4. S&S Act & BOR Act

Question 1

How is “Evidential Material” defined according to the S&S Act?

Answer 1

In relation to an offence or suspected offence, means evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.

Question 2

Define “Reasonable grounds to Believe” according to the S&S Act

Answer 2

Having a sound basis for believing that a situation or circumstance actually exists, eg reasonable grounds to believe that the search will locate evidential material relating to that offence

Question 3

Define “Reasonable Grounds to Suspect” according to the S&S Act

Answer 3

Having a sound basis for suspecting that a situation or circumstance is likely to exist, e.g. reasonable grounds to suspect that an offence has been committed.

Question 4

What is a “Tracking Device” according to the S&S Act?

Answer 4

Tracking device means a device that may be used to help ascertain, by electronic or other means, either or both of the following:

• the location of a thing or a person:

• whether a thing has been opened, tampered with, or in some other way dealt with, but

does not include a vehicle or other means of transport, such as a boat or helicopter.

Question 5

What is an “Interception Device” according to the S&S Act?

Answer 5

• Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to intercept or record a private communication (including a telecommunication); but

• does not include a hearing aid or similar device used to correct subnormal hearing of the user to no better than normal hearing.

This definition covers all manner of listening devices, from sophisticated devices used to intercept communications through to simple audio recorders.

Question 6

What is the definition of “Visual Surveillance Device” according to the S&S Act?

Answer 6

• Any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but

• does not include spectacles, contact lenses, or a similar device used to correct subnormal vision of the user to no better than normal vision.

• This is a wide definition. It includes photographic and video cameras and binoculars, and it encompasses anything else that enhances normal vision.

Question 7

Section 5 states that the purpose of the Act is to facilitate the monitoring of compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values. How is this done? (3)

Answer 7

(a) modernising the law of search, seizure, and surveillance to take into account advances in technologies and to regulate the use of those technologies

(b) providing rules that recognise the importance of the rights and entitlements affirmed in other enactments, including the New Zealand Bill of Rights Act 1990, the Privacy Act 1993, and the Evidence Act 2006

(c) ensuring investigative tools are effective and adequate for law enforcement needs

Question 8

What are two alternative search powers that might be appropriately exercised immediately upon arrest or when detained under a statutory power of detention?

Answer 8

~ a rubdown search, under sections 85-87, and

~ a warrantless search under section 88.

Note: A search may be carried out under one of these provisions before the search conducted under section 11 when people are locked up.

Question 9

When should a person be searched under S11?

Answer 9

You may search a person who has been taken into lawful custody and is:

• at a Police station, or

• in other premises, or in, or about to be placed in a vehicle being used for Police purposes, and

• is, or is to be, locked up (pending a decision on bail or for any other reason).

Question 10

What is the purpose of a search under s11?

Answer 10

The primary purpose of the section 11 search is not to look for or seize evidential material but to protect the detained person’s property and remove items that might be used to harm themselves or others.

You may take any money or other property found during the search.

(s11(4))

This power may be exercised before the person is locked up.

(s11(2))

Question 11

Define “Locked up” according to the S&S Act

Answer 11

“Locked up” means a person taken into lawful custody and being placed behind a closed or locked door that prevents them from leaving. Examples are a cell or charge room at a Police station or a vehicle used for Police purposes (other than being placed in a Police vehicle only for the immediate purposes of transport)

Question 12

When may a person be searched after being locked up?

Answer 12

After a person has been locked up they can only be searched if:

• they were not searched before being locked up, or

• since being searched before being locked up, they have been in, or are reasonably suspected of having been in, close proximity to:

− a person who was not locked up in Police custody (other than an enforcement officer or a searcher), or

− another person who was eligible to be searched after being locked up but was not, or

there are reasonable grounds to believe the person is in possession of anything that may be used to harm themselves or others.

(s11(3))

Question 13

Explain the importance of timing for a section 11 search.

Answer 13

Apart from an immediate rub-down search of an arrested or detained person under section 85, or a warrantless search under section 88, avoid searching people under section 11 immediately after their arrest. If you do so, a further search under section 11 cannot be conducted after the person arrives at the police station unless one of the situations in section 11(3) exists.

If it is necessary to search a person in transit to remove valuable items to prevent the property from being stolen or to prevent an assault, then you should remove all property from the person.

