Module 1 - CYPF and Domestic Violence (Feb 2015) Flashcards Preview

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Flashcards in Module 1 - CYPF and Domestic Violence (Feb 2015) Deck (93):
1

What is Section 39(3), CYPF Act 1989?

Place of safety warrants

(3) Any person authorised by warrant under this section to search for any child or young person may –
(a) Enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:
(b) If that person believes, on reasonable grounds, that the child or young person has suffered, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm, –
(i) Remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the [chief executive]; or
(ii) Where the child or young person is in a hospital, direct the Medical Superintendent of that hospital to keep that child or young person in that hospital.

2

What is Section 42, CYPF Act 1989?

Search without warrant

(1) Any constable who believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant, –
(a) Enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:
(b) Remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.

(2) Every constable who exercises any powers conferred by subsection (1) of this section shall, on first entering any dwellinghouse, building, aircraft, ship, carriage, vehicle,
premises or place, and if requested, at any subsequent time, –
(a) Produce evidence of identity; and
(b) Disclose that those powers are being exercised under this section.

(3) A constable who exercises the power conferred by subsection (1) of this section shall, within 3 days after the day on which the power is exercised, forward to the
Commissioner of Police a written report on the exercise of the power and the circumstances in which it came to be exercised.

3

What is Section 48, CYPF Act 1989?

Unaccompanied children and young persons

(1) Where a child or young person is found unaccompanied by a parent or guardian or other person who usually has the care of the child or young person in a situation in which the child’s or young person’s physical or mental health is being, or is likely to be, impaired, a constable may, using such force as may reasonably be necessary, take the child or young person and –
(a) With the consent of the child or young person, deliver the child or young person into the custody of a parent or guardian or other person usually having the care of the child or young person; or
(b) If –
(i) The child or young person does not wish to be returned to a parent or guardian or other person having the care of the child or young person; or
(ii) No parent or guardian or other such person is willing or able to have custody of the child or young person, –
place the child or young person in the custody of the chief executive by delivering the child or young person to a Social Worker.

(2) Placement of a child or young person in the custody of the chief executive shall be sufficient authority for the detention of the child or young person by a Social Worker
or in a residence under this Act until –
(a) The child or young person agrees to being returned to a parent or guardian or other person usually having the care of the child or young person who is willing to have the care of the child or young person; or
(b) An application is made to the Court for a declaration under section 67 of this Act and the child or young person is brought before the Court for the purpose of determining whether the child or young person is to be held in custody
pending the disposal of the application; or
(c) Where the circumstances of the case indicate that the child or young person is, or may be, in need of care or protection, the expiry of 5 days after the day on which the child or young person was placed in custody, or in any other case, 3 days after that date – whichever first occurs.

4

What are the 9 principles of Section 208, CYPF Act 1989?

(a) The principle that, unless the public interest requires otherwise, criminal proceedings should not be instituted against a child or young person if there is an alternative means of dealing with the matter:

(b) The principle that criminal proceedings should not be instituted against a child or young person solely in order to provide any assistance or services needed to advance
the welfare of the child or young person, or his or her family, whanau, or family group:

(c) The principle that any measures for dealing with offending by children or young persons should be designed—
(i) To strengthen the family, whanau, hapu, iwi, and family group of the child or young person concerned; and
(ii) To foster the ability of families, whanau, hapu, iwi, and family groups to develop their own means of dealing with offending by their children and young persons:

(d) The principle that a child or young person who commits an offence should be kept in the community so far as that is practicable and consonant with the need to ensure the safety of the public:

(e) The principle that a child’s or young person’s age is a mitigating factor in determining—
(i) Whether or not to impose sanctions in respect of offending by a child or young person; and
(ii) The nature of any such sanctions:

(f) The principle that any sanctions imposed on a child or young person who commits an offence should—
(i) Take the form most likely to maintain and promote the development of the child or young person within his or her family, whanau, hapu, and family group; and
(ii) Take the least restrictive form that is appropriate in the circumstances:
(fa) The principle that any measures for dealing with offending by a child or young person should so far as it is practicable to do so address the causes underlying the child’s or young person’s offending.

(g) The principle that —
(i) in the determination of measures for dealing with offending by children or young persons, consideration should be given to the interests and views of any victims of the offending (for example, by encouraging the victims to participate in the processes under this Part for dealing with offending); and
(ii) any measures should have proper regard for the interests of any victims of the offending and the impact of the offending on them:

(h) The principle that the vulnerability of children and young persons entitles a child or young person to special protection during any investigation relating to the commission or possible commission of an offence by that child or young person.

5

What is Section 214(1)-(3), CYPF Act 1989?

Arrest of child or young person without warrant

(1) Subject to sections 233 and 244 of this Act, where, under any enactment, any enforcement officer has a power of arrest without warrant, that officer shall not arrest
a child or young person pursuant to that power unless that officer is satisfied, on reasonable grounds, –
(a) That it is necessary to arrest that child or young person without warrant for the purpose of –
(i) Ensuring the appearance of the child or young person before the Court; or
(ii) Preventing that child or young person from committing further offences; or
(iii) Preventing the loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the enforcement officer has reasonable cause to suspect that child or young person of having committed, or preventing interference with any witness in respect of any such offence; and
(b) Where the child or young person may be proceeded against by way of summons, that proceeding by way of summons would not achieve that purpose.

(2) Nothing in subsection (1) of this section prevents a constable from arresting a child or young person without warrant on a charge of any offence where –
(a) The constable has reasonable cause to suspect that the child or young person has committed a purely indictable offence, and
(b) The constable believes, on reasonable grounds, that the arrest of the child or young person is required in the public interest.

(3) Every enforcement officer who arrests a child or young person without warrant shall, within 3 days of making the arrest, furnish a written report –
(a) Where that enforcement officer is a constable, to the Commissioner of Police:

6

What is Section 215, CYPF Act 1989?

Child or young person to be informed of rights before questioned by enforcement officer

(1) Subject to sections 233 and 244 of this Act, every enforcement officer shall, before questioning any child or young person [whom there are reasonable grounds to suspect of having committed an offence, or before asking any child or young person any question intended to obtain an admission of an offence], explain to that child or young person –
(a) Subject to subsection (2) of this section, if the circumstances are such that the enforcement officer would have power to arrest the child or young person
without warrant, that the child or young person may be arrested if, by refusing to give his or her name and address to the enforcement officer, the child or
young person cannot be served with a summons; and
(b) Subject to subsection (2) of this section, that the child or young person is not obliged to accompany the enforcement officer to any place for the purpose of
being questioned, and that if the child or young person consents to do so, that he or she may withdraw that consent at any time; and
(c) That the child or young person is under no obligation to make or give any statement; and
(d) That if the child or young person consents to make or give a statement, the child or young person may withdraw that consent at any time; and
(e) That any statement made or given may be used in evidence in any proceedings; and
(f) That the child or young person is entitled to consult with, and make or give any statement in the presence of, a barrister or solicitor and any person nominated
by the child or young person in accordance with section 222 of this Act.

(2) Nothing in paragraph (a) or paragraph (b) of subsection (1) of this section applies where the child or young person is under arrest.

(3) Without limiting subsection (1) of this section, where, during the course of questioning a child or young person, an enforcement officer forms the view that there are reasonable grounds to suspect the child or young person of having committed an offence, the enforcement officer shall, before continuing the questioning, give the
explanation required by that subsection.

7

What is Section 215(a), CYPF Act 1989?

Subject to sections 233 and 244 of this Act, where –
(a) Any enforcement officer is questioning any child or young person in relation to that child’s or young person’s involvement in the commission of any offence or suspected offence; and
(b) That child or young person makes any enquiry of that enforcement officer, being an enquiry that relates (in whole or in part), or that may reasonably be taken as relating (in whole or in part), to any of the matters set out in any of paragraphs (a) to (f) of section 215(1) of this Act, –
that enforcement officer shall explain to that child or young person such of those matters as, in the circumstances of the particular case, are appropriate to the enquiry that was made.

8

What is Section 216, CYPF Act 1989?

Enforcement officer to explain rights to child or young person who is to be charged with offence

Subject to sections 233 and 244 of this Act, where –
(a) An enforcement officer is questioning a child or young person in relation to the
commission or possible commission of an offence by that child or young person; and
(b) That enforcement officer makes up his or her mind to charge that child or young
person with an offence, –
the enforcement officer shall explain to that child or young person –
(c) Except where the child or young person is under arrest, the matters specified in
paragraphs (a) and (b) of section 215(1) of this Act; and
(d) The matters specified in paragraphs (c) to (f) of section 215(1) of this Act.

9

What is Section 217, CYPF Act 1989?

Rights to be explained to child or young person who is arrested

Subject to sections 233 and 244 of this Act, every enforcement officer shall, on arresting any child or young person pursuant to section 214 of this Act, explain to that child or young person the matters specified in paragraphs (c) to (f) of section 215(1) of this Act.

10

What is Section 218, CYPF Act 1989?

Explanations to be given in manner and language appropriate to age and level of understanding of child or young person

Every explanation required to be given to a child or young person pursuant to section 215 [orsection 215A] or section 216 or section 217 of this Act shall be given in a manner and in language that is appropriate to the age and level of understanding of the child or young person.

11

What is Section 219, CYPF Act 1989?

Explanations not required if child or young person already informed of rights

Nothing in section 215 [or section 215A] or section 216 or section 217 of this Act requires any explanation to be given to a child or young person if the same explanation has been given to the child or young person not earlier than 1 hour before the later explanation would, apart
from this section, be required to be given.

12

What is Section 221, CYPF Act 1989?

Admissibility of statements made by children and young persons

(1) This section applies to –
(a) Every child or young person who is being questioned by an enforcement officer in relation to the commission or possible commission of an offence by that child or young person:
(b) Every child or young person –
(i) Who has been arrested pursuant to section 214 of this Act; or
(ii) Whom any enforcement officer has made up his or her mind to charge with the commission of an offence; or
(iii) Who has been detained in the custody of an enforcement officer following arrest pursuant to section 214 of this Act.

(2) Subject to sections 223 to 225 and sections 233 and 244 of this Act, no oral or written statement made or given to any enforcement officer by a child or young person to whom this section applies is admissible in evidence in any proceedings against that child or young person for an offence unless –
(a) Before the statement was made or given, the enforcement officer has explained in a manner and in language that is appropriate to the age and level of understanding of the child or young person, –
(i) Except where subsection (1)(b)(i) or (iii) of this section applies, the matters specified in paragraphs (a) and (b) of section 215(1) of this Act; and
(ii) The matters specified in paragraphs (c) to (f) of section 215(1) of this Act; and
(b) Where the child or young person wishes to consult with a barrister or solicitor and any person nominated by that child or young person in accordance with section 222 of this Act, or either of those persons, before making or giving the statement, the child or young person consults with those persons or, as the case requires, that person; and
(c) The child or young person makes or gives the statement in the presence of one or more of the following persons:
(i) A barrister or solicitor:
(ii) Any person nominated by the child or young person in accordance with section 222 of this Act:
(iii) Where the child or young person refuses or fails to nominate any person in accordance with section 222 of this Act, –
(A) Any person referred to in paragraph (a) or paragraph (b) of section 222(1) of this Act; or
(B) Any other adult (not being an enforcement officer).

13

What is Section 222, CYPF Act 1989?

Persons who may be nominated for the purposes of section 221(2)(b) or (c)

(1) Subject to subsection (2) of this section, a child or young person may nominate one of the following persons for the purposes of section 221(2)(b) or (c) of this Act:
(a) A parent or guardian of the child or young person:
(b) An adult member of the family, whanau, or family group of the child or young person:
(c) Any other adult selected by the child or young person:
(d) If the child or young person refuses or fails to nominate any person referred to in any of paragraphs (a) to (c) of this subsection, any adult (not being an enforcement officer) nominated for the purpose by an enforcement officer.

(2) Where an enforcement officer believes, on reasonable grounds, that any person nominated by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this
section, –
(a) If permitted to consult with the child or young person pursuant to section 221(2)(b) of this Act, would attempt, or would be likely to attempt, to pervert the course of justice; or
(b) Cannot with reasonable diligence be located, or will not be available within a period of time that is reasonable in the circumstances, – that enforcement officer may refuse to allow the child or young person to consult with
that person.

(3) Where, pursuant to subsection (2) of this section, a child or young person is not permitted to consult with a person nominated by that child or young person pursuant
to subsection (1) of this section, that child or young person shall, subject to subsection

(2) of this section, be permitted to consult with any other person nominated by that child or young person pursuant to subsection (1) of this section.

(4) It is the duty of any person nominated pursuant to subsection (1) of this section –
(a) To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of
this Act; and
(b) To support the child or young person –
(i) Before and during any questioning; and
(ii) If the child or young person agrees to make or give any statement, during the making or giving of the statement.

