4.2 NZ BORA 1990

Question 1

State s21

Answer 1

Everyone has the right to be free from unreasonable search and seizure whether of the person, property or correspondence

Question 2

s22:

Answer 2

Everyone has the right not to be arbitrarily arrested or detained

Question 3

What are the rights of a person arrested s23? (7)

Answer 3

1. Informed at time of arrest reason for it
2. Right to consult and instruct a lawyer
3. Right to have arrest challenged by way of habeas corpus
4. Be charged promptly or released
5. If bailed, then right to appear ASAP
6. Refrain from making a statement
7. Treated with dignity

Question 4

s24 BoRA - A person arrested and a person charged have different rights. What additional rights does a person charged have? (7)

Answer 4

• Informed of the nature of the charge
• Right to bail unless just cause for detention
• Consult and instruct lawyer
• Adequate time to prepare a defence
• Right to trial by jury if offence over 2yrs prison
• Right to legal aid without cost
• Right to interpreter

Question 5

There are four key/most important rules for police associated with the NZ BoRA, what are they?

Answer 5

1. You may ask any questions but you must not suggest it is compulsory to answer
2. If you have sufficient to charge, you must caution
3. You must caution on arrest regardless of whether you have cautioned already
4. There is no power of detention for questioning

Question 6

What are the minimum standards of criminal procedure of a person charged s25? (9)

Answer 6

a) Fair and public trial
b) Tried without delay
c) Presumption of innocence
d) Not to confess or be called to stand
e) To be present and present a defence
f) To examine witnesses
g) Right to lesser penalty (if charged meantime)
h) Right to appeal
i) Right of child to be dealt with in manner consistent with age.

Question 7

What is a search?

Answer 7

A conscious intrusion by the state into an individuals reasonable expectation of privacy

Not a mere observation

Question 8

What is “Seizure”

Answer 8

Removing something from the possession of someone else. An item generated by a S&S power such as a photograph is not a seizure.

Question 9

What makes a search unreasonable?

Answer 9

Circumstances giving rise to the search (ie strip search in public)
Manner of search.

Question 10

A search undertaken in good faith using the incorrect search power is unlawful or unreasonable?

Answer 10

Unlawful - but not unreasonable

Question 11

A strip search in public is unreasonable. What sections of BoRA does it breach?

Answer 11

s9 - cruel and degrading
s21 - not to be subject to unreasonable search and seizure

Question 12

If a search is deemed unreasonable, what is the usual remedy?

Answer 12

Exclusion of evidence s30 Evidence Act

Question 13

Give four examples of arrest or detention:

Answer 13

• Handcuffed
• Formally arrested
• Locked in a room
• Placed in a patrol car against their will

Question 14

Provide four examples that wouldn’t be deemed to be a search (4)

Answer 14

1. using torch to observe item secreted inside a headlight
2. asking to hold up bike to view serial number
3. asking to hold hands out for inspection
4. voluntary request to power company for data

Question 15

An unlawful search because of a minor irregularity may, depending on the circumstances, not be unreasonable. When would a breach because of a minor technicality not be held to be reasonable?

Answer 15

If police realised the error before the search or seizure was undertaken

Question 16

What is an arrest per Crimes Act?

Answer 16

A communicated intention by police to hold person under lawful authority

Question 17

When will someone be regarded as being ‘detained’ (3)

What must be done if either of these occasions occur

Answer 17

1. physical deprivation of someone’s liberty
2. statutory restraints on a person’s movement
3. reasonably held belief, by police conduct, they were not free to go

Provide them with rights per s23 BoRA caution

Question 18

When will an arrest be arbitrary (3)

Answer 18

1. If it is capricious (impulsive/unpredictable) or without reasonable cause
2. Was unlawful or proper procedures not followed
3. lasts longer than necessary or longer than needed to bring before court

Question 19

Can you stop a vehicle to undertake general enquiries?

Answer 19

No, could be classed as arbitrary detention.
Unless under transport act, or s9 S&S (good cause to suspect someone unlawfully at large or committed imprisonable offences)

Question 20

When should a caution be given (adult & CYP)

Answer 20

Adult - Detention, arrest, or to question someone where there is sufficient evidence to charge.
CYP - when detained, arrested according s215 CYP act, before questioning where RGTS committing offence or before asking questions intended to obtain an admission of an offence

Question 21

What must be explained if wish to question a person about the statements of others or other evidence?

