Oranga Tamariki Act 1989

Question 1

What powers do police have in relation to a section 39 of Oranga Tamariki Act 1989, place of safety warrant?

Answer 1

May enter and search by force if necessary any dwelling house, building aircraft, ship, carriage,vehicle, premise, or place
If believe on reasonable grounds that child or young person has suffered, or likely to suffer, I’ll treatment, serious neglect, abuse, serious deprivation, or serious harm.
Remove or detain by force the CYP and place in care of chief executive.
If CYP in hospital can direct the medical superintendent to keep the CYP in hospital

Question 2

Explain the powers police have in relation to section 42 Oranga Tamariki Act - search without warrant

Answer 2

Believe on reason grounds that it is critically necessary to protect CYP from injury or death you can
- enter andd search by force any dwelling, building ship carriage aircraft vehicle premises or place.
- remove or detain by force and CYP and place in care of Cheif executive
Must produce ID and disclose the power using
Must within 3 days advise commission if use of section 42.

Question 3

Explain police powers of section 48 OT Act 1989

Answer 3

Where child is found unaccompanied by parent, caregiver or person who usually has care of them, in situation CYP physical or mental health is being or likely to be impaired police can by force if necessary
- with consent of CYP deliver them into custody of parent or guardian ect
- or if no consent deliver into care of chief executive.
The child stays with OT until they either decide to go back to parent/ guardian or OT apply to court for care and protection order.
Child stay with OT until either 3 or 5 days after the date they were put in care.

Question 4

In relation to section 48 of OT Act 1989 the term young person is a person between what ages?

Answer 4

14 - 17

Question 5

In addition to the 4 guiding principles in section 5 of the OT Act 1989, What are the additional principles the police/court are guided by when it comes to section 208 subsection (2) of the OT Act 1989? (Youth justice Criminal proceedings)?

Answer 5

• Unless public interest - criminal proceedings not instituted againstCYP if there is an alternative means to deal with matter
• criminal proceedings should not be instigated n order to provide well being assistance to CYP or their family
• measure for dealing with offending by CYP should be designed as follows
  
  • strengthen family of CYP concerned
  • foster the abilities of the family to develop their own means of dealing with offending by their CYP.
• CYP is kept in community as far is practical and safe for public
• CYP age is mitigating factor on how will be dealt with
• how dealt with must take the form that most likely to maintain and promote CYP development and take least restrictive form that is appropriate
• any measures taken to deal with offending should be to address the underlying causes of the offending.
• consideration given to victims views
• any measures should have proper regard for victim and the impact of the offending
• vulnerability of CYP gives them special protection during investigations

Question 6

In addition to subsection (2) of 208 and section 5 of OT Act 1989 what are 2 more principles the police or court must be guided by in relation to persons exercising powers for the purpose of resolving offending?

Answer 6

• reasonable and practical measures or assistance should be taken or provided to support CYP to prevent or reduce reoffending
• if of benefit to them CYP should be referred to care and protection and wellbeing services

Question 7

What are the two situations where police can arrest a CYP without having to satisfy the section 214 subsection (1) OT Act 1989 legislation to arrest a CYP without warrant?

Answer 7

• have reasonable cause to suspect that CYP has committed a category 4 offence or an offence punishable by at least 14 years imprisonment (category 3)
• constable believes on reasonable grounds required in public interest.

Question 8

What circumstances need to exist before police can arrest a CYP under section 214 OT Act 1989?

Answer 8

Officer must be satisfied on reasonable grounds that:
- ensure appearance in court
- prevent further offending
- Prevent loss or destruction of evidence and interference with witnesses
- summons would not achieve the purpose

Question 9

What must police do within 3 days of arresting a CYP under 214 OT Act 1989?

Answer 9

Furnish a written report to commission that there was a CYP arrested AND the reason for the arrest.

Question 10

In relation to Bail when can police arrest a CYP without warrant under section 214 OT Act 1989?

Answer 10

When the CYP has been released on bail AND believe on reasonable grounds CYP has breached a condition of bail AND CYP has breached bail on 2 or more previous occasions. (doesn’t have to be same condition)

Must have gained authority to arrest from firstly
youth aid sergeant
Supervising sergeant or above OR lastly
A qualified youth aid officer.

