4 SAS Act & BOR Act Flashcards
What is the definition of EVIDENTIAL MATERIAL?
Evidence of the offence or any other item, tangible or intangible or relevance to the investigation of the offence
What is the definition of RESONABLE GROUNDS TO BELIEVE?
Having a SOUND BASIS for believing that a situation or circumstances actually exists
What is the definition of RESONABLE GROUNDS TO SUSPECT?
Having a SOUND BASIS for SUSPECTING that a situation or circumstances actually exists
What is a TRACKING DEVICE?
A device that can help ascertain the
- LOCATION of the thing or person
OR
- Whether a thing has been OPENED, TAMPERED WITH, or in some way DEALT with
BUT does not include a vehicle or helicopter or boat
What is an INTERCEPTION DEVICE?
Any electronic device capable of INTERCEPTING or RECORDING PRIVATE COMMUNICATION
Does NOT include a hearing aid or anything that corrects subnormal hearing of the user to NO BETTER THAN NORMAL HEARING
What is the definition of a VISUAL SURVEILANCE DEVICE?
Any electronic device that can be used to observe OR record a private activity.
Does NOT include spectacles/contact lenses that corrects subnormal hearing of the user to NO BETTER THAN NORMAL VISION
DOES INCLUDE photographic, video cameras and binoculars and includes anything else THAT ENHANCES NORMAL VISION
What is the PURPOSE of the SAS Act?
- to modernise the law of search, seizure and surveillance to take into account the advances in technologies.
- to provide RULES that recognise the importance of the rights and entitlements
- to ensure investigative tools are effective and adequate for law enforcement needs
What are the TWO alternative searches that can be used IMMEDIATELY UPON ARREST OR DETENTION?
- s85-87 Rub down search
- s88 warrant less search
Who SHOULD complete a s11 search?
Custodian or WH keeper as it should be done immediately before the person is placed in a cell
Its purpose is to PROTECT THE DETAINED PERSONS PROPERTY AND REMOVE ITEMS THAT MIGHT BE USED TO HARM THEMSELVES OR OTHERS
WHERE can you complete a s11 search?
- at a Police station
- other premises being used
- police car
AND
is or is to be locked up
dont have to be charged only locked up so could apply to detox, BOB, 1M awaiting assessment…
What is the definition of LOCKED UP?
Means taking the person into lawful custody and being placed behind a closed or locked door that prevents them from leaving.
**DOES NOT include a PATROL CAR for purpose of transporting **
After a person has been LOCKED UP, can they be re-searched again?
Yes but ONLY if
- not searched prior to being locked up
- since being searched and locked up they have been or SUSPECTED of being in close proximity to another person ie lawyer or visitor
- another person who was eligible to be searched but wasn’t
OR
there are RGTB the person is in possession of anything that may be used to harm themselves or others
Can you use s11 to search a prisoner more than once?
Yes but only if certain circumstances exist, ie
- not searched prior to being locked up
- since being searched and locked up they have been or SUSPECTED of being in close proximity to another person ie lawyer or visitor
- another person who was eligible to be searched but wasn’t
OR
there are RGTB the person is in possession of anything that may be used to harm themselves or others
If you use s11 to search a person immediately after arrest, can you use it again at the WH to search them prior to locking htem up?
No, you should be using s85 or s88 to search after arrest and s11 - not searched prior to being locked up
Custodian or WH keeper should use s11 to search as it should be done immediately before the person is placed in a cell
What does a search warrant authorise?
Entry
Search any place or vehicle
or any other thing for evidential material
Can you get a search warrant for an offence not punishable by imprisonment?
NO - offence MUST be punishable by imprisonment
You can apply for a SW if you have RGTS an offence punishable by imprisonment has being, is being or will be committed
AND
you BELIEVE the search will find EVIDENTIAL MATERIAL
Who can apply for a SW?
Any CONSTABLE, private individuals ie private investigators CANNOT apply for a SW.
Who MUST approve a SW and what do they need?
A SGT or above can approve the content.
