Bill of Rights Flashcards
State S21.
Everyone has the right to be free from unreasonable Search and Seizure whether the person, property or correspondence
S22:
Everyone has the right not to be arbitrarily arrested or detained
What are the rights of a person arrested S23? (7)
1: Informed at time of arrest reason for it.
2: Right to consult and instruct a lawyer
3: Right to have arrest challenged by Habeus Corpus
4: Be charged promptly or released
5: If not bailed, then right to appear ASAP
6: Refrain from making a statement
7: Treated with dignity.
S24 BORA A person arrested and a person charged have different rights. What additional rights does a person charged have? (7)
informed of the nature of the charge
Right to bail unless just cause for detention
Consult and instruct lawyer
Adequate time to prepare a defence
Right to trial by jury if offence over 2yrs prison
Right to legal aid without cost
Right to interpreter
There are four key/most important rules for police associated with the NZ Bill Of Rights Act, what are they?
1: You may ask any questions but you must not suggest it is compulsory to answer.
2: If you have sufficient to charge, you must caution.
3: You must caution on arrest regardless of whether you have cautioned already
4: There is no power of detention for questioning.
What are the minimum standards of criminal procedure of a person charged S25? (9)
Fair and public trial Tried without delay Presumption of innocence Not to confess or be called to stand To be present and present a defence To examine witnesses Right to lesser penalty (if changed meantime) Right to appeal Right of child to be dealt with in manner consistent with age.
What is a search?
A conscious intrusion by the state into an individuals reasonable expectation of privacy
Not a mere observation
What is “Seizure”
Removing something from the possession of someone else. An item generated by a S&S power such as a photograph is not a seizure.
What makes a search unreasonable?
Circumstances giving rise to the search (ie strip search in public)
Manner of search.
A search undertaken in good faith using the incorrect search power is unlawful or unreasonable?
Unlawful - but not unreasonable
A strip search in public is unreasonable. What sections of BoR does it breach?
S9 - Cruel and degrading
S21 - Not to be subject to unreasonable search and seizure
If a search is deemed unreasonable, what is the usual remedy?
Exclusion of evidence S30 Evidence Act
Give four examples of arrest or detention:
Handcuffed
Formally arrested
Locked in a room
Placed in a patrol car against their will
Provide four examples that wouldn’t be deemed to be a search (4)
- using torch to observe item secreted inside a headlight
- asking to hold up bike to view serial number
- asking to hold hands out for inspection
- voluntary request to power company for data
An unlawful search because of a minor irregularity may, depending on the circumstances, not be unreasonable. When would a breach because of a minor technicality not be held to be reasonable
if Police realised the error before the search or seizure was undertaken.
What is an arrest per the Crimes Act
A communicated intention by police to hold person under lawful authority.
When will someone be regarded as being ‘detained’ (3)
What must be done if either of these occasions occur
- physical deprivation of someone’s liberty
- statutory restraints on a persons movement
- reasonably held belief, by police conduct, they were not free to go
B. provide them with rights per s23 BORA CAUTION
When will an arrest be Arbitrary (3)
- If it is capricious (impulsive/unpredictable) or without reasonable cause
- Was unlawful or proper procedures not followed
- lasts longer than necessary or longer than needed to bring before court
Can you stop a vehicle to undertake general enquiries
no could be classed as arbitrary detention.
Unless under transport act, or s9 S&S (good cause to suspect someone unlawfully at large or committed imprisonable offences)
When should a Caution be given (Adult & CYP)
- Detention, arrest, or to question someone where there is sufficient evidence to charge.
- CYP when detained, arrested according s215 CYP act, before questioning where RGTS committing offence or before asking questions intended to obtain an admission of an offence.
What must be explained if wish to question a person about the statements of others or other evidence
The substance of the statements and nature of the evidence must fairly be explained.
