5.1 Managing Suspects & Offenders Flashcards
Sec 202A (5) - What is a defence to Possession of Offensive Weapons or Disabling Substances?
It is a defence if the person charged 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.
What would constitute an unlawful peaceful assembly?
It must have a serious and aggressive effect on people or property.
What is the threshold for demonstrations behavior to be an offence or breach of the peace?
The behavior must either substantially inhibit other people from enjoying their right to use the public amenity or cause greater offence than those affected can be expected to tolerate, to the extent that it is seriously disruptive of public order.
What is an unreasonable search (2)?
1) If the circumstances give rise to make the search itself unreasonable
2) or if the search is carried out in an unreasonable manner.
Unlawful searches will almost always be unreasonable.
Who must the Bill of Rights Caution be given to?
- adults who are arrested or detained, or where Police want to question an adult where there is sufficient evidence to charge that person with an offence
- children or young persons when detained or arrested and in accordance with sec 215 OT Act, before questioning a child or young when there are reasonable grounds to suspect them of having committed an offence or before asking any child or young person any question intended to obtain an admission of an offence.
If during an interview, a detainee asks to speak to a lawyer, what should you do?
Stop the interview until they have contacted a lawyer.
If a person has been told to remain silent by a lawyer, does this prohibit Police from asking further questions of that person?
No - there is no prohibition on further questioning by the Police after the right to silence has been asserted.
Can a person waive their right to consult a lawyer?
Yes provided that this is done clearly and with full knowledge of that right. A valid waiver requires a conscious choice that is both informed and voluntary, and it cannot be implied from silence or failure to request their rights.
What is a statement?
A statement is a spoken or written assertion of any matter or non verbal conduct that is intended as an assertion of any matter.
Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?
No.
Explain the three rules of evidence relating to inadmissible statements made by a defendant.
- Reliability Rule - The judge will determine the likely reliability of statement.
- Oppression Rule - Once an evidential foundation is established to raise the issue of whether a defendant’s statement was influenced by oppression, the prosecution must satisfy the judge BRD that the statement was not influenced by oppression.
- Improperly Obtained Evidence - The judge will carry out the balancing test as whether the impropriety is proportionate to the exclusion of the evidence.
According to section 28 of the Evidence Act 2006, when must a judge exclude an unreliable statement?
The judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.
Statements are typically judged on their likely reliability, given the circumstances under which it was taken, rather than the actual reliability. The balance of probabilities is the threshold for reliability.
Section 29 - When must a judge exclude a statement influenced by oppression?
The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
When deciding whether to exclude a possibly unreliable statement, which four relevant factors will the judge take into account?
- Physical and mental condition of the defendant.
- Defendant characteristics such as disabilities.
- Nature and manner of questions put to the defendant.
- Nature of any threat, promise, or representation made to the defendant.
What does oppression mean?
Evidence Act 2006 - s.29 The Oppression Rule.
Oppressive, violent, inhuman, or degrading conduct towards, or treatment of the defendant or another person;
OR
a threat of conduct or treatment of that kind.
Everyone charged with an offence has the right to…. (3)
1) The right to consult and instruct a lawyer
2) The right to adequate time and facilities to prepare a defence
3) Informed promptly and in detail of the nature of the allegation
Can you arrest for an anticipated Breach of the Peace?
No power of arrest for an anticipated breach of the peace. The proper procedure where a breach is anticipated and the persons concerned failed to desist is to arrest for obstruction.
What are two exceptions to the reliability rule regarding a defendant’s statement (2)?
1) Where the prosecution wishes to use the statement as evidence of the defendant’s “physical, mental, or psychological condition…at the time the statement was made”.
2) Where the prosecution offers the defendant’s statement “only…as evidence of whether the statement was made”.
Section 30 - What is improperly obtained evidence?
- Evidence obtained:
1. In consequences of a breach of any enactment or rule of law by a person to whom section 3 of the NZ BORA 1990 applies.
2. In consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution or
3. unfairly.
Bill of Rights Act 1990 - Section 8: Right not to be deprived of life.
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.
Bill of Rights Act 1990 - Section 9: Right not to be subjected to torture or cruel treatment.
Blank - needs more useful information
Bill of Rights Act 1990 - Section 13: Freedom of thought, conscience, and religion.
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
Bill of Rights Act 1990 - Section 14: Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
Bill of Rights Act 1990 - Section 15: Manifestation of religion and belief. What is the gist of this section?
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