SW MUST be accompanied by a PARA Card - planned action risk assessment card AT THE TIME of seeking approval
How do you apply for a SW?
Online via the SAS system followed by a personal appearance in front of the Issuing officer.
If a personal appearance is IMPRACTICAL in teh CIRCUMSTANCES and with prior agreement of the Issuing Officer you MAY
- make an application orally by phone or personal appearance
- have your written application considered without a personal appearance ie SWs being approved by Blenheim Court
When are ORAL SW applications allowed?
An Issuing officer may allow a SW application to be made orally and excuse an applicant from putting in all or part of the written application IF satisfied that
- a written application would result in DELAY that would COMPROMISE the EFFECTIVENESS of the SEARCH
AND - whether the warrant should be issued can be properly determined on the basis or an oral communication or personal appearance
AND - all the required info is supplied to the Issuing Officer
If an Issueing OFficer does accept a ORAL application for a SW, do you need to complete the SW in SAS system?
Yes - you MUST back capture the SW APPLICATION and OUTCOME in SAS System AS SOON AS PRACTICAL.
This enables target history to populate on any future applications AND compliance with statutory requirements under the act
Can you apply for a SW without a personal appearance or oral application on the basis of the written application you have submitted?
YES - if the Issuing Officer is happy that the basis for issuing the warrant can be determined on the written application
AND
the information required has been supplied
AND
they have no questions and dont require any further info from eh applicant
In addition to the SW appliation what other TWO documents MUST you complte before executing the SW?
PARA Card
AND
Community Impact Assessment
If a SW has already been executed on your target in the last 3 months, what MUST you do?
SAS system will search for for other SW applications made within the LAST 3 MONTHS and populate these on your warrant.
You MUST record that there have been other warrants on your target in the OTHER INFORMATION field in your APPLICATION
When you have had your warrant approved by a SGT or above and are ready to take it for approval, what documents MUST you take with you?
Draft SW for approval
Copy of the draft SW
Notice to Occupier
Any annexes or appendices
What is an informant?
Any person who provides verbal or written information, whether or not its in recorded form to Police
Is not restricted to a CHIS
They give info with the expectation that their ID will be protected
Can an Authorising Officer of the Court ask you to disclose the name or address of your informant?
No - Unless they NEED to assess the CREDIBILITY of the informant
AND OR
to assess that there is a PROPER BASIS for issuing the warrant
What are your SPECIAL POWERS when a SW is pending and you believe evidential material may be CADD?
If a SW is about to be made for a place, vehicle or thing, you can at any time, ENTER and SECURE NOT SEARCH and SECURE any times found there. You can DIRECT any person to assist.
You must BELIEVE that Evidential Material may be concealed, altered, destroyed or damaged before the SW is issued.
You can only SECURE the scene for 6 hours
If you exercise your special power and secure a scene while you wait for a SW to be written and approved when do you have to release it?
- The expiry of 6 hours from when POWER FIRST EXERCISED
- SW is available for execution
- the SW application is refused
What are the THREE types of devices covered under the SAS Act?
Interception Device
Tracking Device
Visual Surveillance Device
Can you go and sit in private property and use binoculars to gather intel on a property?
No - any info will be unlawful as you have trespassed and used a surveillance device (Binos which enhances normal vision) without getting a surveillance device warrant.
You will likely lose any evidential material
Are drones a surveillance device - zoom camera which enhances normal vision..????????
What are the FIVE key Police publications under the BOR Act?
- s21 - secure against unreasonable search and seizure
- s22 not to be arbitrarily detained
- s23 rights of ppl arrested or detained
- s24 rights of persons charged
- s25 minimal standards of criminal proceudre
When can a person elect trial by jury or JAT?
If the penalty is more than TWO years imprionment
What are the key ingredients of s21 of the BOR Act?
Unreasonable search and seizure
secure against unreasonable search and seizure
What are the key ingredients of s22 of the BOR Act?
Liberty of a person
not to be arbitrarily detained
What are the key ingredients of s23 of the BOR Act?
