Managing Suspects And Offenders

Question 1

Crimes act 39

Answer 1

Force used in executing process of arrest

Protected from criminal responsibility if force used is 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 way

Force can not amount to death or GBH

Question 2

Crimes Act 40

Answer 2

Preventing escape or rescue

Prevent the escape of person after his arrest if he takes flight to in order to avoid arrest

Prevent escape or arrest if that person unless can be prevented by less violent means

Unless intended or likely to cause death or GBH

Question 3

Crimes Act 41

Answer 3

Justified to use force reasonably necessary in order to prevent commission of suicide or immediate and serious injury to person or property

Question 4

Crimes Act 42

Answer 4

Everyone who witnesses a breach of the peace is justified in interfering to prevent its continuous or renewal and may detain any person committing it, in order to give him into the custody of a constable

Reasonably necessary force to prevent continuous or renewal of breach

Justified in arresting

Question 5

202A

Answer 5

Possession of OW or disabling substance

(4) (a)- OW- article made or altered for causing bodily injury or intended by the person for such use
(4) (b)-OW-article capable of being used for causing bodily injury

Disabling substance- any anaesthetising or other substance produced for disabling persons or person having it with them for such use

3yrs if has with them in public place without lawful authority or reasonable excuse or

Prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence

Defence to (4)(b) Prima facile charge of probe no intent

Question 6

Attorney general v Reid 1986

Answer 6

Arrest for breach of peace at Waitangi Day protests

No reasonable grounds for apprehension of a breach of prescription

No power of arrest for anticipated breach of peace

Affirms the lack of power of arrest. Roper procedure where anticipated breach, arrest for obstruction

Question 7

BOR 8

Answer 7

Right not to be deprived of life

Question 8

BOR 9

Answer 8

Right not to be subjected to torture or cruel treatment

Relevant to treatment of prisoners - deprivation of mental or strip search in public etc

Question 9

BOR 13

Answer 9

Freedom of thought, conscience and religion

Question 10

BOR 14

Answer 10

Everyone has right of freedom of expression

Relevant to demonstrations, disorderly and offensive behaviour. Content of the expression usually irrelevant apart from censorship, hate speech and defamation which are unlawful

Question 11

BOR 15

Answer 11

Everyone has right to manifest that persons religion or belief in worship, observance, practice or teaching, in public or in private

Question 12

BOR 16

Answer 12

Everyone has right to freedom of peaceful assembly

Assembly is two or more people meeting with a common goal

May still be peaceful if inconveniences public. One person not peaceful does not ruin for rest of assembly

Question 13

BOR 17

Answer 13

Everyone has the right to freedom of association

Question 14

BOR 18

Answer 14

Everyone lawfully in NZ has the right to freedom of movement and residence in NZ

Every NZ has right to enter NZ

And right to leave

If not NZ citizen and lawfully here be required to leave unless under a decision taken on grounds prescribed by law

Question 15

BOR 19

Answer 15

Everyone has right to freedom from discrimination as per human rights act grounds

Good faith measures to assist those disadvantaged by discrimination not included

Question 16

BOR 20

Answer 16

Minority groups have right to enjoy their ethnic, religious or linguistic culture, to profess and practice the religion, or use the language

Question 17

BOR 21

Answer 17

Right to be secure against unreasonable search or seizure whether of person, property or correspondence

Basis is to protect privacy from intrusion

Generally reasonable under statutory power and public interest outweighs the privacy interest

Question 18

BOR 22

Answer 18

Right to not be arbitrarily arrested or detained

R v Goodwin- arrest must have communicated intention on part of the officer

Before arrest, officer must consider alternative action such as summons. Failure to consider the discretion to arrest will be arbitrary

Question 19

BOR 23

Answer 19

Rights of person arrested or detained

Informed at time reason, right to consult lawyer, have validity of arrest or dentition determined and released if unlawful

Right to be charged promptly

Right to appear ASAP if not released

Right to refrain from statement

Treated with humanity and respect for inherent dignity of the person

Question 20

BOR 24

Answer 20

Rights of persons charged

Informed of nature and cause of charge

Released on reasonable terms and conditions

Right to consult lawyer

Adequate time to prepare defence

Trial by jury when 2yr or more offence unless under military law

Free legal assistance

Free assistance of interpreter

Question 21

BOR 25

Answer 21

Person charged has following minimum rights:

Fair and public hearing by independent and impartial court

Tried without undue delay

Presumed innocent until proved guilty

Not to be compelled to be a witness or confess guilt

Examine witnesses for prosecution and obtain same for the defence

Lesser penalty if penalty has been varied in time between commission and sentencing

Appeal conviction according to law to a higher court against conviction or sentence or both

If child, takes into account age

Question 22

Demonstrations being at level of disorderly or offensive

Answer 22

Much higher level for assemblies

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 of public order

Power of arrest under 42 of crimes act does not automatically justify.

