5. Managing Suspects

Question 1

Must Know - Section 39 Crimes Act 1961. Force used in executing a process or in arrest. How much force can be used?

Answer 1

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:

Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

Question 2

Must Know - What is Section 40 of the Crimes Act 1961

Answer 2

• Prevent escape or rescue,
• May use reasonable force to prevent escape of a person trying to avoid arrest.
• To prevent the escape or rescue of that person after the arrest.
• unless in any such case the escape or rescue can be prevented by reasonable means in a less violent manner.
• not apply where the force used is intended or likely to cause death or grievous bodily harm

Question 3

Must Know - Section 41, Crimes act .Prevention of Suicide - How much force can be used and by whom?

Answer 3

• Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide,

or

• the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one

Question 4

Section 202A of the Crimes Act 1961. What is the penalty?

Answer 4

to imprisonment for a term not exceeding 3 years

Question 5

Must Know - Section 202A of the Crimes Act 1961.

What is a disabling substance and what is an offensive weapon? in relation to 4(a) Public place and (b) any Place what is the difference?

Answer 5

4(a) Public place - Offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.

4(b) Any Place offensive weapon means any article capable of being used for causing bodily injury.

disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him for such use.

1. Every one is liable to imprisonment for a term not exceeding 3 years –
   
   1. Who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or
   2. Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.

defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence

IN ANY place other than a public place we must show intent to use it.

Question 6

Tell me about Section 42 of the Crimes Act 1961. relating to Breach of the peace

Answer 6

Every one who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to give him into the custody of a constable:

force reasonably necessary for preventing the continuance or renewal of the breach of the peace,

or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.

(2) Every constable who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing it.
(3) Every constable is justified in receiving offender

Question 7

Must Know - What was the outcome of case law around anticipated breach of the peace.Waitangi day protest

Answer 7

• These cases affirm that there is no power to arrest for an anticipated breach of the peace.

The proper procedure where a breach is anticipated and the persons concerned fail to desist is to arrest for obstruction.

So warn they will be arrested for obstruction if they do not desist.

Question 8

Must Know - What are the four key rules of the NZBOR?

Answer 8

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.

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.

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.

There is no power to detain a person for questioning or to pursue enquiries,although a person can assist voluntarily with enquiries.

Question 9

Freedom of expression and peaceful assembly- What are the five things police should consider?

Answer 9

Does the behaviour express a view on a matter of public interest?

Does the behaviour intrude on the rights of others in a public space?

Does this intrusion go beyond what a reasonable person, respectful of the rights to freedom of expression and assembly, could be expected to tolerate?

Does the behaviour pose an actual risk of public disorder (e.g. is it intimidation, victimisation, bullying or pose a real risk of violence)?

Does the behaviour warrant the intervention of the criminal law? Note: Before police become involved with a protester who has been asked to leave a government space, you should do your own assessment of the reasons why the official says that the protester has to be moved on.

You should ask yourself, does the official’s reasoning make sense and does it justify police action, given an individual’s right to peaceful protest.

If the protester is causing a hazard, or disrupting business, one option is to see if the protest action can be modified.

Question 10

Must Know - Under Section 21 of the Bill of Rights Act when is a search and seizure deemed reasonable?

Answer 10

Generally, a search or seizure will be reasonable if it is conducted under a statutory power and the public interest in administering criminal justice outweighs the individual’s privacy interest.

Police have extensive search and seizure powers, with and without warrant, provided in statute

Question 11

Must Know - What is not considered a search?

Answer 11

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.

A search is not: 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 12

When is a reasonable search deemed unreasonable? Give an example.

Answer 12

A search that would otherwise be reasonable is unreasonable if it is carried out in an unreasonable manner (e.g. a strip search conducted in the street where there are no law enforcement considerations necessitating that approach and when the search could have easily been carried out in private).

Question 13

Can a rub down search be carried out routinely?

Answer 13

NO- Unwarranted strip or rub-down searches may breach section 21 or s23(5) (see ‘Rights of people arrested or detained’). Deliberate degrading and repeated strip searching to punish a detainee may breach section 9 (see Right not to be subjected to torture or cruel treatment). The remedy for unjustified rub-down and strip searches is usually compensation, although this may be limited by the Prisoners and Victims Claims Act 2005.

