5. Managing Suspects & Offenders

Question 1

S39 Using force to arrest

Answer 1

Unless the arrest made by reasonable means and a less violent manner
- Doesn’t apply when force used as intended to cause death or GBH

Question 2

S40 preventing escape or rescue

Answer 2

Unless the escape or rescue can be prevented by reasonable means and a less violent manner
- It doesn’t apply with force used, intended or likely to cause death or GBH

Question 3

What is s41

Answer 3

Prevention of suicide or An offence lightly to cause immediate serious injury to person or property

Question 4

S42

Answer 4

Preventing breach of the peace (not an offence but carries power of arrest -Obstruction)

Question 5

S315 and s316?

Answer 5

Arrest without warrant and duty of persons arresting to advise them what they’ve been arrested for

Question 6

S8- s20

Answer 6

Freedom of …. Nz Bill of rights 1990

Question 7

S21-25

Answer 7

S21
- unreasonable search and seizure
S22
- Right not to be arbitrarily arrested or detained
S23
- Rights of person arrested or detained
S24
- Rights of person charged
S25
- Minimum standards of criminal procedure

Question 8

NZ Bill of rights applies only to who?

Answer 8

• acts done by the legislative, Executive or judicial branches of government
• The performance of any public function, power or duty pursuant to the law

Question 9

Demonstrations, Behaviour offences and breach of the peace must reach what for Police to intervene?

Answer 9

To reach the threshold of offensive or disorderly behaviour, Protesters 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 10

With demonstrations, what should Police consider?

Answer 10

• 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 could be expected to tolerate?
• Does The behaviour pose actual risk of public disorder or real risk of violence occurring
• Does the behaviour warrant the intervention of the criminal justice

Question 11

What is a search?

Answer 11

Requires a conscious act of state intrusion into an individuals reasonable expectation of privacy as opposed to a mere observation

Question 12

What is a seizure?

Answer 12

Removing something from the possession of someone else
- An item generated by exercising a search or surveillance power e.g. a photograph is not a seizure

Question 13

What is an unreasonable search?

Answer 13

A Lawful search that infringes upon a persons dignity can be an unreasonable search

Question 14

Is electronic surveillance considered a search?

Answer 14

Yes GPS data that tracks an individuals movements constitutes a search and seizure.

Question 15

Arbitrarily mean?

Answer 15

Capricious, Unreasoned and without reasonable cause

Question 16

What does detained mean?

Answer 16

• Physical deprivation of a persons liberty
• There are statutory restraints on a persons movements
• They have a reasonably held belief induced by police conduct that they are not free to leave.
  Eg formally arrested, Handcuffed, Locked in a room or building and a cannot leave voluntarily And placed in the police vehicle against their well

Question 17

Before an arrest is made what should the arresting officer be clear on?

Answer 17

That the arrest is justified and reasonable and that alternative action such as a summons is not appropriate

Question 18

Can you hold someone in custody while making enquiries?

Answer 18

If it is longer than necessary, it could be arbitrary. Cannot be kept in custody for “mere convenience sake”.
if the suspect is eligible for bail, you must give it as soon as practicable

Question 19

Can you stop a vehicle to undertake general enquiries?

Answer 19

No, as it may be classed as an arbitrary detention
- You can stop a vehicle to enforce s114 LTA 1998 or s9 S & S Act 2012
- RGTS that person committing an imprisonable offence or being unlawfully at large

Question 20

An arbitrary arrest or detention can lead to what?

Answer 20

Exclusion of Evidence, Release from detention and compensation

Question 21

What is considered a breach s 23(5) In relation to treatment?

Answer 21

• Excessive use of force
• Failure to provide medical treatment
• unlawful restraint to prevent self harm
• Failure to comply with regulations or policies and entitlements such as food clothing
• Routine or deliberate unnecessary strip searching
• Failure to ensure the detainees safety and protect them from other detainees
• Preventing a detainee access to bathroom and refusing to clean up

Question 22

If a lawyer is on his way before an interview, what’s best practice?

Answer 22

Suspended interview until the lawyer arrives

Question 23

What does a valid waiver require?

Answer 23

A conscious choice that is both informed and voluntary and it cannot be implied from silence or failure to request rights

Question 24

R v Ormsby - questioning a suspect

Answer 24

There is no absolute prohibition on further questioning after the right to silence has been asserted.

