Module 5 - Managing Suspects and Offenders (Feb 2015) Flashcards Preview

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Flashcards in Module 5 - Managing Suspects and Offenders (Feb 2015) Deck (49):
1

What is Section 39, Crimes Act 1961?

Force used in executing process or in arrest

Where any person is justified, or protected from criminal responsibility, in executing or assisting to execute any sentence, warrant, or process, or in making or assisting to make any arrest, that justification or protection shall extend and apply to the use by him of such force as may be necessary to overcome any force used in resisting such execution or arrest, unless the sentence, warrant, or process can be executed or the arrest made by reasonable means in a less violent manner:
Provided that, except in the case of a constable or a person called upon by a constable to assist him, this section shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

2

What is Section 40, Crimes Act 1961?

Preventing escape or rescue

(1) Where any person is lawfully authorised to arrest or to assist in arresting any other person, or is justified in or protected from criminal responsibility for arresting or assisting to arrest any other person, that authority, justification, or protection, as the case may be, shall extend and apply to the use of such force as may be necessary –
(a) To prevent the escape of that other person if he takes to flight in order to avoid arrest; or
(b) To prevent the escape or rescue of that other person after his arrest – unless in any such case the escape or rescue can be prevented by reasonable means in a less violent manner: Provided that, except in the case of a constable or a person called upon by a constable to assist him, this subsection shall not apply where the force used is intended or likely to cause death or grievous bodily harm.

(2) Where any prisoner of a prison is attempting to escape from lawful custody, or is fleeing after having escaped there from, every constable, and every person called upon by a constable to assist him, is justified in using such force as may be necessary to prevent the escape of or to recapture the prisoner, unless in any case the escape can be prevented or the recapture effected by reasonable means in a less violent manner.

3

What is Section 41, Crimes Act 1961?

Prevention of suicide or certain offences

Everyone is justified in using such force as may be reasonably necessary in order to prevent the commission of suicide, or the commission of an offence which would be likely to cause immediate and serious injury to the person or property of any one, or in order to prevent any act being done which he believes, on reasonable grounds, would, if committed, amount to suicide or to any such offence

4

What is Section 42, Crimes Act 1961?

Preventing breach of the peace

(1) Every one who witnesses a breach of the peace is justified in interfering to prevent its continuance or renewal, and may detain any person committing it, in order to give him into the custody of a constable: Provided that the person interfering shall use no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace, or than is reasonably proportionate to the danger to be apprehended from its continuance or renewal.

(2) Every constable who witnesses a breach of the peace, and every person lawfully assisting him, is justified in arresting any one whom he finds committing it.

(3) Every constable is justified in receiving into custody any person given into his charge, as having been a party to a breach of the peace, by one who has witnessed it or whom the constable believes on reasonable and probable grounds to have witnessed it.

5

What is Section 202A, Crimes Act 1961?

Possession of offensive weapons or disabling substances

(1) In subsection (4)(a) of this section offensive weapon means any article made or altered for use for causing bodily injury, or intended by the person having it with him for such use.

(2) In subsection (4)(b) of this section offensive weapon means any article capable of being used for causing bodily injury.

(3) In this section disabling substance means any anaesthetising or other substance produced for use for disabling persons, or intended by any person having it with him for such use.

(4) Every one is liable to imprisonment for a term not exceeding 3 years –
(a) Who, without lawful authority or reasonable excuse, has with him in any public place any knife or offensive weapon or disabling substance; or
(b) Who has in his possession in any place any offensive weapon or disabling substance in circumstances that prima facie show an intention to use it to commit an offence involving bodily injury or the threat or fear of violence.

(5) It is a defence to a charge under subsection (4)(b) of this section if the person charged proves that he did not intend to use the offensive weapon or disabling substance to commit an offence involving bodily injury or the threat or fear of violence.

6

What does the case Attorney-General v Reid (Auckland High Court) relate to?

arrest for anticipated breach of the peace, s42

Facts
This case arose from a civil claim of damages for false arrest arising from Waitangi Day protests in 1983.
Reid was one of about 100 protesters who were halted by police en route to the Hobson Memorial. They were told to leave the roadway. Those who did not, about 50 odd, were arrested for breach of the peace, handcuffed, detained in buses for four or five hours while each was processed and finally released.
The grounds for apprehension of a breach of the peace were abuse of the police from the protesters, ill feeling between some passers-by and the protesters, and previous experience of protest at Waitangi Day Functions.

(1) In this particular case there was no reasonable ground for apprehension of a breach of the peace.

(2) There is no power of arrest for anticipated breach of the peace. The judgment was challenged in the High Court on both these findings.

Held
In the High Court it was held that the first ground of appeal failed (ie there was no reason to overturn the District Court Judge’s finding of fact for apprehension of a breach of the peace). Therefore there was no need to express any view on the existence of a power to arrest for an anticipated breach of the peace.
However, Thorp, J did affirm his view in Mackay v Minto.
“In Mackay v Minto, I expressed the view that if the police have reasonable cause to apprehend a breach of the peace they have a right to require such action on the part of those directly involved as is reasonably necessary to avoid an actual breach of the peace, and the consequential right to arrest for obstruction if such requests are not obeyed. As yet I see no reason to change that view. However, it does not lead me to the conclusion that the police need the right now claimed, that is, to arrest and charge persons for breach before any actual breaches occur. That course does not seem to have been found necessary in any of the numerous cases in the English Reports, and (as Mr Kaye acknowledged) has never been found necessary in any of the reported New Zealand cases.”

Comment
These cases affirm that there is no power to arrest for an anticipated breach of the peace. The proper procedure where a breach is anticipated and the persons concerned fail to desist is to arrest for obstruction.

7

What is Section 8, New Zealand Bill of Rights Act 1990?

Right not to be deprived of life

No one shall be deprived of life except on such grounds as are established by law and are consistent with the principles of fundamental justice.

8

What is Section 9, New Zealand Bill of Rights Act 1990?

Right not to be subjected to torture or cruel treatment

Everyone has the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment

9

What is Section 13, New Zealand Bill of Rights Act 1990?

