New Zealand Bill Of Rights

Question 1

What does Section 21 of the Act refer to?

Answer 1

• Section 21: Unreasonable search and seizure

Question 2

What does S. 21 of the Act say?

Answer 2

• Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise.

Question 3

Explain Section 21.

Answer 3

• The basis of the right is the need to protect an individuals reasonable expectation of privacy from intrusion by the government.
• 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 privacy interest. Police have extensive search and seizure powers, with and without warrant, provided in statute.

Question 4

What is a ‘search’?

Answer 4

• There is no set definition of a search, either in statute or case law.
• Recent case law suggests a search requires a CONSCIOUS ACT OF STATE INTRUSION into an individuals reasonable expectation of privacy, as opposed to a mere observation.

Question 5

What is considered ‘not a search’?

Answer 5

• A search is not:
• kneeling and using a torch to observe an article secreted inside a car headlight
• asking a person to hold up a bicycle so the serial number can be checked
• asking a person to hold out their hands for inspection
• a voluntary request to a power company for aggregated monthly power usage data

Question 6

What is a ‘seizure’?

Answer 6

• There is no statutory definition of seizure.

- Seizure is REMOVING SOMETHING FROM THE POSSESSION OF SOMEONE ELSE.

Question 7

What is ‘not a seizure’?

Answer 7

An item generated by exercising a search or surveillance power (eg a photograph) is not a seizure.

Question 8

What are “Unreasonable searches and seizures”?

Answer 8

A search is unreasonable if the circumstances giving rise to it make the search itself unreasonable or if the search is carried out in an unreasonable manner.

Question 9

What are “Unlawful searches and seizures”?

Answer 9

• Unlawful searches will almost always be unreasonable and breach s. 21.
• However, a search undertaken in GOOD FAITH where the searcher was mistaken about their power of search may not be unreasonable.

Question 10

Remedies for unreasonable search.

Answer 10

• The usual remedy for a breach of Section 21 is exclusion of evidence under Section 30, Evidence Act.
• Some unreasonable searches may also warrant compensation. However, for prisoners in Police custody, compensation will be limited by the Prisoners and Victims Claims Act 2005.

Question 11

What does Section 22 of the Act refer to?

Answer 11

Liberty of the person.

Question 12

What does Section 22 of the Act provide?

Answer 12

• A persons rights under Section 22:

. Under Section 22 everyone has the right not to be arbitrarily arrested or detained.

Question 13

Under Section 22 of the Act, the word “Arrest” is defined as…

Answer 13

• The term arrest has been thoroughly discussed by the Court of Appeal in R v Goodwin:
• “…arrest must have its Crimes Act meaning of a ‘communicated intention’ on the part of the Police officer to hold the person under lawful authority”.

Question 14

Under Section 22 of the Act, the word “Detention” is defined as…

Answer 14

• A person will be regarded as detained if:
  • there is physical deprivation of a person’s liberty, or
  • there are statutory restraints on a person’s movement, or
  • they have a reasonably held belief induced by Police conduct that they are not free to leave

Question 15

In a situation where the suspect is under arrest within the meaning of the Crimes Act - Police MUST do what?

Answer 15

• Police MUST inform the suspect of their rights under Section 23 by giving the caution.

Question 16

Explain “discretionary” under the Act?

Answer 16

• Powers to arrest and detain are discretionary, and a Police employee must determine whether to arrest or detain in the circumstances of each case.

Question 17

In what situations would an arrest or detention be considered arbitrary or unlawful?
Clue: 2 are provided

Answer 17

• An arrest or detention will be ‘arbitrary’ if it is capricious (unpredictable) or without reasonable cause.
• Also if the arrest/detention was unlawful or proper procedures were not followed.

Question 18

What must an arresting officer consider before arresting or detaining a person in relation to S. 22 of the Act?

Answer 18

• Before an arrest is made, the arresting officer must be clear in their own mind that the arrest is JUSTIFIED and REASONABLE, and that ALTERNATIVE ACTION is not appropriate.

Question 19

Explain “holding a person in custody while making enquiries” under S. 22 of the Act?

Answer 19

• A reasonable arrest/detention may also become arbitrary if it lasts longer than necessary.
• If the suspect is eligible for bail, you MUST give it as soon as practicable.

Question 20

Explain “stopping vehicles to arrest” under S. 22 of the Act?

Answer 20

• You cannot stop a vehicle to undertake general enquiries.
• You can stop a vehicle to enforce any of the provisions of the Land Transport Act or Traffic Regulations under Section 114 of the Land Transport Act 1998.
• You are entitled to stop a vehicle under Section 9 of the Search and Surveillance Act 2012 for the purpose of arresting any person in the vehicle, if you have GOOD CAUSE TO SUSPECT that person of HAVING COMMITTED an IMPRISONABLE OFFENCE or of BEING UNLAWFULLY AT LARGE.
  (NOTE: The powers incidental to stopping a vehicle under Section 9 are set out in Section 10)

Question 21

What “remedies” under S. 22 of the Act are available to people being arbitrarily arrested or detained?

