Module 3 - Drugs, Alcohol, and Mental Health (Feb 2015)

Question 1

What would you do upon entry to a Clandestine Lab?

Answer 1

Sorry, restricted information, refer to Police Intranet

Question 2

What is Section 20, Search and Surveillance Act 2012?

Answer 2

Warrantless search of places and vehicles in relation to some Misuse of Drugs Act 1975 offences

A constable may enter and search a place or vehicle without a warrant if he or she has reasonable grounds—
(a) to believe that it is not practicable to obtain a warrant and that in or on the place or vehicle there is—
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of
the Misuse of Drugs Act 1975; and
(b) to suspect that in or on the place or vehicle an offence against the Misuse of Drugs Act 1975 has been committed, or is being committed, or is about to be committed, in respect of that controlled drug or precursor substance; and
(c) to believe that, if the entry and search is not carried out immediately, evidential material relating to the suspected offence will be destroyed, concealed, altered, or damaged.

Note:
The power of search provided by this section repeats, in modified form, the power previously found in s 18(2) of the Misuse of Drugs Act 1975. Before entering and searching a place or vehicle, the constable must have reasonable grounds:
(a) to believe a specified controlled drug or precursor substance is in or on the place or vehicle;
(b) to suspect that in respect of that controlled drug or precursor substance a Misuse of Drugs Act offence has been, is being, or is about to be committed in or on that place or vehicle;
(c) to believe it is not practicable to obtain a search warrant under s 6;
(d) to believe that if the entry and search is not made immediately, evidential material relating to the suspected offence will be compromised.

The grounds relevant to (a) and (b) above need to be assessed separately; there may be reasonable grounds to suspect the commission of an offence in terms of (b), but insufficient to believe the controlled drug is in or on the place or vehicle concerned: see, for example, R v Merrett CA280/05, 3 March 2006. The power now extends to offences that are reasonably suspected of being committed (present) or about to be committed (future). The latter may apply to the anticipated manufacturing of a controlled drug (such as methamphetamine or cannabis oil), though it is likely that in most cases other drug offences, such as possession of utensils, will have already been committed.

Question 3

What is Section 21, Search and Surveillance Act 2012?

Answer 3

Warrantless searches of people found in or on places or vehicles

A constable conducting a search of a place or vehicle under section 20 may, without a warrant, search any person found in or on the place or vehicle.

Note:
The search power provided by this section repeats the power previously found in s 18(2) of the Misuse of Drugs Act 1975. It permits the search of a person when the police are searching a place or vehicle without warrant in respect of a Misuse of Drugs Act offence under s 20 and the person to be searched is in or on the place or vehicle. It is the equivalent of the power in s 19 in relation to searches with warrant.
No threshold of belief or suspicion in respect of the person to be searched is required; their presence in or on the place or vehicle that is being searched is all that is required. A person arriving at the place after the search has commenced will be “found” there. The power to search necessarily implies the power to detain for the purpose of the search.
A constable exercising the power provided by this section must comply with the duties and obligations imposed by part 4 of the Act: see s 89(1)(a), and in particular, the identification requirements and other provisions of s 125. The reporting requirements of ss 169 and 170 apply.

Question 4

What is Section 22, Search and Surveillance Act 2012?

Answer 4

Warrantless power to search for controlled drugs and precursor substances if offence suspected against Misuse of Drugs Act 1975

(1) A constable may, in the circumstances set out in subsection (2), search a person without a warrant.

(2) The circumstances are that the constable has reasonable grounds—
(a) to believe that the person is in possession of —
(i) a controlled drug specified or described in Schedule 1 of the Misuse of Drugs Act 1975; or
(ii) a controlled drug specified or described in Part 1 of Schedule 2 of the Misuse of Drugs Act 1975; or
(iii) a controlled drug specified or described in Part 1 of Schedule 3 of the Misuse of Drugs Act 1975; or
(iv) a precursor substance specified or described in Part 3 of Schedule 4 of the Misuse of Drugs Act 1975; and
(b) to suspect that an offence against the Misuse of Drugs Act 1975 has been committed, is being committed, or is about to be committed, in respect of that controlled drug or precursor substance.

(3) This section does not—
(a) limit section 20 or 21; or
(b) authorise a constable to enter or search a place or vehicle except in accordance with those sections.

Note:
The power of search provided by this section repeats the power formerly contained in s 18(3) of the Misuse of Drugs Act 1975 with two changes. First, the grounds in subs (2)(b) with respect to the commission of an offence are now “reasonable grounds to suspect,” rather than “reasonable grounds to believe” required for a search under s 18(3). Secondly, the reference in s 18(3) authorising the constable to detain the person for the purpose of the search is not repeated. The authority to detain for the purpose of search is implicit in the power;
Subsection (2) sets out the circumstances that must exist before the power to search a person may be exercised. The constable must have reasonable grounds to believe the person is in possession of one of the specified controlled drugs or precursor substances specified in subs (2)(a). A reasonable belief that the person is in possession of “drugs” will not suffice; it must be identified as one of the specified substances or at least as a substance falling within the statutory prescription. See Hill v Attorney-General (1990) 6 CRNZ 219 (CA)
The constable must also have reasonable grounds to suspect an offence has been, is being or is about to be committed in respect of that substance.
A search authorised by this section may be unreasonable under s 21 of the New Zealand Bill of Rights Act 1990 if it is carried out in an unreasonable manner. That will be considered in the context of subject-matter, time, place and circumstances: R v Pratt [1994] 3 NZLR 21, (1994) 11 CRNZ 392, 1 HRNZ 323 (CA). In Pratt, the strip search of a person suspected of carrying controlled drugs in a public place when other alternatives were readily available was found to be unreasonable.

Question 5

What is Section 124, Search and Surveillance Act 2012?

Answer 5

Internal searches generally prohibited

(1) Unless authorised by another enactment, an enforcement officer must not conduct an internal search of any part of the body of any person, except for, with the person’s consent, searching the person’s mouth.
(2) A constable must not require any other person to conduct an internal search of any part of the body of any person, except as provided in section 23 (which relates to internal searches in some circumstances of people under arrest for offences against the Misuse of Drugs Act 1975).

Note:
Apart from the search of a person’s mouth with his or her consent, an internal search of any bodily orifice is prohibited, with or without consent, unless specifically authorised by statute. The only provisions currently providing such authorisation can be found in s 23 of this Act and ss 13A-13M of the Misuse of Drugs Amendment Act 1978 (“MDAA”).
Sections 13A-13M of the MDAA allow for the detention, and in strictly controlled circumstances for an internal search, of a person where there are reasonable grounds to believe that the person has secreted a Class A or B controlled drug within his or her body.

Question 6

What is the case Hill v General-Attorney about?

