Module 2 - Firearms, TASER, Sudden Death, Policing Act 2008, Victims Rights Act 2002 (Feb 2015) Flashcards Preview

Sergeants CPK > Module 2 - Firearms, TASER, Sudden Death, Policing Act 2008, Victims Rights Act 2002 (Feb 2015) > Flashcards

Flashcards in Module 2 - Firearms, TASER, Sudden Death, Policing Act 2008, Victims Rights Act 2002 (Feb 2015) Deck (68):
1

What is Section 40, Arms Act 1983?

On demand by Police person in possession of firearm, airgun, pistol, or restricted weapon to give name, address, and date of birth

(1) Every person in possession of any firearm, airgun, pistol, or restricted weapon shall, on demand, give his full name, address, and date of birth to any member of the Police who is in uniform or who produces evidence that he is a member of the Police.

(2) If any person refuses to give his name, address, or date of birth or gives false particulars thereof, any member of the Police –
(a) May caution that person; and
(b) If that person persists in such refusal or fails or continues to fail to give the correct particulars, – may arrest him without warrant.
(3) Every person commits an offence and is liable on summary conviction to imprisonment for a term not exceeding 3 months or to a fine not exceeding $1,000 or
to both who, in response to a demand under subsection (1) of this section, refuses to give his name, address, or date of birth or gives false particulars thereof to any member of the Police

2

What is Section 66, Arms Act 1983?

Occupier of premises or driver of vehicle deemed to be in possession of firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive found therein

For the purposes of this Act every person in occupation of any land or building or the driver of any vehicle on which any firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive is found shall, though not to the exclusion of the liability of any other person, be deemed to be in possession of that firearm, airgun, pistol, imitation firearm, restricted weapon, or explosive, unless he proves that it was not his property and that it was in the possession of some other person.

3

In the New Zealand Police, who can carry firearms?

Only employees who are constables (as defined by section 4 Policing Act 2008) and employees specifically authorised to do so by the Commissioner (e.g. firearms instructors) are permitted to possess or carry Police issued firearms.

Constables who carry firearms operationally must hold a current:
· New Zealand Police first aid certification
· SSTT certification for the firearm deployed.

4

When can firearms be carried by New Zealand Police?

An employee may carry firearms:
· when their perceived cumulative qssessment of a situation is that it is in, or likely to escalate to be within, the death/grievous bodily harm range as specified by the tactical options framework
· when on duty as a member of:
- the Armed Offenders Squad or Special Tactics Group
- a dedicated full time or rostered District Crime Squad
- the Diplomatic Protection Squad if authorised by the supervisor of that squad
· when performing:
- airport duties at any airport that is “security designated” under the Civil Aviation Act 1990
- the role of escorts and guards for people carrying valuables as authorised by a district commander
· to destroy animals in circumstances set out in the Stock at large Police Manual chapter
· pursuant to an operational instruction authorised by a Police Inspector or above
· for training purposes.

Note: Carriage by non- constabulary employees is limited to the specific purpose(s) authorised by the Commissioner.

5

What are an individuals responsibilities when they are carrying firearms?

Employees who carry firearms because their assessment of a situation is that it is in, or likely to escalate to be within, the death/grievous bodily harm range as specified by the tactical options framework must:
· advise their immediate supervisor and the Police Communications Centre of their decision to deploy with firearms, unless this is impractical in the particular situation. In these cases, advise the appropriate person at the first reasonable opportunity.
· take a TASER with them, if one is available.

When a firearm is:
· drawn/issued from a police station, the Firearms register (POL 369) must be completed at the time of issue and/ or return
· accessed from and returned to vehicle security cabinets, follow the procedures in Firearm security seals and registers in the “Firearms registers” section of this chapter

6

What is the New Zealand Police protocol in regards to ballistic body armour?

Employees must wear approved ballistic body armour when deploying to an incident where they believe firearms are present or could be present.

Ballistic body armour must be kept in patrol vehicles carrying Police firearms and stored where firearms are kept for issue at stations.

7

What is the New Zealand Police protocol on the display of glocks?

Glocks must be carried in an authorised Police issue holster. Empty holsters must not be worn as a matter of course.

8

What is F061?

Police employees must always be aware of their personal responsibilities when using firearms.
Under section 62 of the Crimes Act 1961 an employee is criminally liable for any excess force used. An overriding requirement in law is that minimum force must be applied to effect the purpose.
Where practical, Police should not use a firearm unless it can be done without endangering other persons.

When can firearms be used?
Police must only use a firearm for these purposes.
- Defending themselves or others if to defend themselves or others if:
· they fear death or grievous bodily harm to themselves or others, and
· cannot reasonably protect themselves or others in a less violent manner. (section 48 Crimes Act 1961).

- Arresting an offender to arrest an offender if they:
· believe on reasonable grounds that the offender poses a threat of death or grievous bodily harm in resisting their arrest, and
· the arrest cannot be reasonably effected in a less violent manner, and
· the arrest cannot be delayed without danger to other people. (section 39 Crimes Act 1961).

- To prevent an offender escaping if:
· Police believe on reasonable grounds that the offender poses a threat of death or grievous bodily harm to any person (whether an identifiable individual or members of the public at large), and
· the offender flees to avoid arrest or escapes after arrest, and
· the flight or escape cannot reasonably be prevented in a less violent manner. (section 40 Crimes Act 1961).

- To destroy animals in circumstances set out in the Stock at Large chapter of the Police Manual.

An offender must not be shot until all these conditions have been satisfied:
they have first been asked to surrender (unless it is impractical and unsafe to ask them)
· it is clear they cannot be disarmed or arrested without first being shot
· further delay in apprehending the offender would be dangerous or impractical.

9

What are fire orders?

Fire orders are operationally specific instructions on the circumstances in which Police employees may use firearms. (These circumstances are detailed in General Instruction Use of firearms (F061)).

10

What are individual employees personal
responsibilities for knowing when firearms may be used?

Every Police employee issued with a firearm is personally responsible for ensuring they are thoroughly conversant with relevant law, particularly sections 39, 40, 41, 48 and 62 of the Crimes Act 1961, General Instruction F061, and all relevant instructions and guidelines contained in this Police Manual chapter.

11

When are fire orders given?

Operational situations
When firearms are issued before the start of special operations, and time and circumstances permit, fire orders are to be given by operation or unit commanders as
part of the operation briefing. In all other operational situations where firearms are issued, if time and circumstances permit, supervisors must draw attention to the fire orders printed on the inside cover of the Police issue notebooks and copies of fire orders stored with Police firearms in firearm safes and in vehicle firearm security cabinets.
(These pocket sized cards may be taken and carried by employees if they consider it necessary).

Training
Every time employees receive formal firearms training they must be asked by the instructor to demonstrate their thorough knowledge and understanding of the circumstances in which firearms may be used (General Instruction F061). On all occasions that Police are planning or conducting training or exercises involving the use of firearms, they must refer to and comply with the procedures detailed in the Firearms Instructors Manual ‘Range Management and ‘Firearms Safety’ chapters.

12

What decisions are considered when deciding to fire at an offender?

