7 CH 4 - NZBORA

Question 1

When must you advise person of their rights and rules associated with NZBORA?

(4) QSAN

Answer 1

• Questioning suspect, not compulsory to answer
• Must caution when Sufficient to charge
• Must caution when Arrest/Detain, even if previously cautioned
• No power to detain for questioning

Question 2

What does recent case law state that ‘Search’ is? CIR

“What case law?”

Answer 2

Conscious act of state intrusion into an individuals ‘reasonable expectation of privacy.’

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 (Pollard v R [2010] NZCA 294; Lorigan v R [2012] NZCA 294 applying Hamed v R per Blanchard J).

Question 3

What is seizure?

Answer 3

Removing something from the possession of someone else

Question 4

A search that would otherwise be reasonable, is unreasonable if it is carried out in an __________ __________.

Answer 4

…unreasonable manner.

Question 5

What is the definition of an ‘arrest?’

(4) PC LH

Answer 5

• A communicated intention
• by police officer to
• hold person
• under lawful authority

Question 6

What is the definition of ‘detained?’

(3) DSN

Answer 6

• physical deprivation of liberty
• statutory restraint on movement
• belief that they are not free to leave

Question 7

If a suspect is eligible for bail, you must bail them…….

Answer 7

…as soon as practicable

Question 8

s.23 What are the rights of an arrested person?

(7) RC VA CRT

Answer 8

• reason for arrest at time of arrest
• consult & instruct lawyer (advised of that right)
• Court validation
• Court for arrest and detention
• Charged promptly or released to court asap
• refrain from statement (advised of that right)
• treated with humanity & respect

Question 9

What do s.21 and s.22 of the BORANZ protect against?

Answer 9

• s.21: Unreasonable search and seizure
• s.22: Abitrary arrest and detainment

Question 10

There are two exceptions for officers not having to immediately give BORs to an arrested or detained person?

Answer 10

• Safety is threatened
• Time is of the essence (delay would cause danger to others)

Question 11

What was decided in the case: MOT v Noort and Police v Curran?

Answer 11

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

Question 12

What are the four points to remember in regards to a suspect waiving of their right to a lawyer?

(4) UFCN KB

Answer 12

• that is done in an unequivocal manner
• that it is done clearly with full knowledge of that right (R v Biddle)
• That it is a conscious choice, informed and voluntary.
• Not implied from failure to request or silence (Police v Kohler)

Question 13

What was decided in the case: R v Ormsby?

Clue: Questioning of suspect after consulting with solicitor

Answer 13

That although the suspect has received advice to remain silent, there is nothing to stop police continuing to question suspect if they continue to answer.

Question 14

s.24 Rights of a person charged

List 7 IRCAJLF

Answer 14

• Informed promptly of nature/cause and
• released on reasonable terms/conditions unless cause for cont detention
• consult lawyer and
• adequate facilities to prepare a defence and
• right (except military law) to be tried before a jury when offence is 2yrs or more
• right to legal assistance without cost if interests of justice require or no means to pay
• free interpreter

Question 15

s.25 Minimum standards of criminal procedure

FUPCPEAC

List 8

Answer 15

• right to fair/public hearing by independent impartial court
• tried without undue delay
• presumed innocent until proven guilty
• not to be compelled to be witness or confess guilt
• to be present at trial and present at defence
• examine the witnesses for defence/ same rules as prosecution
• right of appeal against conviction
• if child, manner that takes account of age

Question 16

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

(3) PG PH M

Answer 16

• protection against the powers of government agencies
• protection of human rights and basic freedoms
• minimum standards for public decision-making

Question 17

The New Zealand Bill of Rights Act also imposes some specific obligations on Police

What are they? (5)

Protection against - s21 (U/S/S) & s22 (Arb/A/D)

Rights of persons - s23 (A/D) & s24 (Ch an Of)

Standards - s25 (Min/S/C/P)

Answer 17

Protection against

• s21 - unreasonable search and seizure
• s22- arbitrary arrest and detention

Right of persons

• s23 - arrested or detained
• s24 - charged with an offence

Standards

• s25 - minimum standards of criminal procedure.

Question 18

What is an Unlawful search and seizure

(2) U21 G

Answer 18

• Unlawful searches will almost always be unreasonable and breach s 21.
• However, a search undertaken in good faith where the searcher was mistaken about their power of search may not be unreasonable. For example, a search may be reasonable where the wrong search power was used, but the search could have lawfully been conducted under other powers

Question 19

When does the caution have to be given?

(3) ASSC

Answer 19

• Adults suspected of an offence
• Adults where there is sufficient evidence to charge
• CYP detained or arrested (in accordance of s.215 CYPF Act)

Question 20

Not every restraint will amount to a detention for the purposes of section 23(1). The courts have recognised particular circumstances in which a short delay in affording rights may be necessary to preserve evidence or to ensure personal safety. In such cases, there is no detention under an enactment for the purposes of section 23(1)(b)(right to consult and instruct a lawyer without delay and to be informed of that right) — examples include BSH E

Answer 20

• a motorist is stopped for breath-alcohol screening test
• a motorist is stopped asked to supply his or her particulars under LTA
• motorist 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 21

s.23 Treatment with humanity and respect

Treatment in breach of section 23(5) includes:-

(6) E FM U FM S P

Answer 21

• 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 employees or detainees

Question 22

Lawyers (rules)

(5) LPHNW

Answer 22

• Right to lawyer on request
• privacy
• reasonable, honest and determined efforts to contact a lawyer by police
• No calls to just anyone
• can waive the right to lawyer

Question 23

Recording statements

DPXBCN

Answer 23

• preferably on DVD if not
• recorded permanantly on audio tape or in writting
• must not amount to cross examination
• once breach of rights has occurred evidence obtained after is inadmisable
• charged promptly
• if charged must be brought before the next available court