Question 11

If a constable arrests a CYP for breaching BAil and they believe they will continue to breach bail where must place the CYP with who?

Answer 11

Chief executive

Question 12

What must you create when you detect a CYP breaching bail?

Answer 12

6D file - with alerts created in the original 6D for ongoing breaches

Question 13

What must you explain/advise the CYP when you suspect them of committing on offence, or decide to question them under section 215 OT Act 1989?

Answer 13

• That you have power to arrest (if circumstances are such that you do) if they fail to provide name and address etc.
• Not obliged to accompany for questioning but if they do consent then can withdraw at any time.
• Don’t have to give statement And if do consent to statement can withdraw consent at any time
• Statement used in proceedings
• Entitled to consult with and give statement in presence of barrister or solicitor and any person nominated by them.

Question 14

What must police do when while questioning CYP they form the view there are reasonable grounds to suspect the CYP of committing an offence?

Answer 14

Give the explanation as set out in subsection (1) of 215 OT Act 1989 as follows:

• That you have power to arrest (if circumstances are such that you do) if they fail to provide name and address etc.
• Not obliged to accompany for questioning but if they do consent then can withdraw at any time.
• Don’t have to give statement And if do consent to statement can withdraw consent at any time
• Statement used in proceedings
• Entitled to consult with and give statement in presence of barrister or solicitor and any person nominated by them.

Question 15

If a CYP enquires about their rights what must officer do?

Answer 15

Must appropriately explain the the rights as enquired about.

Question 16

In relation to section 216 OT Act when an officer is questioning a child and decides to charge them what must they explain?

Answer 16

The following parts of Section 215 of OT Act:

• That you have power to arrest (if circumstances are such that you do) if they fail to provide name and address etc
• Not obliged to accompany for questioning but if they do consent then can withdraw at any time.
• Don’t have to give statement And if do consent to statement can withdraw consent at any time
• Statement used in proceedings
• Entitled to consult with and give statement in presence of barrister or solicitor and any person nominated by them.

Question 17

What must you explain to CYF if they are arrested (215 OT Act)?

Answer 17

• That you have power to arrest (if circumstances are such that you do) if they fail to provide name and address etc
• Not obliged to accompany for questioning but if they do consent then can withdraw at any time.
• Don’t have to give statement And if do consent to statement can withdraw consent at any time
• Statement used in proceedings
• Entitled to consult with and give statement in presence of barrister or solicitor and any person nominated by them.

Question 18

Section 218 sets out how 215 should be explained - what is it?

Answer 18

The explanation required to be given to a CYP shall be given in a manner and language that is appropriate their age and level of understanding.

Question 19

If CYP has had their (215) rights explained within an hour do you have to give them again?

Answer 19

No - unless situation or officers view has changed (ie decide to arrest/ charge etc) .

Question 20

What circumstances need to exist for a statement made by a CYP to be admissible?

Answer 20

Before statement made officer explained 215 in in a way that 219 requires AND
CYP consulted with lawyer and or nominated person AND
Gives statement in presence of lawyer or nominated person (or if refuse to nominate an adult police provide in accordance with law)

Question 21

Who can a CYP nominate for purposes of making statement etc?

Answer 21

Parent or guardian
Adult member of family
Any other adult selected by CYP
If CYP refuses/fails to choose then an adult nominated by police ( Not police officer)

Question 22

When can police refuse to allow nominated person to consult with CYP?

Answer 22

If the nominated person would attempt to or likely to attempt to pervert the course of justice
OR
cannot with reasonable diligence be located or will not be available within a reasonable period of time

Question 23

What is the duty of the nominated adult? (Section 222 OT Act 1989)

Answer 23

To ensure the CYP understands matters explained to them
To support before and during questioning if decide to make a statement

Question 24

Under section 229 of the OT Act 1989 what must you do as soon as practicable when CYP is at station for questioning, following arrest?