Freedom of thought, conscience, and religion

Everyone has the right to freedom of thought, conscience, religion, and belief, including the right to adopt and to hold opinions without interference

10

What is Section 14, New Zealand Bill of Rights Act 1990?

Freedom of expression

Everyone has the right to freedom of expression, including the freedom to seek, receive, and impart information and opinions of any kind in any form.

11

What is Section 15, New Zealand Bill of Rights Act 1990?

Manifestation of religion and belief

Every person has the right to manifest that person’s religion or belief in worship, observance, practice, or teaching, either individually or in community with others, and either in public or in private.

12

What is Section 17, New Zealand Bill of Rights Act 1990?

Freedom of association

Everyone has the right to freedom of association

13

What is Section 18, New Zealand Bill of Rights Act 1990?

Freedom of movement

(1) Everyone lawfully in New Zealand has the right to freedom of movement and residence in New Zealand.

(2) Every New Zealand citizen has the right to enter New Zealand.

(3) Everyone has the right to leave New Zealand.

(4) No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be required to leave New Zealand except under a decision taken on grounds prescribed by law.

14

What is Section 20, New Zealand Bill of Rights Act 1990?

Rights of minorities

A person who belongs to an ethnic, religious, or linguistic minority in New Zealand shall not be denied the right, in community with other members of that minority, to enjoy the culture, to profess and practise the religion, or to use the language, of that minority.

15

What is Section 21, New Zealand Bill of Rights Act 1990?

Unreasonable search and seizure

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

16

What is Section 22, New Zealand Bill of Rights Act 1990?

Liberty of the person

Everyone has the right not to be arbitrarily arrested or detained

17

What is Section 23, New Zealand Bill of Rights Act 1990?

Rights of persons arrested or detained

(1) Everyone who is arrested or who is detained under any enactment –
(a) Shall be informed at the time of the arrest or detention of the reason for it; and
(b) Shall have the right to consult and instruct a lawyer without delay and to be informed of that right; and
(c) Shall have the right to have the validity of the arrest or detention determined without delay by way of habeas corpus and to be released if the arrest or detention is not lawful.

(2) Everyone who is arrested for an offence has the right to be charged promptly or to be released.

(3) Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.

(4) Everyone who is –
(a) Arrested; or
(b) Detained under any enactment –
for any offence or suspected offence shall have the right to refrain from making any statement and to be informed of that right.

(5) Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.

18

What is Section 24, New Zealand Bill of Rights Act 1990?

Rights of persons charged

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

19

What is Section 25, New Zealand Bill of Rights Act 1990?

Minimum standards of criminal procedure
Everyone who is charged with an offence has, in relation to the determination of the charge, the following minimum rights:
(a) The right to a fair and public hearing by an independent and impartial court:
(b) The right to be tried without undue delay:
(c) The right to be presumed innocent until proved guilty according to law:
(d) The right not to be compelled to be a witness or to confess guilt:
(e) The right to be present at the trial and to present a defence:
(f) The right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution:
(g) The right, if convicted of an offence in respect of which the penalty has been varied between the commission of the offence and sentencing, to the benefit of the lesser penalty:
(h) The right, if convicted of the offence, to appeal according to law to a higher court against the conviction or against the sentence or against both:
(i) The right, in the case of a child, to be dealt with in a manner that takes account of the child’s age.

20

What is the case Taueki v Police, New Zealand High Court in regards to?

Freedom of Expression - S14 NZ Bill of rights Act

Facts
On a Saturday morning in September 2012 the appellant, Taueki, and six supporters protested at the opening of a cultural centre in Levin. A primary focus of the protest was the intended display at the new centre of an historic waka, found near Lake Horowhenua in Muaupoko lands, along with other taonga. Taueki and at least some of his supporters are members of the Muaupoko iwi.
Taueki's protest was loud. He and one of his companions entered into heated verbal exchanges with another man Tukapua, who commenced remonstrating with Heremia, another person present, prior to the start of the pōwhiri.
There were four police officers present at this event. One or more of them warned the protesters (including Taueki) against engaging in personal abuse. The protesters by and large ignored that advice. But people on the official stage stood around its fringe in a way that “blocked off” the protesters from being seen. The protesters could still be heard. The event and the verbal exchanges were videotaped.
Some minutes passed until Taueki issued some more loud abuse. At one point he gestured with his arms appearing to issue some kind of physical challenge to Tukapua, although this was not directly seen by the attending police officers. He was subsequently arrested for disorderly behaviour. Taueki was charged and ultimately convicted under s3 of the Summary Offences Act 1981Act. That provided:
“Every person is liable […] who, in or within view of any public place, behaves, or incites or encourages any person to behave, in a riotous, offensive, threatening, insulting, or disorderly manner that is likely in the circumstances to cause violence against persons or property to start or continue.”
In the proceedings before the District Court the judge considered whether Taueki's behaviour disturbed good order to such an extent that affected members of the public could not reasonably be expected to endure it (in the particular circumstances of time and place). In particular, the Judge identified that there were two levels of conduct, protest and personal abuse, with only the former able to receive protection under s14 of the New Zealand Bill of Rights Act 1990:

“On the whole, his protests were tolerated in substance. But it was his abuse of Mr Tukapua that was objectionable, both to Mr Tukapua and the police who were present. There are effectively two levels of conduct here. One level is the general protest of his family's exclusion from involvement in the event; and the more exaggerated behaviour in the form of words and gestures and personal abuse to Mr Tukapua is a different level. The former attracts a different and higher level of protection under the New Zealand Bill of Rights Act, than the latter, which cannot claim that protection. ”
The judge also considered the extent to which violence was ‘likely to occur’. The judge concluded that violence would likely have occurred if the police had not interceded at the time they did to arrest Taueki.

