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SGT CPK 2020 > Chap 5: Managing suspects and offenders > Flashcards

Chap 5: Managing suspects and offenders Flashcards

1
Q

What is S.39 CA 1961?

A

Justified in use of force used in executing process/sentence/warrant or arrest where necessary to overcome resistance and can’t be executed in less violent manner: (Except where force used is intended or likely to cause death/GBH).

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2
Q

What is S.40 CA 1961?

A

Justified in use of force to prevent escape where offender tries to avoid arrest or escape after arrest unless it can be prevented by reasonable means in a less violent manner. Also where they try to escape from lawful custody or flee after escape. Except where force used is intended or likely to cause death/GBH.

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3
Q

What is S.41 CA 1961?

A

Justified in using reasonable force to prevent suicide or offences likely to cause immediate and serious injury to person/property or any act which RGB would amount to suicide or any such offence.

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4
Q

What is S.42 CA 1961?

A

Preventing breach of the peace: Everyone who witnesses a BOP is justified in interfering to prevent its continuance/renewal and detain to hand over to police if force is reasonable and proportionate. Every constable (or those assisting) who witnesses BOP justified in arresting anyone he finds committing it. Police can receive into custody any person from a witness who has seen/have RGB witness is likely to have seen person committing BOP.

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5
Q

What is an offensive weapon under S.202A CA 1961?

A

any article made or altered for use for causing bodily injury or intended by the person having it with him for such use. Includes any article capable to being used for causing bodily injury.

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6
Q

What is a disabling substance under S.202A CA 1961?

A

any anesthetizing or other substance produced for use for disabling persons or intended by any person having it with him for such use.

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7
Q

Offences and penalty under S.202A CA 1961?

A

3 yrs imprisonment 4(a) where don’t have lawful authority or reasonable excuse to have it in public place or 4(b) have possession in any place in circumstances that prima facie show an intention to use it to commit offence involving bodily injury/threat/fear of violence.

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8
Q

What is a defence under S.202A CA 1961?

A

Defence under 4(b) if the person charged proves that he did not intend to use the o.w/d.s to commit an offence involving bodily injury or threat or fear of violence.

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9
Q

What was the decision of Attorney-General v Reid and Mackay v Minto in relation to S.42 CA 1961 in relation to BOP?

A

There is no power to arrest for an anticipated breach of the peace. Proper procedure where a breach is anticipated and the persons concerned fail to desist is to arrest for obstruction.

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10
Q

What are the four most important rules associated with Section 23 (arresting/detaining) NZBORA 1990?

A
  1. When questioning suspects/witnesses re an offence you may ask questions but must not suggest it’s compulsory for them to answer.
  2. Must caution before inviting a person to make stx/answer q’s where you have sufficient evidence to charge.
  3. Must caution anyone arrested/detained pursuant to any enactment even if already given it prior to K9/detention.
  4. No power to detain to answer q’s/pursue enquiries. Person can assist voluntarily.
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11
Q

The NZBORA applies only to what?

A

Acts done by the legislative, executive or judicial (LEJ) branches of the government. The performance of any public function, power or duty pursuant to law.

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12
Q

The NZBORA is primarily intended to what?

A

Affirm, protect and promote human rights and fundamental freedoms.

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13
Q

The NZBORA provides protection against what?

A

The powers of government agencies

It provides minimum standards for public decision making and protection for human rights and basic freedoms

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14
Q

BORA gives statutory authority to what?

It requires that any limits on rights/freedoms are what?

A

Many rights that have always existed but have done so only in common law.

Reasonable (justified in a free and democratic society).

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15
Q

The NZBORA imposes what specific obligations on Police under S.21?

A

Protection against unreasonable search and seizure.

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16
Q

The NZBORA imposes what specific obligations on Police under S.22?

A

Protection against arbitrary arrest and detention.

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17
Q

The NZBORA imposes what specific obligations on Police under S.23?

A

Rights of persons arrested or detained.

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18
Q

The NZBORA imposes what specific obligations on Police under S.24?

A

Rights of persons charged with an offence.

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19
Q

The NZBORA imposes what specific obligations on Police under S.25?

A

Minimum standards of criminal procedure.

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20
Q

What are a persons rights under S.9 NZBORA and what is it’s purpose?

A

The right not to be subjected to:

torture

cruel, degrading or disproportionately severe treatment or punishment.

Purpose is to ensure that all persons are treated with respect for their inherent dignity and worth.

(Particularly relevant to prisoners, ie: deliberate deprivation of mentally unstable; strip search person in public area to humiliate)

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21
Q

Who is the National Preventative Mechanism for torture and cruel treatment and what might a breach of S.9 lead to?