Rights of arrested or detained persons
Informed at the time of arrest or detention the reason for it
AND
Right to consult and instruct a lawyer without delay
AND
Right to have validity of arrest determined by HABEAS CORPUS and be released if not lawful
- Charged promptly or released
- Bought before the Court ASAP
- Right to refrain from making a stmt
- Be treated with humanity and respect
What are the key ingredients of s24 of the BOR Act?
Rights of person charged
- Be informed promptly and in detail of the nature and cause of the charge
- Released on REASONABLE terms and conditions
- Right to consult and instruct a lawyer
- Adequate time and facilities to prepare a defence
- Benefit of trial if offence punishable by 2 yrs or more
- Receive legal assistance without cost
- Free assistance of an interpreter
What are the key ingredients of s25 of the BOR Act?
Minimum standards of Criminal Procure
- Right to a fair and public hearing
- Tried without undue delay
- Presumed innocent until proven guilty
- Not to be compelled to be a witness or confess guilt
- Right to be present at trial and present a defence
- Right to examine witnesses
- Benefit of lesser penalty
- If convicted the right to appear
- In the case of a CHILD take into account the child’s age
What are the KEY RULES for Police arising from the BOR Act?
- MAY ask question of anyone but cannot suggest that it is COMPULSORY that they answer
- If you have SUFFICIENT to CHARGE someone but decide to interview them prior to charging you MUST caution them first
- You MUST caution a person when you arrest or detain them even if you have already given them their BOR
- You CANNOT detain a person for QUESTIONING
What is the primary duty of the BOR Act?
To AFFIRM, PROTECT and PROMOTE human rights and fundamental FREEDOMS
What are the 5 sections of the BOR Act that are specific to Police?
- s21 Protection against unreasonable search and seizure
- s22 Protection against arbitrary arrest and detention
- s23 Rights of persons arrested or detained
- s24 Rights of person charged with an offence
- s25 Minimum standards of criminal procedure
What is NOT a search?
- kneeling and using a torch to observe an article secreted inside a car headlight
- Asking a person to hold up a bike 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
What is the definition of a SEIZURE?
removing something from the possession of someone else
When is a search UNREASONABLE?
- CIRCUMSTANCES make it unreasonable
- Carried out in an UNREASONABLE manner
If you search for something and mistakenly use the WRONG SEARCH power is the search deemed unreasonable?
Not always!! If the search was undertaken in GOOD FAITH where the search was mistaken but the search COULD have been LAWFULLY conducted under another power it may not be UNREASONABLE
If a search warrant contains a MINOR IRREGULARITY can it still be reasonable?
Yes and evidence obtained can be admissible IF Police only realised the error AFTER it was executed.
If Police realised there was an error prior to execution and executed it anyway, it will be unreasonable
Does searching included electronic surveilance?
Yes -
What is the usual remedy for an unreasonable serach?
Exclusion of evidence and sometimes compensation
When is someone ARRESTED?
COMMUNICATED INTENTION to hold the person under lawful authority as per R v GOODWIN
When is someone DETAINED?
- Physical deprivation of their liberty
- Statutory restrains on a persons movement
- They have a reasonable held belief they are not free to go
- Formal arrest
- Locked in a room they cannot get out of
- Placed in a vehicle against their will
When can an arrest be unlawful?
If the proper PROCEDURES are not followed
Arrest without reason
Capricious (impulsive…)
What should you be considering before arresting someone?
You MUST be clear in your own mind that the arrest is JUSTIFIABLE and REASONABLE
That SUMMONS is not appropriate
A failure to consider these may mean the arrest is arbitrary
Can you hold someone in custody while you make enquiries are made into ANOTHER offence
?
No - they are to be bought before the Court asap or released on bail as per BOR Act
Can you stop a vehicle to undertake general enquiries?
NO - you can only stop a vehicle to enforce any Land Transport regulations
With the odd exception ie s9 SAS if you RGTS person inside car has committed an offence punishable by imprisonment
When MUST you give an ADULT their BOR?