The circumstances justifying Police firing at an offender can change very rapidly. Any employee who fires a shot must make the decision to fire and must be personally satisfied there is justification for doing so.
When deciding to fire at an offender, the employee:
· takes their own observations into account
· may also consider information supplied by other people.
Any force used must be the minimum necessary to achieve the objective, and reasonable under the circumstances. Employees using excessive force when
restraining or arresting an offender will be held criminally liable under section 62 Crimes Act 1961

13

When can you claim self defence after using a firearm?

Employees who fire at an offender will only be able to claim self defence under section 48 Crimes Act if they shot because they had reasonable cause to fear death or grievous bodily harm to themselves or another person and could not otherwise protect themselves or that person. There is no justification for firing at a suspect when they are no longer a threat to life. This applies regardless of the suspect’s previous actions.

14

When can a warning shot be fired?

As a general rule warning shots should not be fired.
However, there may be circumstances where a warning shot may be appropriate. Only fire a warning shot if:
· extreme caution is taken to safeguard the safety of others
· the suspect has been asked to surrender (if practical) and has not done so, and
· it can be clearly aimed as a warning shot.

15

When can you fire at motor vehicles?

Shots may only be fired at moving vehicles in very exceptional circumstances. It is extremely difficult to disable a vehicle by discharging a firearm at tyres or other parts. The small target area and the margin for error
impose a high probability of misdirection or ricochet increasing the risk of causing death, injury or damage.

16

What principles should be applied when dealing with an armed offender?

When dealing with an armed offender or an offender believed to be armed, Police should observe these basic principles:
· It is better to take the matter too seriously than too lightly.
· Treat all armed offenders or offenders believed to be armed, as dangerous and hostile unless there is definite evidence to the contrary.
· Make every effort to prevent casualties.
· Caution is not cowardice. When the offender’s actions permit, cordon the area, and adopt the wait and appeal role in order to negotiate a surrender.
· Never go unnecessarily into danger. However, if the offender is acting in a way that makes casualties likely, Police must act immediately to prevent this.

17

What considerations should be made in regards to a TASER during firearms incidents?

When considering the need for firearms, you must be guided by the tactical options framework, particularly regarding TASERs. Although you must carry a Taser (where available) when carrying a firearm, you should not normally consider using a TASER against a subject armed with a firearm. Police firearms remain the most appropriate tactical response for such situations but circumstances may exist where the use of the TASER may be appropriate when deployed with or in support of conventional weapons.

18

What actions should be taken immediately after a firearm is discharged?

Every time a firearm is discharged by Police, except for when it was discharged during training or to destroy animals (unless there has been an unintended result):
· the employee discharging the firearm must complete a Tactical Options Report, and
· the senior employee present or the person appointed to do so must takethese actions immediately (or at the first safe opportunity).

1 If necessary, render first aid when safe to do so and contact medical emergency services.

2 Mark the discharging employee’s position, the empty cartridge case, bullet fragments, injured or deceased people, and any other items or people associated with the discharge.

3 Preserve the cartridge case and, where possible, the bullet or bullet fragments.

4 Secure the firearm and remaining rounds.
Note: On no account is the firearm to be altered or items/accessories removed. It must be secured in the state at which it was at the time of firing.

5 Either:
· advise the employee’s immediate supervisor who will promptly advise the district commander, or
· if the discharge has been unintentional, follow the procedure for reporting and investigating unintentional discharges.

6 If someone has been killed or injured by the discharge, send the firearm and any bullets and cartridge cases to the Police Armoury for examination. Enclose a detailed report covering the circumstances or incident with the items sent to the Police Armourer for examination.

7 The Police armourer will conduct a detailed examination of the firearm and prepare a report on:
• firearm' description, condition, mechanical safety, sights, trigger pressure, test firing, firearm classification
• such other tests as may be required.

8 The Police Armourer will if requested:
• arrange for ESR to carry out any comparison examination of projectiles or cartridge cases required
• provide a report on the result of the ballistics examination to the O/C of the investigation.

9 Commence any appropriate investigations into the incident, e.g. criminal and/or employment investigations.

19

What actions are to be taken if a firearm is presented by Police but not discharged?

If a firearm is presented at a person but not discharged, a Tactical Options Report must be submitted and forwarded to your supervisor.
This does not apply to:
· members of the AOS or STG engaged in an AOS or STG operation
· employees engaged in training.

20

What actions should be taken if a firearm is unintentionally discharged by a New Zealand Police employee?

Follow this procedure in all cases of Police unintentional discharges of firearms, for example when:
· an employee accidentally discharges a firearm
· a firearm malfunctions causing it to discharge
· a firearm is intentionally discharged but there is an unintended result (e.g. a training accident).

1 The person in charge of the operation, scene or training in which the incident occurred immediately reports the discharge to a supervisor with the position level of Inspector or above.

2 The employee who discharged the firearm completes a Tactical Options Report: Unintentional discharge.

3 The supervisor immediately considers and decides if the employee should be suspended from drawing or using a firearm. (If a supervisor is not readily contactable, then the person in charge at that time makes the decision on the suspension).

4 The supervisor advises the district commander what has occurred and the response. If the initial investigation suggests no culpability on the part of the employee who discharged the firearm, the district commander may remove any suspension imposed.

5 The District Commander advises the National Manager: Professional Standards of the incident. Do this immediately in case of death or serious injury and in cases of other unintentional discharge, within 48 hours of the incident.

6 The District Commander appoints a Police Inspector or higher positioned employee to oversee an investigation into the incident. The person appointed must not have direct line supervision of the employee involved in the discharge.

7 The culpability of the employee discharging the firearm is adequately investigated and reported on having regard to appropriate legislation and Police firearms safety policy and procedures.
The scope and scale of the investigation will largely depend on the nature of the discharge, the result, any death or injury, or the potential for death or injury. It may also be necessary to consider at this stage if an employment investigation is necessary.

8 Where it is established that the employee has been careless or has breached procedures, the District Commander considers what further action is appropriate (e.g. any criminal or disciplinary action, continuing any suspension and/or any necessary remedial training).

9 After the investigation is completed, the District Commander sends the completed file to the National Manager: Professional Standards recommending what action should be taken, if any.

10 The National Manager: Professional Standards:
• determines whether the circumstances of the discharge warrants the IPCA being advised
• advises the National Manager: Operations if the unintentional discharge appears to have a potential impact on any current training, policy, safety or related issues, which may require urgent action.

21

What procedures should be done if someone is killed or injured by a non-Police issued firearm?

Follow the normal crime scene investigation procedures in situations when someone is killed or injured by a non-Police issued firearm and Police were not involved in the shooting.

22

What practices are involved in the issuing of firearms?

Supervisor’s responsibility when issuing firearms at stations.
Any person supervising the issuing or returning of Police firearms must ensure as part of a Police station’s internal control:
· the Firearms register (POL 369) is completed at the time of issue from and/ or return to the station (follow the procedures in Firearm security seals and registers in “Firearms registers” if firearms are taken from and/or returned to a vehicle security cabinet)
· when firearms are returned they have been cleaned and are considered safe for immediate operational use
· all firearms and ammunition issued are accounted for
· no firearm or related equipment is or has been unnecessarily retained by an employee (this does not apply to members of the AOS and STG and their specialist firearms).

23

When should a supervisor be notified if a TASER is deployed at an incident?

