Whakahaere Flashcards

Question

Summary of the Act | The NZBORA applies only to:

Answer 1

NZBORA does not apply). · the performance of any public function, power or duty pursuant to law. The NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms. It provides: · protection against the powers of government agencies · minimum standards for public decision-making · protection for human rights and basic freedoms.

Answer 2

The Act: · gives statutory authority to many rights that have always existed but have done so only in common law (examples include the right not to be deprived of life and the right not to be subjected to torture or cruel treatment) · 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”.

Answer 3

The Act applies to almost every aspect of policing. For example, policing demonstrations may impact on the rights to freedom of expression, manifestation of religion and belief, or peaceful assembly (ss14, 15, 16). Intelligence and prevention activities may impact on the protection against discrimination on the basis of race (s19). A killing by police or death in custody impacts on the right to life (s8).

Answer 4

The New Zealand Bill of Rights Act also imposes some specific obligations on Police: s21 - protection against unreasonable search and seizure s22 - protection against arbitrary arrest and detention s23 - rights of persons arrested or detained s24 - rights of persons charged with an offence s25 - minimum standards of criminal procedure.

Answer 5

Everyone has the right not to be subjected to torture, or to cruel, degrading, or disproportionately severe treatment or punishment.

Answer 6

is to ensure that all persons are treated with respect for their inherent dignity and worth.

Answer 7

Section 9 is particularly relevant to the treatment of prisoners. For example, deliberate deprivation of a mentally unstable prisoner, or deliberately strip searching a prisoner in a public area in order to humiliate or subdue them, may breach sec 9.

Answer 8

include an obligation to investigate credible claims of torture and cruel, degrading and disproportionately severe treatment. Police will often be involved in such investigations. The IPCA is the National Preventative Mechanism for torture and cruel treatment, and oversees investigations into complaints of torture and cruel treatment by Police.

Answer 9

Breach of section 9 may lead to a substantial award of compensation by the courts.

Answer 10

Everyone has the right to freedom of expression, including the freedom to seek, receive and impart information and opinions of any kind and in any form. ‘Expression’ covers manifestations of ideas and information of any kind and in any form, including behaviour bordering on the offensive or disorderly.

Answer 11

Everyone has the right to freedom of peaceful assembly. An ‘assembly’ is two or more people meeting with a common goal. Assemblies must be ‘peaceful’ to be protected by the right. An assembly which inconveniences members of the public may still be peaceful, and one non-peaceful person does not extinguish the right for the rest of the assembly. For an assembly to be found non-peaceful requires a serious and aggressive effect on people or property.

Answer 12

The rights to freedom of expression, association and peaceful assembly underpin public protests, demonstrations and occupation of public spaces. When policing protests and demonstrations, cognisance must be taken of: · the rights to freedom of expression and peaceful assembly · the extent to which the expression/demonstration is impinging on the rights of others to use the public space, and · whether the behaviour warrants the intervention of the criminal law.

Answer 13

The level of behaviour required for ‘disorderly’ and ‘offensive’ behaviour or ‘insulting language’ is much higher for demonstrators conveying an opinion on a matter of public interest, than for other types of behaviour. In order to reach the threshold of offensive or disorderly, protestors’ behaviour must either:

Answer 14

The level of behaviour required for ‘disorderly’ and ‘offensive’ behaviour or ‘insulting language’ is much higher for demonstrators conveying an opinion on a matter of public interest, than for other types of behaviour.

Answer 15

· substantially inhibit other people from enjoying their right to use the public amenity, and/or · cause greater offence than those affected can reasonably be expected to tolerate, to the extent that it is seriously disruptive of public order.

Answer 16

The rights to freedom of expression and peaceful assembly will impact on the validity of a decision to arrest to prevent a breach of the peace.