Consider view being expressed, intrude on others rights, actual risk of public disorder/violence etc

Question 23

Searches and seizures

Answer 23

Unlawful searches always be unreasonable and breach 21 but if undertaken in good faith and person was mistaken about their power, may not be I.e wrong power but lawful under another

Minor irregularities may not be unreasonable as long as police did not realise before the search or seizure was undertaken

Search can be unreasonable if done in unreasonable manner I.e search in public when could have been done privately

Breach of 21 usually results in exclusion of evidence under 30 of evidence act. Sometimes compensation as well

Question 24

Ensuring rights are understood

Answer 24

Detained obligation so may be required to give rights more than once

Extended obligation examples
Person stressed, confused or fatigued at time of arrest
Poor English 
Passive nature or limited intelligence 
Background noise at time 
Interpreter needed 

Readvise in interview if new offence or extended period of time

Can be given in writing. Nothing in act to say has to be verbal.

Question 25

When prisoners exercise their rights

Answer 25

Can not continue to question for evidence once requested to speak with lawyer. Need reasonable opportunity to consult and instruct

R c ormsby- once received legal advice and has told police that the burden of advice is to remain silent but despite this suspect continues to answer question - no absolute prohibition on police

Therefore, police can continue interview after consult. Court will decide whether any evidence elicited will be admissible. If lawyer enroute tho, should wait

No legal requirement for police to offer suspect multiple lawyer phone calls if they are not satisfied with the legal advice given

Question 26

Right to privacy

Answer 26

Can not deny in grounds that there is no private room

Right can be overridden in some circumstances if deemed not safe to leave alone or risk they may try dispose of evidence and warn others

Privacy not required if indicate they do not need it

Question 27

28- reliability rule

Answer 27

Exclusion of unreliable statements

Must exclude 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

Exception to this is if prosecution wishes to use the statement as evidence of the defendants physical, mental or psychological condition at the time statement was made

Factors to be considered by judge when deciding on probabilities:

• any physical, mental l, psychological condition
• any pertinent characteristic of defendant such as mental, intellectual disabilities
• nature of questions and manner and circumstances in which they were put
• nature of any threat, promise or representation made

Question 28

29- oppression rule

Answer 28

Exclusion of statements influenced by oppression

Exclude unless satisfied beyond reasonable doubt that the statement was influenced by oppression

Take in to account:

• any pertinent physical, mental or psychological condition
• mental, intellectual disabilities
• nature of questions, manner and circumstances in which they were put
• nature of any threats, promise or representation

Question 29

Oppression

Answer 29

Oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or any other person.

Or

A threat of conduct or treatment of that kind

Question 30

30- improperly obtained evidence

Answer 30

Must find on balance of probabilities that evidence improperly obtained

If find evidence improperly obtained then determine if should be excluded by considering if it is proportionate to the impropriety by means of a balancing process

Court to consider:

• importance of any right breached
• nature of impropriety ie deliberate, reckless or bad faith
• nature and quality of improperly obtained evidence
• seriousness of offence charged with
• investigatory techniques known to be available but not used
• alternative remedies to exclusion of the evidence
• impropriety necessary to avoid physical danger to police or others
• any urgency to obtain

Only applies to evidence offered by prosecutions

Question 31

Improperly obtained evidence definition

Answer 31

Any breach of any enactment or rule of law by a person to whom Section 3 of NZBOR act applies

Or

In consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by prosecution

Or

Unfairly

Question 32

Practice note 1

Answer 32

Police may ask questions of any person to assist with inquiries but noisy not suggest that the person much answer

Question 33

Police note 2

Answer 33

When sufficient revise to charge, or when seek to question a person in custody, person must be cautioned before being invited to make statement or answer questions

Question 34

Practice note 3

Answer 34

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

Question 35

Practice note 4

Answer 35

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

Question 36

Police note 5

Answer 36

Statement be preferably recorded on video unless impractical person declines.

If not video, must be permanently recorded on audio tape or writing.

Must be given opportunity to review statement and correct any errors or add further.

If in writing, must be asked if they wish to confirm the written by signing it

Question 37

Phillips v r - voluntary statements

Answer 37

Inadmissible statement as not recorded “fairly” in accordance with practice note 5

Defendant volunteered statement that he was driving. Story then changed. Only first part of statement recorded in officers notebook