Taueki appealed his conviction. On appeal, Justice Kós accepted the argument, (following Brooker v Police ([2007] NZSC 30) that there was no basis for creating a clear distinction, as the District Court judge had done, between genuine protest and matters of personal abuse:
It is no part of the function of the common law courts to regulate for good taste or decorum. Protest is often ill-mannered and obtrusive, but what of it? Constraints are justifiable only where the protesters' words or actions so intrude into, and impair, the rights of others as to cross a hazy boundary between lawful and unlawful public expression.
In regards to whether violence was ‘likely to occur’, the High Court observed that the presence of four police officers meant violence was ‘significantly less likely to occur than might be the case if they were absent’. The Court concluded there was insufficient evidence to uphold a conclusion that violence was likely to occur as a result of the Appellant’s behavior.

Held:
No part of function of common law Courts to regulate for good taste or decorum; protest often ill-mannered and obtrusive; constraints justifiable only where protesters’ words or actions so intrude into and impair rights of others; protests which involve expression of opinion or information demand higher threshold for constraint under New Zealand Bill of Rights Act 1990. Primary question was whether finding that behaviour was disorderly and likely to cause violence could not be supported on evidence; presence of four Police officers meant violence significantly less likely to occur; insufficient factual foundation for finding T’s behaviour likely to cause violence; appeal allowed.

21

What is the case Brooker v Police in regards to?

disorderly behaviour, protest and the Bill of Rights Act, s14

Facts
B went to a police officer’s home one morning to protest against what he considered to be years of Police harassment. B felt particularly aggrieved by the actions of the officer who lived at that address. B parked his car outside the front fence of the Constable’s house, walked onto the property and knocked on the door for three minutes until the Constable, who had been on night duty, eventually came to the door.
Having been told to leave, B withdrew to the street and began his protest outside the constable’s front fence. He had a placard with “No more bogus warrants” written on it; he began to play his guitar and sing in what the trial Judge described as a “relatively” loud voice. B also chanted protests about bogus warrants and Police activity. The Constable called other Police officers and they arrived at the address within minutes. An Inspector of Police in that group told B to leave or he would be arrested for intimidation. B was told to move his car, which he did, but he then returned with his hands held out inviting the Inspector to arrest him.
B was arrested. Ultimately he was charged with disorderly behaviour under s 4(1)(a) SOA.
Issue
By the time the matter reached the Supreme Court the primary questions were:
• Whether B’s conduct was capable of being disorderly within the proper meaning of section 4(1)(a) of the SOA; and
• Whether there was a need to revisit the conventional tests for disorderly conduct in the light of contemporary values and the New Zealand Bill of Rights Act 1990.

Decision
Three of the five Supreme Court Justices found in favour of B, his appeal was allowed and his conviction was quashed.

Elias CJ
Elias CJ held that disorderly behaviour under s4(1)(a) SOA was:
• Behaviour seriously disruptive of public order. It is not sufficient if the behaviour only annoys others or wounds feelings. A tendency to annoy others, even seriously, is insufficient to constitute the disruption to public order which may make restrictions upon freedom of expression necessary.
Chapter 5 Managing suspects & offenders 13
Sergeants Syllabus February 2015
Further:
• Behaviour which amounts to intimidation, victimisation, or bullying is disruptive of public order even if no violence is reasonably in prospect. Such behaviour 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.
• The place in which the behaviour takes place can make a difference: Interference in “ordinary and customary use” of the area may be more readily created in residential area than a mall.
• Section 4(1)(a) is an offence and persons behaving in a disorderly manner may be arrested without warrant. The offence impacts on personal freedom and liberty and has the capacity to be a tool to control unpopular and unwelcome speech. Thus, it would be wrong to be complacent about an expansive interpretation of s4(1)(a).
• Section 4(1)(a) cannot be used as a “grab-bag” to scoop up any behaviour disruptive of public order. To constitute disorderly behaviour under s4(1)(a) there must be an objective tendency to disrupt public order, by behaviour or because of the effect of words used. Whether behaviour is disorderly is not to be assessed against the sensibilities of individuals to whom the behaviour is directed or who are present to see and hear it, but against its tendency to disrupt public order.
B’s behaviour was not disorderly for the following reasons:
• The protest was not long
• It could not be inferred that B knew the Constable was asleep.
• The Constable was concerned with B’s presence rather than his behaviour.
• B’s protest was expressed with good humour; there was no abuse or bad language.
• B used a “normal singing voice” which was not unduly coercive or loud.
• There was no disruption of the road.
• B immediately moved his car when asked.
• It was a day time protest.
• There was no evidence that members of the public were aware of the protest, much less that they were alarmed or disturbed by it.
• Police officers responding to the Constable’s telephone call gave no evidence of disturbance of public order.

Blanchard J
To fall within s4(1)(a) [the conduct] must be behaviour in or within view of a public place which substantially disturbs the normal functioning of life in the environs of that place. Further, less is required for disorderly behaviour in a quiet street than in a city square. Further, people have a right to privacy and tranquillity in their own homes.
Public order will less readily be seen as disturbed by conduct which is intended to convey information and express opinions (Bill of Rights Act 1990, s14, s5).
Activity is not disorderly merely because it is directed at an individual as the target of a protest, whether personally or as a representative of some organisation.

Tipping J
Conduct in a qualifying location is disorderly, if, as a matter of time, place and circumstance it causes anxiety or disturbance at a level which is beyond what a reasonable citizen should be expected to bear. Unless that is so, the conduct will not warrant the intervention of the criminal law. If it is so, the public has a legitimate interest in proscribing the behaviour, and thereby protecting citizens from it. In this way public order is protected.
Rights and freedoms under the Bill of Rights Act 1990 are likely to influence the level of anxiety and disturbance which a reasonable person should be expected to bear. The right to freedom of expression can only be limited to extent that it reasonable and can be demonstrably justified in a free and democratic society.
No abstract guidance can be given as to when that level will be reached. The decision is a matter of judgment according to all the relevant circumstances of the individual case.

22

What is the case Morse v Police (2012) in relation to?