Answer 21

The substance of the statements and nature of the evidence must fairly be explained

Question 22

In some cases short delay means no detention, (or right to consult and instruct lawyer) per s23 give some examples of these? (4)

Answer 22

1. Motorist stopped for BST
2. Motorist stopped and requested to provide details per land transport legislation
3. Motorist taken to hospital after crash and Dr requested to obtain blood sample for alcohol testing
4. Search warrant and reasonable directions given to persons if reasonable grounds to believe will obstruct the search (ie to leave house or remain in a room)

Question 23

s23(5) requires treatment with humanity and respect. Provide examples of breaching this: (6)

Answer 23

1. Excessive force used on detainee
2. Failure to provide medical treatment
3. Unlawful restraint to prevent self harm
4. Failure to comply with policies that provide for minimum entitlements such as food, clothing, exercise time
5. Unnecessary strip searching
6. Failure to protect detainee from other detainees

Question 24

What is a remedy for breach of s23(5)

Answer 24

Compensation.
O/C spray - $30,000
Minimum entitlements in prison - $35,000
Failure to provide sanitary products - $4,000

Question 25

Does proof police provided s23(1)(b) rights infer the suspect understood them?

Answer 25

Yes, unless there is evidence to the contrary

Question 26

Is there anything in the act that suggests an arrested person receives verbal rather than written rights

Answer 26

No (R v Grant)

Question 27

A. Are there times when delay to receiving rights (including access to lawyer) can be justified. (2)

B. Is without delay synonymous with instantly or immediately?

Answer 27

A. Yes
1. While safety is threatened. Once control established suspect should be informed.
2. Time of essence (ie danger to others or real danger evidence will be lost)

B. No, was the delay reasonable in the circumstances, having regard to the purpose of the right.

Question 28

R v Perry gives principles on a suspects right to silence. What are those 3 principles?

Answer 28

1. no prohibition on further questioning by police after right to silence has been asserted
2. rights asserted earlier may be waived, provided waiver is an informed and voluntary one.
3. an evaluate approach is taken in determining if the waiver is informed and voluntary

Question 29

What is the evaluative approach in R v Perry in determining if the waiver of rights has been informed and voluntary (5)

Answer 29

1. Did Police take positive steps to elicit incriminating evidence between giving right and speaking with lawyer (not informed and voluntary)
2. Where police agreed with lawyer no further questions without lawyer present. Informed waiver (ie need to tell suspect of the agreement and ask if they wish to change instructions to lawyer) needs to occur before further discussion.
3. Suspect received advice to remain silent, police may not take to undermine this legal advice.
4. Even where suspect, after consulting with lawyer, has exercised right to remain silence. If there is no cajoling by police a valid waiver can be given without further consultation with lawyer.
5. Where suspect exercises right to silence but makes incriminating statement, not knowing they are talking to Police the active elicitation test occurs (ie interviewing officer can continue once suspect has consulted/instructed a lawyer). But court will decide if information obtained prior to lawyers arrival will be admissible.

Question 30

When can Police deny privacy when consulting with lawyer (3)

Answer 30

1. Not safe to leave accused alone
2. risk suspect would dispose of evidence or warn others
3. where suspect has indicated they don’t want privacy

Question 31

What is a reason police would not rely on for denying privacy?

Answer 31

There is no private room available

Question 32

What do police need to convince courts if they have not been able to find the suspects lawyer of choice?

Answer 32

That they made a reasonable, honest and determined effort to find the lawyer of choice

Question 33

What obligation is there on police to allow consultation with another person or another lawyer if they are not satisfied with the advice they got from the first.

Answer 33

No obligation either way. However person can speak to another for the sole purpose of obtaining a lawyer but not to obtain advice a lawyer would give if contacted directly.

Question 34

When is the waiver of a right valid (2)

Answer 34

When it is done clearly and with full knowledge of the right

It cannot be implied from silence or failure to request rights

Question 35

A. How should a statement preferably be recorded and

B. What should occur at the conclusion of it

Answer 35

A. preferably recorded on video/DVD. If not recorded permanently on audiotape or in writing.

B. Person must be given opportunity to:
* REVIEW statement (or have it read over)
* opportunity to make CORRECTIONS or add anything further
* if in writing confirm the record is correct by SIGNING it

Question 36

For a person in custody or there is sufficient evidence to charge what type of questions can you ask?

Answer 36

Questions must not amount to cross examination

Question 37

What would the court rightly do if there was a breach concerning the right to speak to a lawyer (s23(1)(b))

Answer 37

Rules out the admission unless circumstances of the evidence deem it is fair and right to allow it

Question 38

Can a breach of others rights be relied on by a defendant to exclude evidence?

Answer 38

No

Question 39

Can a person charged be held in custody while enquiries are made into seperate offences?

Answer 39

No, a person charged must appear at the next available court sitting