Chapter 5: Managing Suspects and Offenders **

Question 1

Managing Suspects and Offenders

Crimes Act 1961, Section 39

Answer 1

Justification for use of force when effecting an arrest.

Gives authorisation for anyone assisting the officer.

Doesn’t count if the force is unjustified, i.e. excessive

Any force intended to cause death/GBH isn’t covered.

Not just for Police officers, the legislation leave it open for anyone who is ‘justified’. I figure that this means other agencies like Fisheries, possibly Customs.

Question 2

Managing Suspects and Offenders

Crimes Act 1961, Section 40

Answer 2

Justification for use of force when preventing escape or rescue.

Give’s authorisation for people to assist.

Doesn’t count if the force is unjustified, i.e. excessive

Any force intended to cause death/GBH isn’t covered.

If they’ve escaped from prison then any Constable can use force to capture them.

Question 3

Managing Suspects and Offenders

Crimes Act 1961, Section 41

Answer 3

Prevention of suicide or certain offences.

Use force to prevent an offence which would be likely to cause serious injury to that person or property or an offence which would amount to suicide if committed.

Question 4

Managing Suspects and Offenders

Crimes Act 1961, Section 42

Answer 4

Preventing breach of the peace

1) ANYONE who witnesses a breach of the peace is justified in interfering to prevent it’s continuance or renewal.

They can detain any person committing the breach in order to give him to the custody of a Constable.

2) Constable’s can arrest anyone they find breaching the peace. They can call anyone to assist them.
3) Constable’s can receive custody of someone who’s been detained for BOTP if they believe that the person who originally detained them did witness a BOTP.

CPK QUESTION:
Can Maori Wardens arrest someone that they find breaching the peace?

Yes they can!

Question 5

Managing Suspects and Offenders

Crimes Act 1961, Section 202A

Answer 5

Possession of offensive weapons or disabling substances.

(5) A defence for this charge is if the offender can proves that they didn’t intend to use the item as a weapon or disabling substance or to commit an offence involving injury or threats.

This is a 3 year charge.

Definitions in brief:

Offensive weapon:

1) something made or altered for causing injury
2) anything being capable of causing injury

Disabling substance:
1) Any anaesthetising substance produced for disabling persons.

Question 6

Managing Suspects and Offenders

Law note.

General v Reid.

Relates to Crimes Act section 42 arrest for breach of the peace.

Answer 6

No power of arrest for an anticipated breach of the peace.
Police should make requests that would prevent a BOTP and then arrest for obstruction if the requests aren’t complied with.

The situation was that 100 Waitangi Day protesters were headed to the Hobson Memorial. They were told to leave but only 50 did.
The other 50 were handcuffed and detained in buses for five hours while each was processed and released.

They anticipated that a breach of the peace would happen but it never actually occured.

Question 7

Managing Suspects and Offenders

Bill of Rights Act 1990.

Section 8: Can you kill people?

Section 9: Can you torture people or subject them to cruel, degrading or disproportionately sever treatment?

Section 13: Do people have the right to freedom of thought, conscience, religion, belief or opinions?

Section 14: Do people have the right to freedom of expression, including the freedom to seek, receive and impart information or opinions?

Section 15: Do people have the right to manifest religion or belief in worship, observance, practise or teaching?

Section 16: Do people have the right to freedom of peaceful assembly?

Section 17: Do people have the right to freedom of association?

Answer 7

You already know the answers.

Just be aware that this is all covered in the Bill of Rights Act 1990.

Question 8

Managing Suspects and Offenders

Bill of Rights Act 1990

Section 18: Freedom of movement.

Relates to coming and going from NZ. For citizens and others who are lawfully in NZ.

Answer 8

1) Everyone has the right to freedom of movement.
2) Every citizen has the right to enter NZ.
3) Everyone has the right to leave NZ.
4) If you aren’t a citizen but are lawfully in NZ, you won’t be required to leave NZ except if a decision is taken on grounds prescribed by law.