Question 14

When can a prisoner be searched more than once under S11?

Answer 14

If a prisoner undergoes a s11 custodial search and is locked up, a further s11 search can only be conducted if the exceptions in s11(3) apply.

If a prisoner has undergone a s11 custodial search at one station and is later transported to another station (having previously been “locked up”), a further s11 search can only be conducted if the exceptions in s11(3) apply. If you are certain that another search is required, you should undertake that search under s85 or s88 (eg to ensure the prisoner is not carrying anything that may be used harm any person, or facilitate their escape). The rationale for using the s85 or s88 search power is the power of detention that is being exercised at the destination station.

If not practicable to conduct the search under s85 or s88 you may consider a second search under s11 on the grounds that while the prisoner in transit they are no longer considered to be “locked up” until they reach the next place of detention where they are to be again “locked up”. However, this rationale has not been tested in court. Therefore, there is a risk of the search being found to be unlawful.

Any search must be reasonable in the circumstances.

Question 15

When is a search warrant required?

Answer 15

Unless it is impracticable in the circumstances, you must obtain a search warrant before searching a place, vehicle or other thing.

Where it is impractical to obtain a search warrant, you may exercise a warrantless power to enter and search under the Search and Surveillance Act 2012, if the statutory requirements are met and the use of the power is reasonable in all the circumstances.

Question 16

What does a search warrant authorise?

Answer 16

A search warrant may authorise you to enter and search any place, vehicle or other thing, for evidential material in respect of an offence punishable by imprisonment.

Question 17

Who may apply for a search warrant?

Answer 17

Any constable may apply for a search warrant.

Other persons (eg an enforcement officer such as a customs officer) are authorised to apply under other enactments. If those enactments are specified in column 2 of the Act’s Schedule, the provisions of the Act governing how search and seizure powers are to be exercised apply to them.

(s97)

Note: Private individuals, eg private investigators, cannot apply for a search warrant. They may instead make a complaint of an offence to you. If you are satisfied that there are sufficient grounds for obtaining a search warrant, then you may apply for the search warrant for Police execution.

Question 18

When can an application for a search warrant be made?

Answer 18

You can apply for a search warrant if you have reasonable grounds to:

• suspect an offence punishable by imprisonment has been, is being, or will be committed, and

• believe that the search will find evidential material in respect of the offence, in the place, vehicle or other thing specified in the application. (s6)

See the definitions for the meaning of “reasonable grounds to suspect” and “reasonable grounds to believe” and the difference between the two.

Question 19

What must be submitted with a request for authorisation from your supervisor for a search warrant?

Answer 19

A ‘Planned Action Risk Assessment and CARD prompt’ must be submitted to the supervisor at the time of seeking authorisation.

Question 20

With prior approval from the issuing officer, if it is impracticable to make a personal appearance, what may be done? (2)

Answer 20

If it is impracticable in the circumstances, you may, with prior agreement of the issuing officer:

• make an application orally, e.g. by telephone or personal appearance, or

• have your written application considered without a personal appearance before and/or without oral communication with the issuing officer

(s100)

Question 21

When are oral applications for search warrants allowed?

Answer 21

An issuing officer may allow an application to be made orally (eg in person or by telephone call) and excuse an applicant from putting all or part of the application in writing if satisfied that:

• requiring a written application would result in a delay that would compromise the effectiveness of the search, and

• the question of whether the warrant should be issued can be properly determined on the basis of an oral communication or personal appearance, and

• all the required information (ie that required in a written application) is supplied to the issuing officer.

(s100(3))

Question 22

If an oral search warrant application is made, what must be done in the S&S system and why?

Answer 22

When an oral application is made to the issuing officer, the applicant must enter (ie back capture) the application and the outcome(s) of the search warrant(s) as soon as practicable in the online search and surveillance system

Back capturing oral applications early, enables:

• the target history details to populate on any relevant future applications on the same target; and

• compliance with statutory requirements under the Act.

Question 23

An issuing officer may allow an application without a personal appearance or oral communication if satisfied that … (3)

Answer 23

• the question of whether the warrant should be issued can be properly determined on the basis of the applicant’s written communication, and

• the information required for the application has been supplied to the issuing officer, and

• there is no need to ask questions of, or seek further information from, the applicant.