Question 14

Section 9 is particularly relevant to the treatment of prisoners. Why ?

Answer 14

Deliberate deprivation of a mentally unstable prisoner, or deliberately strip searching a prisoner in a public area in order to humiliate or subdue them, may breach section 9.

Question 15

Must Know- Under Section 22 _ Not to be arbitrarily arrested or detailed. When is a person considered to be detained? List three

Answer 15

‘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. 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.

Question 16

When does holding a person in custody become arbitrary?

Answer 16

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.

Before an arrest is made, the arresting officer must be clear in their own mind that the arrest is justified and reasonable, and that alternative action, such as a summons, is not appropriate. A failure to consider the discretion to arrest will be arbitrary.

Question 17

Can you stop a vehicle to undertake general enquiries? Why or why not?

Answer 17

NO- It may be classed as an arbitrary detention. You can stop a vehicle to enforce any of the provisions of the Land Transport Act or Traffic Regulations under section 114 of the Land Transport Act 1998.

You are entitled to stop a vehicle under section 9 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 (e.g. a person for whose arrest a warrant ) NOT a fines warrant. 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

Question 18

What should occur if a suspect wants to exercise the right to speak with a lawyer?

Answer 18

If the suspect indicates a desire to exercise their rights, the interview must be stopped until they have contacted a lawyer. Once the suspect has invoked the lawyer access right,

Police are under a duty to refrain from attempting to elicit evidence from that person until they have had a reasonable opportunity to consult a lawyer.

Question 19

Explain what a seizure is?

Answer 19

Seizure is ‘removing something from the possession of someone else’.

Question 20

Section 23 what are the rights of a person arrested of detailed?

Answer 20

• 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 lawfu

l •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 21

How much time should be given to contacting a layer ?

Answer 21

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 22

Must Know - What must questioning not amount to?( Practice note on Questioning)

Answer 22

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

Previously the Courts had permitted limited (not excessive) cross- examination of persons in custody. This Guideline is effectively a re- statement of Rule 7 of the Judges’ Rules. Depending upon the nature/extent of the breach, answers to questions obtained under cross-examination may be held to be inadmissible, particularly if the questioning is oppressive, overbearing or unfair.

Question 23

Must Know - Under the evidence Act 2006 when is a statement not admissable

Answer 23

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30.

These sections are:

• the reliability rule (s 28)
• the oppression rule (s 29), and
• the improperly obtained evidence rule (s 30)

Question 24

When must a judge exclude a statement?

Answer 24

“Once a breach of section 23(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.”

Question 25

Must Know - What does oppression mean in a legal sense?

Answer 25

oppression means— (a) oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person; or (b) a threat of conduct or treatment of that kind.

Oppression is to be judged from the perspective of the defendant. The state of mind of the alleged oppressor is irrelevant in the sense that he or she could be unaware that their behaviour is oppressive

Question 26

Explain the two tests a judge must apply to ascertain improperly obtained evidence?

Answer 26

determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety and takes proper account of the need for an effective and credible system of justice.

Question 27

Must Know- How should I record a statement

Answer 27

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. Where the statement is recorded in writing the person must be asked if they wish to confirm the record as correct by signing it

Question 28

Must Know- What must police not suggest when speaking to people. ( Practice note on Police questioning)

Answer 28

Police may ask questions of any person to assist with inquiries. However, Police must not suggest that the person must answer.

Question 29

Must Know - When I have enough evidence to charge someone what must I do?( Practice note on Police questioning)

Answer 29

Caution them:

• You have been arrested/detained for (give reason) OR • I am speaking to you about (give reason)
• You have the right to remain silent.
• You do not have to make any statement.
• Anything you say will be recorded and may be given in evidence in court.
• You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
• Police have a list of lawyers you may speak to for free.

Question 30

Must Know - When I have enough evidence to charge someone what must I do?( Practice note on Police questioning)

Answer 30

Caution them:

• You have been arrested/detained for (give reason) OR • I am speaking to you about (give reason)
• You have the right to remain silent.
• You do not have to make any statement.
• Anything you say will be recorded and may be given in evidence in court.
• You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
• Police have a list of lawyers you may speak to for free.

