5.1 Managing Suspects & Offenders

Question 1

Everyone charged with an offence has the right to….(rights of person)

Answer 1

• The right to consult and instruct a lawyer
• Informed promptly and in detail of the nature of the allegation
• The right to adequate time and facilities to prepare a defence
• Shall be released on reasonable terms and conditions unless there is just cause for continued detention.
• shall have the right to legal assistance without cost if the interests of justice so require
• shall have right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

Question 2

When is evidence offered by the prosecution of a statement made by a defendant not admissible against that defendant?

Answer 2

Evidence Act 2006

S28 - The reliability rule

S29 - The oppression rule

S30 - The improperly obtained evidence rule

Question 3

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

Answer 3

Answer:

No.

Question 4

What would constitute an unlawful peaceful assembly?

Answer 4

It would require serious and aggressive effect on people or property.

Question 5

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?
28 or 29 (4)(a - d)

Answer 5

• any relevant physical, mental or psychological conditions of the defendant
• any relevant, physical, mental, intellectual or disability characteristics of the defendant including
• nature of questions by interviewer
• nature of any threat, promise or representation made to the defendant

Question 6

What may satisfy a judge not to exclude a statement of the defendant?

Answer 6

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

Question 7

If a person has been told to remain silent by a lawyer, does this prohibit Police from asking further questions of that person?

Answer 7

No - there is no prohibition on further questioning by the Police after the right to silence has been asserted.

Question 8

What is a statement?

Answer 8

A statement is a spoken or written assertion of any matter or non verbal conduct that is intended as an assertion of any matter.

Question 9

What does oppression mean?

Evidence Act 2006 - s.29 The Oppression Rule.

Answer 9

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 10

Section 16 - Freedom of peaceful assembly refers to what?

Answer 10

Everyone has the right to freedom of peaceful assembly.

Question 11

Sec 14 - Freedom of expression

Answer 11

Everyone has the right to freedom of expression including the freedom to seek, receive and impart information and opinions of any kind and in any form.

Question 12

Sec 21 - Right to be secure against unreasonable search or seizure.

Answer 12

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 13

Sec 25 (BOR) - What are the rights of a person charged with an offence?

Answer 13

The right to….

a) fair and public hearing impartial court
b) tried without undue delay
c) presumed innocent until proved guilty according to law
d) not to be compelled to be a witness or confess guilt
e) to be present at trial and present a defence
f) examine prosecution witnesses and to obtain the attendance and examination of witnesses for the defence under the same conditions of the prosecution
g) benefit of the lower penalty
h) appeal to a higher court
i) if a child, dealt with in a manner that takes into account the child’s age

Question 14

S29 - When must a judge exclude a statement influenced by oppression?

Answer 14

The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

Question 15

Sec 18 (BOR) - Freedom of movement

Answer 15

1) Everyone lawfully in NZ has the right to freedom of movement and residence in NZ
2) Every NZ citizen has the right to enter NZ
3) Everyone has the right to leave NZ
4) Non NZ citizens. lawfully in NZ shall not be required to leave NZ except under a decision taken on grounds prescribed by law

Question 16

What is an unreasonable search?

Answer 16

If the circumstances give rise to make the search itself unreasonable or if the search is carried out in an unreasonable manner.

Unlawful searches will almost always be unreasonable.

Question 17

Who must the Bill of Rights Caution be given to?

Answer 17

• 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.

Question 18

If during an interview, a detainee asks to speak to a lawyer, what should you do?

Answer 18

Stop the interview until they have contacted a lawyer.

Question 19

What is the threshold for demonstrations behavior to be an offence or breach of the peace?

Answer 19

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.

Question 20

Can a person waive their right to consult a lawyer?

Answer 20

Yes provided that this is done clearly and with full knowledge of that right. A valid waiver requires a CONCIOUS CHOICE that is both INFORMED and VOLUNTARY, and it cannot be implied from silence or failure to request their rights.

Question 21

S28 - When must a judge exclude an unreliable statement?

Answer 21

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.

Question 22

Sec 202A (5)What is a defence to Possession of Offensive Weapons or Disabling Substances?

Answer 22

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.

Question 23

In Section 41 - Who is justified in using reasonable force to prevent the commission of suicide?

