Chapter 2: Policing Act and Victims Rights Act **

Question 1

Policing Act 2008

Can you use force to obtain fingerprints or other identifying particulars when using s32, 33?

Answer 1

Yes. As long as it’s reasonable.

Question 2

Policing Act 2008

If someone is in your custody after committing an offence, where do you have to be to take their fingerprints?

Answer 2

Any place.

Question 3

Policing Act 2008

What is Section 32?

Answer 3

Identifying particulars of persons in custody.

1) You can take identifying particulars from someone in custody. You can do this at any place.
2) They must be taken in a reasonable manner and any force used must be reasonable.
3) If they don’t comply, after being cautioned, they can be charged with an offence - 6 months / $5000

Question 4

Policing Act 2008

What are examples of identifying partiuclars that can be taken under section 32 and 33 of the Policing Act 2008?

Answer 4

1) biographical details. Name, address, DOB etc.
2) the person’s photograph or visual image
3) fingerprints, palm-prints, footprints

Question 5

Policing Act 2008

What is Section 33?

Answer 5

Identifying particulars for summons

1) If you have good cause to SUSPECT an offence and you INTEND to bring proceedings against the person, you can DETAIN that person at ANY PLACE in order to:
- take the person’s identifying particulars
- only for the period necessary to take the particulars

2) The manner must be reasonable and any force used must be reasonable
3) If they don’t comply, after being cautioned, they can be charged with an offence - 6 months / $5000

Question 6

Policing Act 2008

What is Section 36?

Answer 6

Care and protection of intoxicated persons

A Constable who finds a person intoxicated in public or while trespassing on a private property, may detain and take the person into custody if the person is:

a) (i) incapable of protecting themself from physical harm OR
(ii) likely to cause physical harm to another person, OR
(iii) likely to cause significant damage to property AND

b) the Constable is satasfied that it’s not reasonably practicable to provide for their care and protection by:
(i) taking them home
(ii) taking them to a temporary shelter

(2) a person detained under this section:
(a) must be released as soon as they cease to be intoxicated
(b) must not be detained for longer than 12 hours after the person is FIRST detained, unless a health practitioner recommends that the person be further detained for a period not exceeding 12 hours.

Question 7

Policing Act 2008

How long can you detain someone under s36?

Answer 7

Until they cease to be intoxicated but not longer than 12 hours.

A health practitioner can recommend that the person is held for a further period not exceeding 12 hours.

Question 8

Policing Act 2008

When can / why would a health practitioner recommend that a person is held for longer than 12 hours for detox?

Answer 8

• the person remains intoxicated and is incapable of protecting themselves from physical harm
• the person doesn’t have any health need that may require medical attention
• taking them home or to a temporary shelter wouldn’t be reasonable practicable to provide for the person continued care and protection

Question 9

Policing Act 2008

What is the definition of intoxicated for s36 of the Policing Act?

Answer 9

Observably affected by alcohol, other drugs, or substances to such a degree that speech, balance, co-ordination, or behaviour is clearly impaired.

Question 10

Policing Act 2008

What is the definition of temporary shelter for s36 of the Policing Act?

Answer 10

Means a place (other than a place operated by the Police) that is capable of providing for the care and protection of an intoxicated person.

Question 11

Policing Act 2008

A neighbour calls about their extremely intoxicated neighbour. Police arrive and find the 1K male inside his home in a state where he is unable to look after himself. Can you detain the male under s36 for detox?

Answer 11

No. He must be in a public place or be trespassing on private property.

Question 12

Policing Act 2008

You find a 1C male on the footpath and stop him to ask him about what he’s doing. You want to take a photo of him for a noting. Can you detain the male under s33 of the Policing Act to take his photo?

Answer 12

No.

You need to suspect a certain offence has occurred and intend to charge him with that offence by way of summons.

Question 13

Victims’ Rights Act 2002, section 4 (Interpretations)

Definition of ‘immediate family’ in relation to a Victim?

Answer 13

Means a member of the victim’s family, whanau or other culturally recognised family group, who is in a close relationship with the victim AT THE TIME OF THE OFFENCE.

To avoid doubt, this includes:

• spouse, civil union partner, de facto partner
• child, step-child
• siblings, step-siblings
• parent, step-parent
• grandparent (doesn’t say step-grandparent)

Question 14

Victims’ Rights Act 2002, section 4 (Interpretations)

Definition of ‘victim’?

Answer 14

1) the actual victim of an offence
2) a person who suffers physical injury or loss or damage to property
3) the parent or legal guardian of a child/YP of the above two points (unless that parent is charged with the offence)
4) any family member of a murder victim (unless that person charged with the murder)

Question 15

Victims’ Rights Act 2002, section 4 (Interpretations)

Definition of ‘incapable’?