(s100)(4)

Question 24

List the 12 steps in the process of applying for a search warrant

Answer 24

1. Obtain initial approval - Where practicable, obtain approval from a supervisor of or above the position level of sergeant before completing a search warrant application
2. Set up a NIA Case - Set up a NIA Case reference if one does not already exist. Note: Avoid identifying target addresses for forthcoming warrant applications in the narrative of the NIA case as this may compromise the security of subsequent warrant execution.
3. Assess Risks - Consider the risks associated with executing the warrant if it is issued and what will be necessary to mitigate any risk of harm to Police and others. Note: A ‘Planned Action Risk Assessment and CARD prompt’ must be completed before the search warrant is executed and where practicable, before the application is authorised.
4. Assess Community Impact - Assess the impact of executing the search warrant on vulnerable people, community and interest groups. Plan to eliminate or minimise compromising or undermining wider community support, confidence and reassurance. A Community Impact Assessment form (in Police Forms) must be completed before the search warrant is executed, and where practicable, before the application is authorised. Mentally update this as the situation changes during execution of the search warrant.
5. Complete the application - Complete a search warrant application. Following the guidance on the application form will ensure the information required by sections 98 and 103 in all warrant applications and search warrants is provided. Note: The Search and Surveillance system permits multiple warrants to be created from a single application.
6. Complete de-confliction - The Search and Surveillance system manages any de-confliction by sending email messages to owners of applications which share the same NIA target (e.g. two investigators who each have a search warrant for the same address). If you are advised of a conflict, you must act to resolve the potential conflict. Seek advice from your supervisor as necessary.
7. Application history - The Search and Surveillance system searches the system for other search warrant applications made during the previous 3 months. The online system will automatically populate the details of previous applications on your target in the last 3 months. If application history exists, but the information is ‘closed’ the other applicant (document owner) will be notified of the new application and is responsible for determining whether or not to disclose historical information for inclusion.
8. Complete NIA checks - Check your target in NIA for details of any other previous applications made under these enactments in the previous 3 months, which are not recorded in the Search and Surveillance system:

• Criminal Proceeds (Recovery) Act 2009

• Films, Videos and Publications Classifications Act 2007

• Mutual Assistance in Criminal Matters Act 1992. Note: If any previous applications within the 3 month period are relevant to your target, you must comment in the “other

9. Record other applications - Record details of any other applications in the previous 3 months that you are aware of that are not recorded in the system (eg applications obtained by an agency other than Police). Record the details in the “other information” field of your application.
10. Seek on-line approval - Submit your search warrant application online to a sergeant or above (normally your supervisor) for approval of the content of your application. (Your supervisor may seek legal advice if considered necessary). Review and revise the application as required.
11. Print and sign the warrant application - Once approved by a supervisor, print out the search warrant and application and sign the application.
12. Seek issue of warrant - Take your application to an issuing officer.

Include these documents with your application:

• a draft search warrant for the issuing officer’s signature

• a copy of the draft search warrant and notice to the occupier

• all documents tendered in support of the application (annexes).

Question 25

Define “Informant” according to the S&S Act

Answer 25

Under section 3 of the Act, ‘informant’ has the same meaning as in section 6(1) of the Criminal Disclosure Act 2008, i.e. any person who provides verbal or written information, whether or not in recorded form, to a law enforcement officer.

‘Informant’ is not restricted to Covert Human Intelligence Sources (CHIS).

Question 26

Can names and other details of informants (not registered CHIS) be withheld from search warrant applications?

Answer 26

Yes

The names and other identifying details of informants who are not registered as CHIS may be withheld but care must be exercised to ensure they are informants rather than witnesses, i.e. that they gave information with an expectation that their identity would be protected (refer R v Williams - see Law Notes - 30 May 2007 & R v Kissling).

NOTE:While the issuing officer may require you to supply further information concerning the grounds on which the warrant is sought, they must not, in any circumstances, require you to disclose the name, address, or any other identifying detail of an informant unless, and only to the extent that the information is necessary for them to assess:

• the credibility of the informant, and/or

• whether there is a proper basis for issuing the warrant.

(s98(2)(b))

Question 27

If a search warrant application is about to be made in relation to a place, vehicle or thing, or has been made but not yet granted or refused by an issuing officer you may… (3) if you….

