Chap 4: S&S and BOR act

Question 1

Applying for search warrants
Grounds for applying. You can apply for a search warrant if you have reasonable grounds to:

Answer 1

• suspect an offence punishable by imprisonment has been, is being, or will be committed, and
• believe that the search will find evidential material in respect of the offence, in the place, vehicle or other thing specified in the application. (s6)

Question 2

NZ Bill of Rights Act 1990

Section 21 – Unreasonable search and seizure

Answer 2

• Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.

Question 3

Section 24 Rights of persons charged
Everyone who is charged with an offence –

Answer 3

a) Shall be informed promptly and in detail of the nature and cause of the charge; and
b) Shall be released on reasonable terms and conditions unless there is just cause for continued detention; and
c) Shall have the right to consult and instruct a lawyer; and
d) Shall have the right to adequate time and facilities to prepare a defence; and
e) Shall have the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of a trial by jury when the penalty for the offence is or includes imprisonment for 2 years or more; and
f) Shall have the right to receive legal assistance without cost if the interests of justice so require and the person does not have sufficient means to provide for that assistance; and
g) Shall have the right to have the free assistance of an interpreter if the person cannot understand or speak the language used in court.

Question 4

Right to not be arbitrarily arrested or detained

‘Arrest’

Answer 4

• 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.”

Question 5

Right to not be arbitrarily arrested or detained

‘Detention’

Answer 5

A person will be regarded as ‘detained’ if:

• 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.

Question 6

Written notifications re cautions

Answer 6

• 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.”

Question 7

Waiver of lawyer consultation

Answer 7

• “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.”
• “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.”

Question 8

Victims’ Rights Act 2002

Section 7 Treatment

Answer 8

a) Treat the victim with courtesy and compassion; and
b) Respect the victim’s dignity and privacy.

Question 9

Section 17AB Purpose of victim impact statements

The purpose of a victim impact statement is to

Answer 9

a) enable the victim to provide information to the court about the effects of offending; and

b) assist the court in understanding the victim’s views about the offending; and

c) inform the offender about the impact of offending, from the victim’s perspective.

Question 10

Section 18 Procedure before ascertaining information from victim
The prosecutor must make all reasonable efforts to ensure before information is ascertained from a victim under section 17.
a) that the victim is informed— .

Answer 10

i. that the information is being ascertained for a victim impact statement; and

ii. that the victim must ensure that any information that he or she gives is true; and

iii. that the information must be recorded, and may be verified in the way stated in section 19(3) or (4); and

b) that the victim is informed about who may properly see or make or keep copies of the victim impact statement , and about the orders, directions, and conditions, relating to disclosure and distribution of it, that may be made under sections 24(3)(b), 25, and 27; and

c) that any views the victim has on whether the prosecutor should apply for orders, directions, or conditions of that kind, are ascertained

Question 11

Section 29 Victims Rights act, specified offence defined

In this Act a specified offence is—

Answer 11

a) an offence of a sexual nature, specified in—
i. Part 7 of the Crimes Act 1961, excluding the offences in sections 143 and 144
ii. sections 216(H) to 216(J) of the Crimes Act 1961; or

b) an offence of serious assault that does not come within paragraph (a); or

c) an offence that resulted in serious injury to a person, in the death of a person, or in a person becoming incapable; or

d) an offence of another kind, and that has led to the victim having ongoing fears on reasonable grounds—
i. for his or her physical safety or security; or
ii. for the physical safety or security of 1 or more members of his or her immediate family.