A

The IPCA

They oversee investigations into complaints or torture or cruel treatment by Police.

A breach may lead to a substantial award of compensation by the courts.

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22
Q

Section 9 and the ‘UN Convention Against Torture’ include an obligation to do what?

A

Investigate credible claims of torture and cruel, degrading and disproportionately severe treatment.

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23
Q

What is S.14 (Freedom of Expression) of NZBORA?

A

Everyone has the right to freedom of expression.

Incl freedom to seek, receive and impart info and opinions of any kind and in any form.

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24
Q

What does ‘expression’ cover under S.14 relating to freedom of expression?

A

Manifestations of ideas and info of any kind and in any form.

Includes behaviour bordering on offensive or disorderly.

In most cases the content of the expression is irrelevant, apart from censorship, hate speech and defamation, which are unlawful.

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25
Q

What is S.14 (freedom of expression) limited by?

The limit must be what and who decides?

A

Criminal and civil law, eg: offensive and disorderly behaviour, insulting language, BOP, hate speech, defamation, contempt of court, censorship laws.

The limit must be reasonable in the circumstances of the behaviour - an issue decided by the court.

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26
Q

What is S.16 (Peaceful Assembly) BORA?

A

Everyone has the right to peaceful assembly.

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27
Q

What is a ‘peaceful assembly’ under S.16?

A

2 or more people meeting with a common goal. Must be peaceful to be protected by the right.

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28
Q

If an assembly inconveniences members of the public, is it still a peaceful assembly?

A

Yes it may be.

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29
Q

If there is a non-peaceful person does this extinguish the rights for the rest of the assembly?

A

No.

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30
Q

What must an assembly be to be found non-peaceful?

A

Serious and aggressive effect on people/property.

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31
Q

When policing protests and demonstrations, cognisance must be taken of what?

A

The rights to freedom of expression and peaceful assembly (S 14 & 16).

Extent to which it is impinging on others’ rights to use public space.

Whether behaviour warrants intervention of criminal law.

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32
Q

The courts take what kind of approach to expressive behaviour by demonstrators?

A

Liberal,

Level of behaviour required for disorderly/offensive/insulting much higher for demonstrators conveying opinion on matter of public interest than for other types of behaviour.

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33
Q

In order to reach the threshold of offensive or disorderly, protestors’ behaviour must either what?

A

Substantially inhibit others’ right to to use public amenity

and/or

Causes great offence than those affected can reasonably be expected to tolerate where it is seriously disruptive of public order

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34
Q

BOP is not an offence but carries what?

The validity of a decision to K9 to prevent BOP is impacted by what?

A

Power of arrest under S.42 CA

The rights to freedom of expression and public assembly.

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35
Q

When it comes to disorderly, offensive, insulting language and BOP generally police should consider what?

A

Does behaviour express a view on matter of public interest?

Does behaviour intrude on rights of others in a public space?

Does this intrusion go beyond what a reasonable person could be expected to tolerate?

Does behaviour pose actual risk to public disorder?

Does the behaviour warrant the intervention of the criminal law?

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36
Q

Protestors have a right to protest in government spaces (eg: foyer) subject to what?

Police should do what when asked to move protestors on?

A

Limitations that are reasonable and demonstrably justifiable.

Own assessment - does it make sense and does it justify police action given right to peaceful protest?

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37
Q

According to Routhen v Police, if the protester is causing a hazard or disrupting business one option is to do what?

A

See if the protest action can be modified.

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38
Q

What are rights under Section 18 (Freedom of Movement)?

A

Everyone lawfully in NZ has the right to freedom of movement and residence in NZ.

Every NZ citizen has the right to enter NZ.

Everyone has the right to leave NZ.

Where not NZ citizen but here legally, shall not be required to leave NZ except by law

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39
Q

Police often curtail individuals’ freedom of movement within NZ in terms of bail conditions, road closures and other short-term curtailments. What must be borne in mind?

A

They may impinge on rights under S.18 and must be reasonable.

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40
Q

What are a person’s rights under Section 21?

A

Everyone has the right to be secure against unreasonable search and seizure whether of person, ppty, correspondence or otherwise.

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41
Q

The basis of the right under S.21 (unreasonable search & seizure) is what?

It varies depending on what?

A

Need to protect an individual’s reasonable expectation of privacy from intrusion by the government.

Varies depending on nature, place and extent of intrusion.

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42
Q

Generally a search and seizure will be reasonable if what?

