OT Act Flashcards
Care and protection age change from April 2017
YP- of or over 14 but under 18
Section 39
Place of safety warrant
Reasonable grounds to suspect that CYP is suffering, likely to suffer, neglect, ill treatment, deprivation, abuse, or harm
Made by constable or chief executive
Enter and search
Force if necessary
Any building, dwelling, ship, aircraft, carriage, vehicle, premise or place
Remove or detain the CYP and place in CE custody
Direct to hold in hospital
Section 42
Search without warrant
Critically necessary to protect a CYP from injury or death
Enter and search
Force if necessary
Remove or detain
Produce ID
Disclose powers excused under this section
3 days to inform commissioner
Section 48
Unaccompanied CYP
Found and physical or mental health is being or likely to be impaired
Force if necessary to take CYP
To parent or guardian with consent
Place with CE if CYP does not want to returned or if no parent or guardian willing to have custody
Placement with CE shall be sufficient authority for the detention until CYP agrees to be returned or application for 67 declaration
If needs care and protection, expires after 5 days or 3days
208
Part 4 principles
No criminal proceedings if alternative means unless public interest
No proceedings solely for assistance or services
Measures for dealing with offending should strengthen family and foster ability to develop their own means
Kept in community as far as practicable
Age mitigating factor when imposing sanctions and nature of those sanctions
Sanctions imposed take form that maintains and promotes development within their family and least restrictive form
Measures to address underlying issues of offending
Considerations to interests and views of victims and have proper regard for them and the offending impact
Special protection due to vulnerability
214
Arrest of CYP without warrant
Shall not arrest unless satisfied on reasonable grounds Ensure appearance Prevent further offences Prevent loss/destruction of evidence Summons would not achieve purpose
Above does not prevent arrest if 3 or 4 cat offence that has 14yrs+ prison and required for public interest
Report to commissioner within 3days and state reason to arrest
214a
Arrest of CYP in BOB condition
If released on bail and
Believe on reasonable grounds
CYP has breached a condition of that bail
And 2 or more previous breaches
215
CYP to be informed of right before questioned
When reasonable grounds to suspect commuter offence or before questions intended to obtain admission
May be arrested if refuse to give name and address
Not obliged to accompany, must consent and can be withdrawn anytime
No obligation to give statement and can withdraw anytime
May be used in evidence
Entitled to consult with lawyer or NP
215A
Rights to be explained on request
When questioning in relation to an offence and CYP makes an enquiry that relates to any matters in 215
Shall explain those matters
216
Enforcement officer to explain rights to CYP who is to be charged
Questioning and decides to charge
Shall explain to that CYP
Except where CYP is under arrest, the matters in a and b of 215 and c to f
217
Rights to be explained to CYP arrested
When arresting pursuant to 214
Explain to CYP the matters c to f of 215
218
Explainations in appropriate language for age and level of understanding
215, 215a, 216 and 217 to all be given in a manner and in a language that is appropriate
219
Explanations not required if CYP already informed of rights
Not required if same explanation given to CYP not earlier than one hour before the later explanation
221
Admissibility of statements
When questioned
If arrested
Officer decided to charge or
Detained in custody following arrest under 214
Inadmissible unless
Rights correctly explained before or given
If chosen to do so, spoken with lawyer or NP in private
Statement given in presence of one or more of following:
-lawyer
-NP
- any person under 222 or other adult
222
Who may be nominated person
Parent or guardian
Adult member of family
Any other adult selected
Person nominated by officer of refuse or fails to nominate
Can refuse person if believe on reasonable grounds
Would percent course of justice or attempt too
Can not be located with reasonable diligence
Can consult with NP
Duty of NP
Reasonable steps ensure CYP understands the matters
Support before and during questions and during statement if agrees to give one
223
Where 221 does not apply due to statement made before requirements can be met
Spontaneous admission
229
Parents and guardians to be informed where CYP at enforcement agency office for questioning in relation to commission or possible commission of offence or is arrested
Unless impracticable to do so
Can visit and shall do as soon as practicable after arrival
Consult privately during visit
231
Persons who may be NP for purposes of 229(1)(a) - informing person. Is at enforcement agency
Parent or guardian
Adult family member
Any other adult
Nominated by officer of refuses or fails to nominate
233
Breath alcohol and blood alcohol provisions of LTA not affected
Nothing in 214 to 232 limits or affects power if an officer under any of the provisions of 68 to 73 of LTA
234
Custody of CYP after arrest
Subject to 235,236 and 244
Shall
Release
Release on bail under 21 of Bail Act
Deliver to custody of
Any parent or guardian or
Iwi or cultural service with agreement of CYP or
Any person or organisation approved by CE with agreement of CYP
235
CYP who is arrested may be placed in custody of CE
Must place arrested in custody of CE as soon as practicable and not after 24hours if
Believe in reasonable grounds
Need to ensure appearance
May commit further offences
Prevent loss or destruction or interference with witnesses
Arrested under 214A and likely to continue to breach bail
Placed with CE by delivering and presenting on the prescribed form the identity, circumstances, date and time of court
Can not be used for care and protection
236
YP who is arrested may be detained in police custody
Where CE and s/sgt or above are satisfied on reasonable grounds
YP likely to abscond or be violent and
Suitable facilities are not available to CE
Can be detained in Police custody for a period exceeding 24hours and until court with joint certificate
If joint very issued, within 5 days after the day which it was issued, be furnished to the CE and to the commissioner
A copy of cert
Written report of circumstances and duration
R v Kahu 2005
Powers under 39 warrant
SW with warrant, officer also had unused for dugs. Explained right to enter and permission given to search cupboards.
