Managing Suspects and Offenders Flashcards
What is the gist of Attorney General v Reid (1986)
Hint: breach of the peace
- 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
List the key rules arising from the NZBORA
- When investigating you may ask questions but don’t suggest that it is compulsory for the person to answer
- You must caution people
- If you arrest someone you must caution them, even if you have given the caution when they were detained
- There is no power to detain a person for questioning or to pursue enquiries, although a person can assist voluntarily with enquiries.
S9 - right not to be subjected to torture or cruel treatment
Is relevant to the treatment of prisoners
S14 - freedom of expression and peaceful assembly
Relevant to policing demonstrations
How many people constitute an assembly?
2+ people meeting with a COMMON GOAL
What would constitute a non-peaceful assembly?
Actions that constituted a serious and aggressive effect on people or property
Under S16 protesters’ behaviour must either …
- Substantially inhibit other people from enjoying their right to use the public amenity and/or
- Cause greater offence than those affected can reasonably be expected to tolerate, to the extent that it is seriously disruptive to public disorder
What should you consider regarding protestors and S16?
- 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?
- does the behaviour warrant the intervention of the criminal law?
S21 - right to be secure against unreasonable search and seizure
- 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
S22 - right not to be arbitrarily arrested or detained - detail how R v Goodwin guides Police action when arresting someone
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
Regarding S22, describe how someone would be regarded as ‘detained’
- 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
S23 - rights of people arrested or detained; list the instances where BOR may need to be given again
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)
Police v Curran (1992)
Hint: refrain
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
R v Ormsby (2005)
If the suspect has been told, “You have the right to remain silent” but then continues to answer questions then that is on them
Give four examples of arrest or detention:
Handcuffed
Formally arrested
Locked in a room
Placed in a patrol car against their will
If a search is deemed unreasonable, what is the usual remedy?
Exclusion of evidence S30 Evidence Act
A strip search in public is unreasonable. What sections of BoR does it breach?
S9 - Cruel and degrading
S21 - Not to be subject to unreasonable search and seizure
A search undertaken in good faith using the incorrect search power is unlawful or unreasonable?
Unlawful - but not unreasonable
What makes a search unreasonable?
Circumstances (ie strip search in public)
Manner of search.
What is “Seizure”
Removing something from the possession of someone else.
What is a search?
A conscious intrusion by the state into an individuals reasonable expectation of privacy
What are the minimum standards of Criminal Procedure - S25?
Presumption of innocence Fair trial (without delay) Not to confess or be called to stand To be present To examine witnesses Right to lesser penalty (if changed meantime) Right to appeal Right of child to be dealt with in manner consistent with age.
A person arrested and a person charged have different rights. What additional rights does a person charged have?
Right to bail informed of the nature of the charge Adequate time to prepare a defence Right to trial Right to legal aid Right to interpreter
What are the right of a person arrested S23? (7)
1: Informed at time of arrest reason for it.
2: Right to consult and instruct a lawyer
3: Right to have arrest challenged by Habeus Corpus
4: Be charged promptly or released
5: If not bailed, then right to appear ASAP
6: Refrain from making a statement
7: Treated with dignity.
S22:
Everyone has the right not to be arbitrarily arrested or detained
S21:
Everyone has the right to be free from unreasonable Search and Seizure whether the person, property or correspondence
Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?
No.
What does oppression mean?
Oppressive, violent, inhuman, or degrading conduct towards, or treatment of the defendant or another person;
O.V.I.D.
OR
a threat of conduct or treatment of that kind.
Sec 25 (BOR) - What are the minimum standards of Criminal Procedure?
The right to….
a) fair and public hearing impartial court
b) tried without undue delay
c) presumed innocent until proved guilty according to law
d) not to be compelled to be a witness or confess guilt
e) to be present at trial and present a defence
f) examine prosecution witnesses and to obtain the attendance and examination of witnesses for the defence under the same conditions of the prosecution
g) benefit of the lower penalty
h) appeal to a higher court
i) if a child, dealt with in a manner that takes into account the child’s age
Sec 18 (BOR) - Freedom of movement
1) Everyone lawfully in NZ has the right to freedom of movement and residence in NZ
2) Every NZ citizen has the right to enter NZ
3) Everyone has the right to leave NZ
4) Non NZ citizens. lawfully in NZ shall not be required to leave NZ except under a decision taken on grounds prescribed by law
S28 - When must a judge exclude an unreliable statement?
The judge must exclude the statement unless satisfied on the balance of probabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability.
Sec 202A (5)What is a defence to Possession of Offensive Weapons or Disabling Substances?
It is a defence if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
In Section 41 - Who is justified in using reasonable force to prevent the commission of suicide?