Answer 6

Search, see now s 20 Search and Surveillance Act 2012

Facts
A taxi owned by Hill was stopped by traffic officers shortly after midnight. The police were called and searched the taxi without warrant under the Misuse of Drugs Act. Hill later began civil proceedings on a variety of grounds, but was unsuccessful. In the course of his appeal to the Court of Appeal the lawfulness of the search for drugs was considered by the Court.

Held
At the relevant time the relevant part of s 18(2) of the Misuse of Drugs Act provided as follows:
“(2) where any member of the police has reasonable ground for believing that there is in or on any … vehicle … any controlled drug specified or described in the First Schedule or in Part I of the Second Schedule or in Part I of the Third Schedule to the Act and that an offence against this Act has been or is suspected of having been committed in respect of that drug, he … may enter and search the … vehicle and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.” (See now s 20 Search and Surveillance Act 2012.)

Just as it has provided safeguards for the proper use and monitoring of a search warrant under s 18(2), so too has the legislation carefully limited the subject matter.
It is not every controlled drug to which the subsection may apply. It is only those falling within the First Schedule, Part I of the Second Schedule and Part I of the Third Schedule. To put it more directly, parliament has deliberately excluded any application of s 18(2) to the Class B drugs in Parts II and III of the Second Schedule
and of Class C drugs in Parts II to VI of the Third Schedule.
The right to search without warrant is triggered only when there is an objective belief that one of the drugs expressly included in the First Schedule or in Part I of the other Schedules is present.
In reply to a question in cross-examination, the sergeant who carried out the search said that he did not know what drug he was looking for and this it did not matter as he had good cause to suspect drugs were in the car.
“Reasonable grounds for believing” for the purposes of s 18(2) is not limited to personal observations of the officer concerned. He was also entitled to act on credible information put before him by others. In weighing the probability of the information supplied to him, the sergeant was entitled to have regard to the time, place and circumstances of the transaction which had been reported to him. In the light of the information there was an apparent disposal of a drug in the form of a white substance, presumably powder, in plastic bags traded on the street in exchange for money or other value.
While there were reasonable grounds for believing the transaction involved a controlled drug, the sergeant did not know what the drug was and there was nothing
in the evidence as to the transaction itself to justify the inference that he had reasonable cause to believe that it was a controlled drug to which s 18(2) applied.
What the sergeant was told could afford reasonable grounds for belief that an appropriate drug was likely to be in the vehicle. The difficulty arose in his cross-examination when it became clear he had not directed his mind beyond the possibility, that the transaction involved prohibited drugs of some kind. The Act requires that decision to search be made on more specific grounds of belief than that.
It is not necessary for the police officer to repeat the exact words of the section in his evidence about his belief; the Court can draw appropriate inferences from the
circumstances about his state of mind. But in this case the sergeant had precluded this by his answers in cross-examination.

Comment
The decision emphasises the specific nature of the power to search for drugs without warrant. The power applies only to those well-known drugs in the First Schedule and
the first Parts of the Second and Third Schedules – and, since 2006, to specific precursor substances.
“Reasonable ground for belief” will usually be a two step process:
· First, are there reasonable grounds for believing a controlled drug is in the house, vehicle etc, in respect of which an offence against the Act has been or is being
committed; AND
· Second, are there reasonable grounds for believing the drug involved is one of those specified.
In most cases there should be little difficulty in forming the second belief on reasonable ground. The information prompting the search will often identify the drug involved. It would be helpful, however, for all members to keep abreast of the packaging and distribution methods used locally and the types of controlled drugs which are currently available. The searching officer does not need to know the identity of the drug, just that there are “reasonable grounds for believing” it is involved.
In the Hill case the sergeant’s evidence was that he did not turn his mind to this issue.

Question 7

What is the case C v Police about?

Answer 7

Search: demeanour, appearance and “reasonable grounds to believe”

Background
This was an appeal against conviction in the District Court on two charges of possessing Class A Drugs (methamphetamine and cocaine) contrary to s7(1)(a) of the Misuse of Drugs Act 1975.
The prosecutions arose following the search of a vehicle in down town Auckland in the early hours of a Sunday morning. The issue was whether police had proper grounds for conducting the search under s 18(2) of the Misuse of Drugs Act 1975, that is, did the searchers have reasonable grounds to believe there were drugs in the vehicle. (See now s 20 Search and Surveillance Act 2012.)
The driver of the vehicle was approached by two officers when he happened to park up after being seen driving at 10 to 15 kph in a vehicle with expired registration with
a wide-eyed gaze.
The constable observed, during the kerb side conversation, that the accused was dry swallowing, rubbing his tongue over his lips, and was nervous and anxious. The constable said the signs were consistent with a person who had recently consumed methamphetamine.
The second officer, a sergeant with 28-years experience including two years patrolling the CBD and focusing on drug offending, described a fidgety and nervous person, reluctant to maintain eye contact, with very slim build and grey complexion with eyes wide and glazed. He said there were common signs of someone who had recently used methamphetamine.

The decision
The High Court found that evidence of demeanour and appearance, whilst perhaps warranting strong grounds for suspicion and, seemingly, an actual belief in the consumption by the officers concerned, did not provide police with reasonable grounds for the belief under the Act.
The Court found the problem with accepting the lawfulness of the search in these circumstances was the symptoms were also symptoms that could be exhibited by
persons who have consumed drugs lawfully obtained and that nervousness can be experienced by innocent people being interviewed by the police in public.
The Court contrasted the present case with R v Carroll (21 May 2004, Rodney Hansen J,) where the search was deemed lawful. In that case the suspect, as well as
exhibiting glazed eyes, stopped in his tracks when he sighted police and turned on his heel at quick pace. When spoken to by police, the accused was also trying to
conceal something behind his back.
In holding the evidence inadmissible in the present case, the Court considered that acting on the ground of a suspicion could not be saved as reasonable in the
circumstances and that the balancing Shaheed exercise would not save the evidence given the low level offending (which resulted in small fines being imposed by the
District Court Judge) and the not insignificant breach of the appellant’s rights. The conviction was quashed.

Comment
Although each case will be decided on its facts, evidence of demeanour and appearance alone is unlikely to justify a search under the Search and Surveillance Act provisions [or, indeed, any other police procedure requiring reasonable belief on the part of an officer].

Question 8

What is the case R v T about?

Answer 8

Internal search, see now s 124 Search and Surveillance Act 2012

Facts
Police executed a search warrant at certain premises. After the police had gained entry it appeared to the officers that the appellant, who was inside, had something concealed in her mouth. The appellant was restrained and told to spit the object out.
She refused, and made a further attempt to swallow the item. The appellant was then laid face-first on a bed and again was told to spit out the object. Eventually she spat out a large roll of Gladwrap which was later found to
contain 17 morphine sulphate tablets.

Appeal
The appellant was charged with possession for supply of a Class B controlled drug.
She argued on appeal that the package was obtained by unlawful means amounting to unreasonable search and seizure in breach of her rights under section 21 of the NZ
Bill of Rights Act. The unlawfulness relied upon was contravention of what is now s 124 Search and Surveillance Act 2012.