Answer 23

Answer:
s41 CA61 states Everyone is justified in using such force that is reasonably necessary to prevent the commission of suicide or an offence which would be likely to cause immediate or serious harm to the person or property of anyone

Question 24

Is any person called upon by a constable to assist in execution process (Search warrant) or arrest, protected from criminal liability if use of force occurs?

Answer 24

Answer:
Any person called upon by a constable to assist is protected from criminal liability for the use of force UNLESS the force used was intended or likely to cause death or GBH.

Question 25

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

Answer 25

(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 26

Under s42 CA61 - Preventing breach of peace, what is stipulated in each of the 3 subsections?

Answer 26

Answer:
Subsection 1 - Everyone who witnesses a breach of peace is justified in interfering to prevent it continuing and may detain the person committing it in order to handover into custody of Constable.
May use reasonable or proportionate force to prevent continuance or renewal.

Subsection 2- Every Constable who witnesses a breach of the peace and every person lawfully assisting him is justified in arresting anyone whom he finds committing it.

Subsection 3 - Every constable is justified in receiving into custody any persons given into his charge, as having been a party to a breach of the peace by one who has witnessed it or whom the Constable believes on reasonable probable grounds to have witnessed it.

Question 27

What is an offensive weapon as described in subsection 4(a) and 4(b) CA61?

What is a disabling substance?

Answer 27

Answer:
4(a) “Offensive weapon” means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.

4(b) “Offensive weapon” means any article capable of being used for causing bodily injury

Answer:
As described in 4(3) disabling substance means any anaesthetising or other substance produced for the use of disabling persons, or intended by any person having it with him for such use.

Question 28

What is the defense to a charge under subsection 4(b)?

Answer 28

Answer:
It is a defense if a person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offense involving bodily injury or the threat or fear of violence.

Question 29

What does section 39 of the Crimes Act 1961 refer to?

What does section 40 of the Crimes Act 1961 refer to?

Answer 29

Answer:
Section 39 refers to where any person is justified or protected from criminal responsibility and executing or assisting to execute any sentence warrant or process or in making or assisting to make any arrest.

Answer:
Section 40 refers to any person who is lawfully authorized to arrest or to assist in arresting any other person may use force necessary to prevent the escape of the other person if he takes flight in order to avoid arrest.

In both sections 39 and 40 there is no justification by a constable or person called upon by a constable to assist that applies where the force used is intended or likely to cause death or grievous bodily harm.

In both situations if there is a less violent means in which to execute the arrest it must be used.

Question 30

What was held in Attorney General versus Reid in relation to arrest for breach of the peace?

Answer 30

Answer:
This case arose from a civil claim of damages for the false arrest.

The court held there is no power to arrest for an anticipated breach of the peace. The proper procedure where breaches are anticipated and the persons concern fail to desist is to arrest for obstruction.

Question 31

In the New Zealand Bill of Rights Act 1990 what do the following sections relate to: s8, s9, s13, s14, s15, s16, 17, 18, 19, 20, 21, 22, 23, 24, 25

Answer 31

Answer:

Everyone has right:

8 - not be deprived of life except on grounds as are established by the law

9 - not to be subject to torture or to cruel, degrading, or disproportionately severe treatment or punishment.

13 - to freedom of thought, conscience, religion, and belief, including the right to adopt and hold opinions without interference.

15 - right to manifest that persons religion, belief in worship, observance, practice, or teaching, either individually, in community or in private or public

16 - Everyone has the right to freedom of peaceful assembly.

17 - Freedom of association

18 - NZ citizen right to enter NZ. Everyone can leave NZa. Everyone lawfully in NZ has right to movement and residence in NZ.

19 - right to freedom from discrimination on grounds of discrimination in HRA 1993

20 - right of minorities either ethnic, religious or linguistic to enjoy the culture, religion or use of language of that minority.

21 - right to be secure against unlawful search and seizure - property, correspondence or otherwise.