Answer 17

Generally, Police employees should consider: · Does the behaviour express a view on a matter of public interest? · Does the behaviour intrude on the rights of others in a public space? · Does this intrusion go beyond what a reasonable person, respectful of the rights to freedom of expression and assembly, could be expected to tolerate? · Does the behaviour pose an actual risk of public disorder (e.g. is it intimidation, victimisation, bullying or pose a real risk of violence)? · Does the behaviour warrant the intervention of the criminal law?

Answer 18

subject to limitations that are reasonable and demonstrably justifiable. Before police become involved with a protester who has been asked to leave a government space, you should do your own assessment of the reasons why the official says that the protester has to be moved on. You should ask yourself, does the official’s reasoning make sense and does it justify police action, given an individual’s right to peaceful protest. If the protester is causing a hazard, or disrupting business, one option is to see if the protest action can be modified. (Routhen v Police [2016] NZHC 1495)

Answer 19

· Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand. · Every New Zealand citizen has the right to enter New Zealand. · Everyone has the right to leave New Zealand. · No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law. There are many prescribed limits on the right to freedom of movement, such as immigration decisions, extradition, bail conditions, imprisonment and home detention.

Answer 20

Police often curtail individuals’ freedom of movement within New Zealand. Police actions in detaining and arresting people are generally covered by section 22 arbitrary arrest and detention. However, bail conditions, road closures and other short-term curtailments may impinge on the right and must be reasonable.

Answer 21

Under section 21, everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence, or otherwise. The basis of the right is the need to protect an individual's reasonable expectation of privacy from intrusion by the government. This will vary depending on the nature, place and extent of the intrusion on the privacy interest.

Answer 22

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 individual’s reasonable expectation of privacy, as opposed to a mere observation.

Answer 23

· 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.

Answer 24

There is no statutory definition of ‘seizure’. Seizure is ‘removing something from the possession of someone else’. An item generated by exercising a search or surveillance power (e.g. a photograph) is not a ‘seizure’ (s3 Search & Surveillance Act).

Answer 25

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.

Answer 26

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. For example, a search may be reasonable where the wrong search power was used, but the search could have lawfully been conducted under other powers.

Answer 27

A search that is unlawful because of a minor irregularity may, depending on the circumstances, not be unreasonable. In such a case, the evidence obtained in the search may be admissible. However, even where a breach is minor or technical, a search or seizure will not normally be held to be reasonable if the police realised the error before the search or seizure was undertaken.

Answer 28

A search that would otherwise be reasonable is unreasonable if it is carried out in an unreasonable manner (e.g. a strip search conducted in the street where there are no law enforcement considerations necessitating that approach and when the search could have easily been carried out in private).

Answer 29

Unwarranted strip or rub-down searches may breach section 21 or s23(5) (see ‘Rights of people arrested or detained’). Deliberate degrading and repeated strip searching to punish a detainee may breach section 9 (see Right not to be subjected to torture or cruel treatment). The remedy for unjustified rub-down and strip searches is usually compensation, although this may be limited by the Prisoners and Victims Claims Act 2005.

Answer 30

Searching includes electronic surveillance. Again, there is no set definition whether surveillance without special capabilities (such as night vision) will be a ‘search’. Powers and duties regarding surveillance activities are set out in the Search and Surveillance Act 2012 and the ‘Search’ chapter.

Answer 31

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

Answer 32

Under section 22 everyone has the right not to be arbitrarily arrested or detained. Police employees have powers to arrest and detain under various statutes (see ‘Arrest and detention’). ‘Arrest’

Answer 33

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” (R v Goodwin). ‘Detention’

Answer 34

· 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 (or other official conduct) that they are not free to leave.

Answer 35

detention is less likely to have occurred. Examples of arrest or detention include when a person has been: · formally arrested · handcuffed · locked in a room or building, or put in a place that they cannot leave voluntarily · placed in a police vehicle against their will. Each of these acts can be described as a positive act of physical detention that communicates an intention to hold a person under lawful authority.

Answer 36

In such a situation, the suspect is under arrest within the meaning of the Crimes Act and Police must inform the suspect of their rights under section 23 by giving the caution.