Decision
The Court of Appeal confirmed the finding in the District Court that there had not been an internal search within the ambit of the section. The prohibition in the section is of a manual or visual examination of the interior of the mouth and does not prohibit the viewing of what can be seen by normal observation of the face, and when the mouth is open for speech. The Court noted that the purpose of the section is to prevent invasion of the body contrary to accepted standards of dignity and privacy and, although the police had restrained the appellant (to prevent her swallowing) their conduct had not amounted to an internal examination.

Comment
This decision is consistent with previous decisions involving observations by police rather than search per se — see R v Dodgson, Ten-One No 116, p 13 — and accords
with common sense. Clearly not every observation attracts the need for statutory authority or a search warrant.
Actions following an observation, however, should not go beyond what is reasonably necessary to carry out any authorised search, and should never put the suspect in any form of physical danger.

Question 9

What is the case R v Roulston [1998] about?

Answer 9

Internal search.

The appellant was strip-searched by police pursuant to the Misuse of Drugs Act 1975. In the course of removing his underpants a small package subsequently found to contain restricted drugs was seen in the crutch of his underpants. The appellant placed the package in his mouth. It appeared to the constable that the appellant was attempting to swallow it. A struggle ensued during which police officers applied force to the appellant’s neck and head area, closing his nostrils and depressing his throat. The appellant opened his mouth to shout out and the package was ejected on to the floor where it was seized by a police officer.
On the balance of probabilities the Court found that the appellant’s motive for placing the package in his mouth was in order to provoke an internal search of his mouth by the police in contravention of what is now s 124 of the Search and Surveillance Act 2012 in the expectation or hope of successfully challenging the admissibility of critical evidence.
The Court found on the balance of probabilities that the primary purpose for the officers’ action was to induce the appellant to eject the package but behind that primary purpose, the officers wished both to prevent him from ingesting the drugs putting his life and health at risk and to secure and preserve the evidence. The appellant argued that the evidence should be inadmissible. He argued that the actions of the police:
· amounted to at least an attempt to conduct an internal search in contravention of the section;
· were an unreasonable search in breach of a 21 of the New Zealand Bill of Rights Act 1990; and
· amounted to cruel and degrading treatment contrary to ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990.

Held
(1) An internal search was not completed as neither of the constables put their fingers or any instrument into the appellant’s mouth. It was unrealistic to suggest that what occurred was an internal search in that the police were attempting to conduct an internal search but, because of the appellant’s efforts to resist them, they were unable to carry it out. Rather, the police attempt to seize the package was interrupted by the appellant placing it in his mouth and the police endeavoured to prevent him swallowing the package. It would be artificial to classify this incident in the course of a lawful search as an “internal search” or an attempt to undertake an internal search.

(2) One of the officers’ concerns was fear for the appellant’s safety should he be permitted to swallow the package. In seeking to prevent him doing so they used no more force than reasonably necessary. In the context, it could not be said that the search or seizure of the drug was unreasonable. In reaching this conclusion regard could be had to s 41 of the Crimes Act 1961, the plain meaning of which was to provide persons with justification in using such force as is reasonably necessary in circumstances where that force is required to prevent a suicide or the commission of any offence likely to cause immediate and serious injury to the person or property of
anyone.

(3) It was far-fetched to argue that the actions of the police amounted to cruel and degrading treatment contrary to ss 9 and 23(5) of the New Zealand Bill of Rights Act 1990.

Observation:
It is implicitly recognised by what is now s 124(1) of the Search and Surveillance Act 2012 that the mouth is not necessarily to be accorded the same degree of sanctity
as other more private parts of the body. Nor should it be overlooked that the mouth may be used in a manner and for a purpose which is not available in respect of other
internal parts of the body. Accordingly, where a person being searched deliberately places a drug in the mouth to avoid it being seized or to provoke the police into the
use of force, there is no persuasive case for preventing the police using reasonable force to take possession of the drug. This course is even more acceptable if the
suspect has, by placing the drug in the mouth, placed their health or life at risk.

Question 10

What is the case Sneller v Police about?

Answer 10

Obstruction

In this case S appealed successfully from conviction for wilfully obstructing a constable acting in the execution of powers under the Misuse of Drugs Act 1975, when he refused to spit something out of his mouth when requested, and a resulting lengthy physical struggle failed to overcome his resistance (though the application of pepper spray resulted in S expelling chewed pieces of some substance like plastic wrap which produced negative results on drug tests).
The HC noted that the power of search of persons in what is now s 124 Search and Surveillance Act 2012 is limited as regards internal searches, which require the person’s consent if an internal search of the mouth is to be undertaken. It held that, given the elements of the section and applying R v Tupara ((1996) 3 HRNZ 77 (CA) forcing a mouth open to permit inspection constitutes an internal search and therefore requires consent, a duty to cooperate by opening the mouth and spitting out, which in effect overrides the protections of the provision, cannot be implied. Passive resistance rather than obstruction was involved here and S had acted with lawful excuse.

Question 11

What is Section 2, Mental Health Act 1992?

Answer 11

Interpretation

(1) In this Act, unless the context otherwise requires, –
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it –
(a) Poses a serious danger to the health or safety of that person or of others; or
(b) Seriously diminishes the capacity of that person to take care of himself or herself; –
and mentally disordered, in relation to any such person, has a corresponding meaning:

Question 12

What is Section 109, Mental Health Act 1992?

Answer 12

Police powers in relation to person appearing to be mentally disordered in public place

(1) If any person is found wandering at large in any public place and acting in a manner that gives rise to a reasonable belief that he or she may be mentally disordered, any member of the Police may, if he or she thinks that it would be desirable in the interests of the person or of the public to do so, –
(a) Take that person to a Police station, hospital, or surgery, or to some other appropriate place; and
(b) Arrange for a medical practitioner to examine the person at that place as soon as practicable.

(2) If the medical practitioner, having examined the person, does not consider that there are reasonable grounds for believing that the person may be mentally disordered, the person shall be released forthwith.

[(3) Subsection (3A) applies if the medical practitioner, having examined the person, considers that –

(a) There are reasonable grounds for believing that the person may be suffering from a mental disorder; and
(b) It is desirable for the person to have an assessment examination urgently in the person’s own interests or the interests of any other person.

(3A) The medical practitioner must, as soon as possible, –

(a) Issue a certificate under section 8B(4)(b); and
(b) Make an application under section 8A.]

(4) Subject to subsection (5) of this section, in any case to which subsection (3) of this section applies any member of the Police may –
(a) Continue to detain the [proposed patient] at that place until the assessment examination has been conducted; or
(b) Take the [proposed patient] to some other place nominated by the medical practitioner for the purpose of an assessment examination, and detain the [proposed patient] at that other place until the assessment examination has been conducted.

