Chapter 5 Managing suspects and offenders Flashcards
Outline S.39, 40,41,42 CA 1961
→ S.39 use of force if executing a K9
→ S.40 use of force to prevent escape or rescue
→ S.41 use of force to prevent suicide
→ S.42 use of force to prevent breach of peace
Outline S.202A possession of offensive weapon or disabling substance
→ 4(a) without authority or excuse in
public place has knife, OW or Dsub
→ 4(b) has in possession any place OW or Dsub which shows intention to use it.
→ 4(a) OW any article made or altered to cause injury
→ 4(b) OW any article capable of causing bodily injury
What is the theme of General v Reid - arrest for anticipated breach of peace
That there is no power to K9 for a anticipated breach of peace. Proper procedure where breach anticipated and persons fail to desist is to K9 for obstruction
Outline S.24 Rights of persons charged
SHALL
→ be informed of charge
→released unless just cause to be detained
→ consult lawyer
→ adequate time and facility to prepare defence
→ right to trial by jury if 2 years imp or more
→ free legal assistance
→ access to interpreter
Outline S.25 minimum standards of criminal procedure for the defendant.
Right to:
→ fair public impartial trial
→ tried without undue delay
→ presume innocent until proven guilty
→ not to be compelled as a witness or confess guilt
→ be present at trial and present a defence
→ right to examine witnesses
→ benefit of lessor penalty
→ to appeal to higher court
→ child to be treated in a manner appropriate to age
What are the key rules for Police arising from NZBORA
→ may ask questions but must not suggest it is compulsory to answer
→ must give caution if you want to question and you have sufficient evidence
→ if you K9 someone you must caution them
→ no power to detain for questioning
What organisations does NZBORA apply to
→ acts done by legislation, executive or judicial branches of govt
→ performance of any public function, power or duty pursuant to law
What are the threshold for disorderly or offensive behaviour at protests
→ substantially inhibit other people from enjoying their right to use public amenity
→ cause greater offence that is seriously disruptive of public order
What is the theme in Routhen v Police regarding protesting
That if a protester is causing a hazard or disrupting business, one option is to see if the protest action can be modified
What is a definition of search
Conscious act of state intrusion into an individual’s reasonable expectation of privacy
What is a definition of seizure
removing something from the possession of someone else
What is the definition of arrest in R V Gordon
Must have its Crimes Act meaning of a communicated intention on the part of police to hold a person under lawful custody
What is the definition of detained
→ physical deprivation of a persons liberty
→ statutory restraint on a persons movement
→ hold belief that they are not free to leave
What vehicle stop could be arbitrarily detention
Any vehicle stop that is not pursuant to S.114 LTA or S.9 SSA
Under S.23 what are the rights of people who have been arrested or detained
→ be informed of reason for K9
→ be told can consult and instruct lawyer
→ have the K9 validity tested by Court
→ be charged promptly or released after K9
→ be told don’t have to make a statement
→ be treated with humanity and respect
What short delays are not considered a detention by the court.
→ motorist stopped for EBA
→ motorist stopped and asked to supply details
→ motorist taken to hospital and hospital blood taken
→ when carrying out SW people may be instructed to remain in a room
What is the theme of R v Mallinson ensuring rights are understood
Unless evidence to the contrary, proof that police advised rights should lead to the inference that the suspect understood the what was said,
What is the theme in R v Hina - obligation on detainer to give rights
it is the detainer’s obligation to ensure the whole right is conveyed and a manner open to understanding
What is the theme of R v Tunui - frequency of BOR
may be necessary to inform person more that once - may not be compliance if told in a perfunctory manner
What are the exceptions to give BOR asap in R v Butcher
should not be expected to give evidence in their safey threatened - but should be given once control is regained.
What does R v Mallinson say about ‘without delay’
‘without delay’ is not synonymous with instantly or immediately - was the delay reasonable in all circumstances, having regard to the purpose of the right.
What is the theme in MOT v Noort; Police v Curran in regards to asking questions
the detainer is required to refrain from attempting to gain evidence from the detainee until the detainee has had reasonable opportunity to consult and instruct a lawyer
What is the theme of R v Ormsby in regards to questioning a suspect
Nothing stopping police questioning a suspect who has received legal advice (that they can be silent) but despite that the suspect keeps on answering
What is the theme of R v Perry regarding the amount of encouragement/persuasion that could be applied to a suspect when they have asserted their right to silence
→ nothing stopping Police on further questions once rights have been asserted
→ rights earlier asserted may be waived provided waiver is informed and voluntary
Police can continue to interview after suspect consulted/instructed a lawyer. Court will decide if evidence admissible. If lawyer on way then suspend interview until lawyer arrives.
