Managing Suspects And Offenders

Question 1

List the relevant Crimes Act sections this unit relates to

Answer 1

Sections: 39/40/41/42/202A

Question 2

What is the gist of Attorney General v Reid (1986)

Hint: breach of the peace

Answer 2

• The proper procedure where a breach is anticipated and the persons concerned fail to desist is to ARREST FOR OBSTRUCTION
• Can’t arrest for an anticipated breach of the peace

Question 3

List the applicable sections of the NZ BORA 1990 that this unit relates to

Answer 3

S8 - right not to be deprived of life
S9 - right not to be subjected to torture or ill treatment
S13 - freedom of thought, conscience and religion
S14 - freedom of expression
S15 - manifestation of religion and belief
S16 - freedom of peaceful assembly
S17 - freedom of association
S18 - freedom of movement
S19 - freedom from discrimination
S20 - rights of minorities
S21 - unreasonable search and seizure
S22 - liberty of the person
S23 - rights of person arrested or detained
S24 - rights of person charged
S25 - minimum standards of criminal procedure

Question 4

List the applicable sections of the NZ BORA 1990 that this unit relates to

Answer 4

S8 - right not to be deprived of life
S9 - right not to be subjected to torture or ill treatment
S13 - freedom of thought, conscience and religion
S14 - freedom of expression
S15 - manifestation of religion and belief
S16 - freedom of peaceful assembly
S17 - freedom of association
S18 - freedom of movement
S19 - freedom from discrimination
S20 - rights of minorities
S21 - unreasonable search and seizure
S22 - liberty of the person
S23 - rights of person arrested or detained
S24 - rights of person charged
S25 - minimum standards of criminal procedure

Question 5

List the key rules arising from the NZBORA

Answer 5

1. When investigating you may ask questions but don’t suggest that it is compulsory for the person to answer
2. You must caution people
3. If you arrest someone you must caution them, even if you have given the caution when they were detained
4. There is no power to detain a person for questioning or to pursue enquiries, although a person can assist voluntarily with enquiries.

Question 6

S9 - right not to be subjected to torture or cruel treatment

Answer 6

Is relevant to the treatment of prisoners

Question 7

S14 - freedom of expression and peaceful assembly

Answer 7

Relevant to policing demonstrations

Question 8

How many people constitute an assembly?

Answer 8

2+ people meeting with a COMMON GOAL

Question 9

What would constitute a non-peaceful assembly?

Answer 9

Actions that constituted a serious and aggressive effect on people or property

Question 10

Under S16 protesters’ behaviour must either …

Answer 10

1. Substantially inhibit other people from enjoying their right to use the public amenity and/or
2. Cause greater offence than those affected can reasonably be expected to tolerate, to the extent that it is seriously disruptive to public disorder

Question 11

What should you consider regarding protestors and S16?

Answer 11

• does the behaviour express a view on a matter of public interest?
• does the behaviour intrude on the rights of others in a public space?
• does this intrusion go beyond what a reasonable person, respectful of the rights to freedom of expression and assembly, could be expected to tolerate?
• does the behaviour pose an actual risk of public disorder (eg, is it intimidation, victimization, bullying or pose a real risk of violence)?
• does the behaviour warrant the intervention of the criminal law?

Question 12

S21 - right to be secure against unreasonable search and seizure

Answer 12

• unlawful searches and seizures are almost always unreasonable
• however if undertaken in good faith where the searcher was mistaken about their power of search then it may not be unreasonable
• regarding minor irregularities, the evidence may still be admissible, however if the error was realised before the search was undertaken - it is not reasonable
• unwarranted rubdown or strip searches may breach s21

Question 13

S22 - right not to be arbitrarily arrested or detained - detail how R v Goodwin guides Police action when arresting someone

Answer 13

Arrest - R v Goodwin - an arrest must have its crimes act meaning of a COMMUNICATED INTENTION on the part of the police officer to hold the person under lawful authority

Question 14

Regarding S22, describe how someone would be regarded as ‘detained’

Answer 14

• a physical deprivation of a person’s liberty
• there are statutory restraints on a person’s movement
• they have a reasonably held belief induced by a person’s conduct that they are not free to leave

Question 15

S23 - rights of people arrested or detained; list the instances where BOR may need to be given again

Answer 15

• must ensure rights are understood
• Rights may need to be given again where the suspect is:
• stressed, confused or fatigued at the time of the arrest
• has a poor command of the english language
• has a passive nature, or a limited intellect
• may have difficulty hearing because of background noise
• needs an interpreter (eg of sign language or a foreign language)

Question 16

Police v Curran (1992)

Hint: refrain

Answer 16

The detainer is required to refrain from attempting to gain evidence from the detainee until the detainee has had a reasonable opportunity to consult and instruct a lawyer

Question 17

R v Ormsby (2005)

Answer 17

If the suspect has been told, “You have the right to remain silent” but then continues to answer questions then that is on them

Question 18

R v Perry (2015)

Hint: no absolute prohibition

Answer 18

• there is no absolute prohibition on further questioning by Police
• the court will decide whether any evidence elicited before the lawyer’s arrival will be admissible
• best practice is to suspend the interview until they arrive

Question 19

Regarding the Evidence Act, what rule does section 28 specify about statements?

