What are the four most important rules associated with NZBORA?
- Not comp 2
- Cau / Suf 2 ch
- Cau Ar/De….. even if
- No Det Q
- Questioning suspect, not compulsory to answer
- Must caution when Sufficient to charge
- Must caution when Arrest/Detain, even if previously cautioned
- No power to detain for questioning
What does recent case law state that ‘Search’ is
Conscious act of state intrusion into an individuals ‘reasonable expectation of privacy.’
What is seizure?
Removing something from the possesion of someone else
A search that would otherwise be reasonable, is unreasonable if it is carried out in an __________ __________.
What is the definition of an ‘arrest?’
- A communicated intention
- by police officer to
- hold person
- under lawful authority
What is the definition of ‘detained?’
- physical derivation of liberty
- statutory restraint on movement
- belief that they are not free to leave
If a suspect is eligible for bail, you must bail them…….
…as soon as practicable
s.23 What are the rights of an arrested person?
- reason for arrest at time of arrest
- consult & instruct lawyer (advised of that right)
- Court validation
- Court for arrest and detention
- Charged promptly or released to court asap
- refrain from statement (advised of that right)
- treated with humanity & respect
What do s.21 and s.22 of the BORANZ protect against?
- s.21: Unreasonable search and seizure
- s.22: Abitary arrest and detainment
There are the two exceptions for officers not having to immediately give BORs to an arrested or detained person?
- Safety is threatened
- Time is of the essence (delay would cause danger to others)
What was decided in the case: MOT v Noort and Police v Curran?
The detainer is required to refrain from attemping to gain evidence until the detainee has had a resonable opportunity to consult and instruct a lawyer
What are the four points to remember in regards to a suspect waiving of their right to a lawyer?
- that is done in an unequivocal manner
- that it is done clearly with full knowledge of that right (R v Biddle)
- That it is a conscious choice, informed and voluntary.
- Not implied from failure to request or silence (Police v Kohler)
What was decided in the case: R v Ormsby?
Clue: Questioning of suspect after consulting with solicitor
That although the suspect has recieved advise to remain silent, there is nothing to stop police continuing to question suspect if they continue to answer.
s.24 Rights of a person charged
- Informed promptly of nature/cause and
- released on reasonable terms/conditions unless cause for cont detention
- consult lawyer and
- adequate facilities to prepare a defence and
- right (except military law) to be tried before a jury when offence is 2yrs or more
- right to legal assistance without cost if interests of justice require or no means to pay
- free interprator
s.25 Minimum standards of criminal procedure
- right to fair/public hearing by independant/impartial court
- tried without undue delay
- presumed innocent until proven guilty
- not to be compelled to be witness or confess guilt
- to be present at trial and present at defence
- examine the witnesses for defence/ same rules as prosecution
- right of appeal against conviction
- if child, dealt with in a manner that takes account of age
The NZBORA is primarily intended to affirm, protect and promote human rights and fundamental freedoms. It provides:-
- Gov Ag
- Mi St Pub Dec Ma
- Hu Ri Ba Fr
- protection against the powers of government agencies
- minimum standards for public decision-making
- protection of human rights and basic freedoms
The New Zealand Bill of Rights Act also imposes some specific obligations on Police
What are they? (5)
Protection against - s21 (U/S/S) & s22 (Arb/A/D)
Rights of persons - s23 (A/D) & s24 (Ch an Of)
Standards - s25 (Min/S/C/P)
- s21 - unreasonable search and seizure
- s22- arbitrary arrest and detention
Right of persons
- s23 - arrested or detained
- s24 - charged with an offence
- s25 - minimum standards of criminal procedure.
What is an Unlawful search and seizure
- 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
When does the caution have to be given?
- Adults suspected of an offence
- Adults where there is sufficient evidence to charge
- CYP detained or arresested (in accordance of s.215 CYPF Act)
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. 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
Clue: 3 x LTA 1 x Warrant
- a motorist is stopped for breath-alcohol screening test
- a motorist is stopped asked to supply his or her particulars under LTA
- motorist taken to hospital following an accident and a doctor is requested to take a blood sample for alcohol testing
- 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.
s.23 Treatment with humanity and respect
Treatment in breach of section 23(5) includes:- (6)
- 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 employees or detainees
Lawyers (rules) (5)
2 x Related to Lawyer - Rig 2 L & priv
1 x Related to police - det eff to con L
1 x Related to contact - Not 2 any
1 x Related to right -waive
- Right to lawyer on request
- reasonable, honest and determined efforts to contact a lawyer by police
- No calls to just anyone
- can waive the right to lawyer
2 x how they are recorded
1 x Conduct during statement
1 x Breach of rights
1 x Related to charge
1 x Court
- preferably on DVD if not
- recorded permanantly on audio tape or in writting
- must not amount to cross examination
- once breach of rights has occurred evidence obtained after is inadmisable
- charged promptly
- if charged must be brought before the next available court