Answer 37

determine whether to arrest or detain in the circumstances of each case. An arrest or detention will be ‘arbitrary’ if it is capricious or without reasonable cause. Also if the arrest/detention was unlawful or proper procedures were not followed.

Answer 38

and that alternative action, such as a summons, is not appropriate. A failure to consider the discretion to arrest will be arbitrary.

Answer 39

A reasonable arrest/detention may also become arbitrary if it lasts longer than necessary, for example longer than required to bring an offender before the Court. A suspect arrested on one offence cannot be kept in custody for "mere convenience sake" while enquiries are made into another offence for which he or she may later be interviewed. If the suspect is eligible for bail, you must give it as soon as practicable.

Answer 40

You cannot stop a vehicle to undertake general enquiries. It may be classed as an arbitrary detention.

Answer 41

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 (e.g. a person for whose arrest a warrant (other than a warrant issued under Part 3 of the Summary Proceedings Act 1957 in relation to fines enforcement) is in force). Any deviation from the above procedure will be viewed as an arbitrary detention, and any evidence seized as a result is likely to be ruled inadmissible

Answer 42

Remedies An arbitrary arrest or detention may lead to exclusion of evidence, release from detention, or compensation.

Answer 43

Section 23 codifies Police duties during arrest and detention, so that basic human rights and freedoms are protected. Under the section, people who are arrested or detained under an enactment have the rights to: · be informed of the reason for arrest or detention at the time of the arrest or detention · consult and instruct a lawyer without delay and to be told of that right · have the arrest or detention’s validity determined by the Court by way of habeas corpus and to be released if it is not lawful · after arrest, to be charged promptly or released · if not released after arrest, to be brought before a court or tribunal as soon as possible · refrain from making any statement and to be informed of that right · be treated with humanity and respect.

Answer 44

See ‘Right to not be arbitrarily arrested or detained’ (s22) for determining whether a person has been arrested or detained.

Answer 45

The Chief Justice’s Practice Note on Police Questioning, issued under section 30(6) of the Evidence Act 2006, provides guidance on police questioning. It includes a caution, containing the advice requirements of sect 23. The wording of this caution for adults and young persons is detailed on an insert card in constable’s notebooks. (Refer to Practice Note on Police Questioning (section 30(6) Evidence Act 2006) later in this chapter.)

Answer 46

· adults who are arrested or detained, or where Police want to question an adult where there is sufficient evidence to charge that person with an offence · children or young persons when detained or arrested and, in accordance with section 215 of the Children’s and Young People’s Well-being Act, before questioning a child or young person when there are reasonable grounds to suspect them of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence.

Answer 47

may result in a finding that evidence was improperly obtained and the evidence excluded under section 30 of the Evidence Act.

Answer 48

Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained (See the Chief Justice’s Practice Note on Police Questioning later in this chapter).

Answer 49

Not every restraint will amount to a detention for the purposes of section 23(1). The courts have recognised particular circumstances in which a short delay in affording rights may be necessary to preserve evidence or to ensure personal safety.

Answer 50

In such cases, there is no detention under an enactment for the purposes of section 23(1)(b)(right to consult and instruct a lawyer without delay and to be informed of that right) — examples include: · When a motorist is stopped at the roadside to undergo a breath-alcohol screening test · When a motorist is stopped at the roadside and asked to supply his or her particulars as permitted by the land transport legislation · When a motorist is taken to hospital following an accident and a doctor is requested to take a blood sample for alcohol testing

Answer 51

· When undertaking the execution of a search warrant reasonable directions may be given to persons whom there are reasonable grounds to believe will obstruct or hinder the search, e.g. persons may be excluded from the house or instructed that if they remain in the house, they are to stay in a specified room.

Answer 52

There is a positive obligation on Police to ensure that all people who are arrested, detained or deprived of their liberty are treated with humanity and respect for the inherent dignity of the person.

Answer 53

Treatment in breach of section 23(5) includes: · 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 detainee's safety and protect them from other detainees.