When they are arrested
When they are detained
Before questioning if you have sufficient grounds to charge
These are the same for a C/YP with the addition of before asking questions designed to get an admission
Must be in language and manner they understand
If you are questioning a person about a statement made by a co offender what MUST you explain?
The SUBSTANCE of the statement and the NATURE of the EVIDENCE
When do you NOT have to give a BOR when detaining someone?
- a 3T when breath testing
- general 3T
- When driver is at hospital for ‘hospital blood’
- At a SW when you have RGTB a person will obstruct or hinder the search you can exclude them from the house or direct them to stay in a specified room
The BOR directed that a person in custody be treated with humanity and respect, s9, what are some examples of breaching this?
- s9 right not to be subjected to torture or cruel treatment
- excessive use of force
- failure to provide medical treatment
- unlawful restraint to prevent self harm
- Not providing food, clothing, exercise time
- Failure to ensure their safety and protect them from other detainees
Remedies for breach usually include compensation
Proof that the Police advised the suspect of their rights (s23 BOR) should lead to what inference?
That the suspect ‘understood the position’
R v MALLINSON
However it is the detainers (polices) obligation to ensure the whole right is conveyed and understood…or at least in a manner open to understanding
It may be necessary to inform an arrested person more than once of their rights
It may not be in compliance of the act for a person to be told ‘PERFUNCTORILY’ (mechanically or with lack of interest…)
When giving a detainee their BOR when might you need to explain it further or give it more than once?
Where suspect is:
- stress, confused, or fatigued
- has poor command of English
- has a passive nature or limited intelligence
- may have difficulty hearing due to back ground noise
- needs an interpreter (sign language or foreign national)
If you give a suspect their BORs in written form instead of orally does this comply with the act?
Yes - if a suspect has been given their rights in written form the act has been complied with.
There is nothing in the Act which requires that an arrested person be advised of their rights verbally rather than in writing R v GRANT
When should you give a suspect their BOR?
When it is safe to do so. Police cannot be expected to be concerned with uttering warnings while their safety is threatened
Delayed efforts to contact a lawyer will also be considered in light of those dangers
The words ‘without delay’ is not synonymous with INSTANTLY or IMMEDIATELY - however the delay should be reasonable in the circumstances
When interviewing and a suspect has had legal advise advising them not to make a statement but sill continues to answer questions, can you still take a stmt from them?
YES - There is not absolute prohibition on fruther questioning by the police after the right to silence has been asserted
and
rights earlier asserted may be waived, provided the waiver is an informed and voluntary one
As long as their has been no cajoling by the Police to change the subjects mind
If a suspect speaks to a lawyer and the lawyer is coming down to sit in on the interview, do you have to wait for them?
No - however the Court will decide whether any evidence elicited before the lawyers arrival will be admissible.
Best practice would be to wait for the lawyer to arrive
BOR say that the suspect is ENTITLED TO CONSULT A LAWYER IN PRIVATE, when can you override this?
If it would not be safe to leave the suspect alone
If they might try and dispose of evidence
or warn others
Privacy may not be necessary where the suspect has indicated that they do not require it
Police cannot deny privacy on the grounds that no private room is available
If a suspect wants to talk to a lawyer, and that lawyer cannot be reached - what should you do?
You MUST make a REASONABLE, HONEST and DETERMINED effort to contact a lawyer.
Police are under no obligation to find the lawyer of their choice
You don’t have to allow the suspect to phone multiple lawyers if they don’t like the advise they have been given
If you are interviewing someone in CUSTODY or if there is SUFFICIENT to charge how MUST this be taken?
Recorded on DVD
Recorded permanently by audio
Recorded permanently in writing
Should cover previous events at beginning of interview
What MUST you do a the conclusion of an interview?
Give suspect opportunity to review interview
To read over a written statement
Opportunity to make corrections
Opportunity to add any other info
When MUST an arrested person go to Court?
MUST appear at the next available court sitting.
Cannot be held in custody while investigating a separate offence
There is REASONABLE TIME for PROCESSING, obtaining legal advice and other police emergencies