22 - right not to be arbitrarily arrested or detained

23 - person arrested or detained shall be

• fully informed of reason
• right to consult and instruct lawyer
• right to be released if arrest or detention is not lawful
• right to refrain from making statement
• right to be treated with dignity and humanity
• right to be charged promptly and released

25 Every charged with an offence has:

• right to fair and public hearing
• right to be tried without undue delay
• right to be presumed innocent until proven guilty
• right not to be compelled to be a witness or to confess to guilt
• right to be present at trial and to present a defence
• right to if convicted of an offence and sentence varied between conviction and sentence to the benefit of a lesser penalty
• right to appeal against conviction or sentence or both
• right in case of child to be dealt with in manner account information for child’s age

Question 32

What are the 4 key rules of police arising from the NZBORA?

Answer 32

Answer:
1. Must not suggest it is compulsory for a person to answer

2. Must caution the person before inviting him to make a statement or answer questions
3. If you have a arrested or detained person pursuant to an enactment you must caution them even if cautioned prior to detainment or arrest
4. There’s no power to detain a person for questioning or to pursue inquiries, although a person can assist voluntarily with inquiries

Question 33

What is seizure?

Answer 33

Answer:

No statutory definition. Seizure is removing something from the possession of someone else

Question 34

When is a person defined as being detained?

Answer 34

Answer:
Answer:
They are detained if
– there is physical deprivation of persons liberty, or
– there are statutory restraints on a persons movement, or
- They have a reasonably held belief induced by police conduct and they’re not free to leave.

Question 35

When providing rights to persons detained or arrested it is the arrestor’s obligation to ensure the right is conveyed and understood
What are some situation where this could be an issue?

Answer 35

Answer:
Where the suspect is;
- stressed out
- has poor command of the English language
- has a passive nature, or limited intelligence
- may have difficulty hearing because of background noise
- needs an interpreter (sign or foreign language)

Question 36

Can written notifications of rights be given to an offender or person detained?

Answer 36

Answer:

Yes. There is nothing in the act that requires a person be advised verbally rather than writing.

Question 37

What is the exception to giving rights immediately upon arrest or detainment? Provide 2 examples.

Answer 37

Answer:

• Where an officers immediate safety is threatened.
• Where there is an ongoing and real danger that evidence will be lost

Question 38

What is the PDLA?

What must the arrested person be told?

Answer 38

Answer:
This is the Police Detention Legal Assistance Scheme

Answer:
They have the right to consult and instruct a lawyer in private, and

That the right may be exercised without charge under the PDLA

Question 39

When right to consult a lawyer is asserted what are 6 fundamentals that must be applied. What are they?

Answer 39

Answer:
(32)There is no absolute prohibition on questions by police after the right to silence has been asserted
Earlier rights asserted may be waived provided the waiver is an informed and voluntary one

(34) Where police have agreed with lawyers that there will be no further discussion with the accused without a lawyer being present.
If discussions are to continue a voluntary waiver must be given by the accused after police have advised of the arrangement and he/she is asked wishes to change their instructions to the lawyer or waiver the need for complaisance with them

(35) once suspect has received advice to assert his right to silence, police may not take steps to undermine the value of the legal advice given
(36) if the suspect has exercised their right to silence but then is further questioned. Where there is no cajoling by police to change the suspects mind, a valid waiver can be given even though the lawyer is not further contacted.

(38) if suspect has requested their right to silence and makes admissions before the lawyer has arrived it would be best practice to suspend the interview until the lawyer arrives.
The court will decide if any evidence elicited before lawyers arrival will be admissible.

Question 40

The suspect is not obliged to have a lawyer present during the interview.
However the waiver of the right to lawyer in s24(c) must be established in an unequivocal (no doubt) manner.

What case law refers to this?

Answer 40

Answer:
Police v Koehler
A valid waiver requires conscious choice that is both informed and voluntary
It cannot be implied from silence or failure to request rights

Question 41

When DVD interview of suspect is conducted or a written suspect statement is obtained what must the suspect be given on completion?

Answer 41

Answer:
The opportunity to to review the tape or read the written statement to make corrections if required or add anything further.

Question 42

What is the Chief Justice note on Police Questioning?

Answer 42

Answer:
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 43

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

Answer 43

Answer:
1) A Police member may ask question of anyone from which useful information can be obtained whether 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 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 unless a person applies 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 44

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

Answer 44

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 Questioning.

Question 45

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 45

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.