reasonable, honest and determined effort to contact a lawyer. However, under no obligation to find for the suspect their lawyer of choice when the contact number cannot be found.