14

What is Section 223, CYPF Act 1989?

Section 221 not to apply where statement made before requirements of that section can be met

Nothing in section 221 of this Act applies to an oral statement made by a child or young person spontaneously and before an enforcement officer has had a reasonable opportunity to comply with the requirements of that section.

15

What is Section 229, CYPF Act 1989?

Parents or guardians or other persons to be informed where child or young person at enforcement agency office for questioning in relation to commission or possible commission of offence or is arrested

(1) Subject to sections 233 and 244 of this Act, an enforcement officer shall, in relation to any child or young person who is at an enforcement agency office for questioning in relation to the commission or possible commission of an offence by that child or young person, or who is at an enforcement agency office following arrest, as soon as practicable after the child or young person arrives at the enforcement agency office for
questioning, or is taken to the enforcement agency office following arrest, or in the case of a child or young person who is arrested at an enforcement agency office, is
arrested, as the case may be, –
(a) Inform a person nominated by the child or young person in accordance with section 231 of this Act that the child or young person is at the enforcement agency office for questioning or has been arrested and that the child or young person may be visited at the enforcement agency office; and
(b) Where –
(i) The person nominated by the child or young person for the purposes of paragraph (a) of this subsection is not a parent or guardian or other person having the care of the child or young person; or
(ii) The child or young person refuses or fails to nominate any person in accordance with section 231 of this Act, –
unless it is impracticable to do so, inform the parents or guardians or other persons having the care of the child or young person that the child or young person is at the
enforcement agency office for questioning or has been arrested.

(2) Subject to sections 233 and 244 of this Act, every person who is informed pursuant to subsection (1)(a) of this section that a child or young person has been taken to an
enforcement agency office or arrested –
(a) Is entitled to visit that child or young person at the enforcement agency office; and
(b) Shall, as soon as practicable after that person arrives at the enforcement agency office to visit the child or young person, have explained to him or her by an enforcement officer, in language that can be understood by that person, the matters specified in paragraphs (c) to (f) of section 215(1) of this Act; and
(c) Subject to subsection (3) of this section, is entitled to consult privately with that child or young person during that visit.

(3) Nothing in subsection (2)(c) of this section entitles any person to consult privately with a child or young person (being a child or young person who has been arrested) –
(a) In the absence of any enforcement officer who is for the time being guarding that child or young person; or
(b) Otherwise than subject to such reasonable conditions as may be necessary to ensure the safety of the child or young person or to prevent the commission of any offence.

16

What is Section 231, CYPF Act 1989?

Persons who may be nominated for the purposes of section 229(1)(a)

(1) Subject to subsection (2) of this section, a child or young person may nominate one of the following persons for the purposes of section 229(1)(a) of this Act:
(a) A parent or guardian of the child or young person:
(b) An adult member of the family, whanau, or family group of the child or young person:
(c) Any other adult selected by the child or young person:
(d) If the child or young person refuses or fails to nominate any person referred to in any of paragraphs (a) to (c) of this subsection, any adult (not being an enforcement officer) nominated for the purpose by an enforcement officer.

(2) Where an enforcement officer believes, on reasonable grounds, that any person nominated by a child or young person pursuant to subsection (1)(a) or (b) or (c) of this
section, if permitted to visit the child or young person pursuant to section 229(2)(a) of this Act, would attempt, or would be likely to attempt, to pervert the course of justice,
that enforcement officer may refuse to allow that person to visit the child or young person.

(3) Where, pursuant to subsection (2) of this section, a person nominated by a child or young person pursuant to subsection (1) of this section is not permitted to visit that
child or young person, any other person nominated by that child or young person pursuant to subsection (1) of this section shall, subject to subsection (2) of this section,
be permitted to visit that child or young person pursuant to section 229(2)(a) of this Act.

(4) It is the duty of any person nominated pursuant to subsection (1) of this section –
(a) To take reasonable steps to ensure that the child or young person understands the matters explained to the child or young person under section 221(2)(a) of this Act; and
(b) To support the child or young person –
(i) Before and during any questioning; and
(ii) If the child or young person agrees to make or give any statement, during the making or giving of the statement.

17

What is Section 233, CYPF Act 1989?

Breath-alcohol and blood-alcohol provisions of Land Transport Act 1998 not affected

Nothing in the provisions of sections 214 to 232 limits or affects the powers of an enforcement officer under any of the provisions of sections 68 to 72 of the Land Transport
Act 1998.

18

What is Section 234, CYPF Act 1989?

Custody of child or young person following arrest

Subject to sections 235, 236, and 244 of this Act, where a child or young person is arrested with or without warrant, a constable shall—
(a) Release the child or young person; or
(b) Where the child or young person may be released on bail under section 21 of the Bail Act 2000, release the child or young person on bail; or
(c) Deliver the child or young person into the custody of—
(i) Any parent or guardian or other person having the care of the child or young person; or
(ii) With the agreement of the child or young person, any Iwi Social Service or Cultural Social Service; or
(iii) With the agreement of the child or young person, any other person or organisation approved by the chief executive or a constable for the purpose.

19

What is Section 235, CYPF Act 1989?

Child or young person who is arrested may be placed in custody of chief executive

(1) Notwithstanding section 234 of this Act but subject to section 244 of this Act, where a constable has reasonable grounds for believing, in relation to any child or young
person who has been arrested, that—
(a) The child or young person is not likely to appear before the Court; or
(b) The child or young person may commit further offences; or
(c) It is necessary to prevent—
(i) The loss or destruction of evidence relating to an offence committed by the child or young person or an offence that the constable has reasonable cause to suspect the child or young person of having committed; or
(ii) Interference with any witness in respect of any such offence, –
the constable shall, as soon as practicable and not later than 24 hours after the arrest, place the child or young person in the custody of the [chief executive] in accordance with subsection (2) of this section.

(2) A child or young person shall be placed in the custody of the [chief executive] pursuant to this section by—
(a) Delivering the child or young person to a Social Worker; and
(b) Presenting to the Social Worker, on the prescribed form, details relating to—
(i) The identity of the child or young person; and
(ii) The circumstances of the arrest of the child or young person; and
(iii) The date and time of the intended appearance of the child or young person before the Court having jurisdiction in the matter in relation to which the child or young person was arrested.

(3) Placement of a child or young person in the custody of the [chief executive] under subsection (1) of this section shall be sufficient authority for the detention of the child
or young person by a Social Worker or in a residence under this Act, or under the care of any suitable person approved by a Social Worker.

(4) No constable shall exercise the power conferred by subsection (1) of this section merely because the constable believes that any child or young person is in need of care
or protection (as defined in section 14 of this Act).

20

What is Section 236, CYPF Act 1989?

Young person who is arrested may be detained in Police custody

(1) Notwithstanding the provisions of sections 234 and 235 of this Act but subject to section 244 of this Act, where a senior Social Worker and a constable, being a senior
sergeant or a commissioned officer, are satisfied on reasonable grounds—
(a) That a young person who has been arrested is likely to abscond or be violent; and
(b) That suitable facilities for the detention in safe custody of that young person are not available to the [chief executive],— the young person may, on the joint certificate in the prescribed form of that senior Social Worker and that constable, be detained in Police custody for a period exceeding 24 hours and until appearance before the Court.

(2) Where a senior Social Worker and a constable issue a joint certificate under subsection (1) of this section, there shall, within 5 days after the day on which the certificate is issued, be furnished by the senior Social Worker to the [chief executive] and by the constable to the Commissioner of Police—
(a) A copy of the certificate; and
(b) A written report stating—
(i) The circumstances in which the certificate came to be issued; and
(ii) The duration of the period for which the young person has been detained, or is likely to be detained, in Police custody.

21

What does the case R vs Kahu relate to? CYPF

Powers under a sec39 warrant

The appellant was visited by a social welfare officer, who was acting on a place of safety warrant under s 39 Children, Young Persons, and Their Families Act 1989
(“the Act”). He was accompanied by a police officer who had obtained, but did not use, a warrant under the Misuse of Drugs Act 1975 and the Summary Proceedings Act 1957. The social worker explained that he had the right to enter the appellant’s house and check the food situation and see the children. He also explained that he could remove the child named in the warrant. The appellant agreed to the social worker and the police officer searching the cupboards for food. While they were doing so, the police officer discovered a plate of cannabis. On being advised to “come clean” by the social worker, the appellant showed the social worker and police officer a substantial amount of cannabis in her bedroom. She was cautioned, given Bill of Rights advice and arrested. The children were taken into social welfare custody.

The appellant appealed her conviction on the basis that the finding of the cannabis in the bedroom was a breach of s 21 New Zealand Bill of Rights Act 1990.

Held:
(1) (per Cooke P, Richardson, Casey, and Hardie Boys JJ) the discovery of the cannabis in the kitchen and the bedroom was not a result of an unreasonable search under s 21 New Zealand Bill of Rights Act 1990. A warrant under s 39 Children, Young Persons, and Their Families Act 1989 authorises the holder of the warrant not only to search for the child, but also to remove, by force if necessary, and place the child in the custody of the Director-General of Social Welfare. In order to form the requisite belief that the child is in an “at risk” position, the holder of the warrant must be entitled to exercise his or her best judgment on the information then available, and to take positive steps to that end. Those steps may appropriately include checking on the physical condition
of the child, the living conditions, food supply, and other necessaries available for the child’s wellbeing. This is implicit in the authority to search and the requirement that, having located the child, the person executing the warrant form an independent judgment as to whether the child should be removed or detained. Therefore, in
appropriate circumstances, governed by concerns for the welfare of the child as reflected in the criteria under s 39 Children, Young Persons, and Their Families Act 1989, the holder of a warrant under s 39 may check the supplies of food in the house and open cupboards for that purpose.

22

What does the case Police vs D relate to? CYPF

Detention under section 48

A youth was removed by police from private property (where he was unlawfully present in possession of alcohol, and drunk) and taken to a police station, pursuant to s 48 of the Children, Young Persons, and Their Families Act 1989 (“the Act”). Prior to being taken to the police station the youth advised a police officer present of his name, address and details of his grandmother, with whom he lived. His telephone number was also given. This information was not provided to the police officers who
transported the youth back to the police station. In the processing room at the station the youth was questioned about his details so that his parents or caregiver could be
contacted. The youth became agitated when being questioned in the processing room and punched a police officer. The youth was charged with assault on police. The
charge was defended on the basis that police had acted unlawfully.

The issue
Counsel for the youth submitted that police had unlawfully detained the youth and should have taken the youth home and not further questioned him at the police
station. Police submitted that the youth’s attendance at the station was necessary to facilitate police getting in touch with the caregiver (police having no reliable means
to contact the caregiver in public). Police also relied on a particular interest in the youth as he was one of the local youths on a “special list”.

Decision
The Court noted that:
· Section 48 is contained in Part II of the Act and its purpose is the care and protection of young persons.
· Section 48 requires the welfare and interests of the child to be put first.
· Section 48 does not authorise detention of a child or young person at police stations per se, although a police station may provide an intermediary means of delivering the child to their parent, guardian, caregiver or a social worker.
· Although police have an express power under s 48 to use such force as may reasonably be necessary in delivering the child or young person to the persons
stipulated in the section, police ought to minimise potentially harmful experiences, such as being exposed to other adult prisoners in police cells and or being placed in a high security environment.

The Court found that:
· Police acted reasonably in taking the youth to the station as an intermediate step in returning him to his grandmother or, failing her agreement to take him, to his
being placed in the custody of a social worker.
· Police failed to consider the youth’s interests in choosing to take him through the secure entrance (cell block area) to the police station, given that he was cooperating at the time.
· By taking the youth into the secure area, police detained the youth beyond their lawful authority, which was to deliver him into the care of a parent, guardian or
caregiver. The use of the secure area of the station would only be justified in the event that reasonable force became necessary to deliver him into the care of the
appropriate person.
· Police failed to ascertain whether the youth preferred to be returned home or to a social worker.
· There was no evidence that police informed the youth as to why he was being detained, and it was not unlikely that the youth considered he was under arrest.
· The police suggestion that further inquiries were necessary indicated that police were blurring the purpose of the youth’s presence in the police station. It was wrong to detain the youth beyond the purposes of s 48 so as to perform an investigation, where police were purporting to rely on s 48 for the detention.
· Police had no need to question the youth, as they had the information that they required to return the youth to the appropriate person.