Officer found plate of cannabis.
Appellant then showed room with substantial amount of cannabis.
Cautioned, BOR and arrested. Children taken.
Appealed on basis of breach of s21 of BOR
Held.
Cannabis found as result of reasonable search.
Pettus v R 2013
157 search without warrant
Charged meth related. Seen purchasing materials from hardware store.
SW for cell phone data, not executed, premise and vehicle executed.
OT present. 12 yr old present and detained.
Blood, urine and hair samples taken from children after equipment found. Did not yield evidence.
Held.
Powers under 42 not available as not critically necessary.
Police vs D 2002
Detention under 48
Youth removed from private property. Drunk. Gave grandma details and ID prior to going to station.
Transported by others and info not passed on. Then youth shut down at station and punched officer.
Defended he was unlawfully detained. Police stated needed to go station to get in contact with caregiver.
Result
48 does not authorise detention at station per se
Police should minimise potential harmful experiences ie cells
Reasonable going to station. Shouldn’t have taken him through cells. Detained beyond lawful authority by doing so. No evidence youth knew why detained.
Police v T-M 2002
Arrest guidelines under 214, 48
A lot of burgs whangarei cbd. Known youth located on patrols.
48 and taken to station and interviewed. 3 weeks later interviewed at home. Then arrested for burg.
Denied at court then police withdrew. App made for costs and $1000 imposed for misuse of court process.
Should have been 214 if suspected of offence if would be permitted under this section.
208 - no other means of dealing
Police v T 1998
214 and detention in police custody
Shoplifted in front of officer. Told to stop and decamped. Charged for $9 of items. In SO at time. Taken to court just over 24hrs later. YA questioned why not sooner to court in basis of arrest. Police stated arrest necessary to stop further offences.
Held. Some procedural fails tho:
SO not enough to justify arrest for single charge.
Should have gone to court in afternoon.
Serious breach of law for being in cells over 24hours
Elia v R 2012
215 and 223
Agg rob and agg wounding charges. Stabbing of takeaway staff.
T spoken too as witness 2 weeks later. Got indication T involved. Told to say no more and they accompanied to station. Admitted to presence and gave name of E.
E interviewed next day, T statement read. Admitted then said wasn’t even there. Mother urged him to say nothing while on break so replaced.
Appealed on admissibility. E, inadmissible after NP changed as no rights again. T admissible at station but not home one.
Held.
R v K 2002
222 and choice of NP
Homicide suspect. Agreed to accompany home. Father said he was home on the night.
Agreed to accompany with father, advised of rights on way.
Father possible alibi witness so not suitable.
Mother location not know so adult sister suggested by dad. Police decided to bring in independent person. Full confession.
Admissibility objected too.
Should have been informed did not have to accompany. Also should have been able to nominate another person.
Statement did however comply with 215 and 222
Court of appeal overturned high court and ruled inadmissible due to NP
S v Police 2006
Spontaneous admissions
Officer talking to YP about unresolved volume crime.
Advised of 215 rights and invited to accompany and show various offences. Told YP not intending on charging.
YP disclosed to agg rob while driving. Told YP not type of offence he had in mind when said no charge.
Agreed to go to station. NP facilitated. Full confession.
Challenges admissibility. Held. Transferred to district for sentencing.
Appealed convictions at high court.
Court deemed immunity offer influenced YP decision to disclose agg rob. Therefore not spontaneous.
Led to video inadmissible as interview a result of non-spontaneous admission
