Chpt 5 - Managing Suspects & Offenders Flashcards
Crimes act 1961
Section 39
Force used in executing process or in arrest
Section 40
Preventing escape or rescue
Section 41
Prevention of suicide or certain offences
Section 42
Preventing breach of the peace
AG v Reid - no power to arrest for anticipated breach or the peace (arrest for obstruction)
Section 202A
Possession of offensive weapons or disabling substances
NZ BOR Act 1990
Section 8
Right not to be deprived of life
Section 9
Right not to be subjected to torture or cruel treatment
Relevant to treatment of prisoners -maybe awarded compensation
Section 13
Freedom of thought, Conscience and religion
Section 14
Freedom of expressions
Brooker v Police - disorderly behaviour outside constables house
Police v Beggs - protest outside parliament
Section 15
Manifestation of religion and belief
Section 16
Freedom of peaceful assembly
Two or more people, serious and aggressive effect on people or property
Section 17
Freedom of association
Section 18
Freedom of movement
Section 19
Freedom from discrimination
Section 20
Rights of minority’s
Section 21
Unreasonable search and seizure
Section 22
Protection against arbitrary arrest and detention
Liberty of the person
Section 23 Rights of persons arrested or detained Everyone arrested or detained under any enactment Shall be informed of reason at time Right to consult and instruct lawyer Validity of arrest determined without delay Right to be charged promptly or released Bought to court asap Right to refrain from making statement Treated with humanity and respect
Section 24
Rights of persons charged
Everyone charged with an offence
Informed of charge and detail
Be released on reasonable terms and conditions unless just cause for further detention
Consult and instruct lawyer
Adequate time and facilities to prepare defence
Receive legal assistance if no sufficient means
Free assistance of interpreter
Section 25
Minimum standards of criminal procedure
Everyone who is charged has right to
Fair and public hearing by independent and impartial court
Tried without undue delay
Innocent until proven guilty
Not to be compelled to be a witness or to confess guilt
To be present at trial and to present a defence
To examine witnesses
To appeal conviction and or sentence
Key rules for police arising from the act
Whilst investigating an offence and locate suspects that may provide useful information - may ask questions but not suggest compulsory for them to answer
If you want to question because you heave sufficient evidence must caution first before stmt taken
If arrested or detained must caution
No power to detain for questioning
NZBOR applies only to
Acts done by the legislative, executive or judicial branches of the government
Performance of any public function, power or duty pursuant to law
NZBOR primarily intended to affirm protect and promote human rights and fundamental freedoms
Protection against powers of government agencies
Minimum standards for public decision making
Protection for human rights and basic freedoms
Breach of the peace is not an offence - but carries power of arrest section 42 Crimes act
Legal tests for disorderly, offensive behaviour, insulting language and breach of the peace
Does behaviour express view on matter of public interest
Does behaviour intrude on rights of others in public space
Does intrusion go beyond what a reasonable person respectful of rights to freedom of expression and assembly could be expected to tolerate
Does it poses risk of public disorder
Does it warrant intervention of criminal law
Rights to be secure against unreasonable search and seizure
Rights under section 21
Right to be secure against unreasonable search or seizure whether of person, property, correspondence or otherwise
Search - requires a conscious act of state intrusion into individuals reasonable expectation of privacy as opposed to observation
Search is not kneeling using torch to observe article inside car headlight
Seizure - removing something from the possession of someone else
Unreasonable searches and seizures - a search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if the search is carried out in unreasonable manner
Unlawful searches and seizures - will be unreasonable and in breach for s21 - if legit miserable may not be unreasonable (could of used another power)
Right to not be arbitrarily arrested or detained
Section 22
Arrest - communicated intention on cop to hold person under lawful custody
Detention - physical deprivation of persons liberty
Statutory restraints, reasonable belief they cannot leave
Formally arrested, handcuffed, locked in room, police vehicle
An arbitrary arrest or detention may lead to exclusion of evidence, release from detention or compensation
Can’t hold person in custody to check another offence
Must be in court promptly
Can’t stop vehicles for general enquiries
Rights of people arrested or detained
Section 23
Be informed of reason for arrest/detention at time
Consult and instruct lawyer without delay and be told of that right
Validity determined by court be released if not lawful
After arrest charged promptly or released
If not released to be before court asap
Refrain from making stmt and be informed of that right
Be great with humanity and respect
Giving the caution
To adults arrested/detained or where police want to question adult and have sufficient evidence to charge
CYP’s sect 215 RGTS offence
Failure to give caution may result in finding evidence that was improperly obtained could be excluded under section 30 evidence act
Guidance on detention - circumstances that preserve evidence personal safety Sect 23(1)(b) Motorist stopped breath test Motorist stopped particulars Motorist taken to hospital SW persons to be excluded
Treatment in breach of section 23
Excessive force
Failure to provide medical treatment
Unlawful restraint to prevent self harm
