Chapter 4 - Bill of Rights Act

Question 1

What are some of the guidelines of an arrested person?
s21 - protection against unreasonable search and seizure
s22 - protection against arbitrary arrest and detention
s23 - rights of persons arrested or detained
s24 - rights of persons charged with an offence
s25 - minimum standards of criminal procedure.

Answer 1

Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
Everyone has the right not to be arbitrarily arrested or detained.
Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.
Have the right to an interpreter, if they cannot understand.

Question 2

What are the minimum standards of criminal procedure?

Answer 2

(a) The right to a fair and public hearing by an independent and impartial court:
(b) The right to be tried without undue delay:
(c) The right to be presumed innocent until proved guilty according to law:
(d) The right not to be compelled to be a witness or to confess guilt:
(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance
and examination of witnesses for the defence under the same conditions as the prosecution:
(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser
penalty:
(h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

Question 3

What are the key rules for Police arising from the Act?

Answer 3

1 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.
2 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.
3 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.
4 There is no power to detain a person for questioning or to pursue enquiries, although a person can assist voluntarily with enquiries.

Question 4

Summary of the act

Answer 4

The NZBORA is primarily intended to affirm, protect and promote human
rights and fundamental freedoms. It provides:
 protection against the powers of government agencies
 minimum standards for public decision-making
 protection for human rights and basic freedoms.
The Act:
 gives statutory authority to many rights that have always existed but have
done so only in common law (examples include the right not to be
deprived of life and the right not to be subjected to torture or cruel
treatment)
 requires that any limits on the rights and freedoms contained in
NZBORA are to be reasonable such that they are capable of being
“demonstrably justified in a free and democratic society”.

Question 5

What is a search?

Answer 5

There is no set definition of a ‘search’, either 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 a mere
observation.
A search is not:
 kneeling and using a torch to observe an article secreted inside a car
headlight
 asking a person to hold up a bicycle so the serial number can be checked
 asking a person to hold out their hands for inspection
 a voluntary request to a power company for aggregated monthly power
usage data.

Question 6

What is an unreasonable search?

Answer 6

A search is unreasonable if the circumstances giving rise to it make the
search itself unreasonable or if the search is carried out in an unreasonable
manner. Most unlawful searches. Strip search in public. Breaching their privacy

Question 7

What are some forms of detention?

Answer 7

formally arrested
 handcuffed
 locked in a room or building, or put in a place that they cannot leave
voluntarily
 placed in a police vehicle against their will

Question 8

How can holding in custody become arbitrary or unreasonable?

Answer 8

If detention last longer than necessary, does not appear in court ASAP.
A suspect arrested on one offence cannot be kept in custody for “mere
convenience sake” while enquiries are made into another offence.

Question 9

How can a vehicle stop become arbitrary detention?

Answer 9

Pulling a vehicle over for general enquiries. Not under S9 S&S. or land transport 114.