Section 14, NZ BORA

Facts
“Offensive behaviour” under s 4(1)(a) of the Summary Offences Act 1981 covers anyone behaving in “an offensive or disorderly manner”. In Brooker the Supreme Court was concerned with the question of whether the conduct in question was “disorderly”. In Morse v Police the Court considered conduct that is merely alleged to be “offensive”, and reached essentially the same conclusion on the test to be applied. In its commentary on this case, Adams on Criminal Law describes the decision as follows:
“In Morse the defendant had been part of a group of people who had disrupted the ANZAC Day dawn ceremony at the Cenotaph in Wellington. The protesters opposed New Zealand’s involvement in armed conflicts overseas such as in Afghanistan. During a speech by a former Secretary of Defence, one member of the protest group blew a toy trumpet and the defendant burned the New Zealand flag. The Supreme Court set aside the defendant’s conviction for offensive behaviour because the lower courts had applied the wrong test for what amounts to offensive behaviour. The Supreme Court held that, to amount to offensive behaviour, a defendant’s conduct must, as Brooker decided was the case for disorderly behaviour, involve a risk of public disorder. As stated by Elias CJ at [2]-[3]:
“‘offensive’ and ‘disorderly’ behaviour are two sides of the same coin, both directed at the preservation of public order. On this view, ‘offensive’ behaviour is behaviour productive of disorder. It is not sufficient that others present are offended if public order is not disrupted. … s 4(1)(a) is not concerned with offending others, but with provoking disorder in the sense of inhibiting use of the public space.”

In reaching this conclusion, the Court took into account the guarantee of freedom of expression in s 14 of the Bill of Rights Act. Anderson J said at [124]:
“So s 4 of the Summary Offences Act must be interpreted in light of ss 5, 6, and 14 of the New Zealand Bill of Rights Act, notwithstanding that in ordinary speech insulting or offensive language is language which reasonably does or would be expected to wound feelings.” (Adams on Criminal Law, BC6.05(2)(c))

23

What is the case Police v Beggs in relation to?

trespass and the Bill of Rights Act, s 14

Facts.
About 300 students arrived at Parliament grounds as part of a protest. No specific permission had been sought for the protest in Parliament grounds, but their entry onto the grounds was not impeded. The Speaker of the House of Representatives, being aware of the impending protest, had delegated authority to the police to inform anyone behaving inappropriately or in a manner not conducive to the orderly and expedient conduct or Parliament, to leave the grounds, and to remove anyone who trespassed by refusing to leave after being warned. The protest was generally peaceful. The protesters demanded that the Minister of Education address them. A student protest leader was informed that the Minister would not do so and she then told the students that: “Protesting students should take one small peaceful step forward for every minute that the Minister of Education does not appear”.
Mr Nolly, a member of the Speaker’s staff, who had been delegated the task of overseeing protests in the grounds, became concerned about the potential for disorder following that suggestion. There was some pressure then being exerted on the crowd barriers. A student who was positioned on the police side of the crowd barriers at Nolly’s request communicated to the protesters, using his loudspeaker, that they had an hour to disperse from Parliament grounds or there was a possibility that they would be trespassers and arrests could occur. This warning was apparently given to the protesters on at least four occasions and then on one by Nolly. At the end of the hour Nolly approached the protesters and used a loudhailer to ask them to leave, otherwise they could be trespassers. On his instructions the police also advised the protesters to leave Parliament grounds or they could be arrested for trespass. Shortly thereafter police commenced arresting the protesters. Seventy-five people were arrested and charged with trespass under s 3(1) of the Trespass Act 1980. The information was dismissed and the police appealed against that decision by way of case stated.

Held:
(1) In exercising the rights of the occupier of Parliament grounds, the Speaker acted in the exercise of the Speaker’s public function. The right could therefore only be exercised consistently with the New Zealand Bill of Rights Act 1990 and because the exercise of the right interfered with the freedom of speech it could only be exercised when reasonably necessary in the circumstances. The Speaker had also to: act in good faith; exercise the power for the purpose for which it is conferred, and not for any ulterior purpose; exercise such power reasonably in all circumstances, when balanced against the Bill of Rights and freedoms of those affected by its exercise; exercise the power with due regard to the wishes of others wishing to use or enter Parliament grounds; consider the rights of the Speaker and the Crown effectively to operate, manage and control its property

(2) The Speaker was entitled to delegate the power to give a warning to leave and the Speaker or the authorised delegate was entitled to communicate the warning in the manner considered most effective. Stay of prosecutions ordered.

Observation
The exercise by the Speaker of the power of warning persons to leave under s 3 of the Trespass Act 1980 must be reasonable, both in the manner of its exercise and in the prevailing circumstances. A non-exhaustive list of relevant considerations might include: whether actions are disorderly, unlawful or interfere with others in the exercise of their rights and freedoms; whether an assembly is unreasonably prolonged; the rights and freedoms of other people enjoying the privilege of being on Parliament grounds; the rights of the occupier and those whose business or duties take them to Parliament; the size of the assembly and its duration; the content of what is being expressed (if it is hatred, racial abuse, intolerance or obscenity); …. In any situation, different factors will compete and with differing force. Those factors are likely to include, but may well not be restricted to, those identified above. Attempting to provide a formula is inappropriate and would be unhelpful. The test can only be one of reasonableness.

24

What does Falwasser v AG (High Court, Rotorua) relate to?

inhumane treatment; s 9, s 23(5) Bill Of Rights Act 1990

The facts

F had been arrested on suspicion that he had stolen a car, and was taken to Whakatane police station to be charged and processed. At the station, F refused to leave the holding cell into which he had been placed. When efforts to persuade F to leave his cell failed, attempts were made to physically remove F so he could be processed.

Initially, the officer’s treatment of F was passive and tolerant, despite his lack of cooperation in refusing to move from his holding cell. Had cooperation been forthcoming, F would have been fingerprinted before being granted bail and then released.

F refused to leave his holding cell. Another constable, who knew F from his schooldays, was brought in to try and convince him to cooperate, it being assumed a familiar face might help ease the situation. When that failed to bring about a result, F’s brother arrived at the station to try and get F to cooperate with processing, but to no avail.

The sergeant on duty then went to see F and told him he would have to go down to another cell until he allowed police to take his fingerprints and photograph. The sergeant can be seen on CCTV footage inviting F to leave his cell, but he still refused to move. In response, the sergeant instructed F to turn around so he could be handcuffed before being moved to another cell, but F continued to refuse despite the instruction being repeated several times.