Question 31

Must Know- What are the recent changes around a child and young person?

Answer 31

we emphasise to children and young people that they can elect to have both a lawyer and a nominated person present if they wish. This change has been made because the current Rights Caution card has led some children and young persons to conclude that they may have a lawyer or a nominated person.

“You have the right to speak with a lawyer or any person nominated by you, or both, without delay and in private before deciding whether to make any statement or answer any questions.” AND “You have the right to have your lawyer or nominated person, or both, with you while you make any statement or answer any questions”.

Question 32

What else should I consider when dealing with a child or young person?

Answer 32

it is not enough to just read out the Rights Caution card – an officer should explain each right to the child or young person and, ideally, have them explain back to the officer in their own words what each particular right means.

Note in particular that the child or young person must understand what assistance a lawyer will provide and be clear about the mechanics of instructing a lawyer.

Question 33

What words might I use to explain this?

Answer 33

“I have explained to you your right to a lawyer who will help you for free. Do you wish us to call a lawyer to come and see you?”

Question 34

Must Know- When I question a suspect about statements made by others what might I consider ?

Answer 34

When a suspect is questioned about statements made by others, the substance of the allegation must be put to the suspect. It will not be sufficient, for example, to refer to general evidence (such as “we have witnesses who will identify you at the scene, what do you say to that”); instead the substance of that part of the statement should be put (for example, the description of the suspect that the person has given). Police must not deceive suspects by trickery or by misrepresenting the truth.

Question 35

Phillips v R (2017) NZHC 1551 – Voluntary statements inadmissible if not recorded ‘fairly’ in accordance with the Practice Note on Police Questioning. It involved a suspect telling police he drove to a place he was arrested for fighting

Answer 35

Facts An officer was called to an incident involving males fighting around a vehicle.

P was arrested for fighting in a public place and advised of his rights under NZBORA. Whilst driving back to the station, an officer asked P about the fight.

The High Court held that although the unfair conduct was unrelated to the voluntary admissions, the recording of P’s alleged statement was unfair. Failing to take full, accurate notes, that P had the opportunity to review created the situation that rule 5 is designed to avoid. From the outset of the analysis, the Court emphasised the importance of complying with rule 5 and outlined that failure to do so would weigh heavily in favour of excluding evidence.

Question 36

Under section 24 what are the rights of a charged person

Answer 36

1. Shall be informed promptly and in detail of the nature and cause of the charge; and
2. Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
3. Shall have the right to consult and instruct a lawyer; and
4. Shall have the right to adequate time and facilities to prepare a defence; and
5. 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 more than 2 years or more; and
6. 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
7. 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 37

What does recent caselaw state a search is?

Answer 37

1. Conscious act of state intrusion into an individual’s reasonable expectation of privacy

Question 38

Must Know - What is the definition of an arrest?

Answer 38

1. A communicated intention by a police officer to hold a person under lawful authority

Question 39

Must Know- If a suspect is eligible for bail you must

Answer 39

bail them as soon as practicable

Question 40

What do section 21 and 22 protect against?

Answer 40

21 Unreasonable Search and Seizure

22 Arbitrary arrest and detainment

Question 41

Must Know - Tell me about the caselaw around speaking with a lawyer

Answer 41

The detainer is required to refrain from attempting to fain evidence until the detainee has had a reasonable opportunity to consult and instruct a lawyer

Question 42

Must Know - when do you not have to give BOR to an arrested or detained person?

Answer 42

When safety is threatened or delay would cause danger to others

Question 43

Must Know- Tell me about the caslaw around questioning a suspect after they have spoken to a lawyer?

Answer 43

Even if they have received advice to remain silent there is nothing to stop police continuing to question the suspect if they continue to answer

Question 44

What are the four points to remember when a suspect is waiving their rights to a lawyer?

Answer 44

1. It is done in an unequivocal manner
2. Clearly with full knowledge of that right
3. Is a conscious choice, informed and voluntary
4. Not implied from a failure to request or silence

Question 45

Under section 25 what are the 8 standards of criminal procedure?