In some cases short delay means no detention, (or right to consult and instruct lawyer) per s23 give some examples of these? (4)
- Motorist stopped for BST
- Motorist stopped and requested to provide details per land transport legislation
- Motorist taken to hospital after crash and DR requested to obtain blood sample for alcohol testing
- Search warrant and reasonable directions given to persons if reasonable grounds to believe will obstruct the search (ie to leave house or remain in a room)
S23(5) requires treatment with humanity and respect. provide examples of breaching this (6)
- excessive force used on detainee
- Failure to provide medical treatment
- unlawful restraint to prevent self harm
- failure to comply with policies that provide for minimum entitlements such as food clothing, exercise time.
- unnecessary strip searching
- failure to protect detainee from other detainees.
What is a remedy for breach of s23(5)
compensation. O/C spray - $30,000. minimum entitlements in prison $35,000. failure to provide sanitary products $4,000
Does proof Police provided 23(1)(b) rights infer the suspect understood them?
yes unless there is evidence to the contrary
Is there anything in the act that suggests an arrested person receives written rather than verbal rights
No (RvGrant)
A. Are there times when delay to receiving rights (including access to lawyer) can be justified. (2)
B. Is without delay synonymous with instantly or immediately
A. Yes
- While safety is threatened. Once control established suspect should be informed.
- Time of essence (ie danger to others or real danger evidence will be lost
B. No was the delay reasonable in the circumstances, having regard to the purpose of the right
R v Perry gives principles on a suspects right to silence what are those 3 principles
- no prohibition on further questioning by Police after right to silence has been asserted
- Rights asserted earlier may be waived, provided waiver is informed and voluntary one
- An evaluative approach is taken in determining if the waiver is informed and voluntary
What is the evaluative approach in R v Perry in determining if the waiver of rights has been informed and voluntary (5)
- Did police take positive steps to elicit incriminating evidence between giving right and speaking with lawyer (not informed and voluntary)
- where police agreed with lawyer no further questions without lawyer present. Informed waiver (ie need to tell suspect of the agreement and ask if they wish to change instructions to lawyer) needs to occur before further discussion
- Suspect received advice to remain silent police may not take step to undermine this legal advice
- Even where suspect, after consulting with lawyer, has exercised right to remain silent. If there is no cajoling by police a valid waiver can be given without further consultation with lawyer.
- Where suspect exercises right to silence but makes incriminating statement, not knowing they are talking to Police the active elicitation test occurs ie interviewing officer can continue once suspect has consulted/instructed a lawyer. But court will decide if information obtained prior to lawyers arrival will be admissible.
When can Police deny privacy when consulting with lawyer (3.)
- Not safe to leave accused alone
- risk suspect would dispose of evidence or warn others
- where suspect has indicated they don’t want privacy.
What is a reason police would not rely on for denying privacy
that there is no private room available
What do police need to convince courts if they have not been able to find the suspects lawyer of choice
That they made a reasonable, honest and determined effort to find the lawyer of choice
What obligation is there on Police to allow consultation with another person or another lawyer if they are not satisfied with the advice they got from the first
No obligation either way. However person can speak to another for the sole purpose of obtaining a lawyer but not to obtain advice a lawyer would give if contacted directly.
When is the waiver of a right valid (2)
when it is done clearly and with full knowledge of the right
It can not be implied from silence or failure to request rights
A. How should a statement preferably be recorded and
B. what should occur at the conclusion of if
A. preferably recorded on video/DVD. If not recorded permanently on audiotape or in writing.
B. Person must be given opportunity to:
-review statement (or have it read over)
-opportunity to make corrections or add anything further.
-if in writing confirm the record is correct by signing it.
For a person in custody or there is sufficient evidence to charge what type of questions can you ask
Questions must not amount to cross examination
What would the court rightly do if there was a breach concerning the right to speak to a lawyer (S23(1)(b)
rules out the admission unless circumstances of the evidence deem it is fair and right to allow it
Can a breach of others rights be relied on by a defendant to exclude evidence
No
Can a person charged be held in custody while enquiries are made into separate offences
No a person charged must appear at the next available court sitting