Flawed process

The sergeant then decided to embark on a strategy that counsel for the Attorney-General conceded was flawed. F was informed that if he did not comply with the instruction given to him, he would be pepper sprayed. Shortly afterwards, in the face of persistent refusals by F to comply with instructions, the sergeant used the pepper spray. A second constable then struck F with a baton.

At one point, F sought to advance out of the cell and another baton was brought into play, causing a wound on F’s scalp. In response, F retreated inside the cell and the cell door was closed.

There then followed a discussion between the four officers to determine another strategy for removing F from the cell. Another plan was formulated whereby the four officers would enter the cell using plastic shields before using plastic handcuffs to restrain F so he could be moved. During this phase, another officer used pepper spray, but it did not prove possible for the officers to enter the cell to implement the new strategy and the cell door was closed again.

After the second plan was abandoned, there were no further attempts by police officers to enter the cell, although the CCTV footage shows various attempts being made to deploy pepper spray through the vents of the cell. This strategy was also abandoned, no doubt because of the effects of the pepper spray in the enclosed space.

Eventually, medical personnel were summoned to attend to F’s injuries, and his brother also returned to the station. F had calmed down by this point and he was processed.

Bill of Rights Act

The Attorney-General conceded that the use of the batons and pepper spray constituted a breach of section 23(5) of the Act. Section 23(5) states:

“Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.”

Although the four officers were acquitted of criminal charges, the Attorney-General agreed with F that the officer’s actions did not amount to an appropriate level of respect for the inherent dignity of F, and that the treatment was inhumane. However, F argued the actions of the officers amounted to “torture and cruel treatment” for the purposes of section 9.

Conclusion on Bill of Rights Act breach

After reviewing the CCTV footage and the evidence, the Judge was satisfied that F had failed to establish a breach of section 9 of the Bill of Rights Act (the right not to be subjected to torture or cruel treatment). Although the use of force was excessive, the Judge was satisfied that what occurred to F did not amount to torture, or treatment or punishment that was cruel, degrading or unusually severe. For a claim under section 9 to succeed, it would have to be proved that the police officers deliberately or recklessly set out to harm F, but the Court recognised that the officers did not resort lightly to their approach of physically removing F. The officers tried repeatedly to persuade F to leave the holding cell before embarking on their physical attempts to move him.

However, the Judge was satisfied that the concession by the Attorney-General regarding a breach of the section 23(5) right was properly made. The Judge concluded that the actions of the officers constituted a serious breach of section 23(5) of the Act and F was awarded $30,000 in damages.

Comment

Stevens J observed that, “there is no doubt on the evidence that Police will have learned salutary lessons from the flawed strategy employed by the police officers concerned during the incident.” As this incident was the result of a misconceived strategy to try to get F to cooperate with routine processing, the remedy for the breach of section 23(5) was sufficient.

Prisoners, in all cases, whether compliant or not, must be treated with humanity and with respect for the inherent dignity of the person. Any use of force must be reasonable and necessary.

When staff are confronted with a non-compliant prisoner, all options, short of using force, should be considered before force is used, eg, can the prisoner be processed later when they have calmed down; and what tactical options are available to remove the prisoner using the minimum force possible. The fact that alternative options could be inconvenient will not excuse force that is unnecessary.

25

What does the case R v Williams (2007) relate to?

Search, unlawfulness and reasonableness; s 21

In this case the Court of Appeal revisited the basic question of when, if ever, a search that is found to be unlawful can nevertheless be found to be reasonable under the Bill of Rights Act. With one exception, the Court concluded that an unlawful search must always also be unreasonable and, as such, in breach of the Bill of Rights Act:

Link between unlawfulness and unreasonableness

Legality and reasonableness, although related, are distinct concepts. (See also, in Chapter 4, the case of R v Laugalis (1993) 10 CRNZ 350; (1993) 1 HRNZ 466)

A lawful search may be an unreasonable search where it is conducted in an unreasonable manner (such as being conducted with excessive force).

For the purpose of assessing the admissibility of evidence, an unlawful search or seizure will, however, be unreasonable and therefore in breach of s 21 of the Bill of Rights, except where:

(a) the error is minor or technical; and
(b) the error is not noticed before the search or seizure is undertaken.

As to what is a “minor or technical” error, the Court said:
“What is minor or technical should not be given an expansive interpretation. An example of what has been as a minor and technical breach is R v Smith (1996) 13 CRNZ 481 (CA), where there had been a failure to file a report after the exercise of a warrantless search under s 18(2) of the Misuse of Drugs Act 1975. By contrast, mistakes such as specifying the wrong property in a warrant would not normally be considered a minor or technical breach, even where the intended property is in fact searched. …

Further, the failure to follow the identification requirements in, for example, s 18(4) of the Misuse of Drugs Act 1975, is also unlikely to be a minor or technical breach. … we consider that the same applies to the identification requirement in s 60(3) of the Arms Act 1983. In our view, provisions such as s 18(4) of the Misuse of Drugs Act 1983 and s 60(3) of the Arms Act are important. Requiring a person to submit his or her body or property to a search is a restraint on their freedom. Identification provisions provide the target of the search with the reason why his or her person or property is being invaded … If the police, however, indicate the general source of the power or permit the suspect to contact a lawyer at the time of the search, this may allow the breach to be regarded as minor or trivial …”

Nevertheless factors that, apart from the fact of unlawfulness, might suggest the search is reasonable in the circumstances (for example the existence of some form of emergency or the fact that the actual invasion of privacy is minor) will be relevant when the court comes to consider whether the evidence should nevertheless be admitted under the balancing process mandated by Shaheed (and now s 30 of the Evidence Act 2006).

Note:

Although this case relates to the law of search and s 21 of BORA the conclusion reached by the Court (ie that the basic rule is that unlawful = unreasonable) applies equally to the question of arbitrary arrest/detention under s 22. There, too unlawful = arbitrary except where the error that the officers concerned are unaware of at the time is “minor or technical”.