Answer 27

• enter and secure the place, vehicle, or other thing, and

• secure any item(s) found there, and

• direct any person to assist with the entry and securing of the place, vehicle or other thing, or the securing of items in it

If you believe that evidential material may be destroyed, concealed, altered, damaged, or removed (CADD) before a decision is taken to grant or refuse the issue of a search warrant.

Question 28

You may only exercise special powers when a search warrant is pending until the first of the following occurs (3)

Answer 28

• the expiry of six hours from when the power is first exercised

• the warrant is available for execution at that place or vehicle or in respect of that other thing

• the application for a search warrant is refused.

(s117)

Question 29

The Search and Surveillance Act 2012 regulates only surveillance activities undertaken by means of what?

Answer 29

A Device

Surveillance not involving the use of a device is not governed by the Act (that is, it is undertaken through observing or listening without aids other than spectacles, contact lenses and hearing aids that restore normal sight or hearing). This means that surveillance without a device cannot be authorised by a warrant

Question 30

When will surveillance be deemed unlawful?

Answer 30

It will be unlawful if it involves a trespass (that is, an unauthorised entry onto private land or the handling of private property) Note: There is nothing to preclude getting a search warrant to trespass on a place in order to conduct surveillance without a device. Flying over property does not constitute a trespass and this includes the use of drones and model aircraft.

Question 31

The regime in the Act regulates the use of three types of surveillance devices. What are they?

Answer 31

• an interception device

• a tracking device

• a visual surveillance device.

(s3)

Question 32

The Act brings together the use of all three types of devices within a single warrant regime. What does this allow for?

Answer 32

It makes it possible to make a single application for one warrant to use more than one type of device as the criteria, procedures and application and warrant forms are the same regardless of the device.

Question 33

What is the focus and purpose of the S&S act?

Answer 33

The focus of the Act is the use of technology to investigate offences, and its purpose is to monitor compliance with the law and the investigation and prosecution of offences in a manner that is consistent with human rights values. It follows that the existing law does not inhibit the use of technology for purposes other than obtaining evidential material of an offence (e.g. the location of missing persons) and that, provided no trespass is involved, any such use is likely to be lawful.

Question 34

When is a search warrant for surveillance purposes not required?

Answer 34

If no surveillance device is used to carry out your surveillance and no trespass is involved, then neither a warrant nor a warrantless surveillance power is needed for your surveillance activity.

Note:

If no surveillance device is used to carry out your surveillance and trespass is involved, then a search warrant is required

Question 35

If you carry out surveillance with a device, conduct a search, or seize or obtain evidential material without a warrant where you had an opportunity to obtain a warrant, evidential material obtained as a result of the search, surveillance or seizure may be found to be what?

Answer 35

Inadmissible

Question 36

What is s21 of the BOR Act?

Answer 36

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

Question 37

What is s22 of the BOR Act?

Answer 37

Everyone has the right not to be arbitrarily arrested or detained

Question 38

What is s23 of the BOR Act?(5 parts & subsections)

Answer 38

(1) Everyone who is arrested or who is detained under any enactment –

(a) Shall be informed at the time of the arrest or detention of the reason for it; and

(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and

(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4) Everyone who is –

(a) Arrested; or

(b) Detained under any enactment –

for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

Question 39

What is s24 of the BOR Act? (7)

Answer 39

Everyone who is charged with an offence –

(a) Shall be informed promptly and in detail of the nature and cause of the charge; and

(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and

(c) Shall have the right to consult and instruct a lawyer; and

(d) Shall have the right to adequate time and facilities to prepare a defence; and

(e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for 2 years or more; and

(f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and

(g) Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

Question 40

What is s25 of the BOR Act? (9)

Answer 40

Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:

(a) The right to a fair and public hearing by an independent and impartial court:

(b) The right to be tried without undue delay:

(c) The right to be presumed innocent until proved guilty according to law:

(d) The right not to be compelled to be a witness or to confess guilt:

(e) The right to be present at the trial and to present a defence:

(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:

(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:

(h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:

(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

Question 41

What are the 4 most important rules associated with the BOR Act?