Answer 54

typically include compensation ($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 prisoner's resistance; $4,000 in AG v Udompun [2005] 3 NZLR 204 - failure to provide sanitary products or allow a shower). However, the Prisoners and Victims Claims Act 2005 may impact on compensation for prisoners.

Answer 55

“Unless there is an evidential basis justifying a contrary conclusion, proof that the Police advised the suspect of the section 23(1)(b) rights should lead to the inference that the suspect understood the position.” (R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707) However: · “...it is the detainer’s obligation to ensure the whole right is conveyed and understood...or at least in a manner open to understanding.” R v Hina (24 June 1992, High Court Wanganui, Greg J, T7/92), and

Answer 56

“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...” (R v Tunui (1992) 8 CRNZ 294), (R v Dobler [1993] 1 NZLR 431). This extended obligation would apply, for example, where the suspect: · is stressed, confused or fatigued at the time of the arrest · has a poor command of the English language · has a passive nature, or limited intelligence · may have difficulty hearing because of background noise · needs an interpreter (e.g. of sign language or a foreign language).

Answer 57

However, over a period of time, re-advising a suspect may be necessary, depending on how long the interview has lasted. If a serious offence is uncovered in the interview, the best practice would be to re-advise.

Answer 58

Note there are particular requirements relating to explanations of rights to be given to children or young persons. Note these must be given in a manner and in language that the child or young person can understand (section 218 of the Children's and Young People’s Well-being Act 1989).

Answer 59

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.” (R v Grant (1992) 8 CRNZ 483)

Answer 60

The admissibility of a confession will be jeopardised if the person was not informed of their rights at the proper time.

Answer 61

There are 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. ”(R v Butcher & Burgess [1992] 2 NZLR 257; (1991) 7 CRNZ 407)

Answer 62

(e.g. where delay will cause danger to others, or an ongoing and real danger that evidence will be lost) then efforts to contact a lawyer will be considered in the light of those dangers. “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.” (R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707))

Answer 63

When cautioning someone who is arrested or detained, or someone against whom there is sufficient evidence to charge with an offence, the person must be told: · of their right to consult and instruct a lawyer without delay and in private, and · that the right may be exercised without charge under the Police Detention Legal Assistance Scheme.

Answer 64

If the suspect indicates a desire to exercise their rights, the interview must be stopped until they have contacted a lawyer. Once the suspect has invoked the lawyer access right, Police are under a duty to refrain from attempting to elicit evidence from that person until they have had a reasonable opportunity to consult a lawyer. However, in R v Ormsby (8/4/05, CA493/04), 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. In R v Perry [2015] NZCA 530 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: “[32]…..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.

Answer 65

“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.” 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 66

If the suspect indicates a desire to exercise their rights, the interview must be stopped until they have contacted a lawyer. Once the suspect has invoked the lawyer access right, Police are under a duty to refrain from attempting to elicit evidence from that person until they have had a reasonable opportunity to consult a lawyer.

Answer 67

However, in R v Ormsby (8/4/05, CA493/04), 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. .

Answer 68

In R v Perry [2015] NZCA 530 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: “[32]…..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

Answer 69

In R v Perry [2015] NZCA 530 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:

Answer 70

(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

Answer 71

we consider that the following points emerge from the authorities. First, if the police take “positive or deliberate step[s] to elicit incriminating evidence” once the right to consult a lawyer is asserted but before the consultation has taken place, the suspect is not regarded as having given a voluntary waiver in respect of any statements that are made in response to those steps…

Answer 72

that there will be no further discussion with an accused without the lawyer being present (that being the accused’s instructions to his or her lawyer), an informed voluntary waiver must be given if the discussion is to continue. A waiver will be informed and voluntary where the police inform the accused of the arrangement that has been made with the lawyer and ask whether he or she wishes to change the instructions to the lawyer or waive the need for compliance with them….

Answer 73

the police may not take steps to “undermine the value of the legal advice” that has been given….