A

If it is conducted under a statutory power and the pubic interest in administering criminal justice outweighs the individual’s privacy interest.

43
Q

The protection against unreasonable seizure does not amount to what?

A

A right to property.

44
Q

What is search?

A

There is no set definition in statute or case law.

Recent case law suggests a search requires a conscious act of state intrusion into an individual’s reasonable expectation of privacy as opposed to mere observation.

45
Q

Examples of policing situations that ARE NOT a search?

A

Kneeling and using a torch to observe an article secreted inside a car headlight.

Asking a person to hold up a bicycle to check the serial number.

Asking a person to hold up their hands for inspection.

A voluntary request to a power company for aggravated monthly power usage data.

46
Q

What is ‘seizure’?

Is any item generated by exercising a search or surveillance power (eg: photograph) a seizure?

A

Removing something from the possession of someone else.

No.

47
Q

A search is unreasonable if what?

A

The circumstances giving rise to it make the search itself unreasonable

or

the search is carried out in an unreasonable manner.

48
Q

Unlawful searches will almost always be what?

A

Unreasonable and breach S.21.

49
Q

Will a search undertaken in good faith be unreasonable?

A

No it may not, for example, where a searcher was mistaken about their power of search it may be considered reasonable if it could have lawfully been conducted under other powers.

50
Q

Is an unlawful search due to a minor irregularity unreasonable?

A

Not always. The evidence obtained MAY be admissible.

51
Q

Even where a breach is minor or technical, a search or seizure will not normally be held to be reasonable if what?

A

The police realised the error BEFORE the search or seizure was undertaken.

52
Q

A search that would otherwise be reasonable is unreasonable if what?

A

It is carried out in an unreasonable manner (eg: strip search in the street where not necessary).

53
Q

Unwarranted strip or rub-down searches may breach S.21 and deliberate degrading and repeated strip searching to punish may breach S.9. What is the usual remedy for unjustified rub-down and strip searches?

A

Compensation (although may be limited by Prisoners and Victims Claims Act 2005)

54
Q

Does searching include electronic surveillance?

A

Yes.

No set definition about whether surveillance without special capabilities (night vision) will be a ‘search’.

55
Q

The usual remedy for a breach of S.21 is what?

A

Exclusion of evidence under S.30 EA.

May also warrant compensation.

56
Q

S.22 (right not to be arbitrarily arrested or detained)

What does ‘arrest’ mean under R v Goodwin?

A

Communicated intention on the part of the police officer to hold the person under lawful authority.

57
Q

A person will be regarded as ‘detained’ if:

A

physical deprivation of person’s liberty, ie: in locked room

statutory restraints on person’s movement, ie: warrarnt

reasonably held belief that they are not free to leave

58
Q

Examples of arrest or detention

Each of these acts communicates an intention to do what?

A
  • Formally arrested (told under arrest)
  • Handcuffed
  • Locked in room/building where cannot leave voluntarily
  • Placed in police vehicle against their will

Hold a person under lawful custody. In such a situation a person is under arrest and must be given their rights under S.23

59
Q

Powers to arrest and detain are what?

A

Discretionary. Depend on circumstances of each case.

60
Q

An arrest or detention will be ‘arbitrary’ if what?

A
  • Capricious (unpredictable)
  • Without reasonable cause
  • Unlawful
  • Proper procedures weren’t folllowed.
  • Failure to consider discretion
  • Lasts longer than necessary (ie: longer than required to bring before the Court)
61
Q

Before an arrest is made the arresting officer must be clear in their own mind of what?

A

That it is justified and reasonable and alternative action (summons) not appropriate.

62
Q

Can a suspect arrested for one offence be kept in custody for mere convenience sake while enquiries are made into another offence for which he/she may later be interviewed?

A

No. If the suspect is eligible for bail, you must give it as soon as practicable.

63
Q

Can you stop a vehicle to undertaken general enquiries?

A

No. It may be classed as arbitrary detention.

64
Q

When can you stop a vehicle under S.9 S&S Act 2012?

A
65
Q

An arbtirary arrest or detention may lead to what?

A

Exclusion of evidence, release from detention or compensation.

66
Q

Those arrested or detained under an enactment have the rights to:

A

be informed of reason for K9/detention

consult/instruct lawyer without delay

have arrest/detention’s validity determined by Court and be released if not lawful

after K9 be promptly charged and released

If not released after K9, be brought before court/tribunal ASAP

refrain from making stx (and told)

treated with humanity/respect

67
Q

A caution must be given when?

Failure to give caution may result in what?