Answer:
s41 CA61 states Everyone is justified in using such force that is reasonably necessary to prevent the commission of suicide or an offence which would be likely to cause immediate or serious harm to the person or property of anyone
Is any person called upon by a constable to assist in execution process (Search warrant) or arrest, protected from criminal liability if use of force occurs?
Answer:
Any person called upon by a constable to assist is protected from criminal liability for the use of force UNLESS the force used was intended or likely to cause death or GBH.
Sec 24 of BOR lists the rights of persons charged, what are they?
(a) Informed of the nature and cause of the charge, and
(b) released on reasonable terms unless just cause for continued detention, and
(c) right to consult and instruct a lawyer, and
(d) right to adequate time and facilities to prepare a defence, and
(e) right to trial by jury (2 yrs or more penalty), and
(f) legal assistance without cost, and
(g) free assistance of an interpreter
What is an offensive weapon as described in subsection 4(a) and 4(b) CA61?
Answer:
4(a) “Offensive weapon” means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.
4(b) “Offensive weapon” means any article capable of being used for causing bodily injury
What is a disabling substance?
means any anaesthetising or other substance produced for the use of disabling persons, or intended by any person having it with him for such use.
What is the defence to an offensive weapon charge under subsection 4(b)?
Answer:
It is a defence if a person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.
When is a person defined as being detained?
They are detained if
– there is physical deprivation of persons liberty, or
– there are statutory restraints on a persons movement, or
- They have a reasonably held belief induced by police conduct and they’re not free to leave.
When providing rights to persons detained or arrested it is the arrestor’s obligation to ensure the right is conveyed and understood
What are some situation where this could be an issue?
Answer:
Where the suspect is;
- stressed out
- has poor command of the English language
- has a passive nature, or limited intelligence
- may have difficulty hearing because of background noise
- needs an interpreter (sign or foreign language)
Can written notifications of rights be given to an offender or person detained?
Answer:
Yes. There is nothing in the act that requires a person be advised verbally rather than writing.
What is the exception to giving rights immediately upon arrest or detainment? Provide 2 examples.
Answer:
- Where an officers immediate safety is threatened.
- Where there is an ongoing and real danger that evidence will be lost
What is the PDLA?
What must the arrested person be told?
Answer:
This is the Police Detention Legal Assistance Scheme
Answer:
They have the right to consult and instruct a lawyer in private, and
That the right may be exercised without charge under the PDLA
When right to consult a lawyer is asserted what are 5 fundamentals that must be applied.
Answer:
(32) No prohibition on questions by police after the right to silence has been asserted. Earlier rights asserted may be waived.
(34) Where police have agreed with lawyers that there will be no further discussion with the accused without a lawyer being present, if discussions are to continue a voluntary waiver must be given by the accused.
(35) Don’t undermine the value of the legal advice given
(36) if the suspect has exercised their right to silence but then is further questioned. Where there is no cajoling by police to change the suspects mind, a valid waiver can be given even though the lawyer is not further contacted.
(38) if suspect has requested their right to silence and makes admissions before the lawyer has arrived it would be best practice to suspend the interview until the lawyer arrives.
The court will decide if it’s admissible.
The suspect is not obliged to have a lawyer present during the interview.
However the waiver of the right to lawyer in s24(c) must be established in an unequivocal (no doubt) manner.
What case law refers to this?
Answer:
Police v Koehler
A valid waiver requires conscious choice that is both informed and voluntary
It cannot be implied from silence or failure to request rights
What is the Chief Justice note on Police Questioning?
Answer:
Any questions you put to a person in custody, or in respect of whom there is sufficient evidence to file a charge, must not amount to cross-examination.
What are the 5 Practice notes of Police Questioning?
s30(6) Evidence Act 2006
Explain them.
Answer:
1) A Police member may ask question of anyone from which useful information can be obtained whether suspect or not
Must not suggest it is compulsory to answer.
2) When police has sufficient evidence to charge for an offence or whenever questioning a person in custody they must be cautioned before asked to make a statement.
3) Questions asked of a person in custody or respect of whom there is sufficient evidence to the charge must not amount to cross examination
4) 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.
5) All statements should be recorded by video recording unless it is impractical unless a person declines to be recorded by video. If recorded by video the person must be given the opportunity to review the tape or if a written statement to correct errors or add anything further.
Written statements must be signed.
Relation to Phillips v R what was found in relation to Questioning of offender?
Answer:
The officer recorded the original statement in his note book but did not record any subsequent retraction or alternative story that the offender later gave him. This is a breach of Rule 5 of the Chief Justice Practice Notes of Police Questioning.
In Robertson v R what was the result of the officer recording what the offender had blurted out in a partial admission to a sexual assault?
Answer:
The court found that the officer had breached Rule 5 and Rule 2 by not having the offender view and sign his notebook (5) and the offender was not re-cautioned prior to being spoken to about the allegations (2). It had been 2.5 hours since his last caution.
