Chapter 5 Managing suspects and offenders

Question 1

Outline S.39, 40,41,42 CA 1961

Answer 1

→ S.39 use of force if executing a K9
→ S.40 use of force to prevent escape or rescue
→ S.41 use of force to prevent suicide
→ S.42 use of force to prevent breach of peace

Question 2

Outline S.202A possession of offensive weapon or disabling substance

Answer 2

→ 4(a) without authority or excuse in
public place has knife, OW or Dsub
→ 4(b) has in possession any place OW or Dsub which shows intention to use it.
→ 4(a) OW any article made or altered to cause injury
→ 4(b) OW any article capable of causing bodily injury

Question 3

What is the theme of General v Reid - arrest for anticipated breach of peace

Answer 3

That there is no power to K9 for a anticipated breach of peace. Proper procedure where breach anticipated and persons fail to desist is to K9 for obstruction

Question 4

Outline S.24 Rights of persons charged

Answer 4

SHALL
→ be informed of charge
→released unless just cause to be detained
→ consult lawyer
→ adequate time and facility to prepare defence
→ right to trial by jury if 2 years imp or more
→ free legal assistance
→ access to interpreter

Question 5

Outline S.25 minimum standards of criminal procedure for the defendant.

Answer 5

Right to:
→ fair public impartial trial
→ tried without undue delay
→ presume innocent until proven guilty
→ not to be compelled as a witness or confess guilt
→ be present at trial and present a defence
→ right to examine witnesses
→ benefit of lessor penalty
→ to appeal to higher court
→ child to be treated in a manner appropriate to age

Question 6

What are the key rules for Police arising from NZBORA

Answer 6

→ may ask questions but must not suggest it is compulsory to answer
→ must give caution if you want to question and you have sufficient evidence
→ if you K9 someone you must caution them
→ no power to detain for questioning

Question 7

What organisations does NZBORA apply to

Answer 7

→ acts done by legislation, executive or judicial branches of govt
→ performance of any public function, power or duty pursuant to law

Question 8

What are the threshold for disorderly or offensive behaviour at protests

Answer 8

→ substantially inhibit other people from enjoying their right to use public amenity
→ cause greater offence that is seriously disruptive of public order

Question 9

What is the theme in Routhen v Police regarding protesting

Answer 9

That if a protester is causing a hazard or disrupting business, one option is to see if the protest action can be modified

Question 10

What is a definition of search

Answer 10

Conscious act of state intrusion into an individual’s reasonable expectation of privacy

Question 11

What is a definition of seizure

Answer 11

removing something from the possession of someone else

Question 12

What is the definition of arrest in R V Gordon

Answer 12

Must have its Crimes Act meaning of a communicated intention on the part of police to hold a person under lawful custody

Question 13

What is the definition of detained

Answer 13

→ physical deprivation of a persons liberty
→ statutory restraint on a persons movement
→ hold belief that they are not free to leave

Question 14

What vehicle stop could be arbitrarily detention

Answer 14

Any vehicle stop that is not pursuant to S.114 LTA or S.9 SSA

Question 15

Under S.23 what are the rights of people who have been arrested or detained

Answer 15

→ be informed of reason for K9
→ be told can consult and instruct lawyer
→ have the K9 validity tested by Court
→ be charged promptly or released after K9
→ be told don’t have to make a statement
→ be treated with humanity and respect

Question 16

What short delays are not considered a detention by the court.

Answer 16

→ motorist stopped for EBA
→ motorist stopped and asked to supply details
→ motorist taken to hospital and hospital blood taken
→ when carrying out SW people may be instructed to remain in a room

Question 17

What is the theme of R v Mallinson ensuring rights are understood

Answer 17

Unless evidence to the contrary, proof that police advised rights should lead to the inference that the suspect understood the what was said,

Question 18

What is the theme in R v Hina - obligation on detainer to give rights

Answer 18

it is the detainer’s obligation to ensure the whole right is conveyed and a manner open to understanding

Question 19

What is the theme of R v Tunui - frequency of BOR

Answer 19

may be necessary to inform person more that once - may not be compliance if told in a perfunctory manner

Question 20

What are the exceptions to give BOR asap in R v Butcher

Answer 20

should not be expected to give evidence in their safey threatened - but should be given once control is regained.

Question 21

What does R v Mallinson say about ‘without delay’

Answer 21

‘without delay’ is not synonymous with instantly or immediately - was the delay reasonable in all circumstances, having regard to the purpose of the right.

Question 22

What is the theme in MOT v Noort; Police v Curran in regards to asking questions

Answer 22

the detainer is required to refrain from attempting to gain evidence from the detainee until the detainee has had reasonable opportunity to consult and instruct a lawyer

Question 23

What is the theme of R v Ormsby in regards to questioning a suspect

Answer 23

Nothing stopping police questioning a suspect who has received legal advice (that they can be silent) but despite that the suspect keeps on answering

Question 24

What is the theme of R v Perry regarding the amount of encouragement/persuasion that could be applied to a suspect when they have asserted their right to silence

Answer 24

→ nothing stopping Police on further questions once rights have been asserted
→ rights earlier asserted may be waived provided waiver is informed and voluntary

Police can continue to interview after suspect consulted/instructed a lawyer. Court will decide if evidence admissible. If lawyer on way then suspend interview until lawyer arrives.

Question 25

When can the right to privacy be overridden in R V Piper

Answer 25

→ not safe to leave accused alone
→ risk person might dispose of evidence and warn others
→ person indicates they do not require it

Question 26

What are the requirements of reasonable assistance to find/contact a lawyer

Answer 26

→ must make reasonable, honest and determined effort to contact a lawyer
→ no legal requirement on Police to offer suspect opportunity to phone other lawyers if suspect not satisfied with that legal advice. Police v Hendy

Question 27

What are the themes of R V Biddle and Police v Kohler regarding waiving rights to a lawyer

Answer 27

→ right to waive lawyer can be done, provided done clearly and with full knowledge of that right
→ waiver can not be implied from silence or failure to request rights

Question 28

Evidence offered by the prosecution can be inadmissible if it is excluded under what sections

Answer 28

S.28 Reliability rule
S.29 Oppression rule
S.30 Improperly obtained evidence

Question 29

Summarise the reliability rule

Answer 29

→ reliability relates to the accuracy and soundness of the statement based on balance of probabilities
→ statements will be included to prove suspects state of mind at the time statement made
→ to prove only that a statement was made
→ prosecution to prove that circumstances that statement was taken did not effect its reliability

Question 30

Summarise the Oppression rule

Answer 30

Oppression means violent, in human or degrading conduct towards the defendant or another person or a threat.
If oppression raised prosecution has to prove beyond reasonable doubt that statement not made by oppression

Question 31

Summarise improperly obtained evidence

Answer 31

only applies to evidence from prosecution and is evidence obtained due to breach of any act.

if statement decreed inadmissible then any attachment to that is also inadmissible (eg an exhibit)

Question 32

what are the 5 guidelines from the practice notes on police questioning

Answer 32

1. Police may ask questions of any person, but must not suggest person has to answer
2. if a person is K9 then police have to give BOR and then if person questioned then advice from practice notes to be given
3. questions to a person in custody should not amount to cross examination
4. when a person is questioned about statements made by others, the substance of the allegation must be put.
5. statements should be done on DVD unless impracticable or person declines. If written statement then suspect to read and make changes to before signing,

Question 33

what is the theme of Phillips v R- voluntary statement recorded unfairly

Answer 33

evidence was deemed to be unfairly obtained because police notes weren’t fully recorded and suspect didn’t have time to read, correct or add anything,