Answer 74

the suspect’s rights are not necessarily subverted or eroded. Notwithstanding, an initial reliance on advice from a lawyer, matters can evolve. Where there has been no cajoling by the police to change the suspect’s mind, a valid waiver can be given even though the lawyer is not further consulted….

Answer 75

In that context the Supreme Court has adopted the “active elicitation” test….” The interviewing officer can continue the interview once the suspect has consulted and instructed a lawyer. However, the court will decide whether any evidence elicited before the lawyer's arrival will be admissible. If the lawyer is on their way, best practice would be to suspend the interview until they arrive.

Answer 76

The Chief Justice’s Practice Note states that a suspect is entitled to consult a lawyer in private. However, Butler & Butler, The New Zealand Bill of Rights: A Commentary, p 681, consider that advice as to privacy must be given on detention as this is part of the right to a lawyer guaranteed by section 23(1)(b). Police cannot deny privacy on the grounds that no private room is available.

Answer 77

However, in some circumstances, the right to privacy may be overridden by other considerations. In R v Piper [1995] 3 NZLR 540; (1995) 13 CRNZ 334, the Court of Appeal stated that Police may be justified in not offering

Answer 78

However, in some circumstances, the right to privacy may be overridden by other considerations. In R v Piper [1995] 3 NZLR 540; (1995) 13 CRNZ 334, 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.

Answer 79

Privacy may not be necessary where the suspect has indicated that they do not require it. Reasonable assistance In some situations, contacting a lawyer will require considerable time and effort on the part of the interviewing officer. You must make a reasonable, honest and determined effort to contact a lawyer.

Answer 80

However, police are under no obligation to find for the suspect their lawyer of choice when the contact phone number cannot be found. The time and effort given to contacting a lawyer before the interview is continued need only be ‘reasonable’. If Police can convince the courts that an honest and determined effort was made to contact a lawyer, the failure of this effort will not automatically exclude an admission made after the suspect has asked for a lawyer.

Answer 81

The right to consult a lawyer is not a right to consult any other person or organisation. The person can do this for the purpose of obtaining a lawyer, but not for the purposes of obtaining advice that a lawyer might give if contacted directly. 3] 3 NZLR 129)

Answer 82

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. (Police v Hendy [2011] DCR 263)

Answer 83

However, the waiver of the right to a lawyer under section 24(c) must be established in an unequivocal manner (Butler and Butler, The New Zealand Bill of Rights: A Commentary, p 762).

Answer 84

“The right conferred by section 23(1)(b) to consult a lawyer is clearly a right which the arrested person is able to waive, provided that this is done clearly and with full knowledge of that right. ” (R v Biddle (1992) 8 CRNZ 488)

Answer 85

“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.” (Police v Kohler [199

Answer 86

Where a person in custody or in respect of whom there is sufficient evidence to charge makes a statement, that statement should preferably be recorded on video or DVD. If not, the statement must be recorded permanently on audiotape or in writing.

Answer 87

The person making the statement must be given the opportunity to review the tape or written statement or to have the written statement read over, and must be given the opportunity to make corrections and or add anything further.

Answer 88

Where the statement is recorded in writing the person must be asked if they wish to confirm the record as correct by signing it (Chief Justice’s Practice Note on Police Questioning). 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. (R v Perry [2016] NZSC 102)

Answer 89

Where the statement is recorded in writing the person must be asked if they wish to confirm the record as correct by signing it (Chief Justice’s Practice Note on Police Questioning).

Answer 90

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. (R v Perry [2016] NZSC 102)

Answer 91

Any questions you put to a person in custody, or in respect of whom there is sufficient evidence to file a charge, must not amount to cross-examination (Chief Justice’s Practice Note on Police Questioning).

Answer 92

“Once a breach of section 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.” (R v Kirifi [1992] 2 NZLR 8; (1991) 7 CRNZ 427)

Answer 93

Breaches of other people’s rights cannot be relied upon by third parties to secure a personal remedy of evidentiary exclusion.