Comment
· Section 48 of the Act is to be used for the limited purpose of returning a child or young person to an appropriate person where the child or young person’s
physical or mental health is being, or is likely to be, impaired.
· Section 48 only allows the police to ‘take’ the child or young person and with their consent return them home.
· If they do not wish to be returned home then police shall place the child or young person in the ‘custody’ (not in police cells) of the chief executive by delivering them to a social worker.
· The Courts will take a dim view where police use the section for other purposes. Consideration should be given to arrest, where necessary, but it must be justified under s 214 of the Act.
· If the child or young person is arrested under s 214 they can be released without charge under s 234 (a).

23

What does the case Police v T-M relate to? CYPF

Arrest guidelines under s214

Background
A number of burglaries had been reported in the central Whangarei business district over a relatively short period of time. During routine patrolling of the district, T who
was known to police as a youth offender, was seen in central Whangarei in the early hours of the morning.
Police invoked s 48 of the CYPF Act and required T to return to the police station where he was interviewed about the recent burglaries. Approximately 3 weeks later
the police went to T’s address. He was interviewed a second time during which a signed statement was obtained from him. T was then arrested for burglary.

Proceedings
T denied the charges, however, before the matter proceeded to a defended hearing, the police sought leave to withdraw the charges, acknowledging that there were
problems with the police case.
Subsequently T’s counsel made an application for costs to be imposed on the police. In a subsequent hearing on the issue of costs, Judge Boshier found the police had
misused the court process and ordered the police to pay costs of $1000.

Decision
In his written decision on the issue of costs Judge Boshier commented on the fact that when arresting a child or young person (‘CYP’) the police must find a demonstrable need to arrest as limited by s 214 CYPF Act. In his decision the Judge gave the following guidelines to assist frontline police when deciding whether or not to arrest a CYP.

1 Section 48 should not be used by police officers for the sole purpose of taking into custody a CYP who is suspected of having committed a crime. The section is limited in its scope and is meant only to apply to unaccompanied CYP’s that need to be placed in a situation of safety.

2 If a police officer believes that a CYP has committed an offence, arrest may be considered but only if section 214 of the Act would permit it. Section 214 provides that a CYP is not to be arrested unless the officer is satisfied on reasonable grounds that the arrest is necessary for:
(i) Ensuring the appearance of the CYP before the Court; or
(ii) Preventing the CYP from committing further offences; or
(iii) Preventing the loss or destruction of evidence or preventing interference with witnesses.
[NB. The section also provides that if the offence committed is purely indictable and the public interest requires an arrest be made, then a police officer may arrest a CYP without warrant.]

3 Section 208 of the CYPF Act requires that criminal proceedings should not be initiated unless there are no other means of dealing with a matter and any proceedings
taken must take the least restrictive form appropriate to the circumstances.

4 Section 214 enables police to arrest young people but only in certain situations. Arrest will most often arise where at the time a person is encountered, an offence has just been committed, and there is every indication that further offending is imminent.
Arrest might also occur where police have no confidence that because of the young person’s past or other factors, they will appear in Court if later they are required to do
so.

5 Police may not arrest a young person simply as a means of requiring a young person to face the consequences of offending in a Youth Court This is in contrast to adults
who may be arrested for this purpose.

6 Generally, unless the CYP is arrested as permitted by section 214, police officers encountering criminal offending by a child or young person must consult a Youth Justice Coordinator with a view to convening a Family Group Conference before the laying of charges in a Youth Court is contemplated. It is one of the roles of the FGC to discuss the offending and decide whether an information should be laid (s 245 CYPF Act).

24

What does the case Police v T relate to? CYPF

s 214 and detention in police custody

The defendant, T, was a young person of 14. On 6 May 1998 he was leaving a Superette with two packets of biscuits and one packet of chips without paying. A police officer who happened to be in the Superette, instructed him to stop. T did not.
He discarded the food items as he was jumping a property fence, was apprehended, arrested, placed in police custody and charged with shoplifting of goods worth nine
dollars. At the time T was the subject of a supervision order relating to 17 charges. T remained in police custody until he was brought to Court, just over 24 hours later.
The Youth Advocate questioned the basis of the arrest, the fact that T was not brought to Court and dealt with promptly and the basis of T’s continued detention in
police custody. The police submitted that the arrest was necessary to stop T from committing further offences.
Held (finding procedural failures by the police, granting bail to defendant, directing a Family Group Conference and directing that the decision be sent to the appropriate
authorities)

(1) The continuation of the arrest unnecessarily was in breach of the letter and the spirit of s 214 of the Children, Young Persons, and Their Families Act (the Act). While the
initial arrest might have been justified by the fact that the defendant was trying to escape, the time-frame in question must be the time between the arrest and when the defendant could be brought to Court. The mere fact that the defendant had other charges and was the subject of a supervision order did not mean that he could be
arrested whenever he re-offended. A single charge of shoplifting was not such as to suggest that the defendant without arrest would continue shoplifting or commit any
other offence.

(2) Failure to bring the defendant to Court constituted a breach of the young person’s rights under the New Zealand Bill of Rights Act to have the matter dealt with on the same day. A person arrested in the morning ought to be dealt with that afternoon except possibly in unusual circumstances.

(3) The fact that the young person had spent 24 hours in police custody including a night in police cells was a serious breach of the law. Given the very limited grounds for the Court to remand a young person in police custody under s 239(2) of the Act, the police should be particularly careful not to hold young persons in custody unnecessarily.

25

What are some considerations in regards to Sec.234 of CYPF Act?

Release, Bail or Custody following Arrest without Warrant

Section 234 CYPF Act is the starting point and requires that where a child or young person is arrested (with or without warrant) the Police officer must either:
(a) release the child or young person; or
(b) be Police bailed if eligible under section 21 of the Bail Act; or
(c) deliver the child or young person into the custody of parents/guardian, or (with the agreement of the child/young person) an Iwi or cultural social service, or any other person/agency approved by the chief
executive or Police officer.
However, note that section 234(b) is not an available option where a child or young person is arrested for breach of bail conditions.
This is because Police bail under section 21 of the Bail Act is only available where the person is charged with an offence for which that person may be proceeded against summarily. A breach of a bail condition, made under the
provisions of the Bail Act is not, in itself, an offence. A breach of a condition will expose the defendant to a procedure (arrest) which will eventually result in the
bail bond being certified and the defendant’s criminal record being noted.
However, there is no conviction recorded and no penalty imposed for breach of a bail condition.

26

What does the case R v K relate to? CYPF

s 222 and choice of nominated person

Background
K, a child, was a suspect for homicide. He was located by police and agreed to accompany the police officer to his father’s house nearby. The father claimed that K had been home the night of the homicide and K confirmed that.
Nevertheless, K and his father agreed to come to the police station. On the way to the police station K was advised that he did not have to make a statement, that he could stop making the statement at any time, that what he said could be used as evidence in a court case, and that he was entitled to consult and instruct a lawyer and any
nominated person in private.
At the station it was determined that K’s father was a potential alibi witness and therefore not suitable to act as the “nominated person”.
The father said he did not know where K’s mother lived but did have an adult daughter who lived with him. Police then determined that it would be better to bring
in an independent person.
An independent person arrived and acted as the “nominated person” for K. K admitted his part in the homicide and made a full video statement, he also took part in a subsequent video reconstruction relating to the homicide.

Proceedings
The Defence objected to the admissibility of the video statement and video reconstruction.
The High Court held that there had been a breach of the Act as K was not informed that he was not obliged to accompany police to the police station for an interview
and in the absence of arrest leave the police station.
A major mistake identified by the High Court was the failure to allow K the opportunity to nominate another person after his father was deemed unsuitable.
However, the High Court admitted the video statement and reconstruction on the basis that there had been compliance with s 215 (rights of child or person prior to
being interviewed) and s 222 (nominated adult), under s 224 (reasonable compliance) of the Act.
The Court of Appeal overturned the High Court decision and ruled the video interview and video reconstruction inadmissible. The Court of Appeal stated at page 15:
“In failing, however, to ask the appellant to choose which family member of adult he wished to support him, the police dispensed with a procedure that was central to the statutory scheme.
As already indicated, a failure to that degree puts the police outside of the scope of the broad coverage of reasonable compliance with s 221(2)(c), under s 224.
The support role that could reasonably be expected of a fair minded stranger is not what the legislature had in mind, other than in situations where the young person refused or failed to nominate someone to whom he or she was close to or at least known. Nor do we accept that the Act contemplates that judgments should be made by the police as to the suitability of family members for the role, by reference to whether they have custody or care of the child or not.”

Comment
When informing a child or young person of their right to have a nominated adult present during an interview, it is not for police to veto their choice of adult, unless that person would attempt (or be likely to attempt) to pervert the course of justice, see s 222(2)(a), or cannot with reasonable diligence be found, or will not be available
within a period of time that is reasonable in the circumstances, see s 222(2)(b).
The police should only nominate an adult when the child or young person refuses to do so, see s 222(1)(d), or when s 222(2)(a) or (b) is satisfied and the child or young person has no one else that they wish to nominate.

27

What does the case S v Police relate to? CYPF

“spontaneous admissions”, s 223

Background
A police officer visited S at his home to discuss unresolved police investigations into car conversions and burglaries. S was 15-years-old at the time and therefore a
“young person” within the meaning of the Children, Young Persons, and Their Families Act 1989 (“CYPF Act”).
The officer advised S of his rights under section 215 CYPF Act (including that he was not obliged to make a statement) and invited S to accompany him and show him
where various offences had been committed.
The officer told S he did not intend charging him with any of the offences they were discussing.
During the course of their drive, S unexpectedly disclosed that he had committed two aggravated robberies. The aggravated robberies were not the type of offences the
officer had in mind when assuring S he would not be charged.
The officer told S he wanted to discuss the aggravated robberies further but because they sounded more serious than the other unrelated matters they had been discussing, any information provided from that point might result in charges.
S agreed to go with the police officer back to the police station. There S was reminded of his rights under section 215 and access to a “nominated person” was facilitated. Subsequently, a videotaped interview took place in accordance with section 221 of the CYPF Act. During the interview, in the presence of the “nominated person”, S confessed to the aggravated robberies.

Youth court proceedings
In both sets of Youth Court proceedings, S challenged the admissibility of his admissions both during the drive around and in the video interview. Both Judges ruled against those evidential challenges. S subsequently pleaded guilty to one charge and the other was found proved. Each Judge convicted S and transferred him to the District Court for sentence.
S appealed to the High Court against the convictions.

The issues on appeal
The two main issues on appeal were:
· Given the police officer’s assurances he did not intend charging S for any of the matters they were discussing, were the admissions S made about the aggravated
robberies while driving ‘spontaneous’ for the purposes of section 223 of the CYPF Act? Under section 223, any oral statements made spontaneously and before an officer has had a reasonable opportunity to comply with the
requirements of section 221 (admissibility of statements made by children and young persons), may be exempt from the usual section 221 requirements.
· If S’s admissions made while driving around in the car were not ‘spontaneous’, was any evidence gathered in the course of the subsequent videotaped interview tainted or inadmissible?

High Court decision
On the first issue, the High Court said it was a question of fact whether a statement can be construed as ‘spontaneous’, as entirely without external stimulus or
constraint.
The Court held that the offer of immunity plainly influenced S’s decision to point out and explain where the aggravated robberies occurred and, in that sense, his
admissions were not made spontaneously.
The ‘spontaneous’ provisions of section 223 therefore did not provide an exemption from the conditions of admissibility stipulated by section 221(2) (which include the requirement for a statement to be made in the presence of a barrister, solicitor or nominated person).
On the second issue, the High Court found that the non-spontaneous admissions of aggravated robbery were the effective cause of the officer’s continuing interview and
particularly the part that occurred at the police station when the formal admissions to that aggravated robberies were videotaped. That evidence was therefore excluded
also.

Comment
Staff wishing to resolve cases by seeking admissions and indicating an intention not to charge should ensure that they are very specific about the boundaries of that offer.

28

What is the Police Family Violence policy statement?

Family violence is a high priority for Police

Family violence is a high priority for Police and reducing the number and impact of family violence occurrences is a key Police strategy. Police is committed to a prompt, effective and nationally consistent approach to family
violence occurrences in collaboration with other agencies and with community partners.

29

What are the Principles that guide Police practice in regards to Family Violence?

Safety
Collection of risk information
Accountability
Working collaboratively

30

What are the 5 steps that should be done while attending a Family Violence incident where there are firearms?

1 Always consider firearms or other weapons may be involved or that the suspect has access to these. Check NIA.

2 Check whether a Police safety order or a protection order is in place. If a Police safety order has been issued, any firearms licence held by that person will be suspended for the duration of the order. Where a
protection order is in force, any firearms licence held by the respondent will be revoked. Check any licence endorsements, including any in relation to secure storage.