Whenever a TASER is deployed by an operator against another person, the operator must notify a supervisor as soon as practicable. In the case of employees in rural or remote locations, notify the nearest on duty supervisor.

24

What steps should a supervisor take after an operational TASER discharge or contact stun?

1 Attend the scene as soon as possible and ensure proper aftercare and any appropriate medical attention has been provided. In remote or rural incidents, the nearest on duty supervisor must consult with the operator involved as to whether their attendance is required.

2 Preserve and photograph the scene where it is believed this may be necessary or relevant for subsequent enquiries.

3 Ensure that all evidence, including discharged air cartridges, wires, probes and sufficient (4-5) cartridge identification tags (CIT) are recovered from the scene and secured appropriately.

4 Determine whether the use of the TASER was in accordance with these instructions.

5 Ensure the operator completes the details of all instances of discharge and contact stun in the TASER register.

6 Ensure the operator, or individuals involved submit a tactical options report.

7 Ensure the operator(s) involved uploads the incident into the Evidence.Com via Evidence Sync and categorises the uploaded data including TOR and event details where applicable for cross referencing with Evidence.Com.

8 Inform the district TASER coordinator outlining the details of the incident by means of an internal e mail prior to going off duty.

25

What steps should a supervisor take after an operational TASER presentation, arcing, or laser painting?

1 Ensure the operator, or individuals, involved submit a tactical options report.

2 Ensure the operator completes the details of all instances of arcing in the log in the TASER register.

3 Ensure the operator(s) involved uploads the incident into Evidence.Com via Evidence Sync and categorises the uploaded data including TOR and event details where applicable for cross referencing with Evidence.Com

4 Determine whether the use of the TASER was in accordance with these instructions.

5 Inform the district TASER coordinator outlining the details of the incident by means of an internal e mail prior to going off duty.

26

When should a tactical operation report be done in regards to a TASER?

A tactical options report must be completed in all cases where a TASER is shown or used. The only exceptions to this requirement are:
· where the deployment was in training, or
· in the case of AOS or STG operators deployed at the time in an AOS or STG role where the deployment was presentation, laser painting or arching (shown).

27

What procedures should be done when attending a sudden death?

1 Check for signs of life and:
• depending on the circumstances consider whether to attempt resuscitation
• if alive, give emergency medical assistance and call an ambulance
• if dead, call their doctor if possible. If the doctor cannot be located, contact another doctor.

Note: It is a doctor’s responsibility to state that life is extinct and to establish the medical cause of death (although the Chief Coroner has authorised a duly qualified and registered paramedic to do this). It is not the responsibility of police or ambulance officer.

2 Inform your supervisor at the earliest opportunity, that you are attending a sudden death.

3 If the death appears suspicious, contact the duty/on call CIB member and your supervisor. Freeze, guard and preserve the scene until CIB arrive. In other circumstances, start an investigation into the cause of death.

4 The attending doctor or duly qualified and registered paramedic completes a Deceased Person Certificate (POL 265) or makes a written statement on a prescription pad or notebook that the person is dead. The doctor should pronounce that life is extinct before the body is moved.

5 When the deceased has been under treatment for the illness that has caused the death, the doctor who was attending the deceased before the death will generally issue a Medical Certificate of Causes of Death (HP4720)
Note: If the death must be reported to the coroner, the doctor can only give a doctor’s certificate for the death if the coroner has decided not to open an inquiry into the death.

6 If the doctor issues a HP4720, the coroner does not have to be advised of the death. Instead you must advise immediate family and, if necessary, ensure the deceased’s property is secure. If attending police still have concerns, contact the coroner to discuss.

7 Determine if the death is one that must be reported to the coroner and if so, immediately notify the duty coroner on 0800…
As a general guide, do not move the body before notifying the coroner.

8 Complete the Deceased person notification (DED) found in Microsoft Outlook notifications so that police can update any NIA/Licensing data held about that person. This ensures that in the future no one can take on the deceased person’s identify for illegal purposes.

28

What is Section 15, Coroners Act 2006?

Police must immediately report all sudden, unexplained violent or suspicious deaths to the coroner. You must also inform the coroner if the body has been destroyed or is irrecoverable. If there are multiple fatalities, advise the coroner and establish whether they want to attend the scene. Do not delay reporting the death. (See Contacting the coroner for contact details).
As a general guide, do not move the body before notifying the coroner. If you are attending a traffic death or a death in a location where access to a phone is not possible, contact the Comms dispatcher and ensure the coroner is notified immediately.
A quick phone call notifying the coroner of the death can be followed up later with more detailed information in a Report for coroner (POL 47 or 47A (sudden death of an infant under 2 years)). The more information you can obtain will assist the coroner in making decisions as part of the coronial process, however this should not delay the immediacy of the notification.
Notification should commence as soon as possible after Police attend the scene and are in a position to confirm the death and advise the coroner accordingly.
The coroner may wish to visit the scene if they think it would provide an advantage in later determinations.

29

What procedures should be followed when you are examining a scene and body at a Sudden Death?

Important: Always preserve evidence until the cause of death has been established.

1 Consider factors that may cause you to suspect a criminal act. See things to look for below. If the death is suspicious, violent or criminal or if you have any doubt about the cause of death, notify CIB and take appropriate action to secure the scene. (See Part 1- Initial response to homicide or serious crime in the Homicide and Serious Crime Investigations chapters).
Note: Homicide investigations must be reported by the O/C case to the National Manager: Criminal Investigations, via the District Manager, Criminal Investigations.

2 Note the position of the body. Photograph it if necessary - this may be useful information for the coroner.

3 Note all factors that may explain the death, e.g. the body’s condition, medicine bottles and items in the immediate vicinity of the body. Ensure you seize all medicines as some mask the presence of others.

4 Obtain full particulars from witnesses, exploring any likelihood of anyone else being involved, either maliciously or innocently.

5 If the death is not suspicious, obtain statements as soon as practicable (notebook statements are not acceptable). Early statements may negate the need to re-interview later, and will provide the basis for evidence produced at a coroner’s inquest.

30

What precautions should be taken in regards to firearms at Sudden Death incidents?

Before moving or touching a firearm, assess whether you are qualified to deal with it (some firearms require specialist knowledge to make safe).

If … You are not qualified... Then...
Secure the firearm and seek assistance.

If ... You are qualified ... Then ...
· Assume the firearm is loaded.
· With your finger off the trigger, uplift the firearm and ensure it is always pointed in a safe direction.
· Empty the magazine and action to make the firearm safe.
· Tag or tie an ID onto the firearm.
· Keep the firearm secure until it is locked away.

31

Who gets custody of a body at a Sudden Death incident?

When Police consider that the death is one that must be reported to the coroner (s13), they have exclusive right to custody of the body and must ensure its secure custody, until the death is reported to a coroner.
Once reported, the coroner has exclusive right to custody and will give police directions about removal of the body for a post-mortem (ss19& 20).
The body is in the coroner’s custody until the coroner authorises its release.

32

What powers do you have to remove a body in a Sudden Death incident?

For the purpose of a post-mortem of a body directed under the Coroners Act, a coroner may give any directions they think fit about removal of the body (e.g. directions about removal to a mortuary) (s20).

Note that a body must not be taken from the place of death to a mortuary via a funeral home unless such a direction has been given by a coroner under section 20.

