IN06 NZ Bill of Rights Act 1990 Flashcards
Consequences of breaching the Practice Note on Police Questioning.
- The evidence my be disallowed.
- The case may be dismissed.
- Your credibility could be called into question in future cases.
- Could result in adverse publicity, legal criticism and formal complaints, even criminal charges.
When should The Rights / Caution be given.
The Rights / Caution should be given when you arrest or detain a person or where Police want to question a person where there is sufficient evidence to charge that person with an offence.
How does RULE 5 apply to taking statements?
Rule 5 states:
- The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over.
- Given the opportunity to correct errors or add anything further.
- Where the statement is recorded in writing the person must be asked if they wish to confirm the written record as correct by signing it.
- Any changes, mistakes or alterations should be initialled by the person giving the statement.
- At the end of the statement the person who made the statement should write in their own handwriting:
“I have read this statement and it is true and correct”
- Each page should be signed by the maker.
You must then endorse the statement “witnessed (rank) and (name).
Section 21 NZ Bill of Rights Act 1990 unreasonable search and seizure.
Every person should be secure against unreasonable search and seizure of their person, property or correspondence.
Section 22 NZ Bill of Rights Act 1990
Everyone is protected from arbitrary or random arrest or detention.
Section 23 NZ Bill of Rights Act 1990
People arrested or detained under any enactment have rights and must be informed.
Section 24 NZ Bill of Rights Act 1990
People charged with an offence have certain rights and must be informed of their rights.
Searches are unreasonable when they are executed.
- Without, or in excess of, powers or authority.
- In an unreasonable manner.
- in bad faith.
The three main forms of search consist of:
- specific statutory search powers.
- Statutory search pursuant to arrest or detention.
- Consent searches
Statutory power to search:
where you are able to search pursuant to an enactment:
- S27 S&S Act 2012 Power to search for an offensive weapon. Must have Reasonable grounds to suspect (RGS)
- S21 & 22 S&S Act 2012 Power to search for drugs. Must have Reasonable grounds to believe (RGB)
- S18 S&S Act 2012 Power to search for arms.
Consent Searches:
without RGB or RGS and no powers to search you may ask for consent to search, consent can be retracted at any stage S91 and 96 S&S Act 2012 outline restrictions.
Summary of Police responsibility: advice of rights:
Search without arrest or statutory power:
- comply with section 21 NZ Bill of Rights Act 1990 by obtaining consent eg “I would like to search you, you don’t have to let me but it would be helpful. what do you say?”
S22 NZ Bill of Rights Act 1990 Interview or deal with a person who voluntarily co-operates with you:
- Advise that they do not have to remain and answer questions
- Are free to go at any time (avoid arbitrary detention).
- Rights / caution on arrest or when NOTE 2 applies (whenever a Police member has sufficient evidence to charge a person with an offence or whenever a olice member seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions).
Arrest a person or wish to hold them under an enactment:
- Give S23 NZ Bill of Rights Act 1990 Rights / caution.
Administer the rights/caution at the you have sufficient evidence to charge the person (Note 2)
Decide to charge:
- Comply with S24 NZ Bill of Rights Act 1990 by giving the person the oppotunity to exercise their rights to instruct a lawyer without delayand in private.
- Inform the person of the nature of the charge.
what is meant by the term: Arbitrary detention?
Detention at random or on a whim or where the person is unaware they are free to go or do not have to answer any questions.
what is meant by the term: Detained under any enactment?
Detained under any enactment simply means that the person is being detained for the purpose of exercising any statutory power.
How do you avoid Arbitrary Detention?
Advise the person they are free to go at any time and do not need to answer any questions.