[(5) Detention under this section may last for no longer than the following times:

(a) For the purposes of subsections (1) to (3A), 6 hours or the time it takes to carry out the actions described in those subsections, whichever is shorter:
(b) For the purposes of subsection (4), 6 hours or the time it takes to conduct the assessment examination, whichever is shorter.]

Question 13

What is Section 110C, Mental Health Act 1992?

Answer 13

Powers of police when urgent assistance required

(1) A member of the police called to the assistance of a medical practitioner under section 110(4), section 110A(5), or section 110B(4) –
(a) May enter the premises where the person or proposed patient is; and
(b) Must, if that member is not in uniform, produce to a person in actual occupation of the premises his or her badge or other evidence that he or she is a member of the police.

(2) A member of the police who enters premises under subsection (1) may, at the request of the medical practitioner, –
(a) Detain the person or proposed patient where he or she is; or
(b) Take the person or proposed patient to a place nominated by the medical practitioner and detain the person or proposed patient at the place.

(3) Detention under subsection (2) may last for no longer than the following times:
(a) For the purposes of section 110(1)(a), 6 hours or the time it takes to conduct the medical examination, whichever is shorter:
(b) For the purposes of section 110A(2), 6 hours or the time it takes to administer the sedative drug, whichever is shorter:
(c) For the purposes of section 110B(2), 6 hours or the time it takes to conduct the assessment examination, whichever is shorter

Question 14

What does the New Zealand Police and the Ministry of Health Memorandum of
Understanding cover?

Answer 14

The New Zealand Police and the Ministry of Health have a Memorandum of Understanding (MOU) governing the practical implementation of the Mental Health Act. It:
· covers responsibilities, transportation of patients and use of force, and forms the basis of local agreements with the local mental health service
· provides that the duly authorised officer (“DAO”) is the official in charge at any incident that requires the Mental Health Act to be invoked and a response from Police and the mental health service. The DAO should request Police assistance only when the particular powers and specific expertise of Police are required.

The responsibility for providing services under the Mental Health Act rests primarily with the mental health services but Police provide assistance where legislation provides for Police intervention.

Question 15

What are the roles of a responsible clinician and the court?

Answer 15

The legal definition of ‘mental disorder’ is very technical and may differ from the usual meaning of the term ‘mental disorder’. It is the role of the clinician in charge of the patient to initiate the assessment process under the Mental Health Act. The clinician assesses the patient and determines whether there are reasonable grounds to believe that the person is mentally disordered under the Act. The court, on making a compulsory treatment order, will determine whether the order will be a community treatment or an inpatient order (section 28(1)) of the Mental Health Act refers.

Question 16

What is a mental disorder?

Answer 16

‘Mental disorder’ is defined in the Mental Health Act to mean a person is in an abnormal state of mind (continuous or intermittent) who may be delusional, or their mood or perception may be such that it poses a serious danger to the health and safety of that person or others, or seriously diminishes the capacity of such persons to look after themselves.

Question 17

What does the definition of a mental disorder not include?

Answer 17

Section 4 of the Mental Health Act explains that the Act’s compulsory assessment and treatment procedures may not be invoked simply because of a person’s:
· political, religious or cultural beliefs
· sexual preferences
· criminal or delinquent behaviour
· substance abuse
· intellectual disability.

Question 18

What are your powers to assist a medical practitioner?

Answer 18

Authority
Your powers to assist a medical practitioner are contained in section 110C of the Mental Health Act.

When you can assist
1) If the practitioner needs to examine a person who is acting in a manner that gives rise to a reasonable belief that the person is mentally disordered and is urgent or in the interests of self/others, you can assist that
practitioner when called upon to do so. Section 110(4) of the Mental Health Act refers.

2) If the practitioner issues a certificate that the person urgently needs an assessment examination and believes the person is a significant danger to himself or herself or others and needs to be sedated in his or her own interest, you can help the doctor
administer the drug. (i.e. restrain the person for the practitioner) Section 110A(5) of the Mental Health Act refers.

3) When the person is undergoing the assessment examination, you can help the medical practitioner who carries the assessment out. Section 110B(4) of the Mental Health Act refers.

In all three situations, you can under section
110C(1)(a), & (2) of the Mental Health Act:
· enter the premises where the person is,
· produce identification/evidence that you are a Police constable and at the request of the medical practitioner:
· detain the person where he or she is, or
· take the person or proposed patient to a place nominated by the doctor and detain the person or proposed patient there.
For each situation, you can detain the person for the time it takes to conduct the medical exam but in any event for no longer than six hours.

Question 19

What does Section 110C(1)(b) of the Mental Health Act refer to?

Answer 19

If you are not in uniform, you must, under section 110C(1)(b) of the Mental Health Act produce to the occupier your badge or any other evidence that you are a Police employee

Question 20

What are your powers of arrest for Mental Health incidents?

Answer 20

Sections 30, 31 and 34 of Crimes Act 1961 apply to your power to take and detain as if it were a power of arrest, with any necessary modifications. (Section 122A refers):
· section 30 of the Crimes Act protects you from criminal responsibility if you arrest the wrong person in good faith and on reasonable and probable grounds believed the person to be the one named in the warrant
· section 31 of the Crimes Act confers all statutory powers of arrest without warrant on all constables
· section 34 of the Crimes Act confers the power to assist a constable in an arrest upon anyone asked to do so.

Question 21

What does Sections 122B(1) & (2) of the Mental

Health CAT Act refer to?

Answer 21

If you are acting in an emergency, section 122B(1) & (2) of the Mental Health Act provides that you can use such force as is reasonably necessary in certain circumstances to:
· take or retake a person, proposed patient, or patient
· detain a person, proposed patient, or patient
· enter premises.
Caution: If you act without statutory authority, you have no protection from civil or criminal liability even if you have acted in good faith.

Question 22

What procedures should you follow if you are asked to assist a Medical Practitioner with a Mental Health patient?

Answer 22

1 Verify the urgency with the medical practitioner (you cannot use force unless it is an emergency).

2 If necessary, and when authorised under the Act, use force to detain the person, or to take the person to a place nominated by the medical practitioner for an assessment and detain that person there.

3 Advise the person of their rights under the New Zealand Bill of Rights Act 1990 where they are detained.

4 Ensure that you do not detain the person for more than six hours.

5 If you use more than trifling force, complete a Use of Force report. Send a copy of the report to the Director of Area Mental Health Services.

Question 23

What does Section 109 of the Mental Health Act refer to and what enquiries should be made in regards to that person?

Answer 23

Mentally disordered person wandering at large

Authority
If you find a person wandering at large in any public place who you reasonably believe may have a mental disorder, you have powers to apprehend under section 109 of the Mental Health Act, which relates to mentally disordered persons in a public place. You should only do this if you think that it would be desirable in the interests of the person or of the public to do so.

Definition of public place
‘Public place’ is defined in section 2 of the Summary Offences Act 1981.
Note: A person is also in a public place if they are in any aircraft, hovercraft, ship or ferry or other vessel, train, or vehicle, which is in a public place.

