Chapter 4: NZ Bill of Rights Act 1990 Flashcards
BOR: Sn 21 is what - re search
(1 sentence) “the right to be….”
Right to be secure against unreasonable search and seizure.
BOR: Sn 22 - re liberty
(1 sentence) “the right to be…”
Right not to be arbitrarily arrested or detained
BOR: Sn 23 - Arrested or Detained
If someone is arrested or detained, what are they entitled to? “Right to…x3”
After Arrest/Detention…
What happens next and what are their rights re. next steps? x4
(an extension of BOR really - includes information re. statements etc)
Arrested or detained:
- Informed of reason for A or D
- Right to consult and instruct lawyer and be informed of that right
- Right to have validity of arrest determined without delay by way of habeus corpus and to be released if A or D not lawful
THEN…After A or D:
- Deprived of liberty, right to be treated with humanity and respect for the inherent dignity of the person.
- A or D, right to refrain from making a statement
- Charged promptly or released
- Not released, brought before court asap
BOR: what does Habeus Corpus mean
To produce the body… “you have the body”
question of the lawfulness of the detention of a person.
BOR: Sn 24 - rights of person charged?
If a person is charged, what are the 7 things they have rights to…from that point on
Charged:
- Informed promptly in detail of nature and cause of charge
- Released on reasonable terms and conditions, unless just cause for continued detention
- right to consult and instruct lawyer
- right to adequate time/facilities to prepare a defence
- right to benefit of trial by jury when penalty is 2yrs +
- right to receive legal assistance without cost if no sufficient means
- right to have free assistance of interpreter if can’t understand or speak the language used in court.
BOR: Sn 25 - minimum standards of criminal procedure - i.e. anyone charged, what are their minimum rights with respect to COURT HEARINGS etc. ?
x 9
RIGHT TO
a) HEARING: A fair and public hearing - impartial and independent court
b) DELAY: Be tried without undue delay
c) INNOCENT: Be presumed innocent until proven guilty
d) WITNESS: Not to be compelled as witness in their own trial, or confess guilt
e) DEFENCE: Be present at the trial and present a defence
f) EXAMINE: Examine witness for prosecution, and obtain attendance of witnesses for defence under same conditions as prosecution
g) PENALTY: If convicted of offence where penalty has been varied between commission and sentencing - to the lesser sentence.
h) APPEAL: if convicted of offence, to appeal to higher court against conviction or sentence
i) AGE: in the case of child, dealt with in a manner taking into account their age
BOR: What are the most important rules arising from the NZBOR act? x4
(re. arrest & questions)
- ARREST/DET’n: Arrested /Detained - Caution again even if already given before Arrest or Detention.
- BOR: If sufficient evidence to charge, caution before inviting them to make statement or answer questions.
- QUESTIONS: Ask questions but not suggest compulsory to answer.
- ENQUIRIES: No power to detain for questioning or pursue enquiries (although person can assist voluntarily)
NZBOR act applies only to the CONTROL of 2 things re. govt/public acts and functions, what are these?
- Acts done by legislative (laws & lawmakers), executive (police etc) and judicial (courts, judges) branches of government.
- Performance of any public function, power or duty pursuant to law.
What does NZBOR provide for Human Rights?
re humans, re. powers, re. decision making
x 3
- RIGHTS and FREEDOMS: protection for human rights and basic freedoms
- POWER: protection against powers of government agencies
- DECISIONS: minimum standards for public decision-making
What does the BOR Act actually DO… ?
- gives stat. authority to what?
- gives limits on what?
- Gives statutory authority to many rights that have always existed only in common law
- Any limits on the rights and freedoms contained in NZBOR are to be reasonable in such that they are capable of being “demonstrably justified in a free and democratic society”
BOR - What is the basis of the section involving search and seizure?
- Need to protect what, on a larger scale?
- Generally reasonable if, what? x2
- need to protect individuals reasonable expectation of privacy from intrusion by government.
- generally reasonable if:
- conducted under statutory power and
- public interest outweighs individual’s privacy.
Definition of “seizure”
What is NOT a seizure?
- removing something from the possession of someone.
- Any item generated by a person exercising a S&S power (i.e. photographer taking a photos, scene diagrams, video of scene, clone of hard drive… )
When is a search ‘Unreasonable?’ x2
- CIRCUMSTANCES: If the circumstances giving rise to the search are unreasonable,
- MANNER: If search is carried out in unreasonable manner
Unlawful searches will almost always be - what?
discuss… when an unlawful search might be reasonable.
…unreasonable.
Search undertaken in good faith.
ie. If a searcher is mistaken about their power of search, the search may NOT be unreasonable if it could have been done under another power.
Searches conducted with minor irregularities, are they unreasonable?
DISCUSS.
MAY not be unreasonable
BUT…minor / technical breaches will make a search unreasonable if police realised the breach BEFORE the search was done.
Reasonable (lawful) search carried out in unreasonable manner - will this be considered unreasonable or not?
Give an example?
An Otherwise ‘reasonable’ search, will be ‘unreasonable’ if carried out in an “unreasonable manner.”
eg. strip search in public when it could have been done in privacy .
Remedies for unreasonable search?
x3
Usual remedy is :
- exclusion of evidence.
- release from detention
- sometimes may warrant compensation.
