5.1 Managing Suspects & Offenders

Question 1

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

Answer 1

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 2

Sec 18 (BOR) - Freedom of movement

Answer 2

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) No one who is not a NZ citizen and who is lawfully in NZ shall be required to leave NZ except under a decision taken on grounds prescribed by law

Question 3

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

Answer 3

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 4

Sec 14 - Freedom of expression

Answer 4

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 5

Sec 16 - Freedom of peaceful assembly?

Answer 5

Everyone has the right to freedom of peaceful assembly.

Question 6

What would constitute an unlawful peaceful assembly?

Answer 6

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

Question 7

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

Answer 7

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 8

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

Answer 8

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 9

What is an unreasonable search?

Answer 9

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 10

Who must the Bill of Rights Caution be given to?

Answer 10

• 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 11

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

Answer 11

Stop the interview until they have contacted a lawyer.

Question 12

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

Answer 12

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

Question 13

Can a person waive their right to consult a lawyer?

Answer 13

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.

Question 14

What is a statement?

Answer 14

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 15

When is a statement made by a defendant not admissible against that defendant?

Answer 15

S28 - The reliability rule

S29 - The oppression rule

S30 - The improperly obtained evidence rule

Question 16

S28 - When must a judge exclude an unreliable statement?

Answer 16

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 17

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

Answer 17

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

Question 18

What relevant matters must a judge take into account when excluding a statement?

Answer 18

• any pertinent physical, mental or psychological condition of the defendant
• any pertinent characteristics of the defendant including mental, intellectual or physical disability
• nature of questions
• nature of any threat, promise or representation made to the defendant

Question 19

What does oppression mean?

Evidence Act 2006 - s.29 The Oppression Rule.

Answer 19

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.

Question 20

Everyone charged with an offence has the right to….

Answer 20

• The right to consult and instruct a lawyer
• The right to adequate time and facilities to prepare a defence
• Informed promptly and in detail of the nature of the allegation

Question 21

Key rules for Police arising from the Act

Judges rules in police questioning

Answer 21

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

Question 22

Ensuring rights are understood

Answer 22

“Unless there is an evidential basis justifying a contrary conclusion, proof that the Police advised the suspect of the section 23(1)(b) rights should lead to the inference that the suspect understood the position.” (R v Mallinson

However:
- “…it is the detainer’s obligation to ensure the whole right is conveyed and understood…or at least in a manner open to understanding

This extended obligation would apply, for example, 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 23

Definition of “improperly obtained evidence

Answer 23

Section 30(5) defines improperly obtained evidence. It is evidence obtained:

1. in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
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.

A causative link between the impropriety and the obtaining of the evidence is required for s 30(5)(a) and (b). Causation is also necessary to show that evidence was unfairly obtained under s 30(5)(c).

Question 24

Section 42 – Preventing breach of the peace

Every one who witnesses a breach of the peace is justified…..

Answer 24

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:

Provided that the person interfering shall use no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.