5. Managing Suspects and Offenders Flashcards
s39. Crimes Act 1961
Force used in executing process or arrest
s40. Crimes Act 1961
Preventing escape or rescue
s41. Crimes Act 1961
Prevention of suicide or certain offences
s42. Crimes Act 1961
Preventing breach of the peace
s315 Crimes Act 1961
Arrest without warrant
s316. Crimes Act 1961
Duty of persons arresting
LAW NOTE
Attorney General v. Reid 1986
Arrested for anticipated breach of the peace
- Proper procedure is to desist and arrest for obstruction
s8. Bill of Rights Act 1990
Right to not be deprived of life
s9. Bill of Rights Act 1990
Right not to be subjected to torture or cruel treatment
s13. Bill of Rights Act 1990
Freedom of thought, conscience and religion
s14. Bill of Rights Act 1990
Freedom of expression
s15. Bill of Rights Act 1990
Manifestation of religion and belief
s16. Bill of Rights Act 1990
Freedom of peaceful assembly
s17. Bill of Rights Act 1990
Freedom of association
s18. Bill of Rights Act 1990
Freedom of movement
s19. Bill of Rights Act 1990
Freedom from discrimination
s20. Bill of Rights Act 1990
Rights of minorities
s21. Bill of Rights Act 1990
Unreasonable Search and Seizure
s22. Bill of Rights Act 1990
Liberty of the person.
Not to be arbitrarily arrested or detained
s23. Bill of Rights Act 1990
Rights of Person arrested or detained
s24. Bill of Rights Act 1990
Rights of Person charged
s25. Bill of Rights Act 1990
Minimum Standards of Criminal Procedure
s28 Evidence Act 2006
The reliability rule. Exclusion of unreliable statements
- IF the defendant or the co-offender raises the reliability of the statement and informs the grounds of raising the issue, the judge must exclude the statement unless satisfied of its reliability.
However, the judge must take into account the matters relevant to the case such as; mental, physical, psychological conditions of the defendant
s29. Evidence Act 2006
The oppression rule. Exclusion of statements influenced by oppression.
- Oppression means- violent, inhuman, threatening, or degrading conduct towards the defendant or co-offenders
s30. Evidence Act 2006
Improperly obtained evidence.
-Breach of rights, not properly obtained.
Must be considered if these thing were obtained in good faith or by a matter of urgency.
Only applies to evidence offered by the prosecution
Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 1
A member of the Police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest it is compulsory for that person to answer
Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 2
Sufficient evidence to charge a person or wishing to speak to a person in custody, must be given caution of:
-Right to remain silent and refrain from making any statement
-Right to consult a lawyer
-Free list of lawyers under the PDLA scheme
-Anything said by them will be recorded and may be given in evidence
LAW NOTE
Practice note on Police Questioning
Clause 2
Hohua v. R 2021
Stated that neither an apprehension nor a possibility or likelihood of a state of affair is sufficient to meet the test of evidential sufficiency. Suspicion alone, reasonable or otherwise does not trigger a requirement to caution a suspect in the absence of evidence to charge that suspect.
Its an obligation under the Bill of Rights Act that everyone arrested or detained is given their caution rights.
If that person has had their caution rights prior to arrest it DOES NOT obviate the need to provide caution again after arrest.
Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 3
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
Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 4
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
-Police are under no obligation to provide suspects with everything known before asking for their version of events
Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 5
Any statement made by a person in custody is preferably recorded by video unless it is impractical or the person refuses to do so.
They must be given the opportunity to watch the tape back.
Any paper statement must be given the opportunity to sign and confirm its accuracy.
LAW NOTE:
Visual recordings are preferrable to avoid disputes over what was said by the suspect at the time
LAW NOTE:
Phillips v. R 2017
Voluntary statements inadmissible if not recorded fairly in accordance with the Practice Note on Police Questioning
Whilst being questioned about fighting P offered voluntary admissions about driving while disqualified.
He then retracted his statements and changed his story.
The officer paraphrased the original admission and did not offer him the opportunity to read what was written in the notebook.
High court ruled that the admission was not a breach of the Bill of Rights Act however the evidence was not in accordance to the Police Policy on Questioning.
LAW NOTE
Robertson v. R
Adherence to the Practice Note on Police Questioning
He was arrested for breach of bail then cautioned over an alleged sexual assault.
Found in breach of clause 2 which requires a person to be recautioned before questioning. R was cautioned two hours prior and he was ill requiring insulin.
He should have been recautioned.
Breach of clause 5, not visually recorded although facilities were readily available to the Constable and R was not given the opportunity to confirm and sign the notebook