Question 9

Managing Suspects and Offenders

Bill of Rights 1990 - more obvious rights:

Section 19: Do people have the right to freedom from discrimination as per the Human Rights Act 1993?

Section 20: If you belong a an ethnic, religious or linguistic minority group, do you have the right to enjoy that culture, religion or language in the community?

Section 22: Do you have the right to not be arbitrarily arrested or detained?

Answer 9

You already know the answers.

Just be aware that this is all covered in the Bill of Rights Act 1990.

Question 10

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 21

Unreasonable search and seizure

Answer 10

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

Question 11

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 23

Rights of persons arrested or detained.

Some of these are the rights we read to K9’s but there’s a few other ones

Hint: one of them is the right to be charged promptly

7 of them

Answer 11

1a) Told that they’re arrested and the reason at the time of arrest
1b) Told that they can consult and instruct a lawyer
1c) The right to that the validity of the arrest determined and released if not lawful

2) Right to being charged promptly
3) Right to be brought to a court or tribunal as soon as possible
4) Right to not made a statement and to be informed of that right
5) To be treated with humanity and with respect for the inherent dignity of the person.

Question 12

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 24

Rights of person charged

This is different to the rights of a person arrested.

Think about what needs to be done after a decision has been made to charge.

7 of them.

Answer 12

1) Informed promptly of the detail, nature and cause of the charge.
2) Shall be released with reasonable terms and conditions unless there is just cause for continued detention.
3) Right to consult and instruct a lawyer
4) Right to adequate time to prepare for trial
5) Right to a jury trial if maximum penalty is 2 years or over (doesn’t apply to military law)
6) Right to free legal assistance
7) Right to free language interpreters

Question 13

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 25

Minimum standards of criminal procedure

What are the rights in relation to the trial?

9 of them :/

Answer 13

1) Right to a fair and public trial with an impartial/independent court
2) Tried without undue delay
3) Presumed innocent until proven guilty
4) Not to be compelled to be a witness or confess guilt (HIGHLIGHTED)
5) Right to be present at trial and present a defence
6) Right to examine the prosecutions witnesses and call their own witnesses
7) If the max penalty of the offence has changed between the offence date and the sentencing date, the lesser max penalty will be used.
8) Right to appeal the conviction
9) If the offender is a child, they have the right to be dealt with in a manner that takes their age into account.

Question 14

Managing Suspects and Offenders

Bill of Rights Act 1990

When you are investigating an offence and you locate suspects or other people you think may provide useful information, can you question them prior to cautioning them?

Answer 14

Yes you can but you must not suggest that it is compulsory for the person to answer.

Question 15

Managing Suspects and Offenders

Bill of Rights Act 1990

Do you need to caution someone if they are detained for a PSO and you aren’t going to question them?

Answer 15

Yes.

If you have arrested or detained a person pursuant to any enactment, you must caution them, even if you have already given the caution before the suspect was arrested or detained.

Question 16

Managing Suspects and Offenders

Bill of Rights Act 1990

What act and section gives powers to detain a person for questioning or to pursue enquiries?

Answer 16

None. There is no power to do this although a person can assist voluntarily with enquiries.

Question 17

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 14 - Freedom of Expression

What constraints are put on everyone’s freedom of expression?

What can’t be ‘Expressed’?

Answer 17

The right is limited by CRIMINAL AND CIVIL LAW.
E.g.:
 - offensive and disorderly behaviour
 - insulting language
 - breach of the peace
 - hate speech

It’s also illegal to breach censorship laws, defamation laws and be in contempt of court. If a person is breaching these laws then Police can stop them.

NOTE:
The limit must be reasonable in the circumstances of the behaviour. This is an issue which will be decided by the court in each case.

Question 18

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 16 - Freedom of Peaceful Assembly

How many people constitutes an ‘assembly’?

When does an assembly become non-peaceful?

Answer 18

An assembly is two or more people meeting with a common goal.

For an assembly to be found non-peaceful requires a serious and aggressive effect on people or property.