A

Arrested/detained

Want to Q where sufficient evidence to charge

CYP when detained/arrested/before Q where RGS having commited offence/before asking Q intended to obtain admission of offence

****

Finding that evidence was improperly obtained and the evidence excluded under S.30 EA.

68
Q

Whenever a person is questioned about stx made by others or about other evidence, what must police do?

A

Fairly explain substance of statement/nature of evidence

69
Q

What are some examples where there is no detention under an enactment for purposes of S.23(1)(b) (right to consult and instruct a lawyer without delay)?

A

Motorist stopped for BST

Vehicle stop for particulars under LTA

Request for Dr to take blood sample from motorist in hospital

Where directions given to persons at search warrant where RGB will be obstructive/hinder search

70
Q

What are some examples of a breach of Section 23(5) (treated with humanity and respect)?

A

Excessive use of force against detainee

Failiure to provide medical treatment when requested

Unlawful restraint to prevent self-harm

Failure to supply minimal entitlements such as food, clothing, exercise time

Routine or deliberate unnecessary strip searching

Failure to ensure detainee’s safety and protect from other detainees

71
Q

An extended obligation to advise a person of their rights should apply in what circumstances?

A

Suspect is stressed/confused/fatigued at time of K9

Poor English

Passive nature/limited intellect

Difficulty hearing because of background noise

Needs an interpreter (deaf, foreign language)

72
Q

If the interview is conducted over a long period of time and/or a serious offence is uncovered during interview, best practice says the officer should do what?

A

Re-advise of rights.

73
Q

Under S.218 CYP’s Act requires what?

A

Rights given in manner and language appropriate to age and level of understanding of CYP.

74
Q

If a suspect is given the caution in approved written form, has the Act been complied with?

A

Yes.

“There is nothing in the Act which requires that an arrested person be advised of his/her rights verbally rather than in writing” - R v Grant

75
Q

The admissibility of a confession will be jeoparidised if what?

What are some exceptions?

A

The person was not informed of their rights at the proper time.

Exceptions:

safety being threatened (should be given when under control)

Time of essence (delay will cause danger to others or evidence will be lost.

76
Q

The expression ‘without delay’ is not synonymous of with what?

A

Instantly or immediately.

Delay must be reasonable in all circumstances.

77
Q

Once a suspect has invoked the lawyer access right, Police are under a duty to do what?

A

Refrain from attempting to elicit evidence from that person until they have had reasonable opportunity to consult a lawyer.

78
Q

In R v Ormsby the Court of Appeal concluded what in regards to questioning a suspect?

A

That there is no absolute prohibition on Police questioning a suspect who has received legal advice and has told police that they’ve been advised to remain silent but despite this, they continue to answer questions.

79
Q

In R v Perry the authorities established what principles in relation to what encouragement/persuasion may be applied to encourage a suspect to answer questions where they have asserted their right to silence?

A

No absolute prohibition on further questioning by the police after right to silence has been asserted.

Rights earlier asserted may be waived provided waiver is an informed/voluntary one (evaluative approach applied).

80
Q

In applying the evaluative approach as to whether there has been an informed and voluntary waiver of rights earlier asserted, what must be considered?

A

Voluntary waiver not given where police take deliberate steps to elicit incriminating evidence when right to consult lawyer asserted but haven’t been given opp to do so.

If lawyer advises that client has instructed them to be present for any further questioning and police agree, police must then inform accused of this arrangement and ask if he/she wishes to change the instructions to lawyer ir waive need for compliance with them.

Police must not take steps to undermine value of legal advice that has been given.

Where there has been no cajoling by the police to change the suspect’s mind, a valid waiver can be given even though lawyer is not further consulted.

81
Q

Is any evidence admissible before a lawyer’s arrival?

What is best practice?

A

Can continue interview once suspect has consulted and instructed a lawyer, however up to Court to decide if any evidence elicited is admissible.

Suspend interview until they arrive.

82
Q

The right to privacy when consulting with a lawyer may be overridden by what considerations?

A

Not safe to leave the accused alone

Risk that they would try to dispose of evidence and warn others.

Where they’ve indicated they don’t need it.

83
Q

When the contact number for the suspect’s choice of lawyer can’t be found, are police under any obligation to find them?

A

No.

However, must make reasonable, honest, determined effort.

84
Q

Can a suspect contact any other person or organisation (other than a lawyer) to get advice?

A

No only for the purpose of obtaining a lawyer.

85
Q

Is there a legal requirement for police to offer a suspect the opportunity to phone multiple lawyers if they aren’t satisified with legal advice obtained when their rights have been properly facilitated?

A

No.

