Managing suspects and offenders Flashcards
When is evidence offered by the prosecution of a statement made by a defendant not admissible against that defendant? (3)
Evidence Act 2006
S28 - The reliability rule
S29 - The oppression rule
S30 - The improperly obtained evidence rule
Is evidence offered by the prosecution of a statement made by a co-defendant in a proceeding admissible?
Answer:
No.
Everyone charged with an offence has the right to….(rights of person)
The right to consult and instruct a lawyer
Informed promptly and in detail of the nature of the allegation
The right to adequate time and facilities to prepare a defence
Shall be released on reasonable terms and conditions unless there is just cause for continued detention.
shall have the right to legal assistance without cost if the interests of justice so require
shall have right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.
Crimes act - Sect 39
Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.
Force used to arrest - Section 39
Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him or her of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner
Crimes act - Section 40
Preventing escape or rescue section 40
- May use reasonable force to prevent escape of a person trying to avoid arrest Or who is arrested
Crimes act section 41
Crimes act Sect 41 - Prevention of suicide.
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?
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.
Crimes act section 42
- Preventing breach of the peace section 42.
Every one who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to give him or her into the custody of a constable:
May use reasonable or proportionate force to prevent continuance or renewal.
(2) Every constable who witnesses a breach of the peace, and every person lawfully assisting him or her, is justified in arresting any one whom he or she finds committing it.
(3) Every constable is justified in receiving into custody any person given into his or her charge, as having been a party to a breach of the peace, by one who has witnessed it or whom the constable believes on reasonable and probable grounds to have witnessed it.
Section 202A possession of offensive weapons or disabling substances
Disabling Substance meaning - In this section disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him or her for such use.
(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 or her for such use.
202 4.b Offensive weapon means any article capable of being used for causing bodily injury.
(4)(a)
who, without lawful authority or reasonable excuse, has with him or her in any public place any knife or offensive weapon or disabling substance; or
(b)who has in his or her possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.
(5)
It is a defence to a charge under subsection (4)(b) if the person charged proves that he or she 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
BOR Act 1990- section 8.
BOR Act section 8. Not to be deprived of life
No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice
BOR act 1990 - Section 9.
BOR Act Section 9. Right not to be subjected to torture or cruel treatment
Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment.
BOR act 1990 - Section 13.
BOR Act Section 13 = Freedom of thought, conscience, and religion
Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference.
BOR Act 1990 Section 14
BOR Act Section 14 - Freedom of expression
Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.
BOR act 1990 section 15
BOR Act Section 15 - Manifestation of religion and belief
Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.
BOR act 1990 Section 16
BOR Act Section 16 - Freedom of peaceful assembly
Everyone has the right to freedom of peaceful assembly.
An assembly is two or more people meeting with a common goal.
Assemblies must be peaceful to be protected by the right.
A group that inconveniences members of public may still be peaceful. One non peaceful person does not extinguish the right for the rest of the group.
BOR act 1990 Sect 17
BOR Act Sect 17- Right to freedom of association.
Everyone has the right to freedom of association
BOR Act 1990 section 18
BOR Act Section 18 - 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
BOR Act section 19
BOR Act Section 19 - Freedom from discrimination
(1)
Everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993.
(2)
Measures taken in good faith for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination that is unlawful by virtue of Part 2 of the Human Rights Act 1993 do not constitute discrimination.
BOR act Section 20.
BOR act Section 20. Rights of minorities
A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.
BOR Act 1990 section 21
BOR Act Sect 21- Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
Generally, a search or seizure will be reasonable if it is conducted under a statutory power and the public interest in administering criminal justice outweighs the individuals right to privacy.
BOR Act 1990 Section 22
BOR Act Section 22. Liberty of the person
Everyone has the right not to be arbitrarily arrested or detained.
BOR Act section 23
BOR Act Section 23 Rights of persons arrested or detained
(1)
Everyone who is arrested or who is detained under any enactment—
- fully informed of reason
- right to consult and instruct lawyer
- right to be released if arrest or detention is not lawful
- right to refrain from making statement
- right to be treated with dignity and humanity
- right to be charged promptly and released
BOR act 1990 section 24
BOR Act Section 24 - Rights of persons charged
Everyone who is charged with an offence—
(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
BOR Act section 25
BOR Act Sect 25 - Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
- right to fair and public hearing
- right to be tried without undue delay
- right to be presumed innocent until proven guilty
- right not to be compelled to be a witness or to confess to guilt
- right to be present at trial and to present a defence
- right to if convicted of an offence and sentence varied between conviction and sentence to the benefit of a lesser penalty
- right to appeal against conviction or sentence or both
- right in case of child to be dealt with in manner account information for child’s age
Evidence act 2006 - Sect 28
Evidence act section 28 - The Reliability Rule
Exclusion of unreliable statements.
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.
What relevant matters must a judge take into account when excluding a defendants statement made to police? What matters would make the statement not able to be used?
any relevant physical, mental or psychological conditions of the defendant
any relevant, physical, mental, intellectual or disability characteristics of the defendant including
nature of questions by interviewer
nature of any threat, promise or representation made to the defendant
Evidence act S29 - When must a judge exclude a statement influenced by oppression?
The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
Evidence act 2006 - Sect 29
Evidence act 2006 - Sect 29- The oppression rule
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.
Evidence act 2006 section 30
Evidence act 2006 section 30. Improperly obtained evidence Rule
Section 30(5) defines improperly obtained evidence. It is evidence obtained:
in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 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.
A causative link between the impropriety and the obtaining of the evidence is required for s 30(5)(a) and (b). Causation is also necessary to show that evidence was unfairly obtained under s 30(5)(c).
If a person has been told to remain silent by a lawyer, does this prohibit Police from asking further questions of that person?
No - there is no prohibition on further questioning by the Police after the right to silence has been asserted.
What is a statement?
A statement is a spoken or written assertion of any matter or non verbal conduct that is intended as an assertion of any matter.
Who must the Bill of Rights Caution be given to?
Adults who are arrested or detained, or where Police want to question an adult where there is sufficient evidence to charge that person with an offence
children or young persons when detained or arrested and in accordance with sec 215 OT Act, before questioning a child or young when there are reasonable grounds to suspect them of having committed an offence or before asking any child or young person any question intended to obtain an admission of an offence.
What is the threshold for demonstrations behaviour to be an offence or breach of the peace?
The behaviour must either substantially inhibit other people from enjoying their right to use the public amenity or cause greater offence to those affected can be expected to tolerate, to the extent that it is seriously disruptive of public order.
Can a person waive their right to consult a lawyer?
Yes provided that this is done clearly and with full knowledge of that right. A valid waiver requires a CONCIOUS CHOICE that is both INFORMED and VOLUNTARY, and it cannot be implied from silence or failure to request their rights.
What was held in Attorney General versus Reid in relation to arrest for breach of the peace?
This case arose from a civil claim of damages for the false arrest.
The court held there is no power to arrest for an anticipated breach of the peace. The proper procedure where breaches are anticipated and the persons concern fail to desist is to arrest for obstruction.
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.
What is the exception to giving rights immediately upon arrest or detainment? Provide 2 examples.
-Where an officers immediate safety is threatened.
- Where there is an ongoing and real danger that evidence will be lost
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?
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?
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 its a 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 in respect of whom there is sufficient evidence to the charge must not amount to cross examination
4) Whenever a person’s question 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 applies 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?
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?
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.