Answer 15

1) fully or partially lacks understanding of matters relating to their personal care/welfare
2) understands their personal care/welfare but is unable to communicate their decisions
3) a state of continued unconsciousness

Question 16

Victims’ Rights Act 2002

What is section 7?

Answer 16

Treatment

Any person who deals with a victim should

(a) treat the victim with courtesy and compassion AND
(b) respect the victim’s dignity and privacy

The definition for victim is expanded in relation to s7 and s8.
It also includes:
- ANY person who suffers emotional harm due to an offence or the parents/legal guardians of a CYP that suffers emotional harm.
- a person who has experienced domestic violence and any CYP that resides with them

Question 17

Victims’ Rights Act 2002

What is section 8?

Access to services

Answer 17

Access to services

A victim or member of a victim’s family who has:
- welfare
- health
- counselling
- medical
- legal,
needs arising from the offence should have access to services that are responsive to those needs.

This section signals the obligation that Police have to provide support to victims.

This is usually done by contacting Victim Support, Women’s Refuge or other area-specific agencies.

After an arrest, the Court Victim Advisor will offer further support, in term of information about the court process.

It is vital that every first appearance file has an accurate CSV1 that is emailed to the local court VA
AND NIA is updated with the ‘CSV1 Completed’ contact type in the Contact/Correspondence node.

Question 18

Victims’ Rights Act 2002

What is section 11?

(not highlighted)

Answer 18

Information about programmes, remedies and services

A victim must, as soon as practicable after the victims comes into contact with an agency, be given information by the personnel of the agency about programmes, remedies, or services available to the victim THROUGH THIS AGENCY

List of agencies this applies to:

• ACC
• DHB’s
• Corrections
• Justice
• MSD
• Police

Each agency only has to give information about services provided by that agency.

For example, Police don’t need to tell people about ACC entitlements.

Police provide information about Victim Support via CAF’s and standard letters, usually generated by CRL or FMC’s. Attending officers make referrals for serious incidents or where victims are seriously affected.

Question 19

Victims’ Rights Act 2002

What is section 12?

Information about proceedings

Answer 19

A victim must be informed (as soon as practicable) about:

• the progress of the investigation
• charges laid or reason for not laying charges
• changes to charges
• the victims role as a witness
• the possibility of having the victims ID prohibited from publication and the steps the victim may take to make that order
• the outcome of the prosecution
• the date and place of any hearings, including any trial relating to the offence

Police are legally obligated to inform promptly, and keep informed, the victim as to the progress of the investigation and court process.
Court Victim Advisors and Prosecutors often do this but Police are the only ones who have a statutory obligation to meet these obligations.

The NIA Victim Contact node is to be used by the OC for ALL files, not just arrest files.

FROM OTHER BRAINSCAPE
- CHARGES laid reasons for not laying charges

• The OUTCOME of the prosecution of the offence
• The victims role as a WITNESS in the prosecution of the offence
• The PROGRESS of the investigation of the offense, essentially victim updates
• An ACQUITTAL or deemed acquittal
• The possibility of the court, making an order to suppress victim IDENTITY
• The DATE and place of each event listed
• Any finding that the charge was not PROVED
• Any finding that the accused is UNFIT to stand trial
• Grant of any free PARDON

C. O. W. P. A. I . D P. U. P

Question 20

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

What mediums can be used to convey the information from the victim to the court/offender?

Answer 20

• spoken
• written
• photographs
• drawings
• visual representations
• electric recording (with leave of the Court)

that have been provided by the victim.

Question 21

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

What is the purpose of a VIS?

Answer 21

• enable the victim to tell the courts about the EFFECTS of the offending
• assist the court in understanding the victims VIEWS about the offending
• inform the offender about the IMPACT of the offending

Question 22

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

What obligations do prosecutors have in relations to Victim Impact Statements?

Answer 22

• ensure information relevant to the content or preparation of the VIS is gathered (they have to know how the VIS was obtained)
• ensure the victim is informed about the preparation of the VIS and the place of the proceedings
• responsibilities in respect of preparation of VIS’s from persons who were disadvantaged by the offence (they have to make sure that everyone who should provide a VIS, does)
• responsibilities to make sure that all VIS’s that are obtained are presented to the court

Question 23

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

What manner do VIS’s need to be written?

Answer 23

The VIS needs to be that of the victim, and written in ‘victim speak’. It should not repeat or re-litigate the evidence. Do not use police jargon.

Question 24

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

At what stage during the court process is a VIS mandatory?

Answer 24

Second appearance.