Answer 45

1. The right to a fair and public hearing by an independent and impartial court:
2. The right to be tried without undue delay:
3. The right to be presumed innocent until proved guilty according to law:
4. The right not to be compelled to be a witness or to confess guilt:
5. The right to be present at the trial and to present a defence:
6. 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:
7. 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:
8. 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:
9. The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

Question 46

aThe NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms. Tell me about the three protections?

Answer 46

• protection against the powers of government agencies
• minimum standards for public decision-making
• protection for human rights and basic freedoms.

Question 47

What will the courts consider in demonstrations?

Answer 47

The courts take a liberal approach to expressive behaviour by demonstrators. The level of behaviour required for ‘disorderly’ and ‘offensive’ behaviour or ‘insulting language’ is much higher for demonstrators conveying an opinion on a matter of public interest, than for other types of behaviour. In order to reach the threshold of offensive or disorderly, protestors’ behaviour must either:

• substantially inhibit other people from enjoying their right to use the public amenity, and/or
• cause greater offence than those affected can reasonably be expected to tolerate, to the extent that it is seriously disruptive of public order.

Question 48

Must Know- What could happen with minor irregularities in a search

Answer 48

A search that is unlawful because of a minor irregularity may, depending on the circumstances, not be unreasonable. In such a case, the evidence obtained in the search may be admissible. However, even where a breach is minor or technical, a search or seizure will not normally be held to be reasonable if the police realised the error before the search or seizure was undertaken. Note the before the search was undertaken

Question 49

What is the definition of detention?

Answer 49

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.

Question 50

What are some examples of detention?

Answer 50

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.

Question 51

What must I do when I detain someone ?

Answer 51

Give them their rights

Question 52

Tell me about Holding in custody while making enquiries

Answer 52

A reasonable arrest/detention may also become arbitrary if it lasts longer than necessary, for example longer than required to bring an offender before the Court.

A suspect arrested on one offence cannot be kept in custody for “mere convenience sake” while enquiries are made into another offence for which he or she may later be interviewed. If the suspect is eligible for bail, you must give it as soon as practicable.

Question 53

What could happen if a person is arbitrary detained

Answer 53

An arbitrary arrest or detention may lead to exclusion of evidence, release from detention, or compensation.

Question 54

What might happen if I don’t give a caution when required?

Answer 54

Failure to give the caution may result in a finding that evidence was improperly obtained and the evidence excluded under section 30 of the Evidence Act.

Question 55

What is not a detention ??

Answer 55

• When a motorist is stopped at the roadside to undergo a breath-alcohol screening test
• When a motorist is stopped at the roadside and asked to supply his or her particulars as permitted by the land transport legislation
• When a motorist is taken to hospital following an accident and a doctor is requested to take a blood sample for alcohol testing
• When undertaking the execution of a search warrant reasonable directions may be given to persons whom there are reasonable grounds to believe will obstruct or hinder the search, e.g. persons may be excluded from the house or instructed that if they remain in the house, they are to stay in a specified room.

Question 56

What would be not complying with Treatment with humanity and respect

Answer 56

Treatment in breach of section 23(5) includes:

• 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 57

When might I need to caution more than once ?

Answer 57

it is the detainer’s 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 or detained person more than once of his rights…it may not be in compliance with the Act for a person to be told ‘perfunctorily’ of the stipulated right

This extended obligation would apply, for example, where the suspect:

• is stressed, confused or fatigued at the time of the arrest
• has a poor command of the English language
• has a passive nature, or limited intelligence
• may have difficulty hearing because of background noise
• needs an interpreter (e.g. of sign language or a foreign language).

Question 58

If a serious offence is uncovered in the interview, the best practice would be to

Answer 58

re-advise or rights

Question 59

Tell me about written notifications of rights

Answer 59

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

Question 60

With rights what does without delay mean?

Answer 60

delay’ is not synonymous with ‘instantly’ or ‘immediately’…was the delay reasonable in all circumstances, having regard to the purpose of the right.

Question 61

When might a suspect not have a right to consult a lawyer in private

Answer 61

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 62

What is the caution?