Failure to comply with regulations or policies food, exercise
Routine or deliberate unnecessary strip searxh
Failure to ensure detainees safety and protect them from other employees or detainees
Could result in compensation $30k falwasser o/c spray in cells
Notifying rights
Ensuring rights are understood
Where suspect is
Stressed, confused or fatigued at time of arrest
Poor understanding of English
Passive nature or limited intelligence
Difficult hearing cause of background noise
Needs interpreter (deaf, foreign)
Re-advising rights recommended
Record statements DVD, writing, give opportunity to review and amend and sign
No cross examination
Breach of rights / if evidence admissible up to court
Court appearances promptly or release
The evidence act 2006, defendants statements and improperly obtained evidence
Evidence offered by the prosecution of stmt made by defendant is not admissible against co-defendant
Evidence offered by the prosecution of stmt made by a defendant is not admissible against that defendant if it is excluded under s28,29 or 30
Stmt - written or spoken assertion of any matter
The reliability rule section 28
Exclusion of unreliable stmts
1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a stmt of a defendant if -
a) Defendant or co-defendant against whom stmt is offered raises on the basis of an evidential foundation the issue of reliability of the stmt and informs the judge and prosecution of the grounds for raising issue or
b) Judge raises issue
2) Judge must exclude the stmt unless satisfied of balance of probabilities that circumstances in which stmt made were not likely to adversely affect reliability
3) However subsect 2 does not have effect to exclude at stmt made by defendant if the stmt is offered only as evidence of the physical, mental or psychological condition of the defendant at the time the stmt was made or as evidence of whether stmt was made
4) without limiting matters the judge must take into account the following
a) any pertinent, physical, mental or psychological condition of defendant when stmt made (whether apparent or not)
b) any pertinent characteristics of defendant including any mental, intellectual or physical disability to which defendant is subject (apparent or not)
c) the nature of any questions put to the defendant and the manner and circumstances in which they were put
d) the nature of any threat, promise or representation made to the defendant or any other person
Reliability relates to the accuracy and soundness of the stmt he focus of the courts appears to be on the circumstances and likely reliability rather than an assessment of actual reliability
The oppression rule - section 29
Exclusion of stmts influenced by oppression
R v Hawea- oppression rule the most serious ground of objection to the admissibility of a defendants stmt
A abusive speech by an officer to the defendant described as intimidatory and belittling by the court did not trigger sect 29
29(2) judge must exclude stmt unless satisfied beyond reasonable doubt that the stmt was not influenced by oppression
29(3) it is irrelevant whether or not stmt true
29 (5) Oppression means - oppressive, violent, inhuman, or degrading conduct towards or treatment of the defendant or another person or a threat of conduct or treatment of that kind
The courts have proven reluctant to categorise intimidating or pressuring behaviour as oppression
Oppression is to be judged from the perspective of the defendant
Improperly obtained evidence section 30
1) This section applies to a criminal proceeding in which the prosecution offers or purposes to offer evidence if
a) defendant or co defendant whom evidence offered raises on the basis of an evidential foundation the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue or
b) judge raises the issue and informs prosecution
2) the judge must
a) find on balance of probabilities whether or not improperly obtained
b) if the judge finds that improperly obtained, determine whether or not the exclusion of evidence is proportionate to the impropriety by means of balancing process that gives appropriate weight to the impropriety but also takes account of the need for an effective as credible system of justice
3) for purpose of ss2 court may among any other matters have regard to the following
a) importance or any right breached and seriousness of intrusion
b) nature of the impropriety- deliberate/reckless
c) nature and quality of improperly obtained evidence
d) seriousness of offence
e) investigating techniques not involving breach of rights where available but not used
f) alternative remedies
g) impropriety necessary to avoid apprehended physical danger to police or others
h) any urgency in obtaining improperly obtained evidence
4) judge must exclude improperly obtained evidence if ss2 - judge determines that its exclusion is proportionate to the impropriety
5) evidence is improperly obtained if it is obtained
a) in consequence of breach of any enactment or rule of law by person sect 3 NZBOR applies
b) in consequence of a stmt made by defendant that is or would be inadmissible if it were offered in evidence by prosecution or
c) unfairly
6) without limiting 5c judge must take into account the Chief Justice practice note
Section 30 only applies to evidence offered by prosecution
A causative link between the impropriety and the obtaining of the evidence is required for s30(5)(a) and (b). Causation is also necessary to show that evidence was unfairly obtained under s30(5)(c)
Only found that evidence as result of not having warrant. Or stmt got by strangling defendant.
R v Kira- what is both necessary and sufficient is that there be a real and substantial connection between the violation and the obtaining of the evidence
The balancing process - the weight accorded to each factor may differ according to the facts of the case