NOTE:

• An assembly which inconveniences the public may still be peaceful
• One non-peaceful person does not extinguish the right for the rest of the assembly

Question 19

Managing Suspects and Offenders

Bill of Rights Act 1990

For a peaceful assembly to be deemed disorderly, offensive or insulting it must:

Answer 19

1) Substantially inhibit other people from enjoying their right to use the public amenity, AND/OR
2) Cause greater offence than those affected can reasonable be expected to tolerate, to the extent that it is seriously disruptive of public order.

NOTE:
Breach of the peace is not an offence, but carries a power of arrest. The rights to freedom of expression and peaceful assembly will impact on the validity of a decision to arrest to prevent a breach of the peace.

Question 20

Managing Suspects and Offenders

Bill of Rights Act 1990

When Policing protests and demonstrations, what must Police weigh up and be cognisant of?

Answer 20

1) The rights to freedom of expression and peaceful assembly
2) the extent to which the expression/demonstration is impinging on the rights of others to use the public space
3) whether the behaviour warrants the intervention of the criminal law

Question 21

Managing Suspects and Offenders

Bill of Rights Act 1990

Do protesters have a right to protest in government space (e.g. the entrance foyer of a building)?

Answer 21

Yes.

Subject to limitations that are reasonable to demonstrably justifiable.

If a government official asks that Police remove a protester from a building, you don’t have to.
You should make your own assessment and balance their rights to freedom of expression against the risk of violence and inconvenience to the public.

Question 22

Managing Suspects and Offenders

Bill of Rights Act 1990, Section 21

Does the protection against unreasonable seizure also amount to a right to property?

PLEASE CHECK THIS!! NO IDEA WTF IT MEANS

Answer 22

No.

Question 23

Managing Suspects and Offenders

Bill of Rights Act 1990

Recent case law suggests that a ‘search’ requires a conscious act of state intrusion into an individual’s reasonable expectation of privacy, as opposed to a mere observation.
What are some examples that aren’t searches?

Answer 23

• kneeing 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 24

Managing Suspects and Offenders

Bill of Rights Act 1990

When Police record that the BOR has been given to a detainee, how can they record/prove that the detainee has understood the rights as spoken to them?

Answer 24

Proof that the Police advised the suspect of the BOR should, in and of itself, lead to the inference that the suspect understands the position.
(unless there is evidence to prove otherwise)

Question 25

Managing Suspects and Offenders

Bill of Rights Act 1990

Can the BOR be given to a person in written form alone?

Answer 25

Yes.

Nothing in the NZBORA requires the BOR to be given verbally rather than in writing.

Question 26

Managing Suspects and Offenders

Do you need to stop questioning a suspect if they request a lawyer?

If the suspect keeps talking before they’ve spoken to a lawyer, is that admissable?

Answer 26

Yes Police have a duty to refrain from attempting to elicit evidence from that person until they have had a reasonable opportunity to consult a lawyer.

They are still under caution so if they offer voluntary information then it’s fair game.

Question 27

Managing Suspects and Offenders

If a suspect speaks to a lawyer and is advised not to make a statement, and the lawyer advised Police that he has directed the suspect to remain silent, can Police question the suspect?

Answer 27

If the Police agree with the lawyer that no further questions will be asked until the lawyer is present, then the suspect would need to give a ‘voluntary waiver’ for Police to keep questioning him.

He will have to invite questioning without Police trying to persuade him to talk.

Best practise is to stop the interview if the lawyer is on the way.

Question 28

Managing Suspects and Offenders

Suspects are allowed to consult a lawyer in private. If the suspect tells Police that they don’t want to be in private when they talk to the lawyer, is this ok?

It privacy necessary?

Are there any circumstances where Police can override the right for privacy?

Answer 28

If the suspect indicates that they don’t require privacy, it isn’t necessary.

The Court of Appeal found that Police may be justified in not offering privacy where it would be unsafe to leave the accused alone or because there was a risk that they would try to dispose of evidence and warn others.

NOTE:
Police cannot deny privacy on the grounds that no private room is available.