Answer 62

• Y**ou have been arrested/detained for (give reason)

OR

• I am speaking to you about (give reason)
• Y**ou have the right to remain silent.
• Y**ou do not have to make any statement.
• A**nything you say will be recorded and may be given in evidence in court.
• Y**ou have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
• P**olice have a list of lawyers you may speak to for free.

Question 63

**Tell me about the caselaw when the offender was arrested for fighting and told the cop he drove to the location, this was noted in the notebook The cop did not know he was disqualified at the time but he was subsequently charged with disqualified driving

Answer 63

This breached rule five as the offender had not been given the opportunity to view the officers notes.

Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

Comment

This case reiterates the importance of complying with rule 5 of the Chief Justice’s Practice Note. The Courts have continually emphasised the need for key interactions with defendants to be recorded in compliance with rule 5 and have policed non- compliance strictly.

Question 64

**What is the meaning of offensive weapon in a 202 (4)(a) Public place

Answer 64

(

1. In subsection (4)(a) of this section offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.

Question 65

**What is the meaning of offensive weapon in a 202 (4)(b) any place

Answer 65

1. In subsection (4)(b) of this section offensive weapon means any article capable of being used for causing bodily injury.

Question 66

** In section 202A 3() Disabling substance means what?

Answer 66

1. In this section disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him for such use.

Question 67

Must Know- What are the three times a statment maide by a defendant is not admissable against the defendant?

Answer 67

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that defendant if it is excluded under s 28, s 29 or s 30. These sections are:

• the reliability rule (s 28)
• the oppression rule (s 29), and
• the improperly obtained evidence rule (s 30)

Question 68

Must Know - The term ‘arrest’ has been thoroughly discussed by the Court of Appeal in R v Goodwin: What is it?

Answer 68

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

Question 69

Police practice note on questioning

Answer 69

Introduction On 1 August 2007 the Evidence Act 2006 and the Practice Note on Police Questioning came into force. This Law Note sets out the Guidelines from the Practice Note and provides a practical guide to them. Pursuant to section 30 of the Evidence Act a judge must consider the practice note in determining whether a defendant’s statement was obtained (un)fairly. Until case law develops on the Guidelines, it is not known how they will be applied and interpreted by the Courts.

1. A member of the police investigating an offence may ask questions of any person from whom it is thought useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.

Comment Guideline 1 confirms that Police may ask questions of any person to assist with inquiries. However, Police must not suggest that the person must answer.

1. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:
   
   1. that the person has the right to refrain from making any statement and to remain silent

Chapter 5 of 8: Managing suspects & offenders 37

1. that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme
2. that anything said by the person will be recorded and may be given in evidence.

Comment Whenever there is sufficient evidence to charge a person with an offence, the advice in Guideline 2 must be provided. The requirement will arise when the evidence, objectively considered, supports a prima facie case: that is, that if that evidence is accepted as credible, a judge or jury could find guilt proved beyond reasonable doubt. The advice in Guideline 2 should be provided at the same time as the caution would have been provided under Rule 2 of the Judges’ rules.

If a person is arrested or detained, then the first obligation on the part of Police is to provide the advice required under section 23 of the New Zealand Bill of Rights Act. But if the person were then questioned, the more fulsome advice under the Practice Note would need to precede any such questioning.

For practical purposes, given that the advice requirements of the New Zealand Bill of Rights Act are brought into the new caution, the advice in Guideline 2 should be provided to people who are arrested or detained, or where Police seek to question someone where there is sufficient evidence to charge that person with an offence. If such advice is provided, the equivalent advice under the New Zealand Bill of Rights Act does not need to be repeated. However, giving the advice prior to a suspect being arrested or detained does not obviate the necessity to repeat the advice upon arrest or detention.

The following advice should be provided to people who are arrested or detained, or where police want to question someone where there is sufficient evidence to charge that person with an offence:

• Y**ou have been arrested/detained for (give reason)

OR

• I am speaking to you about (give reason)
• Y**ou have the right to remain silent.
• Y**ou do not have to make any statement.
• A**nything you say will be recorded and may be given in evidence in court.
• Y**ou have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.
• P**olice have a list of lawyers you may speak to for free.