3 Consider whether there are sufficient safety concerns to warrant the issuing of a Police safety order or, where there is sufficient evidence to arrest, making an application for a protection order. In either case all
firearms, ammunition, or explosives in the possession or control of the suspect must be surrendered to Police or seized pursuant to s60A (b)(i) Arms Act 1983.

4 If you exercise the power to seize, report to the Commissioner within 3 days by submitting a Firearms Search and Seizure form accessed via the Bulletin Board using the “Create” and “Notification” feature.

5 Following surrender or seizure of firearms, complete enquiries (including the views of the victim) to determine whether any licensed firearms holder is considered to be a ‘fit and proper’ person to hold a firearms licence. If appropriate, take revocation action pursuant to s27 and s27A Arms Act 1983. This may include informing and/or seeking assistance of the Police Arms Officer.

31

What can be gathered as corroboration?

Corroboration is important if the victim becomes a reluctant witness. Information that may corroborate a family violence victim’s allegations include:
· medical examinations and doctor’s reports (of suspect and victim)
· photographs of injuries
· scene examination evidence, including photographs and scene diagrams
· clothing
· witness statements (neighbours, friends, colleagues, emergency medical staff)
· 111 call - obtain a copy from Comms for court
· old FVIR ratings, previous FV reports and ODARA scores
· emails, text messages, phone records
· admissions or other corroborating or damaging statements by a suspect.
Even for minor occurrences a notebook summary of the scene details, a sketch / photos if possible along with details of any exhibits removed may be crucial in corroborating evidence at a later stage.

32

What are considerations when taking statements or interviewing in Family Violence situations?

Interview victims and important witnesses early in family violence cases as they commonly recant evidence or later minimise the violence. Some victims are pressured to withdraw by the suspect. Obtain a statement at the time or you may lose the opportunity.
Under the Evidence Act 2006, Police can get evidence sworn which can later be used. If it is likely that the victim will recant their allegations, maintain momentum with the victim on the day of the offence / complaint. Their
evidence can be sworn the same day thus lessening the likelihood that they will change it later.

Statements
All interviews should be recorded in statement format and signed by the witness. (Refer to Account: Notes and statements in the “Investigative interviewing witness guide” for detailed information about taking statements).
.
Victims and other witnesses
When formally interviewing family violence victims and other witnesses, follow the Investigative interviewing witness guide.

All forensic interviews of child abuse victims or of child witnesses of serious crime must be carried out by specially trained child forensic interviewers according to the Evidential interviewers guidelines (a schedule to the
Memorandum of Understanding between CYF and NZ Police).

33

What is ODARA?

ODARA is a scientifically developed actuarial (gives a score) risk assessment tool developed to predict the likelihood of future IPV assault. As it predicts re-assault it is predicated on an assault having occurred, or a very real threat of an assault. Accordingly, there is qualifying criteria that must be met to score ODARA. This is that a physical (including sexual) assault has occurred and / or threat of harm with a weapon in hand in the presence of the victim.

34

How is ODARA applied?

There are 13 items that must be scored ‘1’ if present, ‘0’ if absent, or, ‘unknown’ if there is information suggesting that the item may score ‘1’ but the information is incomplete or unclear. The higher the score, the higher the likelihood of re-assault and also the sooner, more frequent and the more serious this is predicted to be.
Frontline employees should apply ODARA mechanically and if possible score on the basis of known information. Scoring an item as ‘unknown’ if further enquiries are required or possible is preferable to scoring ‘0’.
However, ODARA must be completed as soon as possible after attending the occurrence and the raw score can not be changed once completed. A maximum of 5 unknown items is permitted to score ODARA. If there is more
than 6, no score can be reached.
Police family violence practitioners are trained and certified as ODARA users and each district has also identified and trained some other employees as ODARA registered users. Only employees who are certified and registered as ODARA users can validate raw ODARA scores.
ODARA scores may be used for a variety of purposes including opposition to bail, sentencing, parole and also victim safety planning. For this reason it is crucial that the information used to score ODARA is accurate and that you indicate the source of your decisions when completing ODARA in the check boxes provided.

35

What are the procedures for bail in regards to Family Violence offenders?

The procedures for considering whether to grant Police bail for a person charged with a family violence offence are the same as for any person charged with that offence. Part 1 of the Bail Act 2000 sets out the rules for bail generally and Part 2 of the Act (sections 21 - 26) those relating to Police bail.

When deciding whether to grant Police bail, the primary consideration is the safety of the victim, linking the victim to appropriate support and services, and the possible need for the defendant to have a cooling off period to ensure the victim’s safety.

Restrictions on Police bail if a protection order is breached
Note that if the person has been arrested under section 50 of the Domestic Violence Act and charged with an offence against section 49 of that Act they must not be granted Police bail during the 24 hours immediately following the arrest. This also applies when the person is charged with another offence in addition to the breach offence. (s23 Bail Act 2000)

The arrested person must be brought before a court as soon as possible. At the expiry of the 24 hour period and pending a court appearance, follow standard procedures for determining whether the person should be granted
Police bail. Once the defendant appears in court, the need to protect the victim of the alleged offence is the paramount consideration for the court when determining whether to grant bail (s8(5)).

Authorising Police bail
You must have the authority of a supervisor of or above the position level of sergeant before releasing a family violence defendant on Police bail.

36

What is a Family Violence safety plan, and what are considerations?

Safety plans are an essential part of responding to victims’ needs and managing ongoing risks. They also can help victims understand their level of risk and take some control over their situation.
As a minimum, a safety plan must be completed for all high risk repeat victims, e.g. where ODARA applies, and in other cases as necessary given the context and surrounding circumstances / history. When required, a safety plan must be completed following initial attendance at a family violence event and may be completed in conjunction with Women’s Refuge at the scene.

What can safety plans cover?
Safety plans could cover staying in the relationship, leaving the relationship or may relate to the victims needs after they have left the relationship. It may cover a few days, weeks, or even months after the initial Police attendance.

Risks to consider when initiating a plan include:
· suspect’s whereabouts and behaviours
· severity of this incident and previous occurrences
· likelihood of further interference
· concerns about children and others.
Consider using safe houses, safety alarms, and call out processes to manage safety.

37

How do you initiate a Family Violence safety plan?

1 Complete the Pol 1310 at the scene. Include details for activating the plan on the supplementary page of the report. (Use the Checklist for Police initiating a safety plan to assist you to prepare the plan).

2 Contact Comms for further information about the suspect’s background, violent history, use or access to weapons, gang affiliations or other red flags.

3 Assess the victim’s vulnerability and work through with the victim options to mitigate risks. Consider the issuing of personal safety alarms, a Telecom landline or cell phone (these can be arranged at no cost from
Work & Income).

4 Record a set of actions that the victim and other parties need to follow to manage the risks identified. If possible:
· have the victim sign this (use the FV report where possible)
· ensure that responsibility for actions to be completed are clearly stated. (The plan should always be agreed and put in writing).

5 Contact your local Women’s Refuge following agreed local procedures, to attend scene. Provide details about the risk information / ODARA score and safety plan to the Refuge support worker to help the victim action the plan. (The plan may be developed in consultation with Women’s Refuge who may consider relocating the victim if necessary).

6 Where applicable, issue a Police safety order or apply for other court orders if the victim does not have a protection order.

Back at the station

1 Enter an alert into NIA under the victim’s name - “a safety plan exists for the victim - contact (station) for further details.” If the suspect has absconded, place a “wanted” alert in NIA immediately.

2 Keep the original of the safety plan in the watch house alongside other court issued orders and Police safety orders.

3 Fax the Pol 1310 to Women’s Refuge and also contact the CYF Call Centre if subjects have children, sending the CRF form and the FV report. In all cases, forward the Pol 1310 and all relevant information to the family violence coordinator (FVC) by end of shift so that the safety plan can be re-assessed at the earliest opportunity and modified where necessary.

4 The victim should receive a copy of the safety plan from the FVC the next day or as soon as possible. The coordinator must ensure the plan has no specific details in it in case the suspect obtains it but that it is discussed and agreed with the victim.

38

What is the role of FVIARS?

Family Violence Inter-Agency Response System

The primary follow up process for subjects of family violence will involve FVIARS. Details of occurrences will be sent through for initial assessment by the family violence coordinator. FVIARS will assess cases referred onto them by the family violence coordinator and decisions will then be made using a tiered response approach to actively manage cases. Ongoing
assessment of risk and safety issues will also occur simultaneously.
Use the FVIARS referral form to refer a subject to FVIARS for follow up case management.

39

What are Police Safety Orders?

Police safety orders are immediate orders issued by a qualified constable (or a constable authorised by a qualified constable) under s124B Domestic Violence Act.
A constable can also issue an order on judicial direction (ss124B(1) and 124N).
Safety orders provide an additional tool for Police when attending family violence occurrences where an investigation fails to establish full evidence of an offence.
The orders do not need to be issued by a court (although they can be in some circumstances). Nor do they require the victim’s consent to be issued. The orders must be issued in the prescribed form.

40

Who is a qualified Constable to authorise a PSO?

A qualified constable is a constable of or above the position level of sergeant. They must hold the substantive position level or otherwise be formally appointed or authorised under section 63 Policing Act 2008 to the appropriate position level.

41

What are the effects of a PSO?

Immediate effects
Police safety orders:
· require a person to:
- surrender any weapon in their control or any firearms licence held to a constable
- vacate any land or building occupied by a person(s) at risk regardless of whether the person against whom the order is issued has a legal or equitable interest in it
· provide a cooling down period where the person at risk has time and space to seek support and assistance, including applying for a temporary protection order if desired.

Longer effects
In addition to the immediate effects of the order, the same standard conditions apply to safety orders as to protection orders issued under section 19 Domestic Violence Act 1995, which are that the bound person must not:
physically or sexually abuse the person at risk
· threaten to physically or sexually abuse the person at risk
· damage, or threaten to damage, property of the person at risk
· engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the person at risk
· encourage any person to engage in behaviour against a person at risk, where the behaviour, if engaged in by the bound person, would be prohibited by the order.
The only modification to these standard conditions, apart from terminology
(the safety order refers to “a person at risk” rather than a “protected person”) is that contact with the person at risk (by telephone, electronic message, correspondence or otherwise) is restricted to that which is reasonably necessary in an emergency. s124E(2)

See the Protection and property-related orders chapter for more information about the conditions applying to protection and Police safety orders.

Effect on parenting orders
If a safety order is issued against a person who is a party to a parenting order or agreement, that parenting order is suspended. Any day to day contact or care of a person provided for in the parenting order has no effect and the provisions of the safety order apply. (See also related information about parenting orders in Factors to consider when deciding to issue a Police safety order in this chapter.

42

When can a safety order be issued?

A qualified constable or a constable authorised by a qualified constable may issue a safety order against a person (who becomes a bound person) who is or has been in a domestic relationship with another person (the person at risk) if the constable:
· does not arrest the bound person for an offence involving the use of violence against the person at risk (a family violence offence), but
· has reasonable grounds to believe, taking specified matters into account, that the issuing of an order is necessary to ensure the immediate safety of
the person at risk. (s124B(1)

Note that while Police family violence procedures only apply to occurrences involving intimate partners and family members, Police safety orders can be considered in other types of domestic relationships, i.e. where the parties:
· usually share a household, or
· are in a close personal relationship.

43

When can a safety order not be issued?

Safety orders cannot be issued if the alleged violent person is arrested for a family violence offence (this includes intimidation, threatening behaviour and
other forms of psychological abuse). In these cases, bail conditions may be set which essentially serve the same purpose as a Police safety order.
If the alleged violent person is the subject of a protection order issued by the Family Court and the applicant is the person at risk, it is likely that the behaviour complained of will constitute a breach of the order. Every effort should be made to obtain sufficient evidence so that an arrest can be made. A Police safety order should only be issued if there is insufficient evidence to arrest the alleged violent person for breaching the protection order. (See the
Protection and property-related orders chapter for information about conditions).

44

What are factors to consider when deciding to issue a Police safety order?

When deciding whether it is necessary to issue a Police safety order, consider the risk information collected in family violence report forms (CRF and IPVF) and ODARA, and also:
· whether it is likely that the alleged violent person:
- has used, or is using domestic violence against the person you perceive to be at potential risk, and /or any other person with whom the alleged violent person has a domestic relationship
- will use or again use domestic violence against the person at risk
· the welfare of any children residing with the person at risk
· the hardship that may be caused if the order is issued, and
· any other matter that may be considered relevant.
(These factors are listed in s124B(2)).
You should also take account of:
· previous interactions with Police
· history of mental illness
· presence or history of abuse of alcohol and/or drugs
· propensity for violence
· family violence history
· parenting, protection and/or Police safety orders previously in force.

