Chapter 5 - Managing suspects & offenders I

Question 1

Force used in executing process or in arrest. How much force can be used?

Answer 1

Such force as necessary to overcome any force used in resisting arrest unless the arrest can be made by reasonable means in a less violent manner.

Question 2

What is s40 CA 1961?

Answer 2

Force used in preventing escape or rescue.

Question 3

Prevention of suicide – how much force can be used?

Answer 3

Such force as reasonably necessary in order to prevent the commission of suicide or an offence which would likely to cause immediate and serious injury to the person or property of anyone.

Question 4

What is s42? Can a member of the public interfere?

Answer 4

Preventing breach of the peace. Yes If lawfully assisting a constable. Every constable is justified in receiving into custody any person given into his charge, as having been a party to a breach of the peace, by the one who witnessed it.

Question 5

Possession of offensive weapon or disabling substances. What is the penalty? What is the defence?

Answer 5

3 years imprisonment. It is a defence to this charge if proven that he did not intend to use the offensive weapon or disabling substance to commit an offence or threat of fear of violence.

Question 6

Attorney General v Reid -What were the grounds that Police had arrested the protestors and what was the Courts rationale?

Answer 6

Waitangi day 1983, A 100 protesters were halted by Police on-route to Hobson Memorial. They were to to leave the roadway but 50 or so did not. They were arrested for BOP, handcuffed and detained in buses for 4-5 hours then processed and released.

Courts found there was no reasonable grounds for apprehension of BOP. There is no power of arrest for anticipated BOP. You must request they move and warn of obstruction, failure to comply with request you can arrest for obstruction.

Question 7

What are the 4 key rules of the NZBORA?

Answer 7

1. When investigating an offence you may ask questions of any person but must not suggest that it is compulsory for the person to answer.
2. If you want to question someone and have sufficient evidence to charge, you must caution the person before inviting them to make a statement or answer questions.
3. If you arrest or detain a person you must caution them, even if you had already cautioned before suspect was arrested or detained.
4. There is no power to detain a person for questioning or to pursue enquiries, although a person may assist voluntarily.

Question 8

What is the NZBORA primarily intended to do?

Answer 8

Affirm, protect and promote human rights and fundamental freedoms.
Protection against the powers of government agencies.
Minimum standard for public decision making.
Protection for human rights and basic freedoms.

Question 9

Freedom of expression and peaceful assembly – what are the issues Police should consider? (5 things)

Answer 9

1. Does the behaviour express a view on matter of public interest?
2. Does the behaviour intrude on the right of other in a public space?
3. Does this intrusion go beyond what a reasonable person, respectful of rights to of freedom of expression, could expect to tolerate?
4. Does the behaviour pose an actual risk of public disorder (eg intimidation, victimisation pose a real risk of violence)?
5. Does the behaviour warrant the intervention of criminal law?

Question 10

When is a search or seizure deemed reasonable?

Answer 10

Conducted under a statutory power and the public interest in administering criminal justice out weights the individuals privacy interest.

Question 11

What is determined as not a search?

Answer 11

Kneeling and using a torch to observe an article secreted in a car headlight.
Asking a person to hold up a bicycle to check serial number.
Asking a person to hold their hands out for inspection.

Question 12

Unlawful searches and seizures will almost always be unreasonable and breach s21 - when are they not?

Answer 12

A search undertaken in good faith where the search was mistaken about their power of search may not be unreasonable.

Question 13

When is a reasonable search deemed unreasonable? Give an example.

Answer 13

When carried out in an unreasonable manner, eg strip search in the street where the search could have been carried out in private.

Question 14

Can a rubdown search be carried out routinely?

Answer 14

No the threshold is very high and to justify must be necessary in the circumstances.

Question 15

What is the remedy for unreasonable search?

Answer 15

Sec 30 evidence act, improperly obtained evidence – on the balancing test if the search was not meant to be unreasonable

Question 16

Rights under s22 – Not to be arbitrarily arrested or detained. When is a person considered ‘detained’

Answer 16

There is physical deprivation of a person’s liberty.
There are statutory restraints on a person’s movement.
They have a reasonably held belief induced by Police conduct that they are not free to leave.

Question 17

When does holding in custody becomes arbitrary.

Answer 17

If it lasts longer than necessary, eg longer than required to bring the offender before the court.