Question 25

When must a person charged appear in Court?

Answer 25

At the next available court sitting.They cannot be held while inquiries are conducted into separate offences

Question 26

Evidence offered by the prosecution of a statement made by defendant is not admissible against that defendant if excluded by what?

Answer 26

• The reliability rule s28
• The oppression rule s29
• The improperly obtained Evidence rule s30

Question 27

Can a statement made by the defendant be admissible against a co-defendant?

Answer 27

No

Question 28

What is a statement?

Answer 28

A statement is a spoken or written assertion of any matter, Non-verbal conduct that is intended as an assertion of any matter

Question 29

What is s28 Evidence Act in relation to reliability?

Answer 29

The judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances and which the statement was made were not likely to have adversely affected its reliability

Question 30

What is 29 Evidence Act in relation to Oppression?

Answer 30

A
Oppressive, violent, inhuman, or degrading conduct towards, or treatment of the defendant or another person;
O.V.I.D.
OR

a threat of conduct or treatment of that kind.

Question 31

What relevant matters must a judge take into account when excluding a defendants statement made to police? What matters would make the statement not able to be used?

Exclusion of unreliable statements S28(4)(a)

Answer 31

A
(a)
any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):
(b)
any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):
(c)
the nature of any questions put to the defendant and the manner and circumstances in which they were put:
(d)
the nature of any threat, promise, or representation made to the defendant or any other person.

Question 32

S21 - Everyone has the right to be secure against unreasonable search and seizure

Answer 32

A
Under s.21 everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, or correspondence or otherwise.

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 individuals right to privacy.

Question 33

Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?

Answer 33

A
Evidence Act 2006 S27(1)

Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is admissible against that defendant, and is admissible against a co-defendant in the proceeding only if it is admitted under section 22A.

Question 34

What is s30 - improperly obtained evidence?

Answer 34

The judge must Determine, to the standard of balance of probabilities, Whether or not the evidence was properly obtained

Question 35

When can answers to questions obtained under cross examination be held to be inadmissible?

Answer 35

When The questioning is oppressive, Overbearing or unfair
- questions of a person in custody or in respect of whom there are sufficient evidence to allow charge must not amount to cross examination

Question 36

When suspect is questioned about statements made by others, what must be put to the suspect?

Answer 36

Substance of the statements or the nature of the evidence must be fairly explained

Question 37

Sec 24 of BOR lists the rights of persons charged, what are they?

Answer 37

A
(a) Informed of the nature and cause of the charge, and
(b) released on reasonable terms unless just cause for continued detention, and
(c) right to consult and instruct a lawyer, and
(d) right to adequate time and facilities to prepare a defence, and
(e) right to trial by jury (2 yrs or more penalty), and
(f) legal assistance without cost, and
(g) free assistance of an interpreter

Question 38

What are the 5 Practice notes of Police Questioning?
s30(6) Evidence Act 2006
Explain them.

Answer 38

A
Answer:
1) A Police member may ask question of anyone from which useful information can be obtained whether its a suspect or not
Must not suggest it is compulsory to answer.

2) When police has sufficient evidence to charge for an offence or whenever questioning a person in custody they must be cautioned before asked to make a statement.

3) Questions asked of a person in custody or in respect of whom there is sufficient evidence to the charge must not amount to cross examination

4) Whenever a person’s question about statements made by others or about other evidence the substance of the statements or the nature of the evidence must be fairly explained.

5) All statements should be recorded by video recording unless it is impractical or unless a person declines to be recorded by video. If recorded by video the person must be given the opportunity to review the tape or if a written statement to correct errors or add anything further.

Written statements must be signed.

Question 39

Relation to Phillips v R what was found in relation to Questioning of offender?

Answer 39

A
Answer:
The officer recorded the original statement in his note book but did not record any subsequent retraction or alternative story that the offender later gave him. This is a breach of Rule 5 of the Chief Justice Practice Notes of Police

Question 40

Q
In Robertson v R what was the result of the officer recording what the offender had blurted out in a partial admission to a sexual assault

Answer 40

A
Answer:
The court found that the officer had breached Rule 5 and Rule 2 by not having the offender view and sign his notebook (5) and the offender was not re-cautioned prior to being spoken to about the allegations (2). It had been 2.5 hours since his last caution. should have interviewed him on DVD.