Managing Suspects And Offenders Flashcards
Crimes act 39
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
Crimes Act 40
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
Crimes Act 41
Justified to use force reasonably necessary in order to prevent commission of suicide or immediate and serious injury to person or property
Crimes Act 42
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
202A
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
Attorney general v Reid 1986
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
BOR 8
Right not to be deprived of life
BOR 9
Right not to be subjected to torture or cruel treatment
Relevant to treatment of prisoners - deprivation of mental or strip search in public etc
BOR 13
Freedom of thought, conscience and religion
BOR 14
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
BOR 15
Everyone has right to manifest that persons religion or belief in worship, observance, practice or teaching, in public or in private
BOR 16
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
BOR 17
Everyone has the right to freedom of association
BOR 18
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
BOR 19
Everyone has right to freedom from discrimination as per human rights act grounds
Good faith measures to assist those disadvantaged by discrimination not included
BOR 20
Minority groups have right to enjoy their ethnic, religious or linguistic culture, to profess and practice the religion, or use the language
BOR 21
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
BOR 22
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
BOR 23
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
BOR 24
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
BOR 25
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
Demonstrations being at level of disorderly or offensive
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
Searches and seizures
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
Ensuring rights are understood
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.
When prisoners exercise their rights
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
Right to privacy
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
28- reliability rule
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
29- oppression rule
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
Oppression
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
30- improperly obtained evidence
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
Improperly obtained evidence definition
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
Practice note 1
Police may ask questions of any person to assist with inquiries but noisy not suggest that the person much answer
Police note 2
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
Practice note 3
Questions of a person in custody or whom there is sufficient evidence to lay a charge must not amount to cross examination
Practice note 4
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
Police note 5
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
Phillips v r - voluntary statements
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
