Sus & Off Flashcards
What is s39 Crimes Act?
Use of force to execute arrest
What is s40 Crimes Act?
Use of force to prevent escape or rescue
What is s41 Crimes Act?
Use of force to prevent suicide
What is s42 Crimes Act?
Use of force to prevent breach of the peace (Detention power)
What is s202A Crimes Act?
202A(4)(a) - offensive weapon in public place (without excuse)
202A(4)(b) - offensive weapon anywhere (any item prime facie shows intention to use to commit injury or threat or fear of violence)
Can you arrest for anticipated breach of the peace? Attorney General v REID
No BUT you can tell people to desist if you can reasonably anticipate that their actions will lead to a breach of the peace. If the continue you can arrest for obstruction.
What are the four key rules which arise from the NZBOR Act?
1 - When investigating an offence you may question any person but cannot suggest that it is compulsory to answer
2 - If you have sufficient evidence to charge someone and wish to question them you must give them their Rights
3 - If you have arrested or detained any person you must give them their Rights
4 - There is no power to detain a person for questioning
What is a search?
A conscious act of state intrusion into an individuals reasonable expectation of privacy
Does asking someone to hold their hands out to check for blood constitute a search?
Nope
Does a minor irregularity or technicality make a search unreasonable?
No, provided that Police only realized after the fact. (To be fair if you knew beforehand WTF were you doing??)
What is the remedy for an unreasonable search?
Evidence will be excluded. Compensation may also result.
What happens if you fail to consider summons or alternative action before arresting someone?
The arrest may be considered arbitrary
Can you hold someone in custody whilst making enquiries into an offence other than that which they are arrested for?
No, arrest may be no longer than is necessary. The person must be bailed as soon as possible.
Can you stop a vehicle to make enquiries or ask questions?
No. This is not a Land Transport stop and there is no S & S stop for this purpose. It would amount to arbitrary detention.
Must you always give someone their Rights when they are detained?
No, there are some exceptions eg Land Transport Act traffic stop
Must peoples Rights be given orally?
No, you can do it in writing as well eg foreign speaker using iPhone app
If you are scrapping with someone when do you need to give them their Rights?
Once you have established control over them.
Can you continue an interview once someone requests a lawyer?
No. You must not attempt to elicit anything further until they have had a reasonable opportunity to consult a lawyer
Can you continue to question someone who has told you that their layer said to remain silent?
Yep if they’re dumb enough to keep answering questions
If a person says they don’t want privacy while calling a lawyer do you have to give them it anyway?
Nope
When may you be justified in not allowing someone to call their lawyer in private?
- Not safe to leave person alone
- May try to dispose of evidence
- May try to warn others
How much effort must you make to contact a lawyer when one is requested?
A reasonable, honest and determined effort
Is someone entitled to call anyone other than a lawyer?
No
Can you interview someone without a lawyer present?
Yes but they must actively waive the right to a lawyer. It must be a conscious choice that is informed and voluntary
What is the Chief Justice’s Practice Note?
- Statements of a person in custody should be on DVD if possible. If not it shall be recorded via audio or writing. If in writing the person must be offered the chance to sign that it true and correct.
- Questioning must not amount to cross examination
- You can ask questions of anyone but must not suggest it is compulsory to answer
- If sufficient evidence to charge someone BoR must be given prior to questioning them
- If questioned about evidence or statements the nature or substance of that evidence must e fairly explained.
If you breach one persons Rights what happens to someone else who is charged?
He can’t use you breaching someone elses Rights as a way out
Can you use a defendants statement against a co defendant?
Nope
What is a statement?
Written or spoken assertion of any matter or non-verbal conduct intended as an assertion of any matter (eg nodding)
What are the three rules that exclude a defendants statement?
- The reliability rule (s28 Evidence Act)
- The oppression rule (s29 Evidence Act)
- The improperly obtained evidence rule (s30 Evidence Act)
What is the reliability rule? (s28 Evidence Act)
A statement may be ruled inadmissible if the defendant is not of sound mind making the statement unreliable.
An exception is if Police use the statement to prove the defendants state of mind eg statement using aliens may be used to prove psychosis or Police just offering evidence that a statement was made.
What is the oppression rule? (s29 Evidence Act)
You cannot degrade or threaten a person to get a statement (Don’t be Ox)
What is the improperly obtained evidence rule? (s30 Evidence Act)
Essentially if evidence is obtained unfairly or in breach of any enactment it may be excluded. This includes a defendant statement. the defendant must show that your unfair actions led to the statement.
If something is discovered as a result of an improperly obtained statement, eg they tell you where a knife is, can you use that evidence if you don’t produce the statement?
No. As the statement is improperly obtained anything that comes from it is tainted.
Does the Practice Note on Police Questioning constitute Rights?
No. They do set standards as to how Police must conduct themselves though.
What happens if Police breach the Practice Note on Police Questioning?
The judge must take it into account but it might not necessarily be found to be unfair or inadmissible
What is the rule for balancing impropriety and admissibility?
Exclusion is to be proportionate to the impropriety
When a child is being questioned can they have both a lawyer AND a nominated person present?
Yes