You can apply to a District Court judge for a warrant to remove a body from a specified place if:
• a coroner has given directions about the removal of the body under section 20, and
• you have reasonable grounds to believe the body is being held in that place contrary to the directions, and
• you have used negotiation and all other reasonable means to have the body released in accordance with the directions (s128).
When executing the warrant you may use reasonable force if necessary to enter the place and to search for and remove the body or prevent its removal (s129).

33

What do you do if a family doesn't allow you to take a deceaseds body or exhibits from a scene?

If the immediate family does not allow you to remove the body or allow you to seize evidence relevant to the death, you have a power to:
• remove the body (with warrant),
• seize evidence (without warrant).

Note: You must consult the duty coroner and use all other means of negotiation first before invoking these powers, e.g. call in Iwi Liaison Officers or Victim Support to help work through the issues and requirements with the immediate family. The warrant must be executed in a sensitive manner.

You can, without warrant, seize evidence using reasonable force if necessary, if you are:
• complying with a direction to remove a body under section 20, or
• executing a warrant for the removal of a body under section 128.
The evidence must be:
• on or in the immediate vicinity of the body and relevant to the post-mortem of the body
• delivered to the coroner.
You must take all reasonable steps, within five working days of the seizure, to inform either the owner or occupier of the place from which the body was removed, or the person from whose possession or control the thing was seized, of the fact that the thing was seized and from where it was seized. This may be done in person or by written notice (s131).

34

What steps would you take if a prisoner dies while in Police custody?

1 Immediately freeze the scene and ensure evidence including the charge sheet is preserved.

2 Advise a supervisor who will:
• notify and arrange for CIB to attend, and:
− establish the nature of the inquiry required
− initiate any enquiry (Note: if force has been used upon the prisoner prior to, during or after arrest, a homicide inquiry must be commenced)
• ensure the District Commander is informed immediately.

3 The District Commander informs the National Manager: Professional Standards of the circumstances surrounding the death

35

What is Section 32, Policing Act 2008?

Identifying particulars of person in custody

(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.

(2) For the purpose of this section, a Constable may take the identifying particulars of a person who is in the lawful custody of the Police if that person is detained for committing an offence and is—
(a) at a Police station; or
(b) at any other place being used for Police purposes.
(3) A constable—
(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and
(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.

(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—
(a) commits an offence; and
(b) is liable to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.

(5) In this section and section 33,—
identifying particulars means, in relation to a person, any or all of the following:
(a) the person’s biographical details (for example, the person’s name, address, and date of birth):
(b) the person’s photograph or visual image:
(c) impressions of the person’s fingerprints, palm-prints, or footprints place includes any land, building, premises, or vehicle.

36

What is Section 33, Policing Act 2008?

Identifying particulars for summons

(1) The purpose of this section is to enable the Police to obtain information that may be used now or in the future by the Police for any lawful purpose.

(2) For the purpose of this section, a constable who has good cause to suspect a person of committing an offence and who intends to bring proceedings against the person in respect of that offence by way of summons, may detain that person at any place—
(a) in order to take the person’s identifying particulars; and
(b) only for the period necessary to take the person’s identifying particulars.

(3) A constable—
(a) must take the person’s identifying particulars in a manner that is reasonable in the circumstances; and
(b) may only use reasonable force that may be necessary to secure the person’s identifying particulars.

(4) A person who, after being cautioned, fails to comply with a direction of a constable exercising his or her powers under this section—
(a) commits an offence; and
(b) is liable to imprisonment for a term not exceeding 6 months, to a fine not exceeding $5,000, or to both.

37

What is Section 36, Policing Act 2008?

Care and protection of intoxicated people

(1) A constable who finds a person intoxicated in a public place, or intoxicated while trespassing on private property, may detain and take the person into custody if—
(a) the constable reasonably believes that the person is—
(i) incapable of protecting himself or herself from physical harm; or
(ii) likely to cause physical harm to another person; or
(iii) likely to cause significant damage to any property; and
(b) the constable is satisfied it is not reasonably practicable to provide for the person’s care and protection by—
(i) taking the person to his or her place of residence; or
(ii) taking the person to a temporary shelter.

(2) A person detained under subsection (1)—
(a) must be released as soon as the person ceases to be intoxicated:
(b) must not be detained longer than 12 hours after the person is first detained, unless a health practitioner recommends that the person be further detained for a period not exceeding 12 hours.

(3) A health practitioner must not recommend the further detention of a person detained under subsection (1) unless the health practitioner satisfies himself or herself that—
(a) the person remains intoxicated and is incapable of protecting himself or herself from physical harm; and
(b) the person does not have health needs that may require medical attention; and
(c) it is not reasonably practicable to provide for the person’s continuing care and
protection by—
(i) taking the person to his or her place of residence; or
(ii) taking the person to a temporary shelter.

(4) In this section,— intoxicated means observably affected by alcohol, other drugs, or substances to such a degree that speech, balance, co-ordination, or behaviour is clearly impaired temporary shelter means a place (other than a place operated by the Police) that is capable of providing for the care and protection of an intoxicated person.

(5) Section 31 of the Crimes Act 1961 applies in respect of the power to detain and take a person into custody under this section as if the power were a power of arrest.

38

What does the case Hepi v R relate to? (Arms Act)

Following the trial in the District Court at Hamilton the appellants James Heta and Natalie Hepi were convicted of: unlawful possession of a firearm and explosive pursuant to s 45(1)(b) of the Arms Act 1983

Both appellants appealed on the grounds of :
(a) misdirection on s 66 Arms Act in the judges summing up;
and
(b) misdirection as to the meaning of “occupancy” in s 66.
The appellants’ grounds were that, as a result of the individual and cumulative effects of these errors, there has been a miscarriage of justice and the verdicts should be set aside.

Factual background
Ms Hepi and Mr Heta have been in an “on and off” relationship for some twenty eight years and have a number of children together.
On 15 February 2008 police executed a search warrant at an address in Te Kuiti. This is a residential property Ms Hepi has owned for around twenty years.
The police officers found over 200 mature cannabis plants growing in the garden and in an outside room which had been converted for this purpose. They found over 1.6 kilograms of dried plant material packaged in varying amounts. In a caravan on the property they found an operable .22 semi-automatic rifle and ammunition (of a different calibre). Other items were found in the caravan which are commonly associated with the cultivation of cannabis and it was apparent the caravan had been set up for use as a growing room.
Although no-one was at home when the warrant was executed there were indications the house was inhabited. There was fresh food in the kitchen and the cannabis plants were well tended and recently watered.
The Crown relied on s 66 to prove the third essential element, possession of the rifle/ammunition. Section 66 is a deeming provision. It deems an occupier of premises to be in possession of any of the items referred to in the section found on the premises, including any firearm or explosive, unless that presumption is rebutted by the occupier. For s 66 to apply to prove possession of those items by the accused, the Crown first had to prove in relation to Mr Heta/Ms Hepi, that he/she was in occupation of the Te Kuiti address. If that fact was proved to the required standard then a presumption that he/she was in possession of the rifle/ammunition was raised under s 66. This presumption could be rebutted by Mr Heta/Ms Hepi proving, on the balance of probabilities, that the firearm/ammunition was not his/her property and was in the possession of some other person.

