5. Managing Suspects & Offenders Flashcards
S39 Using force to arrest
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
S40 preventing escape or rescue
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
What is s41
Prevention of suicide or An offence lightly to cause immediate serious injury to person or property
S42
Preventing breach of the peace (not an offence but carries power of arrest -Obstruction)
S315 and s316?
Arrest without warrant and duty of persons arresting to advise them what they’ve been arrested for
S8- s20
Freedom of …. Nz Bill of rights 1990
S21-25
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
NZ Bill of rights applies only to who?
- acts done by the legislative, Executive or judicial branches of government
- The performance of any public function, power or duty pursuant to the law
Demonstrations, Behaviour offences and breach of the peace must reach what for Police to intervene?
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
With demonstrations, what should Police consider?
- 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
What is a search?
Requires a conscious act of state intrusion into an individuals reasonable expectation of privacy as opposed to a mere observation
What is a seizure?
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
What is an unreasonable search?
A Lawful search that infringes upon a persons dignity can be an unreasonable search
Is electronic surveillance considered a search?
Yes GPS data that tracks an individuals movements constitutes a search and seizure.
Arbitrarily mean?
Capricious, Unreasoned and without reasonable cause
What does detained mean?
- 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
Before an arrest is made what should the arresting officer be clear on?
That the arrest is justified and reasonable and that alternative action such as a summons is not appropriate
Can you hold someone in custody while making enquiries?
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
Can you stop a vehicle to undertake general enquiries?
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
An arbitrary arrest or detention can lead to what?
Exclusion of Evidence, Release from detention and compensation
What is considered a breach s 23(5) In relation to treatment?
- 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
If a lawyer is on his way before an interview, what’s best practice?
Suspended interview until the lawyer arrives
What does a valid waiver require?
A conscious choice that is both informed and voluntary and it cannot be implied from silence or failure to request rights
R v Ormsby - questioning a suspect
There is no absolute prohibition on further questioning after the right to silence has been asserted.
When must a person charged appear in Court?
At the next available court sitting.They cannot be held while inquiries are conducted into separate offences
Evidence offered by the prosecution of a statement made by defendant is not admissible against that defendant if excluded by what?
- The reliability rule s28
- The oppression rule s29
- The improperly obtained Evidence rule s30
Can a statement made by the defendant be admissible against a co-defendant?
No
What is a statement?
A statement is a spoken or written assertion of any matter, Non-verbal conduct that is intended as an assertion of any matter
What is s28 Evidence Act in relation to reliability?
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
What is 29 Evidence Act in relation to Oppression?
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.
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)
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.
S21 - Everyone has the right to be secure against unreasonable search and seizure
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.
Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?
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.
What is s30 - improperly obtained evidence?
The judge must Determine, to the standard of balance of probabilities, Whether or not the evidence was properly obtained
When can answers to questions obtained under cross examination be held to be inadmissible?
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
When suspect is questioned about statements made by others, what must be put to the suspect?
Substance of the statements or the nature of the evidence must be fairly explained
Sec 24 of BOR lists the rights of persons charged, what are they?
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
What are the 5 Practice notes of Police Questioning?
s30(6) Evidence Act 2006
Explain them.
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.
Relation to Phillips v R what was found in relation to Questioning of offender?
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
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
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.