Sn 22: Discuss the term: “Arrest” - R v GOODWIN
“Arrest must have its crimes act meaning…”
COMMUNICATED INTENTION:
Arrest must have its Crimes Act meaning of a communicated intention on the part of the police officer to hold the person under lawful authority.
Sn 22: Definition of Detention.
1 x overriding sentence “positive act of…”.
3 x fancy definitions.
4 x practical examples for A or D (could be either).
- positive act of physical detention that communicates an intention to hold person under lawful authority.
detained if:
- physical deprivation of persons liberty
- statutory restraints on person’s movement
- reasonably held belief induced by police conduct, that they are not free to leave.
- formally arrested
- handcuffed
- locked in room/building
- in police vehicle against their will
1 Meaning / 2 actual Examples of “Arbitrary”
…With respect to arrest or detention?
For no reason, on a whim, not as a result of any authority or system.
- Longer than the time they could be brought to court
- Discretion hasn’t been considered - ie. could summons
The CAUTION is now the BOR. Must be given to whom:
- Adults arrested/detained, or where police want to question them and there is sufficient evidence to charge.
- CYP’s arrested/detained, before questioning when RGS of committing offence AND before asking questions intended to obtain admission.
Give 4 actual examples of detention, where a short delay in affording their rights might be necessary to preserve evidence/ensure safety.
(motorists, warrant)
- Motorist stopped for breath test (preserve evidence)
- Motorist stopped for details
- Motorist taken to hospital after crash and Dr. takes blood sample
- Warrant executed, and belief people may obstruct hinder search.
Breach of Sn 23 - give 4 actual examples of NOT treating someone with humanity and respect
Case law for this - R V Falwasser - discuss
- Excessive use of force on detainee
- Fail to provide medical treatment
- Unlawful restraint to prevent self harm
- Unnecessary/deliberate strip searching
Fallwasser: Excessive use of spray on detainee in cells - compensation $30,000
CASE LAW: R v MALLINSON
What was held re. the understanding of Mallinson of the position he was in (eg. arrested or not?)
What was held in Mallinson re. the expression “without delay”?
- Proof that police advised suspect of rights should lead to the inference that the suspect understood the position he was in.
- Doesn’t necessarily mean instantly or immediately… Must be asked: was the delay ‘reasonable’ in the circumstances?
Case Law: RIGHTS given and understood
R v Hina - detainer’s obligation re rights..
R v Tunui, Dobler - rights given more than once..
HINA - Detainers obligation to ensure whole right conveyed and understood, at least in manner open to understanding.
DOBLER - may become necessary to repeat rights, may not be complying with the act if just advised as mere routine - “perfunctorily”.
In what instances would an ‘extended obligation’ regarding repeated or further explained rights exist? x5
- Offender stressed, fatigued
- Poor english, interpreter
- Limited intelligence
- Young person
- Hearing issues
Case Law: R v GRANT - re. written caution, can we do this?
Nothing in the act which requires rights to be given verbally rather than in writing. Can be given in written form.
What are the 3 exceptions to giving rights ASAP?
1. (R v Butcher &Burgess)
- When safety threatened - when control is established, must give.
- When delay would cause danger to self, offender, others,
- There is a danger evidence will be lost if you delay.
INSTRUCT A LAWYER - Case Law:
R v Noort and R v Curran - with respect to further questioning before consulting lawyer
R v Ormsby - with respect to questions AFTER legal advice “not to answer”.
- Noort and Curran: Officer is required to refrain from attempting to gain evidence from detainee till they have had reasonable opportunity to consult and instruct lawyer.
- Ormsby: No absolute prohibition on questioning suspect who has received legal advice, and told to remain silent, but continues to answer questions!
Right to private consult with lawyer -
R v PIPER
(remember PIPER - dirty drug dealer…)
POLICE justified in not offering privacy if not safe to leave accused alone or because risk they may dispose of evidence or warn others.
Case Law: Concerning the Right NOT to have lawyer present
- R v Biddle
- Police v Kohler
(both pretty similar)
- Biddle - Right which arrested person able to waive (i.e. not have a lawyer present), provided it is done clearly and with full knowledge of that right.
- Kohler - Valid waiver is a conscious choice both informed and voluntary, cannot be implied from silence or failure to request rights.
Notes on questioning people in custody?
How SHOULD we proceed with questioning a suspect about an offence (x2) and how do we “close” this questioning? (x2)
What type of questioning should we avoid (x1)
- Preferably on DVD
- Audio or writing
- Opportunity to review statement, add, correct
- Opportunity to sign
- Questions must NOT amount to cross examination
Case Law: R v Rogers
Arrest on Friday, refused police bail, must ensure what? x4
- Rogers arrested: must be charged promptly or released (notwithstanding time for justified enquires: processing, legal advice).
- Must not be held while enquiries are conducted into separate offences.
- If arrested Friday and refused police bail - appearance on Saturday so they can apply for bail.
- Must be informed of this right to apply for bail.
What sort of an effort do police have to make to contact a lawyer?
“Make a ____, ____and ___ effort” HARD
Make a Honest, Reasonable and determined effort.
Case Law - BOR
R v KIRIFI - Breach of Sn23 re. right to Consult and Instruct lawyer - what happens to admissions following this breach ?
- R v KIRIFI
- If a breach is established, all following admissions are inadmissible, unless
- Judge satisfied it’s fair and right for admission to be allowed.