Held
The District Court misdirected the jury on the meaning of possession which resulted in potentially an unsafe verdict; with regard to firearms and explosive. Convictions quashed.

Note: this case serves to show how s66 operates as a ‘deeming’ provision; whereby an alleged offender can be ‘deemed’ to be in possession of arms/ammunition if proven that the alleged offender was in occupation of the relevant property. A presumption of such possession can be rebutted by the defence proving, on the balance of probabilities, that the arms/ammunition was in the possession of someone else, NOT the alleged offender(s)

39

What is a Coroner’s role in relation to a death?

A coroner’s role in relation to a death is to:
• receive a report of the death from the NZ Police
• decide whether to direct a post mortem and, if one is directed, whether to authorise certain people (other than the pathologist) to attend
• authorise the release of the body
• decide whether to open an inquiry, and if one is to be conducted, whether an inquest should be held (s4(1)).

40

What is the purpose of a coroner’s inquiry?

Its purpose is to:
• establish:
− that a person has died
− the person’s identity
− when and where the person died
− the causes of the death
− the circumstances of the death.
• make specified recommendations or comments under the Act
• determine whether the public interest would be served by the death being investigated by other investigating authorities (s4(2)).

41

What deaths must be reported to the Coroner?

These deaths must be reported to Police and in turn by Police to a coroner, if they occur in New Zealand or on specified aircraft or ships:
• a death that appears to have been without known cause, or suicide, or unnatural or violent
• a death for which no doctor has given a doctor’s certificate
• a death that occurred during medical, surgical or dental treatment
• any death while the woman concerned was giving birth, or that appears to have been a result of that woman being pregnant or giving birth
• a death in official custody or care (s13).

42

What is a citizens duty upon finding a deceased person in New Zealand?

A person who finds a body in New Zealand must report that finding to Police as soon as practicable unless they believe the death:
• is already known to NZ Police, or
• will be reported to Police

43

What are Polices duty in reporting of deaths to a duty coroner?

A Police officer, who finds a body in New Zealand or receives a report of a death under section 14, must report that death immediately to the duty coroner (s15).

44

How do Police contact the Coroner?

Police report a death to a duty coroner via a centralised office, known as the National Initial Investigation Office (NIIO). NIIO operates on a 24 hour, 7 days a week basis.
All reports of a death to a duty coroner must be made on (an 0800 number)….
All electronic business documents/ correspondence should be directed to the email address NIIO@justice.govt.nz. This is the generic NIIO office email address and is monitored by NIIO staff.

Initial reporting of a death to a duty coroner must be done immediately after police attend the scene and confirm that a death requiring reporting has occurred. Do this through the National Initial Investigation Office (NIIO) call centre. Greater detail can be given to the duty coroner later as it emerges in a Report for coroner (POL 47 or 47A). See advice below on completing reports for coroners.
A duty coroner may wish to visit the scene if they think it would provide an advantage in later determinations.

45

What investigations into a Sudden Death incident do Police make?

If a death has been reported to a coroner by Police, the Commissioner of Police must cause all investigations to be made:
• necessary to help to achieve the purpose of the Act in relation to the death, or
• as directed by the designated coroner (s17).

46

What are some things that may indicate a criminal act in a Sudden Death?

• a death with no apparent cause
• poisoning, but no known motive for suicide
• a body in a burned building
• signs of injury inconsistent with an accident
• an apparent suicide in an unusual position.

47

How do you arrange the removal of a body at a Sudden Death incident with Funeral Directors?

To arrange removal of a body by a funeral director:
• contact the Coronial Services’ National Initial Investigation Office (NIIO), and
• advise:
− the location of the body
− any other relevant information including a phone number of an officer at the scene as point of contact for the funeral director and/or NIIO.
Note: A doctor should pronounce that life is extinct before the body is moved.
If immediate family members are present, tell them you are taking the deceased to a place of safety until the coroner decides whether a post-mortem is required.
Also tell the immediate family members or people arranging the burial that they are not bound to retain the services of the funeral director engaged for the purpose of removal.
If the body is unidentified, take care when moving it that no possible evidence of identity is lost.

48

What do you do if there are no suspicious circumstances about a death?

If the person has died and there are no suspicious circumstances, the immediate family can make arrangements for the body to be removed from the place of death to their preferred funeral home provided:
• the deceased’s doctor is located and a certificate as to cause of death is issued, and
• it is not a coroner’s matter.
If the deceased’s doctor cannot be located or contacted, do not leave the body with the immediate family on the expectation that the doctor, when located, will issue a certificate as to the cause of death. Consult the coroner immediately as to the appropriate course of action.

49

What should be done if somebody wishes to view, touch or remain with or near a body in coroner’s custody?

one or more of the following may view, touch or remain with or near the body…
• members of the immediate family of the person who is dead
• representatives of that immediate family
• people chosen by that immediate family and who are, or are performing functions similar to ministers of religion or other people providing religious or spiritual advice, benefit or comfort (s25).

only if ....
• authorised to do so by a coroner, and
• in accordance with any conditions imposed by that coroner.

50

What is the proper etiquette when speaking to a Coroner?

A coroner is a judicial official at the same level as a District Court Judge. When addressing a coroner use "Sir" or "Ma’am" as appropriate

51

What is Polices responsibility to inform immediate family of death?

If a death is subject to the Coroners Act 2006 and must be reported, Police assist the coroner by informing immediate family as soon as possible of that death.
When reporting to the coroner is not required, Police must inform the deceased’s immediate family as soon as the deceased's identity is confirmed.

52

Whose duty is it to report post-mortem inquiry and inquests?

The coroner to whom a death has been reported must give notice of significant matters to representatives and members of the dead person’s immediate family and other people or organisations the coroner considers have an interest in the death. Police at the scene may be called on to assist the coroner give notice to the immediate family(s23).

53

What is Section 4, Victims Rights Act 2002?

Interpretation

immediate family, in relation to a victim,—
(a) means a member of the victim’s family, whanau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and
(b) to avoid doubt, includes a person who is—
(i) the victim’s spouse, civil union partner, or de facto partner; or
(ii) the victim’s child or step-child; or
(iii) the victim’s brother or sister or step-brother or step-sister; or
(iv) a parent or step-parent of the victim; or
(v) a grandparent of the victim.

incapable, in relation to a person,—
(a) means that the person—
(i) lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(ii) has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of matters of that kind; and
(b) includes the person being in a state of continuing unconsciousness

victim —
(a) means—
(i) a person against whom an offence is committed by another person; and
(ii) a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(iii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iv) a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and

(b) for the purposes only of sections 7 and 8, includes—
(i) a person who, through, or by means of, an offence committed by another person, suffers any form of emotional harm; and
(ii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and

(c) despite paragraphs (a) and (b), if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to,—
(i) that offence; or
(ii) an offence relating to the same incident or series of incidents as that crime or offence

54

What is Section 7, Victims Rights Act 2002?

Treatment

Any person who deals with a victim (for example, a judicial officer, lawyer, member of court staff, Police employee, or other official) should—
(a) treat the victim with courtesy and compassion; and
(b) respect the victim’s dignity and privacy.

55

What is Section 8, Victims Rights Act 2002?

Access to services
A victim or member of a victim’s family who has welfare, health, counselling, medical, or legal needs arising from the offence should have access to services that are responsive to those needs.

