Chapter 4 Search and Surveillance I Flashcards
Define evidential material
Evidence of the offence or any other item, tangible or intangible, of relevance to the investigation of the offence.
Define ‘reasonable grounds to believe’
Having a sound basis for believing that a situation or circumstance actually exists– eg RGB that the search will locate evidential matieral relating to that offence.
Define ’reasonable grounds to suspect’
Having a sound basis for believing that a situation or circumstance is likely to exist. eg RGS that an offence had be committed.
Define ‘unlawfully at large’
Person has a WTA
A prison breaker
Escape from lawful custody
A special or restricted patient under mental Health Act or
A special care patient of intellectual disability who has escaped or failed to return.
A CYP who is subject to order under sec 311(1) of Act who is absconding from custody.
Describe the search principle ‘lawfulness and reasonableness’
All searches must be lawful and reasonable. For every search to be lawful you must:
Exercise a warrantless power or
Execute a warrant power or
Conduct the search, examination or inspection with the person consent.
Describe the search principle ‘Search hierarchy’
You should always consider obtaining a search warrant first. If it is not practicable, consider using a warrantless search power. If a warrantless power exists you should use it instead of asking for consent.
Describe the search principle ‘decision records’
You must record your RGS/RGB that were known at the time a warrantless power was used. You may rely on this in court.
Describe the search principle ‘identification and notice’
The owner/occupier/or person in charge of a place, vehicle or thing being search has the right to known who is searching, the authority for searching, and reasons why unless good reason for not providing information.
Describe the search principle ‘Force used against property must be reasonable’
Any force used to gain entry to any place, vehicle or other thing, for the purpose of carrying out your search, must always be reasonable in the circumstances.
Describe the search principle ‘search or seizure should be witnessed’
Any search of a place, vehicle, or other thing, or any removal or seizure of property during the search, should be witnessed (if practicable) by another Police member.
Describe the search principle ‘seized property must be documented’
All property removed or seized from a place, vehicle and other thing must be appropriately documented and accounted for.
Explain how inevitable discovery is used when evidence is obtained as a result of a breach of the NZ Bill of Rights 1990.
If evidence obtained as a result of a breach of the BOR Act would have been obtained even if the breach had not occurred, the fact that it would inevitably have been discovered is a factor to be taken into account in determining whether it is admissible under the balancing test in sec 30 of the Evidence Act (Improperly obtained evidence).
If you conduct a search or seize evidence without a warrant where you had the opportunity to do so what impact could this have around using the evidence in Court?
You must observe the search hierarchy otherwise a court proceeding may deem the search unreasonable and any evidential material obtained inadmissible. You may lose any evidence you discover about any other offence.
What was the determination R v Jefferies [1994] 1 NZLR 290 around reasonable or unreasonable searches?
If particular evidence would still have been discovered if the unlawful search had not been conducted, then the evidence may still be deemed admissible.