Making enquiries
Follow these steps if you locate a person and reasonably believe they may be mentally disordered and requiring assessment for inpatient treatment.

1 Check the person’s status (QP) - they may have been reported missing from a psychiatric hospital.

2 If the person has a known psychiatric history, call the local hospital and ask if the hospital has any information about the person.

3 Ask the hospital to find out whether the person is on leave from a psychiatric hospital. If so, their leave may be revoked and the patient returned to the hospital by a DAO, the person who has charge of the person while on leave, or yourself.

If you find a person in a public place who is acting in a manner that gives rise to a reasonable belief that he or she may be mentally disordered, you can:
· take the person to a police station, hospital, surgery or other appropriate place, and
· arrange for a doctor’s examination as soon as practicable.

You can take this action under section 109(1) of the Mental Health Act, if you think it would be in the interests of the person or of the public.

Note: You do not have to assess whether the person is mentally disordered. It is sufficient that the person’s behaviour give rise to a reasonable belief that the person may be mentally disordered.

Question 24

What are your actions following a Medical Practitioners examination?

Answer 24

If the medical practitioner considers that:
· there are reasonable grounds for believing that the person may have a mental disorder, and
· it is desirable for the person to have an assessment examination urgently in the person’s own interests or the interests of any other person,
· the medical practitioner must issue a medical certificate under section 109(3) of the Mental Health Act and make an application for a preliminary assessment (sections 8, 8A and 8B). If the medical practitioner decides that the person does not have a mental disorder, let the person go.

Power to detain if the situation is urgent
If the assessment under section 109(3) of the Mental Health Act is urgent, you can:
· continue to detain the proposed patient at that place until the examination has been conducted, or
· take the proposed patient to a place nominated by the medical practitioner for the purpose of the examination, and detain the proposed patient there until the examination has been conducted.

Note: You can detain the person for no longer than six hours for the purposes of this examination.

Arrest provisions apply
Sections 30, 31 and 34 of Crimes Act 1961 apply to your power to take and detain as if it were a power of arrest, with any necessary modifications. (Section 122A):
· section 30 of the Crimes Act protects you from criminal responsibility if you arrest the wrong person in good faith and on reasonable and probable grounds believed the person to be the one named in the warrant
· section 31 confers all statutory powers of arrest without warrant on all constables
· section 34 confers the power to assist a constable in an arrest upon anyone asked to do so.

Question 25

What powers do you have in regards to a Mentally Disordered person on private property?

Answer 25

Authority
If a mentally disordered person is causing problems in a private place, you have NO power to enter or detain under the Mental Health Act, unless asked to do so by a DAO or medical practitioner. However, you have some powers under other legislation.

When dealing with a person with a mental disorder on private property, use the operational threat assessment tool, TENR, to assess the threat, exposure, the necessity to act now, later or not at all, and to develop an appropriate response. Consider the use of Police discretion and alternative resolutions in appropriate circumstances, as required by the Police operating strategy, Prevention First.
If action is required, an appropriate response may involve seeking help from the DAO, the person’s doctor, family, friends or associates (as explained in the Initial procedure in Dealing with people with mental disorders) or using other legislation to enter the premises.

Power to enter premises
Remember Police officers have an implied licence to enter a property, just like any member of the public. If requested to leave by a lawful occupier of the property, in the absence of a lawful justification to remain, police must leave. Police can also enter a property if requested to do so by a lawful occupier of that property.
However, if you suspect a person has committed an offence that is punishable by imprisonment and for which he or she can be arrested without a warrant, section 8 of the Search and Surveillance Act 2012 allows you to enter private premises to search for and arrest that person without a warrant. You can only enter the premises if you believe the person will leave to avoid arrest, and/or destroy, conceal, alter or damage evidence, unless you arrest him or her immediately.
You can also enter private premises under section 7 of the Search and Surveillance Act 2012, to search for and arrest a person if you suspect that the person is unlawfully at large, for example, the person is subject to an inpatient order and is absent without leave.
Section 14 of the Search and Surveillance Act 2012 allows you to enter private property or a vehicle without a warrant if you suspect there is a risk to life or safety that requires an emergency response. It also allows warrantless entry if you have reasonable grounds to suspect that your entry will stop or prevent an offence being committed that might injure someone, damage or cause serious loss of property.
Finally, there are other particular circumstances in which you can lawfully enter a property, for example, under section 18 of the Search and Surveillance Act 2012, you can enter a private property if you have reasonable grounds to suspect that a person is in possession of firearms but by reason of a mental condition is incapable of having proper control of them.

Power to prevent suicide
Under section 41 of the Crimes Act 1961, you can use such force as may be reasonably necessary to prevent a suicide or the commission of any offence that would be likely to cause immediate and serious injury to anyone, or serious damage or property, or to prevent an act that you believe, on reasonable grounds, would amount to suicide if committed.

For information on entering property to protect life and property, see Suicidal people” – “Responding to a suicide attempt or threat.

Trespass
Depending on the circumstances, you may be able to take action under the Trespass Act 1980.

Retaking a patient
If the person is absent from hospital without leave, you may be able to use your powers to retake the person. See Returning a patient to hospital. If necessary, call a DAO or medical practitioner.

If none of the above apply and you must take action, call a medical practitioner or DAO to the scene. For procedures on assisting a DAO or medical practitioner, see procedures for assisting DAOs and assisting a medical practitioner.

Question 26

What is Section 175 of the Sale of Liquor Act 1989?

Answer 26

Powers of entry on licensed premises

(1) Any constable may at any reasonable time enter and inspect any licensed premises, or any part of any licensed premises, to ascertain whether the licensee is complying with the provisions of this Act and the conditions of the licence.
(2) Any constable may at any time enter and inspect any licensed premises when that member has reasonable ground to believe that any offence against this Act is being committed on those licensed premises.

(3) For the purposes of exercising the power conferred by this section, a constable may –
(a) Require the production of any licence, or any book, notice, record, list, or other document that is required by this Act to be kept, and examine and make copies of it; and
(b) Require the licensee or manager to provide any information or assistance reasonably required by the constable relating to any matter within the duties of the licensee or manager.

(4) Every person commits an offence and is liable to a fine not exceeding [$2,000] who, without reasonable excuse, –
(a) Refuses or fails to admit to any licensed premises any constable who demands entry under this section; or
(b) Delays unreasonably in admitting to any licensed premises any constable who demands entry under this section.

(5) Every person commits an offence and is liable to a fine not exceeding [$2,000] who, being the licensee or a manager of any licensed premises, without reasonable excuse, refuses or fails –
a) To produce the licence or any document when required to do so under paragraph (a) of subsection (3) of this section; or
(b) To provide any assistance or information when required to do so under paragraph (b) of that subsection.

Question 27

What is Section 176 of the Sale of Liquor Act 1989?