Answer 21

An arbitrary arrest or detention may lead to EXCLUSION of evidence, RELEASE from detention, or COMPENSATION.

Question 22

What does Section 23 of the Act relate to?

Answer 22

Rights of persons arrested or detained.

Question 23

Explain “Rights of persons arrested or detained” under S. 23 of the Act?

Answer 23

• S. 23 relates to the procedures Police MUST follow when arresting and detaining suspects.
• It MUST be considered alongside the ‘Chief Justices Practice Note on Police Questioning’.
• It is the Section of the Act with the most potential to impact on frontline Police.

Question 24

Under S. 23 of the Act, explain “guidance on detention”?

Answer 24

• Not every restraint will amount to a detention for the purpose of S. 23(1). The courts have recognized particular circumstances in which a short delay in affording rights may be necessary to preserve evidence or to ensure personal safety.
• In such cases, there is no detention under an enactment for the purposes of s. 23(1)(b):
  “Right to consult and instruct a lawyer without delay and to be informed of that right”.

Question 25

Treatment in breach of S. 23(5) includes?

Clue: 6 are provided

Answer 25

• Excessive use of force against a detainee.
• Failure to provide medical treatment when requested.
• Unlawful restraint to prevent self-harm.
• Failure to comply with regulations or policies which provide minimum entitlements such as food, clothing, exercise time.
• Routine or deliberate unnecessary strip searching .
• Failure to ensure the detainees safety and protect them from other detainees.

Question 26

Explain “Remedies” for breaching S. 23 of the Act?

Answer 26

• Remedies for breach of S. 23(5) typically include compensation.

Question 27

What examples of “remedies for breach of S. 23(5)” are there?
Clue: 3 are provided

Answer 27

• $30,000 in Falwasser - excessive use of O/C spray against a detainee in Police cells.
• $35,000 in Taunoa - long term policy of reduction in minimum entitlements in prison, designed to reduce prisoners resistance.
• $4,000 in AG v Udompun [2005] 3 NZLR 204 - failure to provide sanitary products or allow a shower.
  (Note: The Prisoners and Victims Claims Act 2005 may impact on compensation for prisoners)

Question 28

According to caselaw: R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707, explain ‘notifying rights’ for the suspect?

Answer 28

“Unless there is an evidential basis justifying a contrary conclusion, proof that the Police advised the suspect of the S. 23(1)(b) rights should lead to the inference that the suspect understood the position.

Question 29

According to caselaw: R v Hina (24 June 1992, High Court Wanganui, Greg J, T7/92), what are the ‘obligations’ of the detainer regarding rights of the detainee?

Answer 29

“… it is the detainers obligation to ensure the whole right is conveyed and understood … or at least in a manner open to understanding “.

Question 30

According to caselaw: R v Tunui (1992) 8 CRNZ 294 and R v Dobler [1993] 1 NZLR 431, what other responsibilities are required of the detainer regarding rights of the detainee?

Answer 30

” It may be necessary to inform an arrested or detained person more than once of his rights … it may not be in compliance with the Act for a person to be told ‘perfunctorily’ of the stipulated right … “

Question 31

According to caselaw: R v Grant (1992) 8 CRNZ 483, can a person’s rights when detained or arrested be written or verbal?

Answer 31

• If the suspect is given the caution in approved written form, the Act has been complied with.
• There is nothing in the Act which requires that an arrested person be advised of his/her rights verbally rather than in writing.

Question 32

According to caselaw: R v Butcher & Burgess [1992] 2 NZLR 257; (1991) 7 CRNZ 407, what exceptions are available for the detainer if rights are not provided to the detainee once they are detained or arrested?

Answer 32

• The admissibility of a confession will be jeopardized if the person was not informed of their rights at the proper time.
• Exceptions:
  . Police Officers cannot be expected to be concerned with uttering warnings while their safety is threatened.
  . However, once control is established by Police the suspect should be informed of his/her rights.

Question 33

According to caselaw: R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707, explain the expression “without delay”?

Answer 33

The expression ‘without delay’ is not synonymous with ‘instantly’ or ‘immediately’ … was the delay reasonable in all circumstances, having regard to the purpose of the right.

Question 34

According to caselaw: MOT v Noort; Police v Curran [1992] 3 NZLR 260, 280 (CA), quoted in Butler & Butler, The New Zealand Bill of Rights Act: A Commentary, p463 - what rights does this refer to?

Answer 34

If the suspect indicates a desire to exercise their rights, the interview must be stopped until they have contacted a lawyer. “The detainer is required to refrain from attempting to gain evidence from the detainee until the detainee has had a reasonable opportunity to consult and instruct a lawyer”.