Answer 24

Inform the nominated person the CYP has chosen that they are at the station/office for questioning/arrest.
That they may be visited
Inform the parent or guardian or other persons having the care of the CYP of the above.

Question 25

What must you tell the nominated adult/ parent etc

Answer 25

Entitled to visit CYP
215
Entitled to consult privately with the CYP during the visit (if safe for both)

Question 26

Do the provisions of 214 to 232 of OT Act limit or effect powers under LTA in relation to 68-72 (drink/drug driving)?

Answer 26

No

Question 27

What are the options for police regarding releasing the CYP after arrest?

Answer 27

Release CYP
Release CYP on bail
Or deliver CYP into custody of
- parent guardian or other person having care of CYP
- with agreement of CYP into iwi social service or cultural social service
- with CYP agreement any other persons r organisation approved by OT chief executive or constable.

Question 28

Where must a CYP be placed after arrest if officer believes on reasonable grounds that CYP not likely to appear before court, will commit further offences, cause loss or destruction of evidence, interfere with witnesses, or if arrested for breaching bail will continue to breach bail?

Answer 28

In custody of chief executive no later than 24 hours after arrest.

Question 29

Under section 235 of the OT Act 1989 how do you place a CYP into custody of the chief executive?

Answer 29

-delivering the CYP to the cheif executive (delegate)
- present them with the form detailing the CYP ID, circumstances of the arrest, date and time of court.

Question 30

In relation to section 236 of the OT Act 1989 When can a CYP be detained in police custody after arrest? (Not deliver into chief executive)

Answer 30

When an officer at rank of inspector or above is satisfied on reasonable grounds that the CYP is likely to abscond or be violent,
And there are suitable facilities for safe detention in custody that is not available to the chief executive
On the joint certificate be detained no longer than 24 hours until court appearance.

Question 31

What must police (and delegate to chief executive) provide to commissioner of police in relation to detaining a CYP in police custody on a joint certificate?

Answer 31

Within 5 days provide to commissioner a copy of the joint certificate
A written report stating circumstances of how the certificate came to be issued and the duration of the period the CYP is likely to be detained in police custody

Question 32

Summarise R v Kahu (powers under section 39 warrant)

Answer 32

Social worker had a section 39 place of safety warrant, police had a search warrant for MODA but did not use it.
During a search of cupboards to check food situation a plate of cannabis was found. Suspect was told to ‘come clean’ and more cannabis was found in bedroom.

Offender appealed saying finding cannabis in bedroom was a. Beach of BOR.

Conviction held - search was not unreasonable on section 39 warrant, holder of the warrant is entitled to check the risk of the child and if child should be removed by looking in cupboards.

Question 33

Summarise R v Pettus use of section 42 by police during section 157 crimes Act warrant to search for evidence.

Answer 33

Police did 157 crimes act search warrant for meth and I’ll treatment neglect of children.
Used section 42 without warrant emergency provision to detain/ remove children.

should have obtained section 39 warrant from for child that is likely to suffer serious harm.

Question 34

Summarise Police v D - Kaitaia - Arrest and Detention under section 48 OT Act 1989

Answer 34

Police arrest a CYP drunk and unlawfully on property. He provides his name address at scene. Other officers transport back to station and place in cells.
He gets agitated and assaults police.

Charge was defended on grounds police acted unlawfully.

Court found police acted lawfully in taking CYP back to station as an intermediate step to return to grand mother.

Police failed to consider interest of youth and went beyond their lawful authority by taking him to cell block when he was co operative at time - cell block only lawful if reasonable force became necessary.

Police failed to ascertain where the youth wanted to go - home or social worker.

No evidence to show he was told why he was being detained and likely he thought he was under arrest.
Police also relied on particular interest in the youth as he was on a ‘List’.

Police suggested it was necessary to do further enquiries but this was deemed as blurring the purpose of the youth presence at the station.

It was wrong to detain youth beyond the purposes of section 48.

Could have arrested 214 and released without charge… 234(a)

Question 35

Summarise Police v T-M whangarei arrest guidelines section 214 and section 48

Answer 35

TM was a known burglar found in whangarei town early hours of morning - required to return to station under section 48. He was interviewed about the burglaries. 3 weeks later gave a signed statement about the burglaries and was arrested and charged.