Hardship
For the purpose of a Police safety order, consider hardship caused to any person including the family.
When deciding if hardship may be caused, consider such things as:
· who will have the family car
· who is in charge of family finances and holds Eftpos cards/money
· the financial ability for the removed person to find alternative accommodation and transport.
Be mindful that the dynamics of family violence mean that in some cases the use and control of family money and other assets may be part of the power and control dynamics used by the offender to continue the family violence.

Parenting orders
You must take reasonable steps to establish whether any adult family member of the household holds, or is in the process of obtaining, a parenting order relating to children of the household. The person you intend to remove may have had a parenting order made against the person you intend to protect and a violence finding may have been made against that person by the Family Court. Be aware of dangers to the children for reasons not immediately apparent.
If a parenting order is in place, this information should be provided to the family violence coordinator for follow up.

45

What are the procedures for obtaining authorisation for a Police Safety Order?

1 Complete all enquiries to identify possible offences. (See Offences in the “Family violence policy and procedures”). Where no offences are disclosed:
· ensure you have completed the POL 1310 (Family Violence Form Set) including the risk information forms and / or ODARA
· consider whether it is necessary to issue a Police safety order. (Take into account all the factors to consider when deciding to issue a
Police safety order and other information about when they can be issued in this chapter). These factors will also help you determine the appropriate duration for the order (up to 5 days).

2 If you are not a qualified constable and consider that a Police safety order should be issued, seek authority to issue an order from a constable who is qualified. Note that without a formal appointment under section 63, a
constable who is relieving as an acting Sergeant is not “qualified” and cannot issue, or authorise the issue of, a Police safety order.
If you are asked to issue a safety order but are not a qualified constable, direct the person to your Communications Centre or the O/C station.

3 To document discussion about authorisation to issue at the time it was given, the authorising constable should either:
· sign the completed Pol 1310 (if they are present with the issuing officer),
or
· make a notebook entry recording the circumstances of their authorisation (this also applies to authorising constables from Communications Centres). These records could be important if the issuing of the safety order is later challenged on the basis it was not necessary, or that it would have been issued had a more accurate consideration of risk been completed.

4 You may:
· detain the person against whom the order is to be issued for up to 2 hours to allow you to obtain the necessary authority and to issue and serve the order on that person. The 2 hour period commences when the constable decides that a Police safety order is necessary (and seeks authorisation from a qualified constable if required).
· remove the person from the premises and to a Police station or place used as a Police station (e.g. a patrol car) during the period of the detention. In some situations and for short periods, detention within the home may be appropriate.
A person who refuses to remain at the place where they are detained:
· commits an offence and is liable on summary conviction to a fine not exceeding $500
· may be arrested without warrant.

5 If you are unable to issue and serve the order within 2 hours, you must release the detained person. You then have a period of 48 hours to issue and serve the order on that person. The safety order will expire if it has
not been issued within that time period. The 48 hour period commences from the time a qualified constable authorises the issuing of the Police safety order.

46

What is the procedure after a Police Safety Order has been served?

1 Follow as appropriate, the procedures for serving protection orders in the Protection and property-related orders chapter, including the seizure of any firearms held, when serving Police or court issued Police safety
orders. Then take the additional steps below.

2 Fully explain to the person at risk and the bound person the nature, duration and effect (conditions) of the order. This explanation can happen prior to, at the time of serving or, in the person at risk’s case, as soon as possible after the safety order is served.
Note: Consider using a Iwi Liaison Officer (ILO), Pacific Liaison Officer (PLO) or Ethnic Liaison Officer (ELO) to liaise with families where language and cultural issues may be a factor.

3 Upon serving the safety order (and after explaining its effect and consequences for breach) you must ensure that the bound person:
· immediately surrenders all firearms or weapons (and a firearms licence if held) in their possession or control
· vacates the land or building occupied by the person at risk. It is irrelevant whether this person has a financial interest in that place.

4 Contact the appropriate agency to ensure appropriate assistance and support services are in place for the protected person (including any children residing with them). See Safety, support and intervention in the
“Family violence policy and procedures” chapter.

5 Before the end of your shift:
· complete the Pol 1310 and other documentation (see Recording and reporting requirements in the “Family violence policy and procedures chapter”)
· ensure copies of the Police safety order are on file and are submitted with the Pol 1310
· notify the family violence co-ordinator.

47

What actions should be taken if someone breaches a Police Safety Order?

Breaching a Police safety order is not an offence, but still triggers specific powers for Police. As it is not an offence, the bound person cannot be arrested. However, they may be taken into custody using such force as is reasonably necessary if they refuse or fail to comply with the order or a condition of the order.

If a bound person is taken into custody for breaching a Police safety order, you must:
· bring them before the court within 24 hours
· make a complaint to the court requesting that it makes an order under section 124N of the Act (discussed below)
· if the person cannot be brought before a court within 24 hours, at or before the expiry of the period, you must release the person and summons them to appear. The person can be arrested and brought before the court if they fail to appear as summonsed. Where the bound person has absconded after breaching the Police safety order, you must advise the CRL. You have one month from the time of the breach to locate the person and to bring them into custody. You then have 24 hours to bring them before the court. A complaint is filed and an order sought
under s124N.

48

How do you apply for a Warrant to Arrest in regards to a Police Safety Order?

You may also apply to the court for a warrant to arrest to be issued under section 124O(1)(a) Domestic Violence Act 1995 and it must be recorded in as an alert NIA. This warrant provides for a power of entry using reasonable force if you have reasonable belief that the bound person is at a specific
address. You must then:
· bring the person before the court as soon as possible
· make a complaint to the court in the prescribed form so that the court can
exercise its jurisdiction under section 124N.
If a warrant to arrest has been issued for a breach of a Police safety order and the bound person has not been located and brought before the courts within one month, the matter must be brought back before the court to seek leave to withdraw the warrant. (Note that over time the significance of the breach and the sanctions available to the court become less relevant).

49

What happens in regards to an Information at Court if a Police Safety Order is breached?

An information is not filed for the breach of an order, as a breach is not an offence. Instead, a complaint is filed within NIA and printed out on a standard SP1 (information) form with modified wording to comply with the Summary Proceedings Act 1957.
The complaint must be sworn in the same manner as for an information.

Powers of the court
If the court is satisfied that a person has refused or failed to comply with a Police safety order, the court may:
· direct that another order be issued for a period not exceeding 5 days. This must be served as soon as practicable. (If the current order has not yet expired, the new order replaces it).
· adjourn the proceedings so that a District Court judge can consider whether a temporary protection order should be issued. s124N

50

What are special considerations in regards to Protection Orders and Children and Young Persons?

Parents cannot take out a protection order against a child or young person. Violent children or young persons should be dealt with under the provisions of the Children and Young Persons and Their Families Act 1989.

A protection order automatically affords protection to the applicant and any child of the applicant’s family. A child aged 17 years and older (‘an adult child’) remains protected by the order until they leave home. Adult children not living with the applicant must be identified on the order as a specified person, or apply to the court for an order as a protected person.

51

Who issues Protection Orders?

Protection orders are a civil remedy issued by the Family Court and can only be discharged by the court.

The District Court can also issue protection orders that have the same effect as those created by the Family Court. The District Court, after it has determined that a temporary protection order is to be issued, can detain the person for a period not exceeding two hours for the purpose of issuing and serving the temporary protection order.

Additionally, the District Court can now issue a final protection order when sentencing an offender convicted of an offence involving domestic violence to issue a protection order if the court is satisfied that the order is necessary for the victim’s protection and the victim does not object to the order.

52

What are standard conditions of a Protection Order?

It is a condition of every protection order that the respondent must not:
· physically or sexually abuse the protected person
· threaten to physically or sexually abuse the protected person
· damage, or threaten to damage, property of the protected person
· engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the protected person
· encourage any person to engage in behaviour against a protected person, where the behaviour, if engaged in by the respondent, would be prohibited by the order.

Non-contact conditions
Standard non-contact conditions in every protection order (listed in section 19(2)) also apply except while the protected person and respondent are, with the express consent of the protected person, living in the same dwellinghouse.
The non-contact conditions are automatically suspended during this period but may be revived if the protected person subsequently withdraws their consent to the respondent living in the same dwellinghouse.

Special conditions may formalise ongoing contact.

Consent and withdrawal of consent may be given on behalf of the protected person by the person specified in a special condition of the protection order as the person entitled to do so. For example, the order may specify who can consent to contact on behalf of a child that is protected by the order.

Programmes
The court must direct the respondent to attend a programme, such as counselling, unless there is good reason not to. Non-compliance with such a direction is an offence.

Associated respondents
Where a protection order has been made against an associated respondent, standard conditions with all necessary modifications, apply equally in relation to that person.

53

What are conditions of a Protection Order relating to weapons?

It is a condition of every protection order that the respondent must not:
· possess, or have any weapon (firearm, airgun, pistol, restricted weapon, ammunition or explosive) under their control
· hold a firearms licence.
The respondent must surrender to Police any weapon in their possession or under their control (whether or not it is lawfully in their possession or under their control) and any firearms licence held by them:
· as soon as practicable after the service of the protection order on them (and within 24 hours of the service), and
· on demand made, at any time, by any Police employee. (s21(1))
Note: These requirements also apply on the issuing of a Police safety order.

54

What happens to firearms licence holders when a temporary Protection Order is served?

Where a temporary protection order is issued, any firearms licence held by the respondent is deemed to be suspended. The licence is deemed to be revoked when order becomes final. (s22)
In the case of Police safety orders, the person against whom the order is issued has their firearms licence suspended for the duration of the safety order and they are deemed not to hold a firearms licence for that period.
Police must retain any weapons that are surrendered to them upon the issue of a Police safety order or protection order for the period of the suspension and, except in circumstances where the weapon may be lawfully retained, return the weapon to the person as soon as practicable after the suspension ceases to be in force. (s25)

55

What are Polices responsibilities in regards to the Arms Act 1983 after the serving of a Protection Order?

As well as the Domestic Violence Act 1995 provisions, you have the power to independently consider whether or not any person is deemed to be ‘fit and proper’ to hold a firearms licence. (Refer to the Arms chapter in the Police Manual for further information).
When Police receive a copy of a temporary protection order where the respondent or associated person holds a firearms licence, the O/C station must arrange for an employee with the position level of Inspector or above to consider immediately whether the powers conferred under:
· sections 27(1) and 27A Arms Act 1983 (relating to revocation of a firearms licence) should be invoked
· section 60A Arms Act 1983 (relating to the seizure of firearms in cases of domestic violence) should be exercised in that case. (A report must be sent to the Commissioner within 3 days if this power is exercised).
Police must take appropriate action when they receive information that may disclose unlawful possession of a firearm by the respondent or any associated person.
Consider consensual seizure until the family violence matter is concluded in the court. Refusal to cooperate may provide further evidence of unfitness to hold a licence and that revocation is appropriate. Where a safety order has been issued and firearms have been surrendered or otherwise seized under section 60A, the same considerations should apply.
However, it will be relevant to consider the history of the alleged violent person, including whether they have been convicted of any family violence offence and/or had any safety orders issued in the past.
Firearms licences may not be issued when there is a protection order Under no circumstances should Police approve the issue of a firearms licence while there is a protection order applying to the applicant for such a licence.
Where an applicant for a firearms licence has had one or more safety orders issued against them, this is a relevant factor to be taken into account when considering whether or not the applicant is a fit and proper person to be
issued with a firearms licence.

56

What is Section 3, Domestic Violence Act 1995?

The meaning of “domestic violence”

(1) In this Act, domestic violence, in relation to any person, means violence against that
person by any other person with whom that person is, or has been, in a domestic
relationship.

(2) In this section, violence means –
(a) Physical abuse:
(b) Sexual abuse:
(c) Psychological abuse, including, but not limited to, –
(i) Intimidation:
(ii) Harassment:
(iii) Damage to property:
(iv) Threats of physical abuse, sexual abuse, or psychological abuse:
(v) In relation to a child, abuse of the kind set out in subsection (3) of this section.

(3) Without limiting subsection (2)(c) of this section, a person psychologically abuses a child if that person –
(a) Causes or allows the child to see or hear the physical, sexual, or psychological abuse of a person with whom the child has a domestic relationship; or
(b) Puts the child, or allows the child to be put, at real risk of seeing or hearing that abuse occurring; –
but the person who suffers that abuse is not regarded, for the purposes of this subsection, as having caused or allowed the child to see or hear the abuse, or, as the
case may be, as having put the child, or allowed the child to be put, at risk of seeing or hearing the abuse.

(4) Without limiting subsection (2) of this section, –
(a) A single act may amount to abuse for the purposes of that subsection:
(b) A number of acts that form part of a pattern of behaviour may amount to abuse for that purpose, even though some or all of those acts, when viewed in
isolation, may appear to be minor or trivial.

