5. Managing Suspects and Offenders

Question 1

s39. Crimes Act 1961

Answer 1

Force used in executing process or arrest

Question 2

s40. Crimes Act 1961

Answer 2

Preventing escape or rescue

Question 3

s41. Crimes Act 1961

Answer 3

Prevention of suicide or certain offences

Question 4

s42. Crimes Act 1961

Answer 4

Preventing breach of the peace

Question 5

s315 Crimes Act 1961

Answer 5

Arrest without warrant

Question 6

s316. Crimes Act 1961

Answer 6

Duty of persons arresting

Question 7

LAW NOTE
Attorney General v. Reid 1986

Answer 7

Arrested for anticipated breach of the peace
- Proper procedure is to desist and arrest for obstruction

Question 8

s8. Bill of Rights Act 1990

Answer 8

Right to not be deprived of life

Question 9

s9. Bill of Rights Act 1990

Answer 9

Right not to be subjected to torture or cruel treatment

Question 10

s13. Bill of Rights Act 1990

Answer 10

Freedom of thought, conscience and religion

Question 11

s14. Bill of Rights Act 1990

Answer 11

Freedom of expression

Question 12

s15. Bill of Rights Act 1990

Answer 12

Manifestation of religion and belief

Question 13

s16. Bill of Rights Act 1990

Answer 13

Freedom of peaceful assembly

Question 14

s17. Bill of Rights Act 1990

Answer 14

Freedom of association

Question 15

s18. Bill of Rights Act 1990

Answer 15

Freedom of movement

Question 16

s19. Bill of Rights Act 1990

Answer 16

Freedom from discrimination

Question 17

s20. Bill of Rights Act 1990

Answer 17

Rights of minorities

Question 18

s21. Bill of Rights Act 1990

Answer 18

Unreasonable Search and Seizure

Question 19

s22. Bill of Rights Act 1990

Answer 19

Liberty of the person.
Not to be arbitrarily arrested or detained

Question 20

s23. Bill of Rights Act 1990

Answer 20

Rights of Person arrested or detained

Question 21

s24. Bill of Rights Act 1990

Answer 21

Rights of Person charged

Question 22

s25. Bill of Rights Act 1990

Answer 22

Minimum Standards of Criminal Procedure

Question 23

s28 Evidence Act 2006

Answer 23

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

Question 24

s29. Evidence Act 2006

Answer 24

The oppression rule. Exclusion of statements influenced by oppression.
- Oppression means- violent, inhuman, threatening, or degrading conduct towards the defendant or co-offenders

Question 25

s30. Evidence Act 2006

Answer 25

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

Question 26

Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 1

Answer 26

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

Question 27

Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 2

Answer 27

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

Question 28

LAW NOTE
Practice note on Police Questioning
Clause 2

Answer 28

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.

Question 29

Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 3

Answer 29

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

Question 30

Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 4

Answer 30

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

Question 31

Practice note on Police Questioning
S30(6) Evidence Act 2006
Clause 5

Answer 31

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

Question 32

LAW NOTE:
Phillips v. R 2017
Voluntary statements inadmissible if not recorded fairly in accordance with the Practice Note on Police Questioning

Answer 32

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.

Question 33

LAW NOTE
Robertson v. R
Adherence to the Practice Note on Police Questioning

Answer 33

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