Police withdrew the charges acknowledging problems with police case. T-M counsel sought s costs and won.

Should not have arrested under 48 when suspected of committing crime
And only arrest if meets 214 criteria

Question 36

Summarise Police v T - section 214 and detention in police custody

Answer 36

T was caught shoplifting and officer chased and arrested him. He was also currently under a supervision order for 17 other charges.

Police decided to keep him in custody obverse night ending up to be just over 24 hours before he appeared in court.

Held in custody was in breach of 214.
Arrest was justified by fact he was trying to escape but having the other charges was not sufficient to keep in custody, not bail and not do FGC etc. The new offence did not automatically mean he was going to continue to offend.

Failing to bring to court in timely manner was breach of BOR. if arrested in morning ought to be dealt with that afternoon.

Police should be careful not to keep young people in custody unnecessarily. This was a serious breach of the law.

Question 37

Summarise Elia v R - 2 CYPs interviews by police both admissions made but both with issues around giving the ‘warning’ under section 215 of OT Act 1989.

Answer 37

E and T were were charged with aggravated robbery.

Police went to speak to T as a witness at home with mum. T became nervous and upset and Before giving the required warning T stated he may have been involved in the Robbery.

At station after the meeting the 215 warning Ultimately T admitted being present but not involved in the stabbing, and stating E was present.

E was interviewed meeting 215 initially. T ‘s statement was read to E and he admitted being present but then said he wasn’t there, during a recorded break mum was heard to be telling E to say he was not present so a decision was made for a new nominated adult. 215 warning was not issued again when should have been with new nominated adult - an Aunty.

Court ruled that T’s admissions at home not admissible but admission at station were.
Court ruled that E’s statements with his mum were admissible but the onceswith Aunty were not.

Held - T’s later admissions may have been unfair given that the first was elicited without the 215 warning.

Question 38

Summarise R v K - Homicide - choice of nominated person section 222 OT Act

Answer 38

K suspected of homicide. K agrees to come with police to station with his father as his nominated adult. 215 mostly complied with apart from being told not obliged to accompany and in absence of arrest could leave station at anytime.

Father deemed not suitable as he is an alibi witness for K. Father suggested his adult daughter as nominated person but police wrongly decided to get independent person in.

K made video statement and did reconstruction admitting the offence.

Defence objected to video statement and reconstruction.
Court held that there had been a breach due to K not being advised he was not obliged to accompany and could leave station at any time. A major breach was also identified in that K was not allowed to nominate another person after his father was deemed unsuitable.

However court deemed videos to be admissible because there had been reasonable compliance with 215 and 222.

Court of appeal overturned this decision saying police dispensed with a procedure that was central to the statutory scheme - putting police outside the scope of ‘reasonable compliance’.

Police cannot decide the suitability of a nominated person outside the parameters of the legislation.

Question 39

Summarise S v Police spontaneous admissions section 223 of the OT act 1989

Answer 39

S was visited by police who were wanting to resolve some offences, he was explained 215 and also told that he did not intend charging him with the matters. They went for a drive to point out the offences and locations.

During the drive S admitted to 2 Aggravated robberies.
Officer explained the robberies were not what he had in mind when assuring him he would not be charged. He explained he wanted to discuss further but because more serious he said anything he said from that point may result in charges.
A video interview took place with nominated person and S made confessions to the aggravated robberies.

He was charged.
The admissibility of his admissions were challenged and judge ruled against them.
S appealed to high court.

Two issues were
- given the officers assurances - were the admissions considered spontaneous (admissible)
- if not spontaneous was any evidence gathered on the drive tainted or inadmissible.

Court held that the offer of immunity clearly influenced his decision to admit to the aggravated robberies A they were not spontaneous.therefore did not provide an exemption for admissions to be made without a solicitor or nominated person.
On the second issue because the admission on video interview was because of the continued interview and subsequent admission on video - that evidence was also excluded.

Police wishing to resolve matters by indicating an intention not to charge should be very specific about the boundaries of that offer.