Comment
Section 8 contains a statement of principle with respect to access to services that may be required by a victim, or a member of the victim’s family, arising from the commission of the offence. Although it creates no legally enforceable rights, it does signal the obligation that Police have to provide support to victims. This is usually done by contacting Victim Support, Women’s Refuge or other area-specific agencies. Note: where an arrest occurs the Court Victim Advisor will offer further support to the victim, in terms of information about how the court works, and progress of their case.
It is therefore vital that in every first appearance prosecution file a CVS1 (Court Victims Services Victim Advisor referral form) is emailed to the local court generic VA email address.

56

What is Section 11, Victims Rights Act 2002?

Information about programmes, remedies, and services

(1) A victim must, as soon as practicable after the victim comes into contact with an agency, be given information by the personnel of the agency about programmes, remedies, or services available to the victim through the agency.

(2) In this section, agency means—
(a) the Accident Compensation Corporation:
(b) a DHB (as defined in section 6(1) of the New Zealand Public Health and Disability Act 2000):
(c) the Department of Corrections:
(d) the Ministry of Justice
(e) The Ministry of Social Development:
(f) the New Zealand Police.

“Services includes participation in restorative justice processes”

(3) Nothing in this section prevents information of a kind that, under this section, must be given to a victim of an offence, from also being given to any other person (for example, to a person who was disadvantaged by the offence).

Comment
Changes in the Government agency names as detailed in section 11(2) reflect the re-structuring of Government Department agencies for responsibilities.
Each of the public agencies listed in subs (2) is under an obligation to provide a victim with information about the support it is able to provide as soon as practicable after that agency comes into contact with the victim. The information may also be provided to persons other than victims who may have been affected by the offence.
The obligation relates only to information about the remedies or services provided by that agency. There is no obligation upon the Police, for example, to provide victims with information about ACC entitlements.
Police provide information to victims about Victim Support through CAFs and standard letters, usually generated by Crime Reporting Line and/or File Management Centres. Attending officers should refer a victim to Victim Support where it is a serious incident or the victim is significantly affected by the incident, or as required by local agreements between Victim Support and the police.

57

What is Section 12, Victims Rights Act 2002?

Information about proceedings

(1) A victim must, as soon as practicable, be given information by investigating authorities or, as the case requires, by members of court staff, or the prosecutor, about the following matters:
(a) the progress of the investigation of the offence:
(b) the charges laid or reasons for not laying charges, and all changes to the charges laid:
(c) the victim’s role as a witness in the prosecution of the offence:
(ca) the possibility (if any) of the court making an order prohibiting the publication of identifying information about the victim, and the steps that the victim may take in relation to the making of that order
(d) the date and place of each event listed in subsection
(2):
(e) the outcome of the prosecution of the offence (and of any proceedings on appeal), for example –
(i) any plea of guilty or conviction entered, and sentence imposed or substituted; or
(ii) any finding that an accused in unfit to stand trial; or
(iii) any finding that the charge was not proved; or
(iv) any acquittal or deemed acquittal; or
(v) any grant of free pardon”
(f) any hearing of a question of conviction or sentence referred by the Governor-General under section 406(a) of the Crimes Act 1961, and any hearing of an appeal against the determination of that question.

(2) The events referred to in subsection (1)(d) are –
(a) the first appearance in court, in connection with the offence, of the person accused of the offence
(b) any preliminary hearing relating to the offence
(c) any trial relating to the offence
(d) any hearings set down for sentencing for the offence
(e) any hearings of appeals (if any) against conviction of the offence, or against the sentence imposed, or to be imposed, for the offence, or both.

(3) Nothing in this section prevents information of a kind that, under this section, must be given to a victim of an offence, from also being given to any other person (for example, to a person who was disadvantaged by the offence).

Comment
NOTE: Under the intended legislation victim notifications now include Prohibition or Suppression Orders, as well as court outcomes, appeals or intended appeals etc.
Police are still legally obliged to inform promptly – and keep informed – the victim as to the progress of the investigation, the reasons for the decision made with respect to a prosecution and the progress of the proceedings. This obligation will most often be discharged by the OC case.
Although Court Victim Advisors and Prosecutions staff often notify the victim of such matters, it is important to remember that only the police have a statutory responsibility to meet these obligations.
NIA Victim Contact node is to be used by the OC case throughout the investigation, to record contact with the victim and the action taken to provide the victim with information updates. It is required to be completed for all files, not just arrest files.

58

What is Section 17AA, Victims Rights Act 2002?

Victim impact statement defined
(1) In sections 17AB to 27, victim impact statement—
(a) means information that –
(i) is ascertained under section 17 from
(A) a victim, or
(B) a person who, under section 20 is treated as a victim; and
(ii) is to be, or has been submitted –
(A) under section 21AA on request, to a judicial officer for the purpose of giving the accused a sentence indication
(B) under section 21 to a judicial officer sentencing the offender, and
(b) includes any recording, summary, transcript, or other copy of that information

(2) In this section, information may include any photographs, drawings, or other visual representations provided by the victim.

59

What is Section 17AB, Victims Rights Act 2002?

Purpose of victim impact statements

The purpose of a victim impact statement is to—
(a) enable the victim to provide information to the court about the effects of offending; and
(b) assist the court in understanding the victim’s views about the offending; and
(c) inform the offender about the impact of offending, from the victim’s perspective.

60

What is Section 17, Victims Rights Act 2002?

Information to be ascertained from victim

(1) The prosecutor must make all reasonable efforts to ensure that information about the matters specified in subsection (2) is ascertained from the victim.

(2) The matters referred to in subsection (1) are:
(a) any physical injury or emotional harm suffered by the victim through, or by means of, the offence; and
(b) any loss of, or damage to, property suffered by the victim through, or by means of, the offence; and
(c) any other effects of the offence on the victim; and
(d) any other matter consistent with the purpose of victim impact statements set out in section 17AB.

(3) If a person is a victim in terms of paragraph (a)(iii) of the definition of ‘victim’ in section 4, then a reference in subsection (2)(a) to (c) of this section to the victim includes a reference to the child or young person concerned.

(4) If a person is a victim in terms of paragraph (a)(iv) of the definition of victim in section 4, because a member of that person’s immediate family is incapable, then a reference in subsection (2)(a) to (c) of this section to the victim includes a reference to the incapable person concerned.