Question 25

Victims’ Rights Act 2002

Victim Impact Statements. Section 17, 17AA and 17AB.

What should Police do with updates to VIS’s?

Answer 25

Add them at the bottom of the original.

This will allow the VIS to be given in it’s entirety to the judge. Over time the content tends to become minimised and the last updated version may be different to the original. Police want the Judge to see the full extent of the effect of the crime on the victim.

Question 26

Victims’ Rights Act 2002

Section 18 - Procedure before ascertaining information from a victim (for a VIS)

What does the victim need to be aware of before they provide information for a VIS?

Who is responsible for ensuring that this happens?

Who can update the victim about this?

Answer 26

The prosecutor must make all reasonable efforts to ensure that the victim is informed that:

• the information is being gathered for a VIS
• the victim must give true information
• the information will be recorded and may be verified
• must be informed about who will see or keep copies of the VIS

Note:
That’s the law, but Police policy is that the OC is responsible for ensuring that the victim is informed. This can be discharged by a Victim Support volunteer or a victim advocate under local agreements.

Question 27

Victims’ Rights Act 2002

Section 29

What type of offences are the specified offences?

Answer 27

1) sexual offences
- excluding bestiality and other animal sex offences
- including taking or distributing a ‘reckless’ intimate recording of someone

2) serious assault
3) offences resulting in serious injury, death or incapacitation
4) offences that lead the victim to have ongoing fears (on reasonable grounds) for their physical safety or security of them or a member(s) of their family.

Question 28

Victims’ Rights Act 2002

What victims may go on a ‘Victim Notification Register’?

Answer 28

Section 29 victims

Section 29 is:
An offence of:
- a sexual nature
- an offence of a serious assault
- an offence that results in serious injury, death or a person becoming incapable

an offence where a person has ongoing fears for his or her physical safety or for the safety of 1 or more immediate family members

Question 29

Victims’ Rights Act 2002, s. 29A

How long do Police have to determine whether a victim falls under the categories in section 29?

Answer 29

As soon as practicable after a victim comes into contact.

Question 30

Victims’ Rights Act 2002

Section 30 - Victims views about bail

Who is responsible for getting the victims views on bail?

When does s.30 apply?

Answer 30

The prosecutor must make all reasonable efforts to ascertain any views that victim has about the offender being released on bail and then inform the court of those views.

This applies for s.29 victims when the offender applies to be released on bail.

NOTE:
s.8(4) of the Bail Act states that the court MUST take these views into consideration.
If the charge is BOPO then the victims safety is the paramount consideration.

Question 31

Victims’ Rights Act 2002

A Victim is allowed to appoint a representative that will be on the Victim Notification Register. Who can they choose to do this?

Answer 31

Anyone.

They can appoint any other person for any reason.

Question 32

Victims’ Rights Act 2002

What is the time frame for returning property which was seized/held for evidentiary purposes after it is no longer needed for that purpose?

Answer 32

Return it to the person as soon as practicable, to the extent that it is possible to do so.

This doesn’t apply if the owner advised the agency that they don’t want the property back.

This section doesn’t apply to property which is owned by the offender.

Question 33

Victims’ Rights Act 2002

A neighbour of a 5F victim hears the screams and suffers from anxiety and emotional harm because of this.

Does the neighbour fall within the definition of victim under the Victims Rights Act?

Answer 33

Yes, but only kind of half.

Under s.4 of the act, ‘victim’ is defined as someone who:

• is the victim
• suffers injury of property loss/damage
• the parents of a child who suffers the above two^
• the family of a murder victim

BUT!!!
The definition is expanded in relation to s.7 & 8 to include:
- people who suffer emotional harm
- the parent of someone who suffers emotional harm
- people who suffer from domestic violence and any children who lives with them

Section 7:
All victims should be treated with courtesy and compassion and have their dignity and privacy respected

Section 8:
All victims should have access to services that are responsive to needs arising from an offence i.e. health, counselling, legal.

SO SO SO:
The neighbour should be treated with respect and Police have an obligation to give them access to support services (Victim support etc.) but they don’t get to be on the VNR, supply a VIS, have views on bail and the rest of the rights which this Act gives victims.

Question 34

Victims’ Rights Act 2002

In relation to section 7, How should victim’s be treated?

Answer 34

With courtesy and compassion and respect the victim’s dignity and privacy

Question 35

Victims’ Rights Act 2002

What does section 29A of the Victims Rights Act 2002 stipulate?

Answer 35

As soon as practical after a victim comes into contact with the New Zealand Police, the Commissioner of Police must determine whether the offence that affected the victim is a specified offence.

The duty of the commissioner contained in section 29A is delegated to all Police staff for completing