Answer 94

An arrested person must be charged promptly or be released, whether without charge or on police bail following charge (see information on police bail in the ‘Bail’ chapter> Deciding whether to grant or oppose bail). There is an urgency about this requirement but matters such as reasonable time for processing, obtaining legal advice and other police emergencies are ‘justified limitations’ on it (R v Rogers (1993) 1 HRNZ 282).

Answer 95

A person charged must appear at the next available court sitting. They cannot be held while enquiries are conducted into separate offences

Answer 96

Evidence offered by the prosecution of a statement made by a defendant is not admissible against a co-defendant. A “statement” is a spoken or written assertion of any matter, or n n-verbal conduct that is intended as an assertion of any matter (s 4 of the Evidence Act 2006). defendant if it is excluded under s 28, s 29 or s30

Answer 97

Evidence offered by the prosecution of a statement made by a defendant is not admissible against that . These sections are: · the reliability rule (s 28) · the oppression rule (s 29), and · the improperly obtained evidence rule (s 30)

Answer 98

The reliability rule: s28 28 Exclusion of unreliable statements (1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if— (a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of the reliability of the statement and informs the Judge and the prosecution of the grounds for raising the issue; or (b) the Judge raises the issue of the reliability of the statement and informs the prosecution of the grounds for raising the issue

Answer 99

(2) The Judge must exclude the statement unless satisfied on the balance of robabilities that the circumstances in which the statement was made were not likely to have adversely affected its reliability

Answer 100

(3) However, subsection (2) does not have effect to exclude a statement made by a defendant if the statement is offered only as evidence of the physical, mental, or psychological condition of the defendant at the time the statement was made or as evidence of whether the statement was made

Answer 101

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

Answer 102

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

Answer 103

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not):

Answer 104

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put:

Answer 105

(d) the nature of any threat, promise, or representation made to the defendant or any other person.

Answer 106

“Reliability” in s 28 relates to the accuracy and soundness of the statement – the focus of the courts appears to be on the circumstances and likely reliability, rather than an assessment of actual reliability.

Answer 107

(a) exception to reliability rule: s 28(3) Section 28(2) will not have the effect of excluding a defendant’s statement in two circumstances: · where the prosecution wishes to use the statement as evidence of the defendant’s “physical, mental, or psychological condition … at the time the statement was made”,

Answer 108

for example where the prosecution attempt to prove that the defendant was suffering from psychosis and the statement describes to the police aliens said by the defendant to be present in the police station interview room. · where the prosecution offers the defendant’s statement “only … as evidence of whether the statement was made”.

Answer 109

(b) Assessment of reliability: s 28(4) Section 28(4) sets out a list of factors which must be taken into account by a judge in deciding whether the prosecution has shown on the balance of probabilities “that the circumstances in which the statement was made were not likely to have adversely affected its reliability”.

Answer 110

but the listed factors must be taken into account | insofar as they are “relevant to the case”.

Answer 111

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer a statement of a defendant if— (a) the defendant or, if applicable, a co-defendant against whom the statement is offered raises, on the basis of an evidential foundation, the issue of whether the statement was influenced by oppression and informs the Judge and the prosecution of the grounds for raising the issue; or

Answer 112

(b) the Judge raises the issue of whether the statement was influenced by oppression and informs the prosecution of the grounds for raising the issue.

Answer 113

(2) The Judge must exclude the statement unless satisfied beyond reasonable doubt that the statement was not influenced by oppression.

Answer 114

(3) For the purpose of applying this section, it is irrelevant whether or not the statement is true.

Answer 115

(4) Without limiting the matters that a Judge may take into account for the purpose of applying subsection (2), the Judge must, in each case, take into account any of the following matters that are relevant to the case:

Answer 116

(a) any pertinent physical, mental, or psychological condition of the defendant when the statement was made (whether apparent or not):

Answer 117

(b) any pertinent characteristics of the defendant including any mental, intellectual, or physical disability to which the defendant is subject (whether apparent or not) :

Answer 118

(c) the nature of any questions put to the defendant and the manner and circumstances in which they were put: