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?
s4(a)

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

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

Answer 6

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

Question 7

What is a statement?

Answer 7

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 8

What does oppression mean?

Evidence Act 2006 - s.29 The Oppression Rule.

Answer 8

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 9

Section 16 - Freedom of peaceful assembly refers to what?

Answer 9

Everyone has the right to freedom of peaceful assembly.

Question 10

Sec 14 - What is Freedom of expression

Answer 10

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 11

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

Answer 11

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 12

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

Answer 12

…
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 term of 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 13

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

Answer 13

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

Question 14

Sec 18 (BOR) - Freedom of movement

Answer 14

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 15

Who must the Bill of Rights Caution be given to?

Answer 15

• 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 16

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

Answer 16

The behavior must either substantially inhibit other people from enjoying their right to use the public amenity or cause greater offence to those affected can be expected to tolerate, to the extent that it is seriously disruptive of public order.

Question 17

Can a person waive their right to consult a lawyer?

Answer 17

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 18

S28 - When must a judge exclude an unreliable statement?

Answer 18

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 19

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

Answer 19

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 threat or fear of violence.

Question 20

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

Answer 20

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 21

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 21

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 22

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

Answer 22

(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 23

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

Answer 23

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 24

What is the defense to a charge of an Offensive weapon under subsection 4(b)?

Answer 24

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 25

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

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

Answer 25

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 26

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

Answer 26

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 27

In the New Zealand Bill of Rights Act 1990 what do the following sections relate to: s13, s14, s16, s18, s21, s23, s24, s25

Answer 27

Answer:

Everyone has the right:

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

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.

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

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

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

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

24 Rights person charged
-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 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

free assistance of an interpreter if the person cannot understand or speak the language used in court

25 Everyone 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 28

When is a person defined as being detained?

Answer 28

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 29

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

Answer 29

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

Question 30

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 30

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 31

What is the Chief Justice note on Police Questioning?

Answer 31

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 32

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

Answer 32

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 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 33

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

Answer 33

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 34

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 34

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.