Answer 27

Power of Police to demand information

(1) Any constable who has reasonable cause to suspect that any person has committed or is committing or is attempting to commit any offence against this Act may demand particulars of –
(a) The name and address of that person; and
(b) The date of birth of that person, where that person’s age is or may be material to the suspected offence.

(2) If the constable has reasonable ground to suppose that any such particulars are false, he or she may require the person to supply satisfactory evidence of those particulars.
(3) If any person, without reasonable excuse, refuses or fails to supply any particulars or evidence when required to do so by any constable under this section, and persists in that refusal or failure after being cautioned by the constable, that person may be arrested, without warrant, by any constable.

(4) Every person commits an offence and is liable to a fine not exceeding [$1,000] who, having been required by any constable to supply any particulars or evidence under this
section, without reasonable excuse, –
(a) Refuses or fails to supply the particulars or evidence; or
(b) Supplies any particulars or evidence knowing that the particulars or evidence are false in a material respect.

Question 28

What is Section 4 of the Sale of Liquor Act 1989?

Answer 28

Object of the Act

(1) The object of this Act is that—
(a) the sale, supply, and consumption of alcohol should be undertaken safely and responsibly; and
(b) the harm caused by the excessive or inappropriate consumption of alcohol should be minimised.

(2) For the purposes of subsection (1), the harm caused by the excessive or inappropriate consumption of alcohol includes—
(a) any crime, damage, death, disease, disorderly behaviour, illness, or injury, directly or indirectly caused, or directly or indirectly contributed to, by the excessive or inappropriate consumption of alcohol; and
(b) any harm to society generally or the community, directly or indirectly caused, or directly or indirectly contributed to, by any crime, damage, death, disease, disorderly behaviour, illness, or injury of a kind described in paragraph (a).

Question 29

What is Section 237 of the Sale of Liquor Act 1989?

Answer 29

Irresponsible promotion of alcohol

(1) A person commits an offence if, in the course of carrying on a business, that person—
(a) does anything that encourages people, or is likely to encourage people, to consume alcohol to an excessive extent, whether on licensed premises or at any other place; or
(b) promotes or advertises discounts on alcohol in a way that leads people, or is likely to lead people, to believe that the price is 25% or more below the price at which the alcohol is ordinarily sold (otherwise than—
(i) on licensed premises; or
(ii) in the catalogue or similar price-list of the holder of an off-licence endorsed under section 40); or
(c) holds or has on licensed premises a promotion or advertisement of discounts on alcohol that—
(i) leads people, or is likely to lead people, to believe that the price is 25% or more below the price at which the alcohol is ordinarily sold; and
(ii) can be seen (or, in the case of an audible promotion or advertisement, heard) from outside the premises; or
(d) promotes or advertises alcohol that is free of charge (otherwise than—
(i) by promoting or advertising the complimentary sampling of alcohol for consumption on premises for which an off-licence is held; or
(ii) by a promotion or advertisement within licensed premises that cannot be seen (or, in the case of an audible promotion or advertisement, heard) from outside the premises); or
(e) offers (otherwise than by means of an offer made only on licensed premises, and made only in relation to the buying of alcohol on those premises) any goods or services, or the opportunity to obtain any goods or services, or the opportunity to win a prize, on the condition that alcohol is bought; or
(f) promotes or advertises alcohol in a manner aimed at, or that has, or is likely to have, special appeal to, minors.

(2) Subsection (1)(e) does not apply to a loyalty programme that provides rewards or discounts, unless the rewards or discounts apply only or primarily to alcohol.

(3) A person who commits an offence against this section is liable on conviction,—
(a) in the case of a licensee, to either or both of the following:
(i) a fine of not more than $10,000:
(ii) the suspension of the licensee’s licence for a period of not more than 7 days:
(b) in the case of any other person, to a fine of not more than $10,000.

Question 30

What is Section 265 of the Sale of Liquor Act 1989?

Answer 30

Closure of premises by order

(1) This section applies if a riot occurs, or there are reasonable grounds for believing that a riot may occur, in any place.
(2) A District Court Judge or any 2 or more Justices or any 1 or more Community Magistrates may, at the request of a constable for the time being acting in that place, order every licensee in or within a specified distance of that place to close his or her licensed premises for the sale of alcohol during the time specified in the order, which time must not be later than 24 hours from the end of the day on which the order was made.
(3) Any constable may use any force that may be necessary for the purpose of closing any licensed premises to which the order applies.

(4) A licensee or a manager of any licensed premises to which the order applies who keeps the premises open for the sale of alcohol in contravention of the order commits an offence and is liable on conviction,—
(a) in the case of a licensee, to either or both of the following:
(i) a fine of not more than $10,000:
(ii) the suspension of the licensee’s licence for a period of not more than 7 days:
(b) in the case of a manager, a fine of not more than $10,000.

(5) A person who sells any alcohol on or from any licensed premises to which the order applies at any time while the order is in force commits an offence.
(6) A person who commits an offence against subsection (5) is liable on conviction to a fine of not more than $3,000.

Question 31

What is Section 266 of the Sale of Liquor Act 1989?

Answer 31

Closure of licensed premises by Police

(1) This section applies in the following circumstances:
(a) if a riot is taking place or there are reasonable grounds for believing that a riot may occur on any licensed premises; or
(b) if there is fighting or serious disorder or there are reasonable grounds for believing that fighting or serious disorder is about to break out on any licensed premises; or
(c) if there is a significant threat to public health or safety; or
(d) if the conduct on any licensed premises amounts to a substantial public nuisance; or
(e) if there are reasonable grounds for believing offences have been committed on the premises that carry a maximum penalty of 5 years or more and there is a significant risk of further such offences being committed on the premises if the premises remain open.

(2) A constable may order the closure of any licensed premises or any specified part of any licensed premises for the sale of alcohol until a time stated in the order, which time must not be later than 24 hours from the end of the day on which the order was made, or order any person to leave the premises or that specified part of them.
(3) Any constable may use any force that may be necessary for the purpose of closing the licensed premises or any part of the licensed premises.
(4) As soon as an order has been given, the licensee or a manager may apply to a District Court Judge or any 2 or more Justices or any 1 or more Community Magistrates for the revocation of the order.

(5) The Judge or Justices or the Community Magistrate or Magistrates—
(a) may revoke the order either unconditionally or subject to any conditions as he or she may think fit to impose; or
(b) may refuse to revoke the order.
(6) A licensee or a manager of any licensed premises to which the order applies who keeps the premises open or the specified part of them open for the sale of alcohol in contravention of the order commits an offence.

(7) A person who commits an offence against subsection (6) is liable on conviction,—
(a) in the case of a licensee, to either or both of the following:
(i) a fine of not more than $10,000:
(ii) the suspension of the licensee’s licence for a period of not more than 7 days:
(b) in the case of a manager, a fine of not more than $10,000.

(8) A person who sells any alcohol on or from the licensed premises or the specified part of the licensed premises at any time while the order is in effect commits an offence.
(9) A person who commits an offence against subsection (8) is liable on conviction to a fine of not more than $3,000.