Comment
Section 17 ensures that a child or young person who is present, or involved as a victim or a witness, or as the child of a victim, should be included in the victim impact statement process the same way as the primary victim.
A victim impact statement provides the sentencing Judge with information about the harm and any loss suffered by the victim by means of the offence and any other effects on the victim. It serves four purposes:
(a) It assists the Court generally by providing information;
(b) Information about the effect of a crime on the victim helps to balance the information in any pre-sentence report on the offender;
(c) It provides the victim with input into the administration of justice. This assists the Court in seeing things from the victim’s perspective and may aid in the healing process; and
(d) The offender is forced to recognise what he or she has done. This may advance the rehabilitative process, and prevent further offending.
The prosecutor has a number of duties under the Act with respect to the victim impact statement. There is an obligation to ensure that information relevant to the content or preparation of the victim impact statement is gathered; a duty exists to ensure the victim is informed about the preparation of the statement and its place in the proceedings; there is a responsibility in respect of statements from persons who were disadvantaged by the offence; and obligations exist relating to the presentation of the statement to the Court.
The victim impact statement needs to be that of the victim, and written in ‘victim speak’. Do not use police jargon.
It has also become evident that some staff, due to work pressures, may be writing the victim impact statement without input of the victim and then signing it on their behalf without confirming the content with the victim. This practice must stop.
While it is good practice for the O/C file to ensure that a victim impact statement is prepared for the first Court appearance, this is not always possible. However, it is mandatory that the O/C file ensure a victim impact statement is available for the second appearance.
Any updates to the victim impact statement should be added to the bottom of the original. This will allow the victim impact statement to be given in its entirety to the Judge rather than the more recent version. Over time the content tends to become minimised and the last updated version may look very different to the original. Police want the Judge to see the full extent of the effect of the crime on the victim. Statements should not be more than 28 days old at the time the offender is sentenced for the offence.

Victim impact statements can now include photographs and diagrams as part of their content. A victim impact statement will also be able to be presented as an electronic recording, or in written form and not just by having it read to the court.

61

What is Section 18, Victims Rights Act 2002?

Procedure before ascertaining information from victim

The prosecutor must make all reasonable efforts to ensure, before information is ascertained from a victim under section 17,—
(a) that the victim is informed—
(i) that the information is being ascertained for a victim impact statement; and
(ii) that the victim must ensure that any information that he or she gives is true; and
(iii) that the information must be recorded, and may be verified in the way stated in section 19(3) or (4); and
(b) that the victim is informed about who may properly see or make or keep copies of the victim impact statement , and about the orders, directions, and conditions, relating to disclosure and distribution of it, that may be made under sections 24(3)(b), 25, and 27; and
(c) that any views the victim has on whether the prosecutor should apply for orders, directions, or conditions of that kind, are ascertained.

Comment
Before the victim impact statement is prepared, the OC case has a responsibility to ensure the victim is informed of the matters set out in paragraphs (a) and (b). That responsibility may be discharged by a Victim Support volunteer, or a victim advocate.
Paragraph (c) requires Police to ascertain the victim’s views as to whether the prosecutor should apply to the Court for orders, directions or conditions in respect of the offender. The victim’s views on such matters as a reparation order for example, will be important. In some cases, the victim’s view as to an order disqualifying the offender from driving may be relevant.

62

What is Section 29, Victims Rights Act 2002?

Specified offence defined

In this Act a specified offence is—
(a) an offence of a sexual nature, specified in—
(i) Part 7 of the Crimes Act 1961, excluding the offences in sections 143 and 144
(ii) sections 216(H) to 216(J) of the Crimes Act 1961; or
(b) an offence of serious assault that does not come within paragraph (a); or
(c) an offence that resulted in serious injury to a person, in the death of a person, or in a person becoming incapable; or
(d) an offence of another kind, and that has led to the victim having ongoing fears on reasonable grounds—
(i) for his or her physical safety or security; or
(ii) for the physical safety or security of 1 or more members of his or her immediate family.

Comment
This section also prescribes the victims who may go on the “Victim Notification Register”.
Section 29(a) refers to an offence of a sexual nature as listed in Part 7 of the Crimes Act 1961, rather than sexual violation, as is current. Part 7 covers most major sexual offences (sexual violation, incest, indecent assault, meeting a young person following sexual grooming, etc).
In relation to section 29(b) or (c) relating to serious assaults or causing serious injury or death, the focus is still on the characteristics and seriousness of the offending in the particular case, rather than the offence category with which the offender is charged. For example, presentation of a loaded firearm, which has been held to be a ‘serious assault’ for the purposes of paragraph (a) in Hetherington v Police HC Auckland CRI-2011-404-46, 30 March 2011.
Paragraph (d) broadens the range of eligible victims to cover those who have not suffered physical harm or loss, but who have good reason to fear the offender’s release – for example, victims of offences such as threatening to kill or arson.
These provisions now apply to the proceedings in a Youth Court and also cover the conditions of an ‘Order’, or bail conditions that apply to the safety of the victim.
As soon as practicable after the victim comes into contact with Police and an arrest occurs, Police must determine whether or not the crime perpetrated against the victim falls within the criteria outlined in section 29. If it does
then the victim must be told of their right to register on the Victims Notification Register.
The POL 1065 form (Victim request to be notified of bail, release, escape of defendant), located in Police Forms under ‘Victims’, is to be handed to the victim by the OC case. It is then up to the victim as to whether or not they wish to register by completing, signing and sending away the form to the Vetting and Validation section at PNHQ for consideration and registration. It is important that the copy is given to the victim to keep as they may later change their mind and want to register.
The fact that the victim was notified of their rights to register and were provided with a POL 1065 should be recorded in the NIA Victim Contact node.
Watch house counter staff need to be aware of the POL 1065 is and its purpose to prevent a situation where a victim is sent away without a copy of the POL 1065 after making enquiries about the Victim Notification Service.
Once registered the victim can expect to be notified about events relating to the offender’s detention, including:
• Temporary release or escape from prison.
• Absconding from home detention.
• Impending release from prison.
• Convictions for breaching conditions of release.
• Recalls to prison.
• Pending parole hearings, and how to make submissions to the Parole Board.
• Notification of the Parole Board’s decision.
• Deportation Hearings.
• Claim opportunities under the Prisoner and Victims Claims Act 2005.
Staff can check to see if the registration has been successful by simply checking on the Bully Board under Notifications - Victim Notification Register Query and entering the offender’s or victim’s details in the lower query section

63

What is Section 29A, Victims Rights Act 2002?

Commissioner of Police to determine whether an offence affecting the victim is a specified offence

As soon as practicable after a victim comes into contact with the New Zealand Police, the Commissioner of Police must determine whether the offence that affected the victim is a specified offence.

64

What is Section 30, Victims Rights Act 2002?

Victim’s views about release on bail of accused or offender

(1) This section applies if—
(a) the victim is the victim of a specified offence; and
(b) The persons accused of the offence, or, as the case requires, the offender applies to a court for release on bail

(2) If this section applies, the prosecutor must—
(a) make all reasonable efforts to ascertain any views the victim has about the accused, or, as the case requires, the offender, being released on bail; and
(b) inform the court of any views ascertained under paragraph (a).

Comment
If the victim has experienced any of the specified offences outlined in section 29, and the person accused of the crime applies to the court to be released on bail, the Prosecutor must make all reasonable efforts to put before the Court the views of the victim (or the immediate family if the victim is deceased or incapable) as to the release of the offender.
In terms of section 8(3) Bail Act 2000 and section 30 of the Victims’ Rights Act 2002, the Court is required to take those views into account where section 29 applies. In some cases, the views of the victim as to his or her safety will be given considerable weight. For example, where the offender is charged with an offence against section 49(1)(a) or section 49(1)(b) Domestic Violence Act 1995, the need to protect the victim of the alleged offence is the paramount consideration for the Court. Similarly, under section 12 Bail Act 2000, where a qualifying offender is charged with an offence punishable by 3 or more years’ imprisonment, the need to protect the safety of the victim of the alleged offending is the primary consideration relevant to the grant of bail.
Even where section 29 does not apply, the views of the victim as to the release of the offender on bail may sometimes be taken into account as a “special matter” under section 8(2)(h) Bail Act 2000: H v Police 12/7/02, Paterson J, HC Auckland R85/02; Sharpe v Police 21/7/06, Venning J, HC Auckland CRI-2006-404-252.
The views of the victim will be relevant as to bail conditions as well as to the offender’s release on bail, but a victim has no standing to seek a variation of bail conditions under section 34 Bail Act 2000: Hall v Police 12/8/08, Stevens J, HC Auckland CRI-2008-404-220.