Question 29

Managing Suspects and Offenders

If Police can’t get in touch with a lawyer after a suspect has requested one, can questioning continue?

Answer 29

You must make a reasonable, honest and determined effort to contact a lawyer.

Police are under no obligation to find the suspects choice of lawyer.

If Police can convince the courts that an honest and determined effort was make to contact a lawyer, then this won’t automatically exclude an admission made after the suspect asked for a lawyer.

Question 30

Managing Suspects and Offenders

If a suspect speaks with a lawyer but isn’t happy with that particular lawyer and requests to speak with a different one, do Police need to allow this?

Is there a legal requirement to give suspects the oportunity to make phone calls to non-lawyers?

Answer 30

Police are not required to offer suspects the opportunity to phone multiple lawyers.

There is no legal requirement to offer phone calls to non-lawyers.

Question 31

Managing Suspects and Offenders

Do suspects have to speak to a lawyer before making statements?

Are suspects obliged to have a lawyer with them when being interviewed?

Answer 31

No. No.

The right to consult a lawyer is able to be waived, provided that it is done clearly and with full knowledge of the right.

NOTE:
The waiver requires a conscious choice that is both informed and voluntary. It cannot be implied from silence or failure to request rights.

Question 32

Managing Suspects and Offenders

When is a Defendant’s statement be excluded from evidence?

Three rules.

Answer 32

1. the reliability rule
2. the oppression rule
3. the improperly obtained evidence rule

Question 33

Managing Suspects and Offenders

One of the three rules which mean that a Defendant’s statement can be excluded is the reliability rule.

Who can raise reliability as an issue with a Defendant’s statement?

The Judge decides if statement was unreliable. Beyond reasonable doubt or on the balance of probabilities?

Answer 33

1. The Defendant or, if applicable, a co-defendant can raise the issue and then notify the Judge.
2. the Judge can raise the issue and then informs the prosecution of the grounds for the issue.

The Judge must exclude the statement unless on the balance of probabilities, the circumstances around how the statement was obtained were not likely to have adversely affected it’s reliability.

Question 34

Managing Suspects and Offenders

What is the reliability rule?

What is an exception to the rule?

Answer 34

Reliability relates to the accuracy and soundness of the statement - the focus of the courts appears to be on the circumstances of the statement being taken, rather than an assessment of honesty.

An exception would be if Police were using the statement to prove that the Defendant was suffering from a mental/physical/psychological condition.

e.g. the Defendant states that aliens told him to commit a crime.

Question 35

Managing Suspects and Offenders

How is the reliability rule assessed by a judge?

Reliability rule relates to how reliable a statement is that has been obtained by Police.

Answer 35

Judge decides on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected it’s reliability.

The judge might consider:

• mental/physical/psychological condition of the defendant during questioning
• nature of the questions and the circumstances of when they were put
• any threat, promise of representation make to the defendant during questioning

Question 36

Managing Suspects and Offenders

What is the oppression rule and how is it assessed by a judge?

Relates to Defendant statements.

Answer 36

Oppression is oppressive, violent, inhuman or degrading conduct towards the Defendant or other person. Also a threat of conduct or treatment of any kind.

The prosecution must prove beyond all reasonable doubt that the Defendant’s statement wasn’t affected by oppression.

This rule is described as the most serious rule by the Court of Appeal.

The ‘oppressor’ doesn’t need to consciously oppress a Defendant. The Defendant circumstances can mean oppression happens accidentally. This can make it tricky for the prosecution to prove.

Question 37

Managing Suspects and Offenders

What is the ‘improperly obtained evidence rule’?

Relates to Defendant statements.

Answer 37

• Evidence which is obtained due to a breach of any enactment (i.e. breach of BORA)
• evidence which was obtained due to a dodgy statement. i.e. you find a murder weapon after a person discloses it’s location during an improper interview
• evidence/statement’s obtained ‘unfairly’

Question 38

Managing Suspects and Offenders

What are the three rules which relate to admissibility of a Defendant’s statement.