26

What does the case R v Pratt (1994) relate to?

search, lawful but unreasonable; s 21

Note

This case is also discussed in Chapter 4 of this Syllabus.

The police stopped the appellant in a public thoroughfare and strip-searched him in a side street for drugs pursuant to s 18(3) Misuse of Drugs Act 1975. A set of keys was found when the appellant emptied his pockets. The search continued until the appellant was completely naked. The police discovered that the keys fitted the locks of a hall that the appellant was renovating and that had been under police surveillance. One key unlocked a locker in the hall that contained a kilogram of cocaine. The keys were the only direct evidence linking the appellant with the cocaine.

The appellant was convicted of possession of cocaine for supply. He appealed against conviction on the ground that the police had breached s 21 New Zealand Bill of Rights Act 1990. The Crown contended that the keys were found before the search became unreasonable and that as the police had intended to search the hall, regardless of the results of the search, the discovery of the cocaine was inevitable.

Held:

(1) The evidence of the finding of the keys, and the discovery of the cocaine through the use of them, is inadmissible.

Per Cooke P (Hardie Boys J concurring):

(2) The strip-search, conducted as it was in a public place, was unreasonable and breached s 21 New Zealand Bill of Rights Act 1990.

(3) The seizure of the keys was unlawful, even if the keys were found at an unobjectionable stage of the search, as s 18(3) Misuse of Drugs Act 1975 only authorises the taking of drugs. There is no ground for finding that this unlawful seizure was reasonable.

(4) … Per Richardson J:

(5) It is unreasonable for police to strip-search a citizen in a public street in the middle of the day when there are no law enforcement considerations necessitating that approach, such as the opportunity for the appellant to dispose of any drugs, and when the search could easily have been carried out in comparative privacy at one of the three nearby police stations.

(6) The desire to use keys to gain access to a building and search for drugs, rather than to use force, cannot make an unlawful seizure reasonable, particularly if that seizure is the result of an unreasonable search.

(7) The emptying of the pockets, in which the keys were found, was not a separate search but the first step of a full strip-search that the police had already determined would proceed. The search was one incident and all of it was tainted by unreasonableness.

(8) … Per Casey J:

(9) Where there is a deliberate decision of the police to conduct a search intruding so publicly into the privacy and personal integrity of the subject, without any demonstrable need for it to have been so conducted, any Court must be loath to conclude that the interest of justice nevertheless required admission of the evidence discovered during the search.

27

What does the case R v Hufflet (also known as R v H) (1994) relate to?

Search, getting a warrant, application of Bill of Rights protections to actions of an ‘agent of the State’; s 21

Facts

A company accountant, D, was instructed by H, a director of the company, to make a series of payments to a third party, apparently to facilitate the obtaining of fishing quotas at the best possible prices. D became concerned as to the legality of such payments, and eventually spoke to an official in the appropriate ministry about the matter.

D was then interviewed by the police. He took to the interview a number of documents relating to the transfer of monies to the third party’s offshore account.

Soon after, search warrants were obtained against the company’s bank, relating specifically to the financial transactions at issue. No warrant was sought for a search of the company premises at that time.

For the next 20 months, essentially at the police’s request, D supplied the police with copies of numerous documents that he copied from company records. At the end of this period a search warrant was executed on the company premises. Several thousand documents were seized and H was arrested.

The High Court ruled that the passing of the material to the police did not constitute an unreasonable search and seizure within s 21, despite some technical offences in the way the material was supplied.

Decision

A primary issue for the Court of Appeal was whether protections under s21 of the New Zealand Bill of Rights Act 1990 applied in regards to the documents passed by D to the police. Could D be said to be acting as a private individual, rather than as a Crown agent?

The Court of Appeal found that any search and seizure of the material in question was encouraged by the police and could be treated as governmental in nature, therefore the Bill of Rights protections applied. This decided; the crux of the inquiry under s 21 was whether the governmental intrusion on privacy was unreasonable.

In R v Laugalis, (1993) 10 CRNZ 350; (1993) 1 HRNZ 466), it was observed that if a warrant is readily obtainable, it will be much harder to argue successfully that an unauthorised search was reasonable. [See also Chapter 4 of this Syllabus]

Applying this principle, it was found that after the initial interview with D the police could readily have obtained a warrant to search the company premises, but had chosen not to do so. Instead, the police had elected, without warrant, to search the company officers and seize evidence, over an extended period of time, through the agency of D. This prima facie made the search unreasonable.

Points to Note

The Court of Appeal in its judgment stated:

“Where there is a deliberate decision by the police to act without warrant, any court must be loath to conclude that the interests of justice nevertheless require the admission of evidence.”

The Court of Appeal has given a wide definition to the meaning of search. Soliciting information through agents (informants) in many cases will amount to a search, and will attract Bill of Rights protection. Officers should proceed with caution where this situation arises.

Note:

A number of cases have affirmed that individuals who record conversations

(rather than gather documents, as in this case) may not be agents of the state In determining whether the other party to the conversation is a state agent, the test adopted in such cases derives from R v Barlow (1995) 9; 2 HRNZ 635, (and considered in recent cases such as K v R [2013 NZCA 430) is: “Would the exchange between the accused and the other party have taken place, in the form and manner in which it did take place, but for the intervention of the state?”. In the case of private phone-calls between individuals who already have relationships with the phone-caller, it can be difficult to find that such phone-calls wouldn’t have occurred anyway regardless of the intervention of the state.

28

What does the case A-G v Hewitt (2000) relate to?

Arbitrary detention and police arrest policies, exercising discretion; s 22

Facts

H was charged with assaulting a female after a domestic incident at the address he rented with his partner G. Shortly after the incident G went to her stepfather’s house and rang the police.

Police took a complaint from G and then went to H and G’s rented house, where H was believed to be, arriving shortly after midnight and approximately 30 minutes after the alleged assault.

Police got no reply after knocking on the door and on a window at the address. At 3.30am police returned to the address with a key G had given them and after getting no reply again, let themselves in. H was arrested, taken back to the police station and charged at about 6am. Police bail was never considered and H remained in custody for approximately seven hours until released on bail by the Court.