Question 32

What is Section 267 of the Sale of Liquor Act 1989?

Answer 32

Powers of entry on licensed premises

(1) A constable or an inspector may at any reasonable time enter and inspect any licensed premises, or any part of any licensed premises, to ascertain whether the licensee is complying with the provisions of this Act and the conditions of the licence.
(2) A constable or an inspector may at any time enter and inspect any licensed premises when he or she has reasonable grounds to believe that any offence against this Act is being committed on those licensed premises.

(3) For the purposes of exercising the power conferred by this section, a constable or an inspector may—
(a) require the production of any licence, or any book, notice, record, list, or other document that is required by this Act to be kept, and examine and make copies of it; and
(b) require the licensee or manager to provide any information or assistance reasonably required by a constable or an inspector relating to any matter within the duties of the licensee or manager.

(4) A person commits an offence and is liable on conviction to a fine of not more than $2,000 who, without reasonable excuse,—
(a) refuses or fails to admit to any licensed premises any constable or inspector who demands entry under this section; or
(b delays unreasonably in admitting to any licensed premises any constable or inspector who demands entry under this section.

(5) A person commits an offence and is liable on conviction to a fine of not more than $2,000 who, being the licensee or a manager of any licensed premises, without reasonable excuse, refuses or fails—
(a) to produce the licence or any document when required to do so under subsection (3)(a); or
(b) to provide any assistance or information when required to do so under subsection (3)(b).

Question 33

What is Section 269 of the Sale of Liquor Act 1989?

Answer 33

Power of Police to demand information

(1) A constable who has reasonable cause to suspect that any person has committed or is committing or is attempting to commit any offence against this Act may require the person to provide particulars of his or her name and address and date of birth.
(2) A constable who believes on reasonable grounds that any particulars provided on requirement under subsection (1) are false may require the person concerned to provide satisfactory evidence of the particulars.
(3) If any person, without reasonable excuse, refuses or fails to provide any particulars or evidence when required to do so by a constable under this section, and persists in refusing or failing after being cautioned by the constable, he or she may be arrested, without warrant, by any constable.

(4) A person commits an offence and is liable on conviction to a fine of not more than $2,000 who, having been required by any constable to provide any particulars or evidence under this section, without reasonable excuse,—
(a) refuses or fails to provide the particulars or evidence; or
(b) provides any particulars or evidence knowing that the particulars or evidence are false in a material respect.

Question 34

What are circumstances in which Police may close licensed premises

Answer 34

What are the circumstances?
A constable may seek authority for the immediate closure of a licensed premises or any part of a licensed premises for the sale of alcohol if one of five circumstances exists. Those circumstances are:
• if a riot is taking place or there are reasonable grounds for believing that a riot may occur on any licensed premises
• if there is fighting or serious disorder or reasonable grounds for believing that fighting or serious disorder is about to break out on any licensed premises
• if there is a significant threat to public health or safety
• if the conduct on the licensed premises amounts to substantial public nuisance
• if there are reasonable grounds for believing offences have been committed on the licensed premises that carry a maximum penalty of 5 years or more and there is a significant risk of further such offences being committed on the premises if the premises remain open

Question 35

What is the definition of a Riot under Sale and Supply of Alcohol Act 2012?

Answer 35

‘Riot’ is not defined under the Sale and Supply of Alcohol Act 2012. See ss 86 and 87 Crimes Act 1961, where “riot” is defined as “a group of 6 or more persons who, acting together, are using violence against persons or property to the alarm of persons in the neighbourhood”.

Question 36

What is the definition of a Licenced Premises under Sale and Supply of Alcohol Act 2012?

Answer 36

‘Licensed premises’ are any premises for which a licence is held for the sale, supply of consumption of alcohol

Question 37

What is the definition of a Licencee under Sale and Supply of Alcohol Act 2012?

Answer 37

‘Licensee’ means a person who holds a licence; and in relation to any licensed premises, means the person who holds the licence concerned

Question 38

What is the definition of a Manager under Sale and Supply of Alcohol Act 2012?

Answer 38

‘Manager’ means a manager of licensed premises appointed under the Sale and Supply of Alcohol Act; and in relation to any licensed premises, means a manager of those premises

Question 39

Who is authorised to close licensed premises?

Answer 39

Any constable may order the immediate closure of licensed premises for the sale of alcohol.
If a constable is satisfied on reasonable grounds that one of the five circumstances exists he or she should inform a substantive sergeant or above for authority to immediately order the closure of the licensed premises.
The authorising officer must be satisfied based on this report or any other facts known to him that the specified circumstances exist before authorising such an order.
Police may use reasonable force if necessary for the purposes of closing the licensed premises.

Question 40

How long must the licensed premises remain closed?

Answer 40

When Police close a licensed premise, it takes effect immediately and remains in force until a time stated in the order, which must not be later than 24 hours from the end of the day on which the order was made.
The order may prohibit that the sale of alcohol and / or order any person to leave the premises (or that specified part of the premises) for the specified time. As soon as an order has been given, the licensee or duty manager may apply to a District Court Judge (or 2 or more Justices or a Community Magistrates) to have the decision reviewed. The Judge may revoke the order, revoke the order with certain conditions or refuse to revoke the order.

Question 41

What should you consider when deciding whether to close licensed premises?

Answer 41

When can licensed premises be closed?
Police can close licensed premises for the sale of alcohol immediately if they have reasonable grounds to believe that one of the circumstances identified in the legislation are present. Consideration needs to be given about whether the situation can be resolved by other means and authority must be obtained from a substantive sergeant or above.

Factors to consider when deciding to close licensed premises
When deciding whether it is necessary to close licensed premises for the sale of alcohol Police must consider the risk of closure and the impact of the closure on the licensee.

Police need to consider the effect of having disgruntled patrons being removed from the premises and the elevated likelihood of disorder in the locality. The impact on the licensee should also be considered as frivolous closure of licensed premises may cause undue financial impact, and result in criticism of Police.

Police must take account of:
• the weight of evidence supporting a closure
• previous interactions with Police
• likelihood of escalating violence
• duration of the closure.
Consider and apply TENR.

Deciding the duration of the closure
When deciding the duration of the closure of licensed premises Police must consider:
• when order is likely to be restored
• whether the closure is sufficient to address public nuisance concerns
• the impact on the licensee.

Question 42

What is Section 169 of the Local Government Act 2002?

Answer 42

Powers of arrest, search, and seizure in relation to alcohol bans

(1) In this section and in sections 169A and 170,—
- alcohol has the meaning given by section 5(1) of the Sale and Supply of Alcohol Act 2012
- alcohol ban means a bylaw made under section 147
- offence means a breach of an alcohol ban
- restricted place means a public place (within the meaning of section 147(1)) in respect of which an alcohol ban is in force.