(5) Behaviour may be psychological abuse for the purposes of subsection (2)(c) of this section which does not involve actual or threatened physical or sexual abuse.

57

What is Section 4, Domestic Violence Act 1995?

The meaning of “domestic relationship”

(1) For the purposes of this Act, a person is in a domestic relationship with another person if the person –
(a) is [a spouse or partner] of the other person; or
(b) is a family member of the other person; or
(c) ordinarily shares a household with the other person; or
(d) has a close personal relationship with the other person.

(2) For the purposes of subsection (1)(c) of this section, a person is not regarded as sharing a household with another person by reason only of the fact that –
(a) the person has –
(i) a landlord-tenant relationship; or
(ii) an employer-employee relationship; or
(iii) an employee-employee relationship – with that other person; and
(b) they occupy a common dwellinghouse (whether or not other people also occupy that dwellinghouse).

(3) For the purposes of subsection (1)(d) of this section, a person is not regarded as having a close personal relationship with another person by reason only of the fact that the person has –
(a) an employer-employee relationship; or
(b) an employee-employee relationship –
with that other person.

(4) Without limiting the matters to which a Court may have regard in determining, for the purposes of subsection (1)(d) of this section, whether a person has a close personal relationship with another person, the Court must have regard to –
(a) the nature and intensity of the relationship, and in particular –
(i) the amount of time the persons spend together:
(ii) the place or places where that time is ordinarily spent:
(iii) the manner in which that time is ordinarily spent; –
but it is not necessary for there to be a sexual relationship between the persons:
(b) the duration of the relationship.

58

What is Section 7, Domestic Violence Act 1995?

Application for protection order

(1) A person who is or has been in a domestic relationship with another person may apply to the Court for a protection order in respect of that other person

59

What is Section 14, Domestic Violence Act 1995?

Power to make protection order

(1) The Court may make a protection order if it is satisfied that –
(a) The respondent is using, or has used, domestic violence against the applicant, or a child of the applicant’s family, or both; and
(b) The making of an order is necessary for the protection of the applicant, or a child of the applicant’s family, or both.

60

What is Section 16, Domestic Violence Act 1995?

Protection of persons other than applicant

(1) Where the Court makes a protection order, that order applies for the benefit of any child of the applicant’s family.
(1A) A protection order continues to apply for the benefit of a child of the applicant’s family until—
(a) the child ceases to be a child of the applicant’s family; or
(b) the order sooner lapses or is discharged.

(1B) If a child of the applicant’s family having attained the age of 17 years continues to ordinarily or periodically reside with the applicant (an adult child), a protection order continues to apply for the benefit of the adult child until—
(a) the adult child ceases to ordinarily or periodically reside with the applicant; or
(b) the order sooner lapses or is discharged.

(2) Subject to subsection (3) of this section, where the Court makes a protection order, it may direct that the order also apply for the benefit of a particular person with whom the applicant has a domestic relationship.

61

What is Section 17, Domestic Violence Act 1995?

Protection from respondent’s associates

(1) … where the Court makes a protection order against the respondent, the Court may also direct that the order apply against a person whom the respondent is encouraging,
or has encouraged, to engage in behaviour against a protected person, where that behaviour, if engaged in by the respondent, would amount to domestic violence.

62

What is Section 19, Domestic Violence Act 1995?

Standard conditions of protection order

(1) It is a condition of every protection order that the respondent must not –
(a) Physically or sexually abuse the protected person; or
(b) Threaten to physically or sexually abuse the protected person; or
(c) Damage, or threaten to damage, property of the protected person; or
(d) Engage, or threaten to engage, in other behaviour, including intimidation or harassment, which amounts to psychological abuse of the protected person; or
(e) Encourage any person to engage in behaviour against a protected person, where the behaviour, if engaged in by the respondent, would be prohibited by the order.

(2) Without limiting subsection (1) of this section, but subject to section 20 of this Act, it is a condition of every protection order that at any time other than when the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse, the respondent must not, –
(a) Watch, loiter near, or prevent or hinder access to or from, the protected person’s place of residence, business, employment, educational institution, or any other place that the protected person visits often; or
(b) Follow the protected person about or stop or accost the protected person in any place; or
(c) Without the protected person’s express consent, enter or remain on any land or building occupied by the protected person; or
(d) Where the protected person is present on any land or building, enter or remain on that land or building in circumstances that constitute a trespass; or
(e) Make any other contact with the protected person (whether by telephone, electronic message, correspondence, or otherwise), except such contact –
(i) As is reasonably necessary in any emergency; or
(ii) As is permitted under any order or written agreement relating to [the role of providing day-to-day care for, or contact with, or custody of] any minor; or
(iii) As is permitted under any special condition of the protection order; or
(iv) As is necessary for the purposes of attending a family group conference within the meaning of section 2 of the Children, Young Persons, and Their Families Act 1989.

(3) Where, pursuant to a direction made under section 17 of this Act, a protection order applies against an associated respondent, the provisions of this section apply, with all necessary modifications, in respect of the associated respondent.

(4) References in subsection (2) of this section to the express consent of a protected person include the express consent of a person (other than the respondent or, as the case may be, the associated respondent) who is specified, in a special condition of the protection order imposed pursuant to section 27(3) of this Act, as a person who is entitled to consent, on the protected person’s behalf, in relation to the matter, and to withdraw such consent.

63

What is Section 20, Domestic Violence Act 1995?

Further provisions relating to standard condition prohibiting contact

(1) The standard condition contained in section 19(2) of this Act (in this section referred to as the non-contact condition) has effect except while the protected person and the respondent are, with the express consent of the protected person, living in the same dwellinghouse.

(2) The non-contact condition is automatically suspended for any period during which the protected person and the respondent, with the express consent of the protected person, live in the same dwellinghouse.

(3) Where the non-contact condition is suspended in accordance with subsection (2) of this section, and the protected person subsequently withdraws his or her consent to the respondent living in the same dwellinghouse, then (unless the protection order has been sooner discharged) the non-contact condition automatically revives.

(4) The non-contact condition –
(a) May become suspended in accordance with subsection (2) of this section on 1 or more occasions:
(b) May revive in accordance with subsection (3) of this section on 1 or more occasions.

(5) Where, pursuant to a direction made under section 17 of this Act, a protection order applies against an associated respondent, the provisions of this section apply, with all necessary modifications, in respect of the associated respondent.

(6) References in this section to the consent of a protected person, or to the withdrawal of a protected person’s consent, include, as the case requires, –
(a) The consent of a person (other than the respondent or, as the case may be, the associated respondent) who is specified, in a special condition of the protection order imposed pursuant to section 27(3) of this Act, as a person who is entitled to consent, on the protected person’s behalf, in relation to the matter:
(b) The withdrawal of consent by such a person.

64

What is Section 21, Domestic Violence Act 1995?

Standard condition relating to weapons

(1) Subject to section 22 of this Act, it is a condition of every protection order –
(a) That the respondent must not possess, or have under his or her control, any weapon; and
(b) That the respondent must not hold a firearms licence; and
(c) That the respondent must, –
(i) As soon as practicable after the service on him or her of a copy of the protection order, but in any case no later than 24 hours after such service; and
(ii) On demand made, at any time, by any member of the Police, –
surrender to a member of the Police –
(iii) Any weapon in the respondent’s possession or under the respondent’s control, whether or not any such weapon is lawfully in the respondent’s possession or under the respondent’s control; and (iv) Any firearms licence held by the respondent.

(2) Subject to section 22 of this Act, on the making of a protection order, –
(a) Where the protection order is a temporary order, any firearms licence held by the respondent is deemed to be suspended:
(b) Where the protection order is a final order, any firearms licence held by the respondent is deemed to be revoked.

(3) The respondent does not fail to comply with the standard condition contained in subsection (1) of this section merely by having in his or her possession, or having under his or her control, any weapon or any firearms licence, where, –
(a) In the case of a weapon, the weapon was in his or her possession, or under his or her control, immediately before the making of the protection order; and
(b) In the case of a weapon or a firearms licence, the weapon or licence is in his or her possession, or under his or her control, during the period necessary to comply with the terms of that standard condition that relate to the surrender of the weapon or licence.

(4) Subject to section 22 of this Act, where, pursuant to that section, a protection order is varied so as to include the standard condition relating to weapons, –
(a) The reference in subsection (1)(c)(i) of this section to service of a copy of the protection order is to be read as a reference to service of a copy of the order by which the standard condition is so included:
(b) The references in subsections (2) and (3)(a) of this section to the making of a protection order are to be read as references to the making of the order by which the standard condition is so included, – and the provisions of this Act apply accordingly with all necessary modifications.

(5) Subject to section 22 of this Act, where, pursuant to a direction made under section 17 of this Act, a protection order applies against an associated respondent, the provisions of this section apply, with all necessary modifications, in respect of the associated
respondent.

65

What is Section 49, Domestic Violence Act 1995?

Offence to contravene protection order

(1) Every person commits an offence who breaches a protection order by—
(a) doing any act in contravention of the protection order; or
(b) failing to comply with any condition of the protection order.

(2) It is a defence in a prosecution for an offence under subsection (1) if the defendant proves that he or she had a reasonable excuse for breaching the protection order.

(3) Every person who is convicted on indictment of an offence against this section is liable to imprisonment for a term not exceeding 2 years.

(4) To avoid doubt, a failure to comply with a direction made under section 32(1) or (2) to attend a specified programme is not a breach of a protection order under subsection (1)(b).

66

What is Section 49A, Domestic Violence Act 1995?

Offence to fail to comply with direction

(1) Every person commits an offence who, without reasonable excuse, fails on any occasion to comply with a direction made under section 32(1) or (2) to attend a
specified programme.

(2) Every person who commits an offence against this section is liable on summary conviction to imprisonment for a term not exceeding 6 months or to a fine not
exceeding $5,000.

67

What is Section 50, Domestic Violence Act 1995?

Power to arrest for breach of protection order

Where a protection order is in force, any constable may arrest, without warrant, any person who the constable has good cause to suspect has—
(a) contravened the protection order; or
(b) failed to comply with any condition of the protection order.

68

What is Section 124A, Domestic Violence Act 1995?

Interpretation
In this Part, unless the context otherwise requires,—

constable has the meaning given to it by section 4 of the Policing Act 2008

Police safety order or order means an on-the-spot order issued by a qualified constable under section 124B in the prescribed form qualified constable means a constable who is of or above the level of position of sergeant.

69

What is Section 124B, Domestic Violence Act 1995?

Qualified constable may issue Police safety order

(1) A qualified constable may issue an order against a person (person A) who is, or has been, in a domestic relationship with another person (person B) if the constable—
(a) does not arrest person A for an offence against any enactment involving the use of violence against person B; but
(b) has reasonable grounds to believe, having regard to the matters specified in subsection (2), that the issue of an order is necessary to ensure the safety of person B.

(2) When considering whether to issue an order against person A, the constable must have regard to the following matters:
(a) whether, in the circumstances, he or she considers it is likely that—
(i) person A has used, or is using, domestic violence against person B:
(ii) person A has used, or is using, domestic violence against any other person with whom he or she has a domestic relationship:
(b) whether there is a likelihood that person A will use, or again use, domestic violence against person B:
(c) the welfare of any children residing with person B:
(d) the hardship that may be caused if the order is issued:
(e) any other matter the constable considers relevant.
(3) A constable who is not a qualified constable may issue an order under this section only if he or she is specifically authorised by a qualified constable to issue that order.

70

What is Section 124C, Domestic Violence Act 1995?

Consent to issue of Police safety order not required

71

What is Section 124D, Domestic Violence Act 1995?

Police safety order not to be issued against child

72

What is Section 124E, Domestic Violence Act 1995?

Effect of Police safety order

(1) A person against whom an order is issued must immediately—
(a) surrender to a constable—
(i) any weapon in his or her possession or control; and
(ii) any firearms licence held by him or her:
(b) vacate any land or building occupied by a person at risk, whether or not he or she has a legal or equitable interest in the land or building.

(2) It is a condition of every order that the person against whom the order is issued must not—
(a) physically or sexually abuse a person at risk; or
(b) threaten to physically or sexually abuse a person at risk; or
(c) damage, or threaten to damage, property of a person at risk; or
(d) engage, or threaten to engage, in other behaviour, including intimidation or harassment, that amounts to psychological abuse of a person at risk; or
(e) encourage any person to engage in behaviour against a person at risk, where the behaviour, if engaged in by the person against whom the order is issued, would be prohibited by the order; or
(f) watch, loiter near, or prevent or hinder access to or from the place of residence, business, or employment of a person at risk, or an educational institution attended by a person at risk, or any other place that a person at risk visits often; or
(g) follow a person at risk about or stop or accost a person at risk in any place; or
(h) where a person at risk is present on any land or building, enter or remain on that land or building in circumstances that constitute a trespass; or
(i) make any other contact with a person at risk (whether by telephone, electronic message, correspondence, or otherwise), except such contact as is reasonably
necessary in any emergency.