Question 35

According to caselaw: R v Ormsby (8/4/05, CA493/04), what did the Court of Appeal conclude as am exception to caselaw: MOT v Noort; Police v Curran [1992] 3 NZLR 260, 280 (CA), quoted in Butler & Butler, The New Zealand Bill of Rights Act: A Commentary, p463?

Answer 35

The Court of Appeal concluded that there is no absolute prohibition on Police questioning a suspect who has received legal advice and has told Police that the burden of that advice is that the suspect should remain silent but despite this the suspect continues to answer questions.

Question 36

Caselaw: R v Perry [2015] NZCA 530, what considerations did the Court of Appeal ‘encouraged’ in relation to the suspect asserting their right to silence?

Answer 36

• The Court of Appeal considered the authorities on what encouragement or persuasion may be applied to encourage a suspect to answer questions when they have asserted a right to silence.
• The authorities establish the following principles:
  (a) There is no absolute prohibition on further questioning by the Police after the right to silence has been asserted.
  (b) Rights earlier asserted may be waived, provided the waiver is an informed and voluntary one.
  (c) In determining whether there has been an informed and voluntary waiver of the rights earlier asserted, an evaluative approach is applied.

Question 37

According to caselaw: R v Piper [1995] 3 NZLR 540; (1995) 13 CRNZ 334, what justification did the Court of Appeal provide in relation to a suspects right to privacy?
Clue: Right to Privacy and the exception according to above caselaw

Answer 37

• The Chief Justices Practice Note states that a suspect is entitled to consult a lawyer in private. However, in some circumstances, the right to privacy may be overridden by other considerations.
• ” The Court of Appeal stated that Police may be justified in not offering privacy, where it would not be safe to leave the accused alone or because there was a risk that the appellant would try to dispose of evidence and warn others”.

Question 38

According to caselaw: Police v Hendy [2011] DCR 263 - explain “other phone calls”?
Clue: Reasonable assistance and Other Phone Calls according to above caselaw

Answer 38

• Reasonable assistance:
  . You must make a reasonable, honest and determined effort to contact a lawyer. However, Police are under no obligation to find for the suspect their lawyer of choice when the contact phone number cannot be found.
• Other phone calls:
  . The right to consult a lawyer is not a right to consult any other person or organisation.
  . There is no legal requirement for Police to offer a suspect the opportunity to phone multiple lawyers if they are not satisfied with the legal advice they have obtained when their rights have been properly facilitated.

Question 39

According to caselaw: Police v Kohler [1993] 3 NZLR 129, explain “waivers”?

Answer 39

• A suspect is not obliged to have a lawyer present during the interview.
• “A valid waiver requires a conscious choice that is both informed and voluntary, and it cannot be implied from silence or failure to request rights”.

Question 40

According to caselaw: R v Perry [2016] NZSC 102, explain “Recording Statements”?

Answer 40

• Interactions between Police officers and detainees which are closely connected to a statement which the suspect is, or is contemplating, making and which are likely to be material to what the suspect says or does should, where practicable, be recorded.

Question 41

According to caselaw: R v Kirifi [1992] 2 NZLR 8; (1991) 7 CRNZ 427, what does it relate to “breach of rights and admissibility”?

Answer 41

“Once a breach of S. 23(1)(b) has been established, the trial judge acts rightly in ruling out a consequent admission unless there are circumstances in the particular case satisfying him or her that it is fair and right to allow the admission into evidence”.

Question 42

What does Section 24 of the Act refer to?

Answer 42

Rights of persons charged.

Question 43

What does Section 25 of the Act refer to?

Answer 43

Minimum standards of criminal procedure.

Question 44

The NZBORA applies ONLY to:

Answer 44

• Acts done by the legislative, executive or judicial branches of the government.
• The performance of any public function, power or duty pursuant to law.

Question 45

The NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms. It provides:

Answer 45

• Protection against the powers of government agencies.
• Minimum standards for public decision-making.
• Protection for human rights and basic freedoms.

Question 46

The Act provides:

Answer 46

• Gives statutory authority to many rights that have ALWAYS EXISTED but have done so only in common law.
• Requires that any limits on the rights and freedoms contained in NZBORA are to be reasonable such that they are capable of being “demonstrably justified in a free and democratic society”.

Question 47

Provide “examples” where the Act applies to almost every aspect of Policing?

Answer 47

• The rights to freedom of expression, manifestation of religion and belief, or peaceful assembly (s.s 14, 15, 16).
• Protection against discrimination on the basis of race (s. 19).
• A right to life (s. 8).

Question 48

Explain “Giving the caution” under the Act?

Answer 48

• The Chief Justice’s Practice Note on Police Questioning, issued under S. 30(6) of the Evidence Act 2006, provides guidance on Police questioning.
• Failure to give the caution may result in a finding that evidence was improperly obtained and the evidence excluded under S. 30 of the Evidence Act.