Managing Suspects/Offenders Flashcards
Crimes act s39 – force used in executing process or in arrest…
How much force can be used?
Use of force as maybe necessary to overcome any force used in resisting such arrest…
… unless the arrest can be made by reasonable means in a less violent manner.
(This section does not apply where the force used is intended or likely to cause death/GBH)
What does S40 Crimes Act refer to?
Use of force as may be reasonably necessary to
a) prevent the escape of that person to avoid arrest or
b) to prevent the escape or rescue of that person after his arrest
(unless it can be done in a less violent manner)
What does s41 of the Crimes Act refer to?
EVERYONE is justified in using such force as may be reasonably necessary in order to prevent…
a) suicide
b) an offence which would likely cause immediate or serious injury to the person
c) any act which with RGTB would, if committed, amount to suicide
What does s42 of the Crimes Act refer to?
EVERYONE 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 to the custody of a Constable.
(Person must use no more force than reasonably necessary or than is reasonable in the circumstances)
s202a Possession of Offensive Weapons
What is the defence under s4(b)?
(4)(b) states “who has in his 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 injury or the threat/fear of violence”
It is a defence if the person charged proves that he did not intend to use the offensive weapon to commit an offence
CASE LAW: in Attorney general v Reid, Reid was a protestor at Waitangi Day 1983. He was arrested for breach of the peace for abusing police, and the previous experiences of Waitangi Day protests.
What point did this highlight?
There was no reasonable ground for apprehension of a breach of peace because there is no power of arrest for anticipated breaches of the peace.
Proper procedure would have been to warn and arrest for obstruction.
What does s8 of the BORA 1990 regard?
Right not to be deprived of life
Except on such grounds as are est by law and consistent with fundamental justice (ie death in custody or death by police)
What does s9 of the BORA 1990 relate to?
Right not to be subjected to torture or cruel treatment.
Treatment of prisoners, I.e. all persons treated with respect and dignity.
What does s13 of BORA 1990 relate to?
Freedom of thought, conscience, religion, belief
What does s14 BORA1990 relate to?
Freedom of expression
Freedom to speak, have opinions of any kind. But excludes hate speech and defamation which is unlawful.
What is assembly defined as under s16 of the BORA 1990?
Assembly = 2 or more people meeting with common goal.
S16 is the Freedom of Peaceful Assembly.
For an assembly to be found non-peaceful it requires a serious and aggressive effect on people or property.
How is s18 BORA 1990 (Freedom of movement) relevant to frontline policing?
- everyone lawfully in NZ has right to freedom of movement
- every NZ citizen has right to enter NZ
- everyone has the right to leave NZ
This should be regarded when considering an unreasonable bail condition, road closures, etc
Describe s21 BORA - Unreasonable Search and Seizure
There is to be a reasonable expectation of privacy from intrusion from the govt.
A search or seizure is considered reasonable if it is conducted under a statutory power and the public interest outweighs the individuals privacy interest.
Unlawful searches will almost always be in breach of s21. Exception- good faith.
It can be unreasonable due to circumstances I.e. strip searched in the street
What usually happens when there has been a breach of s21 BORA (unreasonable search/seizure)?
Exclusion of evidence under s30 of Evidence Act
Some unreasonable searches may also warrant compensation!
What does s22 BORA “Liberty of Person” describe?
everyone has the right not to be arbitrarily arrested or detained.
E.g. keeping a person in custody longer than necessary, stopping a vehicle to undertake enquires, unlawful arrests/detainments
According to s23 BORA 1990, what are the rights of a person arrested/detained?
A) informed at time of arrest the reason for it
B) right to consult a lawyer without delay
C) right to have the validity of the arrest determined by court and released if unlawful
D) right to be charged promptly or released
E) if not released, to be brought before court ASAP
F) right to refrain from making statement
G) treated with humanity and respect for inherent dignity of person
examples of breaches: excessive force, failure to provide medical treatment, unnecessary strip searching etc
According to s24 BORA 1990, what are the rights of a person charged for an offence?
A) informed promptly of the nature and cause of charge
B) released on reasonable bail conditions unless just cause for RIC
C) right to consult lawyer
D) right to adequate time and facilities to prepare a defence
E) right to the benefit of a trial by jury if penalty of offence is 2yrs + imprisonment
F) right to free legal assistance
G) right to interpreter assistance
S25 BORA 1990 lists the minimum standard of a criminal prosecution. What does it include?
- right to a fair and public hearing, independent, impartial court
- right to be tried without undue delay
- right to be presumed innocent until proven guilty
- right not to be compelled to be a witness
- right to be present at trial, present a defence
- right to examine prosecution witnesses
- right to appeal to a high court
What are the key rules of the NZ Bill of Rights Act 1990?
- When asking questions of a suspect you must not suggest that it is compulsory to answer.
- If you want to question someone and you have sufficient evidence to charge them, you must caution them first.
- If you have arrested/detained someone you must caution them, even if you cautioned them prior to placing them under arrest.
- There is no power to detain someone for questioning/enquires. Only voluntary.
The NZBORA is primarily intended to promote human rights and fundamental freedoms.
Essentially, it provides what 3 things?
1) protection against power of govt agencies
2) minimum standards for public decision making
3) protection for human rights and basic freedoms
Defendant statements are NOT admissible if they are excluded under what 3 rules?
The reliability rule
The oppression rule
The improperly obtained evidence rule
What is the reliability rule?
Relates to the accuracy and soundness of the statement.
If the defendant or judge raises the issue of reliability, then the judge must exclude the statement unless on the balance of probabilities the circumstances in which the statement was made were not likely to have affected it’s reliability.
What sorts of things would the judge take into account when assessing if on the balance of probabilities a defendant’s statement is unreliable?
- any mental/physical condition of the defendant when the statement was made?
- any disability of the defendant?
- the nature of any questions put to the defendant and the manner and circumstances they were in
- the nature of any threat or promise made to the defendant
Under the evidence act re defendant statements,
What is the oppression rule?
If the defendant or judge raises the issue of the statement being influenced by oppression,
The judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.
NB it is irrelevant whether the statement is true
Regarding the oppression rule (defendant statements), what does oppression mean?
Oppression means ”oppressive, violent, inhuman, or degrading conduct toward the defendant or threat of conduct or treatment of that kind.”
What is the improperly obtained evidence rule?
If the defendant or Judge raises the issue of whether the evidence was improperly obtained,
The judge must find, on the balance of probabilities, whether or not it was improperly obtained…
And if so, determine whether or not the exclusion of that evidence is proportionate to the impropriety by means of a balancing process.
Questioning a person in custody, to DVD or not?
Preferably recorded on DVD!
If not the statement must be recorded permanently on audiotape or in writing. Person making statement must be given the opportunity to review and make any corrections/add anything further.
CASE LAW: in Phillips v R an officer was called to an incident involving males fighting. An arrested male made voluntary admissions but then changed his story. The officer recorded the original statement but not the subsequent versions… what did the court find?
The notes were not shown to the male, nor was he given an opportunity to sign any part of the notebook or correct errors.
This was in breach of the practice note on questioning. the high court found that the recording of the statement was unfair. it reiterates the importance of recording key interactions with defendants!