86
Q

Waivers regarding lawyers must be what?

A

Done clearly, with full knowledge of that right.

A conscious choice which is informed and voluntary and cannot be implied by silent or failure to request rights.

87
Q

A statement by a supsect should preferably be recorded on what?

If not, it should be recorded how?

A

Video or DVD.

Audiotape or in writing.

88
Q

The person making the statement must be given the opportunity to do what?

A

Review the tape or written statement or have written statement read over and given opportunity to make corrections/additions.

89
Q

According to the Chief Justice’;s Practice Notes on Police Questioning, where a statement is recorded in writing the person must be asked if they wish to do what?

A

Confirm the record as correct by signing it.

90
Q

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 what?

A

Cross-examination.

91
Q

If you are a co-defendant in proceedings and your co-defendant’s evidence is inadmissible due to a breach under S.23, does this mean your evidence is also inadmissible?

A

No.

Breaches of other people’s rights cannot be relied upon by third parties to secure a personal remedy of evidential exclusion.

92
Q

Evidence offered by the prosecution of a stx made by a defendant is not admissible against that defendant if it is excluded under what?

A

RIO

  • Reliability Rule (S.28)
  • Oppression Rule (S.29)
  • Improperly Obtained Evidence Rule (S.30)
93
Q

Reliability under S.28 relates to what?

A

The accuracy and soundness of the stx.

94
Q

Exceptions to the reliability rule are what (it will not have the effect of excluding a defendant’s stx)?

A

Where prosecution wishes to use the stx as evidence of the defendant’s physical, mental, psychological condition at the time it was made.

Where prosecution offers the defendant’s stx only as evidence of whether the stx was made.

95
Q

What factors must be taken into account by a Judge in deciding whether the prosecution has shown on the balance of probabilities that stx were reliable?

Must be relevant to the case.

A
  • Any pertinent physical, mental, psychological condition of def when stx made.
  • Any mental, intellectual or physical disability to which the defendant is subject.
  • Nature of any questions put to def and manner/circumstances in which they were put.
  • Nature of any threat, promise or representation made to def or any other person.
96
Q

The oppression rule has been described by the Court of Appeal as what?

Where raised, the prosecution must what?

A

The most serious ground of objection to the admissibility of a def’s stx.

Satisfy the Judge beyond R.D that the def’s stx was not influenced by oppression.

97
Q

Oppression is judged from the perspective of who?

A

The defendant.

However where the conduct was not objectively oppressive, there would need to be evidence about why the defendant found it to be.

98
Q

Section 30 (improperly obtained evidence) applies to evidence offered by who?

A

The Prosecution.

99
Q

A defendant has a stronger case for exclusion of evidence (improperly obtained evidence) if what?

A

He/she is asking for vindication of his/her own rights rather than those of someone else.

100
Q

Once an issue for improperly obtained evidence is raised under S.30, the Judge must determine what?

A

That to the standard of balance of probabilities, whether or not the evidence was improperly obtained.

101
Q

Improperly obtained evidence is evidence obtained under what circumstances?

What is necessary to show?

A
  • In consequence of a breach of any enactment/rule of law by anyone performing power, duty etc.
  • In consequence of stx made by a def that is or would be inadmissible if it were offered in evidence by the prosecution.
  • Obtained unfairly.

Causative link between impropriety and obtaining of evidence.

102
Q

Are police under any obligation to advise suspects of everything known before asking for the suspect’s version of events?

A

No. Substance of allegation must be put to the suspect (ie: description of the suspect a person has given).

Can’t trick or misrepresent the truth.

103
Q

Case Law: Phillips v R

What is relevant in the case in regards to voluntary statements being inadmissible if not recorded ‘fairly’.

A

P K9’d for fighting. On way back to station volunteered admissions re driving but later retracted. Officer didn’t record retractions/alternative account nor show his notebook to P or ask him to sign it/correct any errors etc.

Appealed and deemed to be obtained unfairly as the recording of P’s alleged stx was unfair. The officer didn’t take full, accurate notes nor was P given opportunity to review.

Key interactions with def’s need to be recorded.

104
Q

Under S.25 (Minimum standards of criminal procedure) what do the minimum rights include?

A

fair and public hearing by independent/impartial court

tried without undue delay

innocent until proven guilty

not to be compelled to be a witness or confess guilt

present at trial and present a defence

examine witnesses from prosecution

attendance and examine witnesses for defence

lesser of penalties where legislation has changed

to appeal if convicted against the conviction or sentence, or both

if a child, to be dealt with in manner that takes account of their age

SGT CPK 2020 (14 decks)

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