Similar to Rule 5 of the Judges’ Rules, Guideline 2(c) requires anything said by the suspect or person who has been arrested or detained to be recorded. If it is

Chapter 5 of 8: Managing suspects & offenders 38

not recorded, and Police seek to give evidence of what was said, particularly if it is inculpatory, then that evidence may be held to be inadmissible or given very little weight. It is not anticipated that idle chat will need to be recorded, but anything relevant to the offence will need to be recorded in some way. Police should record the fact that other topics were discussed with a suspect, and invite the suspect to sign a record of that fact (say for example in a notebook). If the suspect refuses to sign that record then it would be prudent to record the general topics discussed (briefly) as soon as is practicable thereafter. If a video interview is conducted, then the fact that other topics were discussed could be mentioned as part of the introduction to that interview.

Recent changes to advice that must be provided to a child or young person F**ollowing is an extract taken from the Bully Board Notice, Legal Section, PNHQ on 03 February 2017

In January 2017 a significant change to the wording of the Rights Caution for children and young people was made. It has been informed by case law and legal opinion, and ensures that we emphasise to children and young people that they can elect to have both a lawyer and a nominated person present if they wish. This change has been made because the current Rights Caution card has led some children and young persons to conclude that they may have a lawyer or a nominated person.

The new wording states:

“You have the right to speak with a lawyer or any person nominated by you, or both, without delay and in private before deciding whether to make any statement or answer any questions.”

AND

“You have the right to have your lawyer or nominated person,or both,** with you while you make any statement or answer any questions”.

The caution previously stated that a child or young person has a right to speak to a lawyer “and/or” nominated person and to have a lawyer “and/or” nominated person with them while making any statement or answering any questions.

R__eminder: The Children, Young Persons and Their Families Act 1989 recognises the vulnerability of children and young persons and requires their special protection. To that end it is important to ensure that children and young people understand their rights and are able to make informed decisions as to whether or not to exercise them. This means that it is not enough to just read out the Rights Caution card – an officer should explain each right to the child or young person and, ideally, have them explain back to the officer in their own words what each particular right means. Note in particular that the child or young person must understand what

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assistance a lawyer will provide and be clear about the mechanics of instructing a lawyer.

Further, explanations must be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person. Thus the officer must fully explain each of the rights – “a mere recitation” will be insufficient according to Asher J who considered this issue in a case called Elia v R [2012] NZCA 243. That case involved aggravated robbery and aggravated wounding and Asher J noted that it would have been good practice to include the following:

“I have explained to you your right to a lawyer who will help you for free. Do you wish us to call a lawyer to come and see you?”

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1. Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.

Comment Previously the Courts had permitted limited (not excessive) cross- examination of persons in custody. This Guideline is effectively a re- statement of Rule 7 of the Judges’ Rules. Depending upon the nature/extent of the breach, answers to questions obtained under cross-examination may be held to be inadmissible, particularly if the questioning is oppressive, overbearing or unfair.

1. Whenever a person questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.

Comment Police are under no obligation to advise suspects of everything known before asking for the suspect’s version of events. When a suspect is questioned about statements made by others, the substance of the allegation must be put to the suspect. It will not be sufficient, for example, to refer to general evidence (such as “we have witnesses who will identify you at the scene, what do you say to that”); instead the substance of that part of the statement should be put (for example, the description of the suspect that the person has given). Police must not deceive suspects by trickery or by misrepresenting the truth.

1. Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

Comment In many respects, this Guideline is a modern re-statement of Rule 9 of the Judges’ Rules. As is the case now, it is best practice to record interviews on video (or DVD). Where a suspect declines to be interviewed on video, but

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is willing to make a statement, it needs to be recorded in writing or on audio tape (or by other electronic means).

For electronically recorded statements, the suspect must be given an opportunity to have the statement played back to them, and following this, to correct any errors or add anything further.

For written statements, the statement should be read back to the suspect or they should be given an opportunity to read it. The suspect should then be given an opportunity to add anything or correct any errors, and should also be asked if s/he wishes to confirm the accuracy of the record by signing it.