The charge against H was discharged at a depositions hearing and he subsequently brought civil proceedings against police for trespass, wrongful arrest and false imprisonment. The Judge found against police and awarded substantial damages to H. This case is an appeal against that decision.

Decision

The High Court made the following findings:

• On the first occasion the police officers has an implied licence to enter the property. This license was not revoked by H.

• On the second visit the police officers had the express permission of G, who was a joint tenant, to enter the property.

• The police officer had good cause to suspect an offence had been committed.

However, it also found that:

• The police officer had gone to the property with the sole purpose of arresting G. Adopting a policy to automatically arrest a suspect without allowing for exceptional circumstances, was not lawful.

• A failure to consider the discretion to arrest was unlawful and arbitrary under section 22 of the Bill of Rights Act. H’s detention following the arrest was therefore also unlawful.

• Failure to exercise discretion to grant bail supported H’s claim of false imprisonment.

Comment

The incident that lead to these civil proceedings occurred in 1993 and related to the then Kapiti-Mana District’s domestic violence policy. That policy stated that in domestic violence cases the alleged offender shall be arrested.

The Family Violence Policy and Procedures chapter of the Police Manual now states:

Arrest if sufficient evidence of offending As with all other offending, determine whether:

- there is sufficient evidence of an offence to arrest, and

- the tests for prosecution in the Crown Law Prosecution Guidelines would be met

If there is sufficient evidence of an offence, suspects responsible for family violence related offences or breaches of protection orders should, except in exceptional circumstances, be arrested. Protection orders continue to be effective until discharged by a Family Court. Where there has been an historical breach, action should still be taken.

Where offending is disclosed and actions other than arrest are contemplated, you must consult your supervisor before proceeding...

Police bail for family violence offences

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

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

This allows for the use of discretion when making arrests and bailing a person in domestic violence related incidents. Some urgent situations may be such that an immediate arrest is required, effectively precluding the exercise of discretion. However, in domestic violence cases, like any other case, there will be a wide range of matters to be considered before an arrest is made or bail is refused. In domestic violence cases considerations may include:
• the need to remove the alleged offender from a fraught situation;
• a risk that a further incident may occur if an arrest is not made immediately;
• a prior history of violence;
• the presence of people who can ensure the victim will remain safe;
• a possibility that the assailant may abscond;
• the need to preserve evidence;
• the risk of interference with witnesses.

29

What does the case Neilson v Attorney-General (2001) relate to?

Arbitrary detention, exercising discretion; s 22

Background

N faced two charges relating to his failure to account in October 1992 for two cheques to a total value of $110. In March 1994, following an investigation, police went to N’s home. N was advised that if he did not accompany the officers back to the station he would be arrested and he was given the standard caution. The Court determined that at this point N was deemed to be under arrest

Upon returning to the police station N was charged, fingerprinted and photographed. In total he was detained in custody for one-and-a-half hours before being released. After committal for trial the Crown did not oppose an application for discharge under s 347 of the Crimes Act due to procedural errors in the police case.

Civil Claim

N claimed damages under two causes of action. The first was that he was unlawfully arrested and detained, the arrest not satisfying the requirements of s 315 of the Crimes Act 1961. The second was that the arrest was arbitrary and thus in breach of s 22 of the New Zealand Bill of Rights Act 1990.

High Court Decision

The High Court found that the arrest was lawful. N appealed against that decision.

Court of Appeal Decision

The Court considered various statutory and policy directions relevant to the control of the police and the discretion to arrest, in particular s 315, and what was then GI A291 and the Manual for Detectives (an updated version of these documents is now contained in the Arrest and Detention chapter (Version: 15.0) of the Police Manual, under ‘Deciding whether to arrest’ – see below).

The Court held that the officer had “good cause to suspect” but that the exercise of the discretion to arrest (as opposed to summons) and the subsequent detention were unlawful. In coming to this conclusion the Court commented:

• The belief by the arresting officer that N might re-offend in the future in a similar fashion involving fraud and the use of documents and that it was necessary to have his fingerprints on record in that event was an irrational and illegitimate basis for arresting.

• The arrest occurred 14 months after the alleged offence was committed.
• The sums of money involved were small.
• N did not have a criminal history or a history of fraud.
• There was no evidence that N might commit further offences. Police have no authority under s 315 to arrest and hold people against the possibility that they may offend at some unspecified time in the future.
• There was no need to have any of the documents checked for N’s fingerprints. The power under s 57 of the Police Act 1958 (see now ss 32 and 33 of the Policing Act 2008) to fingerprint a person arises only when a person is in lawful custody on a charge of having committed an offence. The existence of that fingerprinting potential would not be a rational basis for an earlier decision to exercise the power to arrest without warrant.

This case remains the leading decision on what constitutes an arbitrary detention or arrest:

“An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures.”

Given that N was only detained for a brief period (one-and-a-half hours) and there were no other aggravating features, the Court determined that an award of $5000 was appropriate.

Comment

The most important consequence of this decision is that before an arrest is made, the arresting officer must be very clear in their own mind that the reason for the arrest falls within the various criteria considered by the Court. The Court accepted that the guidance for staff given in the old GI A291 and in the Manual for Detectives provided a good overview of the relevant criteria. These two documents have since been rewritten and the wording has been updated but there is no reason to believe that a court today would treat them any differently.

30

What TENR factors should you consider when deciding to arrest?

1. Assess the threat

Assess the threat, taking into account:
• the nature and seriousness of the offence
• intent – the likelihood of the person destroying or disposing of evidence
• the likelihood of the person warning accomplices; and interfering with or intimidating witnesses
• capability – the likelihood of further offences being committed if the offender is not arrested
• opportunity – whether the person is likely to abscond to avoid court, e.g. is there a history of failure to appear at court?
• physical environment – are there problems with access to the target location? Is the location fortified or are there other hazards?

2. Assess the exposure

Assess the exposure, taking into account:
• safety – Police and public safety
• whether arrest will safeguard the person's well being and interests. e.g. is there a risk of retaliation or intimidation by co-offenders?