What burden of proof does the judge/prosecutor have to prove/decide that the rule hasn’t affected the statement?

Answer 38

1) Reliability rule
- Balance of probabilities

2) Oppression rule
- Beyond reasonable doubt

3) Improperly obtained evidence rule
- Balance of probabilities
- IF the evidence was obtained improperly the Judge must decide if the exclusion of the evidence is proportionate to the impropriety. This is a balancing process.

Question 39

Managing Suspects and Offenders

Can Police ask non-suspects questions without giving BOR first?

Answer 39

They can but they can’t suggest that the person must answer.

Practice Note on Police Questioning - Guideline 1

Question 40

Managing Suspects and Offenders

According to Guideline 2 of the Practice Note on Police Questioning, when do Police have to give the BOR to adult offenders?

Answer 40

Whenever there is sufficient evidence to charge a person with an offence.

The requirement will arise when the evidence, objectively considered, supports a prima facie case: that is, that if the evidence is found credible, a judge or fury could find the offender guilty.

Also if a person is arrested of detained.

Question 41

Managing Suspects and Offenders

Can Maori Wardens arrest someone that they find breaching the peace?

Answer 41

Kind of. They can detain a person in order to handover custody of the person to a Constable.

Anyone can use force to prevent breaches of the peace.

Only a Constable, or people assisting Constables, can arrest for BotP.

So not if they’re alone but yes if they’re with Police.

Crimes Act s.42

Question 42

Managing Suspects and Offenders

Law note
Phillips v R [2017]

Male was arrested for fighting and was Q&A’d. He admitted to fighting and also driving to the scene. He male was a disqualified driver.
After this, the male changed his story and started denying everything.

The officer recorded the first admissions but not the denials.

What happened at court?

Answer 42

Found guilty at District Court but then appealed to High Court.

At District Court, the defence argued that officer should have read the BOR a second time when they began talking about the new driving offence.

High Court found the the officer hadn’t intentionally steered the conversation towards the driving matter so there was no breach of the BORA.

High Court found the the statements were recorded unfairly. Failing to take full and accurate notes meant that the courts would weigh heavily in favour of excluding the evidence.

Question 43

Managing Suspects and Offenders

If during an interview, a detainee asks to speak to a lawyer, what should you do?

Answer 43

Stop the interview until they have contacted a lawyer.

Question 44

Managing Suspects and Offenders

What was held in Attorney General versus Reid in relation to arrest for breach of the peace?

Answer 44

Answer:
This case arose from a civil claim of damages for the false arrest.

The court held there is no power to arrest for an anticipated breach of the peace. The proper procedure where breaches are anticipated and the persons concern fail to desist is to arrest for obstruction.

Question 45

Managing Suspects and Offenders

What are two examples where Police don’t need to give BOR immediately upon arrest or detainment.

Answer 45

1. Where the officers immediate safety is threatened.

2. Where there is ongoing and real danger that evidence will be lost

Question 46

Managing Suspects and Offenders

Law note
Robertson v R [2020]

‘Spontaneous’ admissions 2.5 hours after BOR was given to adult offender.

Answer 46

Offender was arrested for BOB and questioned about a sexual assault. He was given BOR and then refused to comment. He stated that he needed insulin and that he wanted to speak to his lawyer.

Police got a doctor to come and give him insulin. The doctor confirmed that he was healthy.

The offender refused to call his lawyer on the phone because he claimed that Police had bugged the phone.

2.5 hours after he was given the BOR, Police put the allegations to him and he ‘blurted out’ some information which contradicted his eventual defence.

District Court
Judge decided that the statement was obtained improperly but included it as evidence because he had been given the BOR and Police didn’t act in bad faith.

Court of Appeal
Judge overturned the decision. The offender had required medical assistance between then BOR and further questioning. Even though the offender was “well aware of his rights and police procedures” his rights should have been repeated before further questioning.

Another issues was that the officer didn’t record the statement on DVD and then didn’t give the offender a chance to review his statement and make amendments.