5.1 Managing Offenders - Crimes Act & Bill of Rights

Question 1

Section 39 - Force used in

executing process or in arrest. How much 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

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.

Question 3

Section 41 - Prevention of suicide or certain offences. 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 - Possession of offensive weapons or disabling substances. What is the penalty?

Answer 4

to imprisonment for a term not exceeding 3 years.

Question 5

Section 202A - Possession of offensive weapons or disabling substances. What is a defense for possessing a weapon or disabling substance in ‘any place?’

Answer 5

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.

Question 6

Tell me about Section 42 - Preventing breach of the peace?

Answer 6

(1) 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:
- no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace,

(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

Case Law - What was the outcome around the anticipated breach of the peace. Waitangi Day.

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

What are the four key rules of the NZBOR Act?

Answer 8

1. 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.
2. 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.
3. 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.
4. There is no power to detain a person for questioning or to pursue enquiries, although a person can assist voluntarily with enquiries.

Question 9

What are the five things Police should consider when dealing with freedom of expression and peaceful assembly?

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?

Question 10

Under section 21 of the BOR 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

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

A search is unreasonable if the circumstances giving rise to it make the
search itself unreasonable or if the search is carried out in an unreasonable
manner. Give an example?

Answer 12

A strip search carried out in the street when the the search could have been easily carried out in private.

Question 13

Can a rub down search be carried our routinely?

Answer 13

No, unwarranted strip or rub-down searches may breach section 21 or s23(5).

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

Under section 22 everyone has the right not to be arbitrarily arrested or detained. When is a person considered to be detained?

Answer 15

• 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 16

When does holding a person in custody become arbitary?

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, 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 (other than a warrant issued under Part 3 of the Summary Proceedings Act 1957 in relation to fines enforcement) is in force).

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 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 is seizure is?

Answer 19

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

Question 20

What are the rights of a person arrested or detained?

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 lawful.
• 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 must be given to contacting a lawyer?

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

What must questioning not amount to?

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.

Question 23

Under section 24, what are the rights of a charged person

Answer 23

(a) Shall be informed promptly and in detail of the nature and cause of the charge; and
(b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
(c) Shall have the right to consult and instruct a lawyer; and
(d) Shall have the right to adequate time and facilities to prepare a defence; and
(e) 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
(f) 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
(g) 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 24

What does recent case law state a search is?

Answer 24

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

Question 25

What is the definition of an arrest?

Answer 25

A communicated intention on the part of the police officer to hold the person under lawful authority.

Question 26

If a suspect is eligible for bail you must…?

Answer 26

give it as soon as practicable.

Question 27

What do section 21 and 22 BOR Act protect against?

Answer 27

Section 21 – Unreasonable
search and seizure.

Section 22 – Arbitrary arrest and detainment.

Question 28

Tell me about the case law around speaking to a lawyer?

Answer 28

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

Question 29

When do you not have to give BOR to an arrested or detained person?

Answer 29

When safety is threatened or delay would cause danger to others.

Question 30

Tell me about the case law around questioning a suspect after they have spoken to a lawyer?

Answer 30

The interviewing officer can continue the interview once the suspect has consulted and instructed a lawyer even if the lawyer has instructed his client to remain silent.

Question 31

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

Answer 31

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 32

What are the 8 standards of criminal procedure under section 25 BOR Act?

Answer 32

(a) The right to a fair and public hearing by an independent and impartial court:
(b) The right to be tried without undue delay:
(c) The right to be presumed innocent until proved guilty according to law:
(d) The right not to be compelled to be a witness or to confess guilt:
(e) The right to be present at the trial and to present a defence:
(f) 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:
(g) 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:
(h) 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:
(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

Question 33

The NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms.

What three protections does it afford?

Answer 33

1. Protection against the powers of government agencies.

2· Minimum standards for public decision-making.

3· Protection for human rights and basic freedoms.

Question 34

What will the courts consider in demonstrations?

Answer 34

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 35

What could happen with minor irregularities in a search?

Answer 35

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.

Question 36

What is the definition of detention?

Answer 36

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 37

What are some examples of detention?

Answer 37

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 38

What must I do when I detain someone?

Answer 38

Give them their rights.

Question 39

Tell me about holing in custody while making enquiries?

Answer 39

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 40

What could happen if a person is arbitrarily detained?

Answer 40

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

Question 41

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

Answer 41

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 42

What is not a detention?

Answer 42

• 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 43

What would not be complying with the obligation to ensure that all people are treated with humanity and
respect?

Answer 43

• 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 44

When might I need to caution more than once?

Answer 44

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 45

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

Answer 45

re-advise of rights.

Question 46

Tell me about written notification of rights.

Answer 46

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 47

With BoR what does ‘without delay’ mean?

Answer 47

“The expression ‘without delay’ is not synonymous with ‘instantly’ or ‘immediately’…was the delay reasonable in all circumstances, having regard to the purpose of the right.”

Question 48

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

Answer 48

When it would not be safe to leave the accused alone or because there is 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.