(3) In this section, person at risk means—
(a) the person named in the order for whose safety the order is issued; and
(b) any child residing with that person.

73

What is Section 124F, Domestic Violence Act 1995?

Suspension of firearms licence on issue of Police safety order

On the issue of an order, and for the period that the order is in force,—
(a) any firearms licence held by the person against whom the order is issued is deemed to be suspended; and
(b) the person against whom the order is issued is deemed, for all purposes, not to be the holder of a firearms licence.

74

What is Section 124G, Domestic Violence Act 1995?

Suspension of parenting orders, etc

(1) This section applies where—
(a) an order is issued; and
(b) a child is residing with a person named in the order for whose protection the order is issued (a protected child); and
(c) a parenting order or day-to-day care or contact agreement is in force in respect of a protected child; and
(d) the person against whom the order is issued is a party to that parenting order or agreement.

(2) While an order continues in force against any person, the provisions of a parenting order or an agreement affording to that person the day-to-day care of, or contact with, a protected child are suspended.

75

What is Section 124H, Domestic Violence Act 1995?

Prompt service of Police safety order required

(1) An order issued under section 124B must be served by a constable as soon as practicable on the person against whom the order is issued.

(2) If an order issued under section 124B has not been served within 48 hours from the time of issue, the order lapses.

76

What is Section 124I, Domestic Violence Act 1995?

Detention by constable

(1) A constable who is proposing to issue a Police safety order under section 124B against any person may detain that person for a period, not exceeding 2 hours, that may be necessary to enable the constable to do 1 or more of the following:
(a) obtain authorisation under section 124B(3) to issue the order:
(b) issue the order:
(c) serve the order.

(2) If a person who is detained under subsection (1) fails or refuses to remain at the place where he or she is detained, that person—
(a) commits an offence and is liable on summary conviction to the penalty specified in subsection (4); and
(b) may be arrested without warrant.

(3) To avoid doubt, subsection (2) applies in respect of a person detained under subsection (1)(a) regardless of whether an order is issued.

(4) The maximum penalty for an offence against subsection (2)(a) is a fine not exceeding $500.

(5) In this section, detain includes move the person to a Police station.

77

What is Section 124J, Domestic Violence Act 1995?

Police safety order to be explained

(1) A constable who issues an order must, if and to the extent that it is reasonably practicable to do so in the circumstances, either at the time of issue or service of the
order, explain to the person against whom the order is issued—
(a) the purpose, duration, and effect of the order; and
(b) the consequences that may follow if the person against whom the order is issued contravenes the order.

(2) A constable who issues an order must also, either before or after issue and service of the order, explain to the person for whose safety the order is issued the matters set out in subsection (1)(a) and (b).

78

What is Section 124K, Domestic Violence Act 1995?

Duration of Police safety order

(1) An order comes into force immediately on being served on the person against whom the order is issued.
(2) An order continues in force for the period specified in the order, but that period must not exceed 5 days.
(3) In considering the period to be specified in the order, the qualified constable must have regard to the matters set out in section 124B(2).

79

What is Section 124L, Domestic Violence Act 1995?

Contravention of Police safety order

(1) Subsection (2) applies where a person who has been served with an order refuses or fails to comply with—
(a) the order; or
(b) any condition of the order.

(2) If this subsection applies, a constable may take the person into custody by—
(a) using such force as is reasonably necessary; or
(b) executing a warrant to arrest issued in respect of that person under section 124O(1)(a).

(3) Where a person has been taken into custody under subsection (2), the constable may apply to a District Court, by making a complaint in the prescribed form, for a direction or an order under section 124N.

(4) A person who is taken into custody under subsection (2)(a) must be brought before a District Court within 24 hours.

80

What is Section 124M, Domestic Violence Act 1995?

Issue of summons where person cannot be
brought before District Court within 24 hours

(1) If a person who is taken into custody under section 124L(2)(a) is not brought before a District Court within 24 hours, that person must, at or before the expiry of that period,—
(a) be released; and
(b) be served by a constable with a summons requiring him or her to appear before a District Court at the place and time specified in the summons.

(2) A summons served under subsection (1)(b) must be in the prescribed form.

(3) If a person who has been served with a summons under subsection (1)(b) does not attend personally at the place and time specified in the summons, a District Court or Registrar may issue a warrant, in the prescribed form, to—
(a) arrest him or her; and
(b) bring him or her before the Court.

81

What is the case Police v Elliot in relation to?

Consent to remain on property, s 19(2)

Facts
A long history of domestic disputes preceded the current arrest of Elliott for breach of a non-violence order taken out by his wife.
Police had previously attended the address and Elliott had a number of convictions for non-compliance with domestic protection orders. On this occasion, his wife had asked him to leave, thereby withdrawing her express consent for him to remain. On arriving at the address, police confirmed he had been asked to leave and that he had failed to do so. He was arrested and charged with breaching the non-contact provisions of the protection order.

Held
The Court confirmed the applicant’s ability to consent to the respondent remaining, thereby suspending the non-contact provisions of section 19(2) of the Act. Also, that she may, unilaterally and arbitrarily at any time she sees fit, revoke her consent, bringing the non-contact provisions back into effect. To avoid liability, the respondent must leave as soon as reasonably practicable. In determining whether a reasonable amount of time had been given, the Judge considered the fact that the respondent had returned all his possessions to the house, had nowhere to go and that no violence had been used against the applicant. The Court held that police had not allowed a reasonable amount of time, and dismissed the charge.

Comment
The following points can be taken from the decision:
· The applicant is able to withdraw, at any time, their consent for the respondent to remain at the address. Once withdrawn, the respondent must leave within a reasonable time.
· Police should inform the respondent that they are required to leave, and should provide a reasonable time to gather some basic items together (eg clothing), and
also to arrange for somewhere to go.
· If, having been informed that they must leave, the respondent refuses to go, they breach the order and can be arrested.
· If violence has been used, the non-contact provisions of the order contained in s 19(2) do not apply. Violence will amount to a breach of s 19(1), and the respondent may be arrested.

82

What is Section 214A, CYPF 1989?

Arrest of child or young person in breach of bail condition

A constable may arrest a child or young person without a warrant if —
(a) the child or young person has been released on bail; and
(b) the constable believes, on reasonable grounds, that —
(i) the child or young person has breached a condition of that bail; and
(ii) the child or young person has on 2 or more previous occasions breached a condition of that bail (whether or not the same condition).

Law Note Excerpt - October 2013 edition of the Ten-One
There is a new power of arrest in s214A of the Children, Young Persons, and Their Families Act 1989 (CYPF Act). A constable may arrest a child or young person who has been released on bail without warrant if he or she believes on reasonable grounds that the child or young person has breached a condition of that bail, and also that the child or young person has previously breached a condition of that bail on two or more previous occasions (whether or not it was the same condition).
Authority to arrest under this provision must always be obtained from a Youth Aid Sergeant in the first instance, or in their absence, a supervising Sergeant (or above) or a qualified Youth Aid Officer.
To ensure compliance with s214A, breaches of bail conditions before 4 September 2013 will not be counted. Due to the need to ensure that Police can accurately account for the number of all bail breaches by youth defendants (under 17 years old); recording practices will have to be robust. The minimum recording standard of creating a 6D file for all initial breaches (with alerts created in the original 6D for ongoing breaches, relevant to the initial breach), in line with the National Recording Standards, should be adopted, in order for a previous breach of bail to count towards the standard for arrest.
A constable who arrests a child or young person under s214A, and who believes on reasonable grounds that they are likely to continue to breach any condition of bail, must place the child or young person in the custody of the Chief Executive in accordance with s235 CYPF Act.

83

What does Pettus v R relate to?

Search without Warrant

P and S were charged with manufacturing methamphetamine, possession of material for manufacture and ill treatment or neglect of children. Police suspected P and S of methamphetamine manufacture and obtained video footage of P leaving a hardware store with materials capable of use to produce methamphetamine. The search warrants obtained concerning cell phone data were granted but not executed. Police executed a further warrant over premises and vehicles.
Child, Youth and Family (‘CYF’) social workers were present at the search as Police knew children were at the property. Entry teams removed all inhabitants from the property and informed P and S that they would be going to the Police station and the children would be detained for the purpose of the search then accompany CYF workers. S’s 12 year old son was also present and detained.

Blood, urine and hair samples were obtained from P and S's children after lab equipment was found at property but samples did not yield evidence with significant probative value on methamphetamine charges. P challenged the admissibility of evidence obtained by warrants and both P and S challenged admissibility of the hair samples.

Held:
Powers available under s 42 Children, Young Persons, and Their Families Act 1989 were not available when the children were removed from the property as it was not critically necessary to protect them from injury or death; and was not within the scope of any implied power related to search under warrant.
The Court of Appeal observed: ‘Section 42 is an emergency provision. It is, in the scheme of the Children, Young Persons, and Their Families Act, clearly intended to provide for cases where the danger is so serious and imminent that resort to other less urgent remedies in the Act might not provide a sufficient assurance of safety.
There are other remedies for removal, under a degree of judicial scrutiny. For example, s 39 provides for the issue by a District Court judge of a place of safety warrant authorising removal of a child who is likely to suffer serious harm. Section 40 provides for the issue of a warrant by a District Court judge authorising removal in similar circumstances, in cases where an application has been made under s 67 for a care or protection declaration.
The very high threshold for intervention without warrant under s 42, namely a belief that removal is critically necessary to protect a child from injury or death, is to be contrasted with the lower threshold for intervention with a warrant under ss 39 or 40.

84

What does Elia V R relate to?

s 215, s 223 CYPF Act 1989

K E (E) and A T (T) were charged with aggravated robbery and aggravated wounding. Both were 14 years old at the time of the alleged offending.
Two weeks after the robbery of a takeaway shop in Papakura by four youths, during which the owner was stabbed 11 times and $200 was taken, a police officer visited T's home to talk to him as a potential witness. The officer spoke to him in his mother's presence. After recording T's details in his notebook and stating that he wanted to talk about the robbery, he noted that T became “nervous and upset”. T then indicated that he may have been involved in the robbery, and the police officer told him he did not have to say any more.
T and his mother accompanied the officer to the police station, where the officer explained that the robbery was a serious matter involving a stabbing. T ultimately admitted being present, but claimed he was not involved in the stabbing. In the course of further discussions he indicated that E had also been involved.
E was spoken to by police the next day in his mother's presence, and returned to the station with her as support person. After reading T's statement to E, the interviewing officer told him T had stated that he had not stabbed anyone, and neither had E. When he asked E directly if he had participated in the robbery E answered “yes”, although minutes later he said “but I wasn't even there” and repeated that he had done nothing. When the interviewing officer briefly left the room there was a recorded discussion between E and his mother in which she appeared to urge him to say he was not there. On the officer's return he disclosed he had heard the statements and suggested a replacement support person for the balance of the interview. The interview continued for some hours with E's aunt as support person.
In the District Court, the judge ruled that the first part of E's statement was admissible, but that as police had failed to restate E's rights to him after his support person changed, the balance of the interview was inadmissible under s 30 of the Evidence Act 2006. The judge ruled that T's initial statement at home was inadmissible as the police officer should have issued a warning under s 215 of the Children, Young Persons, and Their Families Act on observing his suspicious behaviour. T's later statements made at the police station with his mother however, were ruled admissible. T and E both appealed against the decisions, and the Court considered them together.

Held
Section 215 of the CYPFA requires that an explanation must be given “before the statement was made or given”. T's later explanations did not involve a breach of CYPFA by failing to give the necessary explanations, but rather raised the issue of whether in all the circumstances the obtaining of the later admissions were unfair, given that the first admission was elicited without a s 215 explanation. (para 33)

Para 33 stated:
‘The requirement is that the explanation must have been given “before the statement was made or given”.5
Here, the second, third and fourth admissions were made following the explanations required by s 215. These later admissions do not involve a breach of the CYPFA by failing to give the necessary s 215 explanations, but rather raise the issue of whether in all the circumstances the obtaining of these later admissions was unfair, given the first admission was elicited without a s 215 explanation.’

85

How and when do Police collect and assess risk information?

Risk indicators and assessment tools are specific to relationship type and cannot be applied generically across all family violence relationship types.
Police must collect risk information in all family violence occurrences attended:
• involving intimate partner violence (IPV), and/ or
• when children are present.
Risk information is not collected in other family violence cases.

