Chapter 5 - Managing suspects & offenders II Flashcards
Can you stop vehicles to undertake general enquiries? Why/why not?
No, it maybe classed as arbitrary detention. You must stop it under provisions of Land Transport Act 1998 or sec 9 Search and Surveillance Act 2012.
What do Police need to prove in relation to rights?
A person is informed of reason for arrest or detention at the time it occurs.
Allowed to consult with lawyer without delay.
Charged promptly, if not charged released promptly.
Bought before the courts asap.
Refrain from making any statement and be informed of that right.
Treated with humanity and respect.
What should occur if suspect wants to exercise right to speak with lawyer.
Allowed to consult with lawyer without delay.
That they have access to a lawyer free of charge.
When can right to privacy with lawyer be denied?
In circumstances where it would not be safe to leave the accused alone, or because there was a risk that the appellant would try to dispose of evidence and warn others.
How much time should be given to contacting a lawyer?
You must make a reasonable, honest and determined effort to contact a lawyer.
When questioning a suspect what must if not amount to?
Cross-examination (Chief Justice practise notes).
When is a statement not admissible?
If it is excluded under section 28,29,30 of the Evidence Act
28 – Reliability rules.
29 – Oppression rules.
30 – Improperly obtained evidence rules.
When must a Judge exclude the statement under sec 28 Evidence Act?
Where the Defendant’s reliability is in question from physical, mental, or psychological condition, unless satisfied on the balance of probabilities that the circumstances on which the statement were made were not likely to have adversely affected its reliability.
When must a Judge exclude the statement under sec 29 Evidence Act?
The statement was influenced by oppression, unless the Judge is satisfied beyond reasonable doubt that the statement was not influenced by oppression. The judge may take into account any pertinent physical, mental or psychological conditions of the defendant when the statement was made.
When must a Judge exclude the statement under sec 30 Evidence Act?
Evidence was improperly obtained unless on the balance of probabilities whether or not the evidence was improperly obtained. The court may have regard to the importance of any right breached by the impropriety and seriousness of the intrusion of it.
Whether the impropriety was necessary to avoid physical danger to Police or others.
What does oppression mean – in a legal sense?
Oppressive, violent, inhuman or degrading conduct or treatment of defendant or any other person.
A threat of conduct or treatment of any kind.
Explain ‘Practice Note on Police Questioning?
- Police may question any person but must not suggest that the person must answer.
- When police have sufficient evidence to charge a person they must be cautioned prior to questioning or statement. BOR cautions apply.
- Question of a person in custody must not amount to cross-examination.
- Substance of the statements or nature of evidence must be fairly explained.
- A statement should preferably be recorded on DVD, if not on audio tape or in writing.
