New zealand Bill Of Right sections 22 & 23

Question 1

A person does not need to be physically deprived of their liberty in order to be detained. What are 2 sets of circumstances where a person may be detained?

Answer 1

1. Person is required to attend a particular place or remain in a particular place and non compliance is subject to a penalty
2. Words or conduct of the enforcement officer provides a reasonable belief that the person is it not free to leave

Question 2

Is the perception of an individual sufficient to find the person was detained?

Answer 2

No , there needs to be some outward manifestation of intent to detain, some overt or positive action taken by an enforcement officer

Question 3

Meaning of arbitrary?

Answer 3

An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures

Question 4

When does a lawful detention become arbitrary?

Answer 4

When the original reasons for detention are no longer valid

Question 5

Can someone be detained for the purpose of questioning about an offence?

Answer 5

In the absence of any statutory power it is likely that the detention will be found to be arbitrary

Question 6

What is arbitrary detention?

Answer 6

Detention without lawful basis. An arbitrary arrest will amount to an arbitrary detention

Question 7

What must a remand in custody to avoid arbitrariness ?

Answer 7

Not only lawful but reasonable and necessary in all the circumstances

Question 8

Is detention for the purpose of breath alcohol testing subject to any express time limit?

Answer 8

Nah but it shouldn’t last longer than reasonable in light of the statutory purpose

Question 9

Can an officer prolonge a defendant s detention in order to effect a secondary purpose of his own?

Answer 9

Yes as long as reasonable

Question 10

Where there is no evidence that the defendant was prejudiced by the passage of time,is delay likely to render detention arbitrary?

Answer 10

Nope

Question 11

When would an unlawful detention not be arbitrary?

Answer 11

If the detention is imperative for the safety of the detainee or other persons or detention in good faith for reasons falling short of reasonable and probable grounds

Question 12

Does an offender have to be warned that if they persist in refusing to accompany foe purposes of eba they will be arrested?

Answer 12

No

Question 13

Is an arbitrary detention a breach of s 22?

Answer 13

Yes

Question 14

What evidence will typically be excluded in the event of an arbitrary detention ( and breach of section 22)?

Answer 14

It will to the exclusion of evidence obtained via the breach. Where no causal link exists between the breach and the evidence obtained, the evidence may still be admissible

Question 15

Is detention lawful if officers in plain clothes, an unmarked car, not wearing correct head gear and not sounding siren stop a vehicle when there is no grounds to suspect that any person in the vehicle is unlawfully at large or has comitted an imprisonable offence?

Answer 15

Detention is not lawful and arbitrary under s22

Question 16

What are the rights of persons arrested or detained under any enactment, under section 23 of the NZ Bill of Rights?

Answer 16

Shall be informed at time of arrest or detention of the reason for it
Right to consult and instruct lawyer without delay and be informed of that right
Shall have the right to have validity of arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful
Everyone who is arrested has the right to be charged promptly or be released
If not released shall be brought asap before a court
Has the right to refrain from making a statement and to be informed of that right
Shall be treated with humanity and with respect for the inherent dignity of the person

Question 17

What 2 things have to have occurred for there to be an arrest under the Bill of Rights Act?

Answer 17

1. A clear and equivocal statement or action by law enforcement officer that makes it clear they wish to detain the individual
2. The officer is acting or purporting under legal authority

Question 18

Must rights be given when a person is obliged by an enactment to answer questions or attend before a certain officer or at a certain place for the purpose of submitting to questioning?

Answer 18

Yes that person is detained and rights must be given

Question 19

What must a person in custody be made aware of at the time of arrest ?

Answer 19

The broad legal category the offence alleged to have been committed falls into.
If the detainee is aware of the nature of the offence in general terms, there is no requirement to inform them

Question 20

The Chief Justice practice note can be triggered by arrest detention under an enactment and what else ?

Answer 20

The constable having sufficient evidence to charge a person or a member of police seeking to question a person in custody

Question 21

When an officer directs a person to furnish details under 66(2)(a)&68B does it amount to detention under any enactment?

Answer 21

No

Question 22

When should the rights be given in eba procedures?

Answer 22

No requirement at the preliminary stages , advice has to be given within a reasonable period of time of the detention or arrest

Question 23

Does a person in hospital as a result of a traffic crash have to be informed of their rights to consult a lawyer without delay prior to the taking of a sample of blood?

Answer 23

No, a doctor s requirement of a blood sample does not create a detention under any enactment, thus the protections of 23(1)(b) do not apply.

Question 24

During eba procedures does police have to wait for a lawyer to arrive at the station?

Answer 24

No, a reasonable opportunity it’s a lawyer by telephone is sufficient

Question 25

What should occur if a driver undergoing eba procedure can not contact own lawyer?

Answer 25

Should be allowed to try one or two others. If despite reasonable opportunity no lawyer can be contacted, the test need not be delayed further.