(2) A constable may, without warrant,—
(a) for the purpose of ascertaining whether alcohol is present, search—
(i) a container (for example, a bag, case, package, or parcel) in the possession of a person who is in, or entering, a restricted place; or
(ii) a vehicle that is in, or is entering, a restricted place:
(b) seize and remove any alcohol (and its container) that is in a restricted place in breach of an alcohol ban:
(c) arrest any person whom the constable finds committing an offence:
(d) arrest any person who has refused to comply with a request by a constable—
(i) to leave a restricted place; or
(ii) to surrender to a constable any alcohol that, in breach of an alcohol ban is in the person’s possession.

(3) Alcohol or a container seized under subsection (2)(b) is forfeited to the Crown if the person from whom the alcohol or container is seized pays the infringement fee.

Question 43

What is Section 170 of the Local Government Act 2002?

Answer 43

Conditions relating to power of search

(1) Before exercising the power of search under section 169(2)(a) in relation to a container or a vehicle, a member of the police must—
(a) inform the person in possession of the container or the vehicle, as the case may be, that he or she has the opportunity of removing the container or the vehicle from the public place; and
(b) provide the person with a reasonable opportunity to remove the [container] or the vehicle, as the case may be, from the public place.

(2) However, on specified dates or in relation to specified events, notified in accordance with subsection (3), a member of the police may, immediately and without further notice, exercise the power under section 169(2)(a) to search a container or a vehicle.

(3) Before a member of the police may exercise the power of search under subsection (2), the territorial authority must—
(a) specify the public place (within the meaning of section 169(1)) where, and the period when, this power may be exercised by the police by public notice given 14 days in advance in accordance with this Act; and
(b) indicate the location of the public place by 1 or more clearly legible notices affixed in 1 or more conspicuous places on, or adjacent to, the place to which the notice relates, unless it is impracticable or unreasonable to do so.
(4) Subsection (2) only applies if the member of the police is authorised to exercise that power by a bylaw made under section 147.

Question 44

What are the Enforcement Principles of the Local Government Act 2002?

Answer 44

The principles that Police apply in the enforcement of alcohol bans are:
• Enforcement will not be directed to strict compliance but rather having regard to the reason for imposing a ban
• It is a question of time, place and circumstance as to whether it is appropriate to take enforcement action
• Enforcement will be directed to preventing alcohol related harm and antisocial behaviour caused by the consumption of alcohol in public places

Question 45

What are the methods of enforcement in regards to the Local Government Act 2002?

Answer 45

Offenders can be dealt with in a variety of ways;

By disposing of the alcohol - being warned - leaving the restricted area - receiving an infringement notice or by being arrested.
When determining whether to use a power of arrest as opposed to the other options the breach should be focused on:
• Behaviour which amounts to intimidation, victimisation, or bullying that is disruptive of public order even if no violence is reasonably in prospect.
• Such behaviour which is likely to alarm or be seen as threatening by those present. It is likely to cause others to withdraw from or avoid the area and it is behaviour which inhibits normal public use of the place
• Or further offending despite warnings or other enforcement options.
Alcohol related harm and antisocial behaviour may be either existing or anticipated. This judgement may be informed by factors such as:
• the existence of a disorder/ violence/ antisocial behaviour hotspot in a particular location
• behaviour related complaints from members of the public
• behaviour observed giving cause for concern about the probability of disorder and/ or violence
• evidence of intoxication in a public place; and
• the presence of a gathering of individuals that, in the assessment of the attending officer(s), is likely to result in antisocial behaviour associated with alcohol consumption.
Enforcement in a particular location must be seen to be fair. This factor will be weighed up in relation to the form of enforcement action.

Question 46

What is the definition of Alcohol?

Answer 46

‘Alcohol’ means a substance that—
• is or contains a fermented, distilled, or spirituous liquor; and at 20°C is found on analysis to contain 1.15% or more ethanol by volume; or
• is a frozen liquid, or a mixture of a frozen liquid and another substance or substances and is alcohol as per bullet 1 when completely thawed to 20°C; or
• whatever its form, is found on analysis to contain 1.15% or more ethanol by weight in a form that can be assimilated by people.

Question 47

What must be proved in regards to Section 147 of the Local Government Act 2002, and what are the penalties?

Answer 47

You must prove the identity of the offenders and that they breached a bylaw for alcohol control purposes (an alcohol ban) by:
• consuming alcohol
• bringing alcohol
• possessing alcohol
• in a public place (or in a vehicle in a public place) specified in the bylaw.

Penalty
An Alcohol Infringement Offence Notice (AION) can be issued (prec W606) requiring payment of an infringement fee of $250.

Question 48

What are exemptions to Section 147 of the Local Government Act 2002?

Answer 48

Alcohol in unopened containers may be:
• transported from off licensed premises next to a public place if it was lawfully bought on those premises for consumption off those premises, and it is promptly removed from the public place
• transported from outside a public place for delivery to licensed premises next to the public place
• transported from outside a public place to premises next to a public place by, or for delivery to, a resident of those premises or by their bona fide visitors
• transported from premises next to a public place to a place outside the public place if the transport is undertaken by a resident of those premises, and the alcohol is promptly removed from the public place.

Question 49

What is Section 169(2)(b) of the Local Government Act 2002?

Answer 49

A constable may (without warrant) seize and remove any alcohol (and its container) that is in a restricted place in breach of an alcohol ban.

Question 50

What is best practice for enforcement of a breach against the Local Government Act 2002?

Answer 50

On discovering a person suspected of breaching an alcohol ban, follow these steps at the scene (not necessarily in order).
If the offender is below the legal purchase age of 18 years, follow steps as described in “dealing with minors”.

Action
1 Obtain full details of the offender.

2 Take full notes of your interview with the offender including:
• that they knew they were in an alcohol ban area
• that the alcohol they were in possession of in breach of the alcohol ban is in fact alcohol.

3 Note if the alcohol in possession of the offender is:
• in a labelled trade container
• if not in a labelled trade container, appears to contain alcohol and smells like alcohol.
Also note if:
• the offender admits the substance is alcohol
• the offender displays any signs of being influenced or intoxicated by alcohol.

4 Apply enforcement principles in considering any enforcement.

5 Consider warning and moving offender on.

6 If warning inappropriate as it will not meet the enforcement principles then consider issuing an Alcohol Infringement Notice.

7 If necessary to prevent anti-social behaviour from continuing or to protect any person from harm, consider arresting the offender and return them to the station or taking that offender to a place of safety.

8 The offender must be released from custody as soon as it is safe to do so and they can be issued an infringement notice.

9 In all cases, the alcohol that is the subject of the breach of alcohol ban should be forfeited by the offender and destroyed by them immediately, and notebook endorsed accordingly.

10 It may be desirable in certain rare cases to take the alcohol concerned as an exhibit where a defended hearing is anticipated or for other reasons however this should be avoided if possible and reliance made on the presumption contained in the Local Government Act.