Answer 41

1. When you are investigating an offence and you locate suspects or other people you think may provide useful information, you may ask questions but must not suggest that it is compulsory for the person to answer.
2. If you want to question someone and you have sufficient evidence to charge that person with an offence, you must caution the person before inviting them to make a statement or answer questions.
3. If you have arrested or detained a person pursuant to any enactment, you must caution them, even if you had already given the caution before the suspect was arrested or detained.
4. There is no power to detain a person for questioning or to pursue enquiries, although a person can assist voluntarily with enquiries.

Question 42

The BOR Act only applies to… (2)

Answer 42

• acts done by the legislative, executive or judicial branches of the government (the actions of a trading company, such as TVNZ Ltd, even though a State enterprise under the State Owned Enterprises Act 1986, are not done in the performance of a public power and hence the NZBORA does not apply).

• the performance of any public function, power or duty pursuant to law.

Question 43

The NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms. It provides: (3)

Answer 43

• protection against the powers of government agencies

• minimum standards for public decision-making

• protection for human rights and basic freedoms.

Question 44

Give some examples of what is NOT a search under the BOR Act?

Answer 44

• kneeling and using a torch to observe an article secreted inside a car headlight
• asking a person to hold up a bicycle so the serial number can be checked
• asking a person to hold out their hands for inspection
• a voluntary request to a power company for aggregated monthly power usage data.

Question 45

What is “search” under the BOR Act?

Answer 45

There is no set definition of a ‘search’, either in statute or case law. Recent case law suggests a ‘search’ requires a conscious act of state intrusion into an individual’s reasonable expectation of privacy, as opposed to a mere observation.

Question 46

What is “Seizure” under the BOR Act?

Answer 46

There is no statutory definition of ‘seizure’. Seizure is ‘removing something from the possession of someone else’. An item generated by exercising a search or surveillance power (eg a photograph) is not a ‘seizure’ (s3 Search & Surveillance Act).

Question 47

When is a search unreasonable?

Answer 47

A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if the search is carried out in an unreasonable manner.

Question 48

Which section of the BOR Act do Unlawful searches breach?

Answer 48

S21

Note: a search undertaken in good faith where the searcher was mistaken about their power of search may not be unreasonable. For example, a search may be reasonable where the wrong search power was used, but the search could have lawfully been conducted under other powers.

Question 49

What is the usual remedy for a breach of s21 BOR Act?

Answer 49

Exclusion of evidence under s30 Evidence Act.

Some unreasonable searches may also warrant compensation. However, for prisoners in Police custody, compensation will be limited by the Prisoners and Victims Claims Act 2005.

Question 50

Discuss “arrest” v “detention” according to the BOR Act

Answer 50

‘Arrest’

The term ‘arrest’ has been thoroughly discussed by the Court of Appeal in R v Goodwin:

“…arrest must have its Crimes Act meaning of a communicated intention on the part of the police officer to hold the person under lawful authority.”

‘Detention’

A person will be regarded as ‘detained’ if:

• there is physical deprivation of a person’s liberty, or

• there are statutory restraints on a person’s movement, or

• they have a reasonably held belief induced by police conduct (or other official conduct) that they are not free to leave.

Where a deprivation or restraint is only temporary, detention is less likely to have occurred.

Examples of arrest or detention include when a person has been:

• formally arrested

• handcuffed

• locked in a room or building, or put in a place that they cannot leave voluntarily

• placed in a police vehicle against their will.

Each of these acts can be described as a positive act of physical detention that communicates an intention to hold a person under lawful authority. In such a situation, the suspect is under arrest within the meaning of the Crimes Act and Police must inform the suspect of their rights under s23 by giving the caution.

Powers to arrest and detain are discretionary, and a Police employee must determine whether to arrest or detain in the circumstances of each case. An arrest or detention will be ‘arbitrary’ if it is capricious or without reasonable cause. Also if the arrest/detention was unlawful or proper procedures were not followed.

Question 51

What can you do under s9 of the Search and Surveillance Act 2012?

Answer 51

You are entitled to stop a vehicle under s9 of the Search and Surveillance Act 2012 for the purpose of arresting any person in the vehicle, if you have good cause to suspect that person of having committed an imprisonable offence or of being unlawfully at large (eg a person for whose arrest a warrant (other than a warrant issued under Part 3 of the Summary Proceedings Act 1957 in relation to fines enforcement) is in force). Any deviation from the above procedure will be viewed as an arbitrary detention, and any evidence seized as a result is likely to be ruled inadmissible.