NZ Police has one risk assessment tool (ODARA) to predict re-assault in IPV and two forms for collecting risk information:
• Child Risk Factor form (CRF) to be completed in all cases where children are present or reside at the address, and
• Intimate Partner Vulnerability Factor form (IPVF).

When the family violence occurrence is IPV, ODARA applies if the qualifying criteria are met. If not, the Intimate Partner Vulnerability Factor form must be completed.

Risk forms
The risk forms collect information relating to factors (derived from research and specific to their application):
• which give an indication of the potential harm or lethality for children living where family violence is occurring
• relevant in IPV situations and which also are indicators of potential future harm.

Note:
The risk forms (Pol 1313 and Pol 1314) and ODARA assessment tool (Pol 1315) are included in the family violence form set (Pol 1310) and are available in Police Forms. They must, as far as is practicable, be completed at the scene. Use one CRF form only to record the information for all children who normally reside at the address.

86

Why is the Child Risk Factor forms (Pol 1313) completed?

Ensuring the safety of children present or who normally reside at an address where family violence has occurred is crucial.

The Family Violence Child Risk Factors (CRF) form (Pol 1313) is used to indicate potential risk or lethality risk for children living in a family violence context.

Complete the CRF form (Pol 1313) using:
• one form for all children aged less than 17 years (including unborn children) regardless of the number in the family group. You do not need to collect risk information for children who were only visiting the address at the time of the occurrence.
• a supplementary CRF form if there is more than one family group sharing an address, to ensure that one form is completed for the children of each family group (including any unborn children).

87

How do you report concerns for children at Domestic Incidents?

Situation

Critical
Assessment is that urgent steps are critically necessary to protect the child (or children) from injury or death.

Test
Critical means child is at immediate risk of serious harm and the need for immediate protection may be necessary. ("Harm" means physical injury or death).
The Child Protection Protocol applies.

Take these steps. The Child Protection Protocol applies.
Step
1 Take enforcement action as appropriate.

2 If necessary, remove or detain the child (by force if necessary) and place in the custody of the Director General (s42 CYPF Act). If removal is pursuant to section 42, no CPP referral is required.

3 If child is not removed and is safe, contact your local CPT as soon as possible.
During normal working hours (Mon-Fri 8am - 4pm), complete Pol 350 (CPP Referral Form) and send electronically to local CPT as soon as possible. The CPT will forward the ROC and Pol 1310 to CYF.
If the occurrence has taken place outside of standard working hours, on weekends or holidays, ring the CYF National Contact Centre as soon as possible to advise them of the ROC. Then forward the Pol 350 and Pol 1310 to the CYF National Contact Centre. (See How to send a ROC below)

4 Complete case file and notes and forward to CPT if required.

5 CPT will complete a tasking to the Area FVC / FST to review the case occurrence. Once reviewed the tasking will be updated.

Situation
Serious Child Abuse
Assessment is that the child (or children) have suffered serious child abuse.

Test
One of the following has occurred: serious physical abuse, sexual abuse, serious wilful neglect, serious family violence where child is present and/or is a witness, ODARA indicates current or previous child assault, serious allegations of child abuse involving CYF caregiver or member of Police.

Take these steps. The Child Protection Protocol applies.
Step
1 Take enforcement action as appropriate.
2 Follow steps 3-5 as for critical assessments above.


Situation - Family violence occurrence - CRF indicates priority factors

Test
One or more priority factors are present on Pol 1313.

The Child Protection Protocol does not apply.
Take these steps.
Step
1 Take enforcement action as appropriate (consider s59 Crimes Act 1961 – see the Parental control (section 59 Crimes Act) chapter).
2 Make a report of concern to CYF NCC as soon as possible, with supervisors / FVC consent by email using the Pol 351 and attaching the Pol 1310 formset.
3 Complete case file and notes.
4 The Pol 351 and Pol 1310 are evaluated and prioritised by Area FVC for the FVIARS process.

Situation
Other risk indicated case
Test
No priority factors are identified but the circumstances indicate potential risk to child/ren.
The Child Protection Protocol does not apply.
Take these steps.

Step
1 Discuss child risk information with the Area FVC / supervisor.
2 If approved for a report of concern (ROC), forward to CYF NCC following steps 2 - 4 in the table immediately above.
3 If not approved for a ROC to CYF NCC, FVC will make a ROC to the closest local CYF site attaching the Pol 1310.


Situation - Children present

Test
No priority factors are indicated and no other circumstances indicate risk.

The Child Protection Protocol does not apply.
Take these steps.
Step
1 FVC to make ROC to the closest local CYF site attaching the Pol 1310.
2 Complete case file and notes.
3 The Pol 351 and Pol 1310 are evaluated and prioritised by Area FVC for the FVIARS process.

88

Do Police have to provide Victims with support services?

Attending police must provide family violence victims with appropriate and timely support and information about services and remedies. (This is an obligation on Police under the Victims Rights Act 2002). Support for victims is critical to breaking the cycle of family violence and an interagency approach is an essential element of the Police approach to reducing family violence-related crime.
Police response will vary depending on resources available in each area and local agreements reflect this. You must be aware of the arrangements in your area and maintain good relationships with providers.

Victim Information Form
As a minimum, after collecting relevant information and deciding about the support to be arranged, give the victim the Victim Information Form (Pol 1316) which contains general information about services and discuss what happens next, including the sharing of relevant information with key partners to ensure effective collaborative case management.

89

How would you obtain initial support for a Victim of a Family Violence incident?

1 Ensure victims are safe before leaving the scene and that a safety plan has been prepared in appropriate cases in conjunction with any support service called to the scene. Consider removing the victim if the suspect has not been located. Give the victim the Victim Information Form.

2 Follow the procedures agreed between Police and local support services on time frames for advising the service provider.
Victims are often distressed and upset. If the victim says no when you ask if they want support, simply advise that you will be calling the agency you work closely with (Women’s Refuge or Victim Support) and that the agency will arrange for a worker to provide information and give them early assistance.

3 Follow local procedures for agency notification and endorse the Pol 1310 accordingly. Enter notations about the safety plan into NIA. Where appropriate this should be placed as an alert on the summary screen.

90

When does a Police Safety Order commence, and how long should it be for?

Police safety orders come into force immediately after they have been served and continue in force for the period specified in the order.
The issuing officer decides on the duration of the order, which can be for a period not exceeding 5 days.
Be aware that there is the potential for continued risk to people at risk despite a safety order being issued. When an order is served, police should take all practicable steps to ensure that:
• relevant and appropriate specialist support has been contacted for people assessed as being at risk and that their immediate safety is assured
• advocacy for the person at risk must be arranged as soon as possible to enable contact to occur within the time the PSO remains in force
• support and a temporary place to reside is available to the bound person.

Deciding the duration of the order
When deciding on the duration of the order, the issuing officer must:
• have regard to the factors set out in section 124B(2) (see Factors to consider when deciding to issue a Police safety order above)
• carefully consider the impact of the order on the family (e.g. hardship to any person, including the alleged violent person, and the welfare of the children).
As a starting point, you should begin with considering a 24 hour duration and then factor in other relevant considerations, for example:
• weekends, public holidays, and an individual’s ability to access the courts, if necessary (e.g. the person at risk may wish to seek a protection order)
• how long it will take for the family to access appropriate support services and make ongoing arrangements for their safety. (See Family violence policy and procedures for more information about safety, support and interventions).
Do not limit safety considerations to those apparent at the time police were in attendance. Consider risk to safety over the next hours or days. Note that the longer the duration of the order, the more complex the decision making is likely to be and the greater the likelihood that there will have been an offence.

Checking for breaches
The constable issuing the Police safety order should follow up with the protected person, within the duration of the order to see how things are and to check that the order has not been breached. If there has been a breach, follow the procedures for breach of Police safety orders.

91

What is Section 2, Domestic Violence Act 1995?

Interpretation
In this Act, unless the context otherwise requires, –
Child means a person who is under the age of 17 years; but does not include a person who is or has been married or in a civil union or a de facto relationship:
Child of the applicant’s family means a child who ordinarily or periodically resides with the applicant (whether or not the child is a child of the applicant and the respondent or of either of them):
Domestic relationship means one of the relationships set out in section 4(1) of this Act:
Domestic violence has the meaning set out in section 3 of this Act:
Dwelling house includes –
(a) any flat or town house, whether or not occupied pursuant to a licence to occupy within the meaning of section 121A of the Land Transfer Act 1952:
(b) any mobile home, caravan, or other means of shelter placed or erected upon any land and intended for occupation on that land:
Family member, in relation to a person, means –
(a) any other person who is or has been related to the person by blood or by or through marriage, a civil union, or a de facto relationship, or by adoption:
(b) any other person who is a member of the person’s whanau or other culturally recognised family group:
Partner, in the phrase “spouse or partner” and in related contexts, means, in relation to a person, –
(a) the person’s civil union partner; or
(b) the person’s de facto partner; or
(c) any other person, in any case where those persons are the biological parents of the same person]
Property, in relation to a person, means property that –
(a) the person owns; or
(b) the person does not own but –
(i) uses or enjoys; or
58 Chapter 1 CYPF and Family Violence
Sergeants Syllabus – February 2015
(ii) is available for the person’s use or enjoyment; or
(iii) is in the person’s care or custody; or
(iv) is at the person’s dwelling house:
Protected person, in relation to a protection order, means –
(a) the person for whose protection the order is made:
(b) any child of that person’s family:
(c) any person for whose benefit the order applies pursuant to a direction made under section 16 of this Act:
Protection order means an order made under section 14 of this Act; and includes a temporary order made under that section.

92

What is Section 90, Domestic Violence Act 1995?

Police to consider exercise of powers under Arms Act 1983
(1) This section applies where a copy of an order, or a copy of a copy of an order, is made available to the officer in charge of a Police station in accordance with section 88(2) of this Act, except where –
(a) The order discharges a protection order, and no other protection order is made in substitution for that protection order; or
(b) The order discharges an order made under Part 3 of this Act, and no other order under that Part of this Act is made in substitution for that order; or
(c) The order varies an order made under Part 3 of this Act.

(2) Where this section applies, the officer in charge of the Police station must immediately establish whether or not the respondent and any associated respondent named in the order hold a firearms licence.

(3) Where this section applies, and the officer in charge of the Police station knows that the respondent or any associated respondent, or both, hold a firearms licence (whether that knowledge arises from any inquiries carried out in accordance with subsection (2) of this section, or the terms of the protection order, or otherwise howsoever), then, except where the firearms licence is deemed to be revoked pursuant to section 21(2) of this Act, the officer in charge must arrange for an appropriate person (ie a commissioned officer) to consider immediately whether or not the powers conferred by sections 27(1) and 27A of the Arms Act 1983 (which relate to the revocation of a firearms licence) should be exercised in that case.

(4) Where this section applies, the officer in charge of the Police station must, in every case, arrange for an appropriate person (ie any police officer) to consider immediately whether or not the powers conferred by section 60A of the Arms Act 1983 (which relates to the seizure of a firearm in cases of domestic violence) should be exercised in that case.
NB: Sections 60 to 61 were repealed, as from 1 October 2012, by s 323(2) of the Search and Surveillance Act 2012, but ss 4 remains in its current form.

93

What does the case Senior v Police relate to?

Background
S was subject to a domestic protection order, protecting his former partner. One of its conditions was that S wasn't to engage, or threaten to engage, in behaviour "including intimidation or harassment, which amounts to psychological abuse of any person”.
S wrote abuse about his former partner on his Face book page. Though she was not one of S’s Face book friends, she was able to read the abuse in the company of her niece, who was his Face book friend.
S was convicted of breaching a domestic protection order. He appealed on the basis that he lacked the appropriate mens rea, because when writing the post on Face-book he knew his former partner was not his Face-book friend and it was not known for sure if she would see the abuse.

High Court Decision
The High Court took notice that people who use Face-book know the contents of their page are often communicated to people other than their “friends”. The Court held it was “at the very least highly reckless” to put “very strong personal abuse” directed towards a former partner on Face-book where it could be read by a large number of friends, some of whom would inevitably have contact with the person being abused.
The Court dismissed S’s appeal. It found there was no defence available to him on the basis that the person subject to the domestic protection order was not a Face-book friend and therefore it was not certain she would see the abuse. The abuse was held to have been deliberate, and because of the potential for wide circulation there was a real risk the protected person would find out about it.

Comment
When a person subject to a protection order makes an abusive statement about the protected person on Face-book, they may breach the order if the abuse may be circulated more widely and reported to the protected person. That person does not have to be a Face-book friend for a breach to occur. This decision confirms the abuse doesn’t have to be addressed directly towards the protected person, and there doesn’t need to be direct evidence the abuser intended the protected person to see or hear the abuse.