The victim’s views are to be either written in the Opposition to Bail or in the covering 258 to the Prosecutor. The victim or police may not want to oppose bail but may just want clear conditions etc.
Police must promptly notify the victim if the accused person is released on bail and advised of any bail conditions that concerns the safety of or non-association with the victim or the victim’s immediate family (s 34).

65

What is Section 31, Victims Rights Act 2002?

Police to give victims of specified offences information about right to ask for notice and to appoint representative
(1) This section applies in respect of a victim of a specified offence.

(2) The Commissioner of Police must, as soon as practicable,—
(a) inform the victim of the matters required by subsections (3) to (5); and
(b) inform a support person of the victim of the matters required by subsection (6).

(3) The Commissioner of Police must inform the victim that the victim has the right to ask to be given any notice under sections 34 to 38 and that, if he or she asks to be given such notices, then the victim must at the same time give to the New Zealand Police his or her address in accordance with section 32B(1)(c)(i).

(4) The Commissioner of Police must inform the victim that if the victim asks to be given any notice under sections 34 to 38 and gives the New Zealand Police his or her address, then the victim may also be given notice under the following provisions:
(a) section 39:
(b) section 20 of the Prisoners’ and Victims’ Claims Act 2005.

(5) The Commissioner of Police must inform the victim that—
(a) the victim may appoint a representative under section 40 to request and receive on his or her behalf any notice given under sections 34 to 39; and
(b) if the victim appoints a representative, the victim or his or her representative must give to the New Zealand Police the name and address of the representative in accordance with section 32B(1)(c)(ii).

(6) If the Commissioner of Police knows, or ought reasonably to know, that the victim is not, or may not be, capable alone of doing any of the following, the Commissioner must inform a support person of the victim that a representative of the victim may be appointed under section 42:
(a) asking for, receiving, or understanding a notice under any of sections 34 to 39; and
(b) appointing a representative under section 40.

(7) Subsection (6) does not limit subsections (3) to (5).

Comment
The provisions of sections 34 – 39 relate to the victims of specified offences and those who are on the Victim Notification Register.
If any such victim appoints a representative and informs the relevant agency of the representative’s details, the notice that the agency is required to give to the victim by ss 34 – 39 is to be given instead to that representative. The representative has obligations to receive and pass on the notifications to the victim (s 41(c)).
These provisions relate to issues of bail, changes in home detention, release or escape, parole, appeal, or the death of the offender.
They also apply to youths in certain cases as set out in section 35(2)(c) sentenced to imprisonment or detention but does not include being in Police or Child, Youth & Family (CYFS) custody.

66

What is Section 40, Victims Rights Act 2002?

Representatives for notice

A victim to whom this section applies may, for any reason he or she thinks fit, appoint any other person to receive on the victim’s behalf, and ensure that the victim is given and understands, any notice to be given to the victim under any of sections 34 to 39 (in sections 41 to 45 called the information).

Comment
The victims to whom this section applies are those on the Victim Notification Register. If any such victim appoints a representative and informs the relevant agency of the representative’s details, the notice that the agency is required to give to the victim by ss 34-39 is to be given instead to that representative. The representative has obligations to receive and pass on the notifications to the victim (s 41(c)).
The representative will act as the go-between on behalf of the victim, and will receive all notifications and make all comment in regards to the victim’s views and wishes, including bail. Therefore, the level of service to the victim does not change in any way. Information is passed via the representative.

67

What is Section 49, Victims Rights Act 2002?

Complaints

(1) This section applies if a victim or person considers—
(a) that he or she is entitled to be accorded a right under any of sections 11 to 21, 28 to 48, and 51 (in this section and section 50 called the specified provisions); and
(b) that he or she has not been accorded the right.

(2) The victim or person may complain to—
(a) the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right:
(b) an Ombudsman, in accordance with the Ombudsmen Act 1975, if the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right, may be the subject of a complaint under that Act:
(c) the Independent Police Conduct Authority, in accordance with the Independent Police Conduct Authority Act 1988, if the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right, is a member of the police:
(d) the Privacy Commissioner, in accordance with the Privacy Act 1993, if the matter involves, or may involve, an action that is, or appears to be, an interference with the privacy of the victim or person.

(3) Any person who receives a complaint under subsection (2)(a) must deal with the complaint promptly and fairly.

Comment
The provisions of the Victims’ Rights Act 2002 are to improve the treatment and rights of victim of offences. This legislation obliges police to treat victims with courtesy and respect and states that victims should have access to services that are responsive to their needs.
Police must ensure their obligations under the Victims’ Rights Act 2002 are strictly complied with, both as a matter of good practice, and to avoid complaints to the Independent Police Conduct Authority pursuant to section 49.
A launch of the ‘Victims information brochures and pamphlets’ by the Ministry of Justice provided information to victims about their rights. The information alerts aggrieved victims about the process to make complaints where they believe Police and other key agencies have failed to afford them their rights. As a result, victims are more fully informed about their rights and the process of making complaints to Police or IPCA.
Redress is set out in sections 49 & 50 of the Victims’ Rights Act. As stated in section 50(2), there is no financial liability as a result of a breach only of the victim’s rights under the Act. (Although if the breach occurs in combination with other rights (such as that of privacy) there may be some financial liability – see s50(3)). This does not mean that Police would not be subject to severe criticism by the IPCA or not be obliged to make an ex gratia payment to a disenfranchised victim.
NOTE: There is a higher level of accountability and scrutiny because of the amendments to the Act. In particular; all complaints relating to Police failure to meet their obligations under the Act will be reported to Parliament as part of the Police yearly reporting process, which will have a flow-on effect on our responsibilities operationally. Any such adverse publicity will also negatively impact on public perception of our commitment to being ‘victim focused’ as part of the Prevention First strategy.
It is important that supervisors ensure that CSV1 documents have been prepared and attached to the file in every case, and a copy emailed to the local Court Victim Advisor before the first appearance hearing.
This is especially important for any specified offence involving custody or bail hearings or release, where the victim needs to be contacted either about the process or advising them of a change of custody status.
A victim’s ability to provide information or have a view regarding the court process, including applications for bail, being on the register, changes in status for imprisonment, detention, parole, release or death are clearly dependent on the Police fulfilling their obligations under these sections.
Ensuring that the officer in charge of any applicable case emails the CSV1 to the court will allow victims to be updated when required, assist them in feeling safe and prevent negative public scrutiny and complaints to the Independent Police Complaints Authority.

68

What is Section 51, Victims Rights Act 2002?

Return of property held as evidence

Law enforcement agencies that hold property of a person (other than an offender) for evidentiary purposes must, to the extent that it is possible to do so, return it to the person as soon as practicable after they no longer need to hold it for those purposes