An arbitrary arrest or detention may lead to what? (3)

Exclusion of evidence, release from detention, or compensation.

Question 52

Under section 23 BOR Act, people who are arrested or detained under an enactment have the rights to: (7)

Answer 52

• be informed of the reason for arrest or detention at the time of the arrest or detention

• consult and instruct a lawyer without delay and to be told of that right

• have the arrest or detention’s validity determined by the Court by way of habeas corpus and to be released if it is not lawful

• after arrest, to be charged promptly or released

• if not released after arrest, to be brought before a court or tribunal as soon as possible

• refrain from making any statement and to be informed of that right

• be treated with humanity and respect.

Question 53

A rights caution must be given to who?

Answer 53

• adults who are arrested or detained, or where Police want to question an adult where there is sufficient evidence to charge that person with an offence

• children or young persons when detained or arrested and, in accordance with s215 Children’s and Young People’s Well-being Act 1989, before questioning a child or young person when there are reasonable grounds to suspect them of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence.

Failure to give the caution may result in a finding that evidence was improperly obtained and the evidence excluded under s30 Evidence Act. 2006

Question 54

Provide some examples of treatment which would be in breach of s23 of the BOR Act

Answer 54

• excessive use of force against a detainee

• failure to provide medical treatment when requested

• unlawful restraint to prevent self-harm

• failure to comply with regulations or policies which provide minimum entitlements, such as food, clothing, exercise time

• routine or deliberate unnecessary strip searching

• failure to ensure the detainee’s safety and protect them from other detainees.

Question 55

Remedies for breaches of s23 BOR Act typically include what?

Answer 55

Compensation

($30,000 in Falwasser - excessive use of O/C spray against a detainee in Police cells; $35,000 in Taunoa - long-term policy of reduction in minimum entitlements in prison, designed to reduce prisoner’s resistance; $4,000 in A-G v Udompun [2005] 3 NZLR 204 - failure to provide sanitary products or allow a shower). However, the Prisoners and Victims Claims Act 2005 may impact on compensation for prisoners

Question 56

Does the BOR Act specify that the rights caution must be giver verbally?

Answer 56

No. If the suspect is given the caution in approved written form, the Act has been complied with. “There is nothing in the Act which requires that an arrested person be advised of his/her rights verbally rather than in writing.” (R v Grant (1992) 8 CRNZ 483)

Question 57

Provide two examples of when providing a rights caution may be reasonably delayed.

Answer 57

“Police officers cannot be expected to be concerned with uttering warnings while their safety is threatened. However, once control is established by Police the suspect should be informed of his/her rights.” (R v Butcher & Burgess [1992] 2 NZLR 257; (1991) 7 CRNZ 407)

Where time is of the essence (e.g. where delay will cause danger to others, or an ongoing and real danger that evidence will be lost) then efforts to contact a lawyer will be considered in the light of those dangers.

“The expression ‘without delay’ is not synonymous with ‘instantly’ or ‘immediately’…was the delay reasonable in all circumstances, having regard to the purpose of the right.” (R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707))

“The detainer is required to refrain from attempting to gain evidence from the detainee until the detainee has had a reasonable opportunity to consult and instruct a lawyer.” However, what was found in the court of appeal.

In R v Ormsby (8/4/05, CA493/04), the Court of Appeal concluded that there is no absolute prohibition on Police questioning a suspect who has received legal advice and has told Police that the burden of that advice is that the suspect should remain silent but despite this the suspect continues to answer questions.

(a) There is no absolute prohibition on further questioning by the police after the right to silence has been asserted.

(b) Rights earlier asserted may be waived, provided the waiver is an informed and voluntary one.

(c) In determining whether there has been an informed and voluntary waiver of the rights earlier asserted, an evaluative approach is applied.