Answer 19

The reliability rule

Question 20

Regarding the Evidence Act and statements made by a defendant, name the rules where a defendant’s statement would be excluded

Answer 20

S28 - the reliability rule
S29 - the oppression rule
S30 - the improperly obtained evidence rule

Question 21

What test does a judge use when a defendant is giving a statement against a co-defendant?

Answer 21

Balance of probabilities

Question 22

What circumstances would exist to satisfy a judge re a defendant giving a statement against a co-defendant once he has tested it on the balance of probabilities?

Answer 22

The circumstances in which the statement was made were not likely to have adversely affected its reliability

Question 23

Regarding 28(3) of the Evidence Act, what two specific types of defendant statement would not be subjected to the reliability rule?

Answer 23

1. A statement that is offered only as evidence of the physical, mental or psychological condition of the defendant

Eg, where the prosecution attempt to prove that the defendant was suffering from psychosis and the statement describes to the police aliens said by the defendant to be present in the police station interview room

2. Where the prosecution offers the defendant’s statement only as evidence of whether the statement was made.

Question 24

Under 28(4) of the E.A. what factors may the judge take into account when determining whether the prosecution has, on the balance of probabilities, shown that the circumstances in which the statement was made have not adversely affected its reliability?

(Hint: pertinent)

Answer 24

• any pertinent physical, mental or psychological condition of the defendant when the statement was made (whether apparent or not)
• any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject
• the nature of any questions put to the defendant and the manner and circumstances in which they were put
• the nature of any threat, promise, or representation made to the defendant by any other person

Question 25

Define how the courts view "reliability" in S28

Answer 25

This refers to the actual circumstances under which the statement was made and it's likely reliability therein, rather than an assessment of its actual reliability

Question 26

What rule does S29 of the E.A. describe?

Answer 26

The oppression rule

Question 27

What test does the judge use when applying S29 - the oppression rule?

Answer 27

The judge must exclude the statement after being satisfied BEYOND REASONABLE DOUBT.

Question 28

What perspective is oppression judged from?

Answer 28

The defendant's perspective

Question 29

Oppression (S29(5))

Answer 29

- 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

Question 30

S30 - Improperly obtained evidence - describe the two situations where this rule would apply?

Answer 30

1. Where the defendant raises the issue and the grounds for raising it; or 2. The judge raises the issue and the grounds for raising it, with the prosecution

Question 31

What two tests does the judge apply when weighing up evidence that may have been improperly obtained?

Answer 31

1. The balance of probabilities; and then if yes, then; | 2. Uses a balancing process to determine whether the exclusion of the evidence is proportionate to the impropriety

Question 32

What effect does the balancing process have?

Answer 32

- it gives appropriate weight to the impropriety | - it takes proper account of the need for an effective and credible system of justice

Question 33

"Improperly obtained evidence" - evidence obtained:

Answer 33

S30(5) - it is evidence obtained: - in consequence of a breach of any enactment or rule of law by a person to whom S3 of the NZBORA 1990 applies; or - in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or - unfairly

Question 34

R v Chetty (2015) | Hint: record

Answer 34

This sets out how the Police must conduct themselves and requires a record to be created

Question 35

What else does the balancing process factor in with regard to improperly obtained evidence? (IMPETUOUS BENNY!)

Answer 35

``` IMPETUOUS BENNY = IMPortancE/naTUre/ imprOpriety/qUality/ Seriousness/availaBle/ rEmedies/daNger/ urgeNcY ``` - the importance of any right breached and the seriousness of any intrusion on it - the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith - the nature and quality of the improperly obtained evidence - the seriousness of the offence - whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used - whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant - whether the impropriety was necessary to avoid apprehended physical danger to the others - whether there was any urgency in obtaining the improperly obtained evidence

Question 36

Practice Note 1 on Police Questioning (S30(6) E.A. 2006)

Answer 36

A member of the police investigating an offence may ask questions of any person from whom it is thought useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory to for the person questioned to answer.

Question 37

Practice Note 2 on Police Questioning (S30(6) E.A. 2006)

Answer 37

Whenever a member of Police has sufficient evidence to charge a person with an offence or whenever a member of Police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions - the caution is the BOR - anything relevant to the offence will need to be recorded in some way - record the fact that other topics were discussed - invite the suspect to sign a record of that fact - if the suspect refuses to sign then record that fact - record general topics discussed (briefly) as soon as is practicable thereafter - if recorded by DVD interview then the fact that other topics were discussed could be mentioned as part of the introduction to that interview

Question 38

Practice Note 3 on Police Questioning (S30(6) E.A. 2006)

Answer 38

Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross examination

Question 39

Practice Note 4 on Police Questioning (S30(6) E.A. 2006)

Answer 39

Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained

Question 40

Practice Note 5 on Police Questioning (S30(6) E.A. 2006)

Answer 40

Order of preference for recording statements: 1. DVD 2. Audio 3. Writing Also give them a chance to review the DVD/interview notes and sign they are correct

Question 41

What is the gist of Phillips v R (2017) regarding voluntary statements?

Answer 41

Phillips was arrested for fighting around a vehicle - given his BOR - asked about the fight - volunteered info about driving - then changed his story - the officer paraphrased the original statement in his notebook but did not record the changed story - the notes made were not shown to Phillips - he was not given the opportunity to sign the notebook - not invited to correct any errors or amend the statement Comment: the courts have continually emphasized the need for key interactions with defendants to be recorded.