[33] In applying the evaluative approach, we consider that the following points emerge from the authorities. First, if the police take “positive or deliberate step[s] to elicit incriminating evidence” once the right to consult a lawyer is asserted but before the consultation has taken place, the suspect is not regarded as having given a voluntary waiver in respect of any statements that are made in response to those steps…

[34] Secondly, where the police have agreed with the lawyer that there will be no further discussion with an accused without the lawyer being present (that being the accused’s instructions to his or her lawyer), an informed voluntary waiver must be given if the discussion is to continue. A waiver will be informed and voluntary where the police inform the accused of the arrangement that has been made with the lawyer and ask whether he or she wishes to change the instructions to the lawyer or waive the need for compliance with them….

[35] Thirdly, where the suspect has received advice to assert the right to silence, the police may not take steps to “undermine the value of the legal advice” that has been given….

[36] Fourthly, where a suspect has exercised his or her right to silence but is then further questioned, the suspect’s rights are not necessarily subverted or eroded. Notwithstanding, an initial reliance on advice from a lawyer, matters can evolve. Where there has been no cajoling by the police to change the suspect’s mind, a valid waiver can be given even though the lawyer is not further consulted….

[38] Finally, there are the cases where a person has exercised their right to silence but subsequently makes incriminating statements not knowing that they are talking to the police. In that context the Supreme Court has adopted the “active elicitation” test….”

Question 58

In what situation would privacy when a detainee is speaking with their lawyer not be required?

Answer 58

The Court of Appeal stated that Police may be justified in not offering privacy, where it would not be safe to leave the accused alone or because there was a risk that the appellant would try to dispose of evidence and warn others.

Privacy may not be necessary where the suspect has indicated that they do not require it.

Question 59

Are police obligated to find the detainee’s lawyer of choice?

Answer 59

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

Question 60

How much time/effort should be put into contacting a lawyer once requested by a suspect?

Answer 60

The time and effort given to contacting a lawyer before the interview is continued need only be ‘reasonable’. If Police can convince the courts that an honest and determined effort was made to contact a lawyer, the failure of this effort will not automatically exclude an admission made after the suspect has asked for a lawyer.

Question 61

Are police obligated to allow a suspect to speak with more than one lawyer before being interviewed?

Answer 61

There is no legal requirement for police to offer a suspect the opportunity to phone multiple lawyers if they are not satisfied with the legal advice they have obtained when their rights have been properly facilitated. (Police v Hendy [2011] DCR 263)

Question 62

Is a suspect obligated to have a lawyer present while being interviewed by police?

Answer 62

Is a suspect obligated to have a lawyer present while being interviewed by police?

A suspect is not obliged to have a lawyer present during the interview. However, the waiver of the right to a lawyer under section 24(c) must be established in an unequivocal manner (Butler and Butler, The New Zealand Bill of Rights: A Commentary, p762).

“The right conferred by section 23(1)(b) to consult a lawyer is clearly a right which the arrested person is able to waive, provided that this is done clearly and with full knowledge of that right.” (R v Biddle (1992) 8 CRNZ 488)

“A valid waiver requires a conscious choice that is both informed and voluntary, and it cannot be implied from silence or failure to request rights.” (Police v Kohler [1993] 3 NZLR 129)

Question 63

What is the preferred method of recording a suspect interview?

Answer 63

Where a person in custody or in respect of whom there is sufficient evidence to charge makes a statement, that statement should preferably be recorded on video or DVD. If not, the statement must be recorded permanently on audiotape or in writing. The person making the statement must be given the opportunity to review the tape or written statement or to have the written statement read over, and must be given the opportunity to make corrections and or add anything further

Question 64

Is a person in custody/suspect able to be cross-examined while being questioned?

Answer 64

Any questions you put to a person in custody, or in respect of whom there is sufficient evidence to file a charge, must not amount to cross-examination (Chief Justice’s Practice Note on Police Questioning).

Question 65

If there has been a breach of S23 BOR Act, what happens to any subsequent admission?

Answer 65

“Once a breach of s23(1)(b) has been established, the trial judge acts rightly in ruling out a consequent admission unless there are circumstances in the particular case satisfying him or her that it is fair and right to allow the admission into evidence.”

(R v Kirifi [1992] 2 NZLR 8; (1991) 7 CRNZ 427)

Breaches of other people’s rights cannot be relied upon by third parties to secure a personal remedy of evidentiary exclusion.

Question 66

When must a charged person appear in court?

Answer 66

A person charged must appear at the next available court sitting. They cannot be held while enquiries are conducted into separate offences.