3. Assess the necessity to act

Assess the necessity to act, taking into account:
• the nature and seriousness of the offence. The less serious the offence, the less justification for arrest and the more likelihood that an alternative action would be a better case resolution option
• whether an arrest is necessary to stop the offence
• the person's social and family circumstances, and criminal history. Are there alternatives to arresting the person e.g. health professionals, family or community support groups?
• if there is sufficient evidence of an offence, suspects responsible for family violence related offences or breaches of protection orders should, except in exceptional circumstances, be arrested. See "Deciding whether to arrest" in the Family violence policy and procedures.

4. Develop a response

Develop a response, taking into account whether:
• this a situation where:
• a more detailed investigation into the threat environment is required before acting?
• prompt action is required to prevent further loss of life or injury?
• there are sufficient Police resources and assets available to safely effect the arrest?

31

What alternatives to arrest should be considered before arresting somebody?

Alternatives to arrest

Arresting a person and depriving them of their liberty is a serious act. After considering the factors above, consider whether arrest is necessary and the best response to take in the particular situation.

You should not arrest a person if:
• they can be brought before the court by way of a summons (written notice to a person that court action has been started against them and that they are required to appear and answer the complaint or respond in writing to the complaint). If the offence is not punishable by imprisonment and there are no or insufficient aggravating factors, summons is more likely to be the better way of commencing prosecution.
• a warning, caution, counselling or referral to another agency would be a better resolution to the situation being dealt with.

Refer to the Youth Justice chapter of the Police Manual for information about restrictions on and alternatives to arresting children and young people.

When the person’s identity is in issue

If a person’s identity is in issue, consider whether taking identifying particulars under section 33 Policing Act 2008 and proceeding by way of summons would be more appropriate, than the more serious response of arrest. A desire to use section 32 to obtain a person's fingerprints /photographs for evidentiary purposes is not sufficient reason alone to arrest.

Minor offences

Arresting people is not encouraged and may not be necessary for:
• minor behaviour offences not involving or likely to lead to violence against people or property (particularly if the offender stops when asked)
• language offences where the only person who heard the language was a Police employee.

Minor drug offences

The discretion to arrest for minor drug offences is the same as for other offending. Provided the offending does not involve drug dealing, the primary aim should be the person’s rehabilitation.

Children and young persons

Refer to the ‘Arresting a child or young person and explaining right’ in the Youth Justice Police manual chapter for information about restrictions on, and alternatives to arresting children and young people.

32

What does the case R v Briggs (2009) relate to?

Limits on how far the courts will review the exercise of the arrest discretion; s 22

Facts

Briggs was one of a group of prison inmates arrested by the police following an attack on a fellow prisoner. Over the prisoners’ objections, they were taken from the prison to a police station. In the judgment appealed from, the High Court Judge concluded that the arrests were unlawful and arbitrary because the arresting officers had not exercised their discretion to consider alternatives to arrest. They had simply followed the instructions of senior police personnel. The Judge held that this case called for the exercise of the discretion because the prisoners were already in custody. The Judge applied s 30 of the Evidence Act 2006 and excluded all evidence obtained from the prisoners that was gained as a consequence of their arrest.

The Court of Appeal disagreed, and held that the evidence was admissible. After reviewing the authorities, including Hewitt (above) and Neilsen (above), … the Court made the following points:

• “First, while the courts have accepted that the police have a discretion to arrest or not even where the reasonable cause to suspect requirement is met, the New Zealand cases have not recognised a blanket requirement that the police must be satisfied that the use of the power of arrest is necessary in the circumstances of the particular case.

• Second, while it is accepted that the courts may review the exercise of the discretion to arrest … that power is exceptional and will be exercised only in very limited circumstances. It is unlikely to be exercised in the absence of factors such as bad faith, improper purpose or improper fettering resulting from inflexible policies.

• Third, there is a distinction between cases where the arresting officer is unable to exercise any discretion because he or she is obliged to follow an inflexible policy and a situation where an officer is given the responsibility of making an arrest in the course of a particular investigation in which a team of officers is involved.”

Held

Where a police officer had good cause to suspect a person committed an offence, that officer had discretion whether or not to arrest; police officer not obliged to invoke criminal justice processes in every case. The exercise of an officer's discretion to arrest may be open to judicial review on rare and limited grounds. Where arrests are carried out under direction and immediate supervision of a senior officer it is unnecessary for each of arresting officers to consider independently whether or not to exercise discretion to arrest.

33

What does the case R v Paku (Hamilton High Court 2006) relate to?

Detention/arrest and rights warnings; s 23(1)(a)

Facts

Police received a report of a man unconscious on a Hamilton street. At 03.35 two Constables attended and received an allegation of a fight and a description of the men involved. They recognised a man matching the description walking away quickly from the scene. The two officers ran after the man (the accused - P) and grabbed him and walked him to the patrol car. The Crown accepted from that time that the man was detained and no warning under s 23(1)(a) of the New Zealand Bill of Rights was given. Section 23(1)(a) provides that persons “arrested or detained under any enactment - shall be informed at the time of the arrest or detention of the reason for it....”

Back at the car, Constable M cautioned P telling him that he was not obliged to say anything and that anything he did say would be given in evidence and that P had the right to consult a lawyer without delay and in private. The accused acknowledged that he understood those rights. Asked by Constable M what had happened, the accused said that he had pushed a man who had touched his girlfriend and that the man had fallen over.

Another constable, Constable L, drove P and his girlfriend to the station. When asked by Constable L, P and his girlfriend agreed that they were coming back to the station of their own free will to answer questions about what happened. P asked Constable L what would happen if they wanted to leave. Constable L re-iterated that her understanding was that they were coming back to the station of their own free will. The girlfriend asked if the man was alright but the Constable did not give a direct answer. At 03.55 P was locked in an interview room. The watchhouse supervisor (who had been advised at 03.45 that the victim had died and had alerted Detectives) advised P that other Police were coming to speak to P and P responded that he was happy to stay in the interview room until the interviewing officers arrived.

At 05.40 a Detective entered the interview room where P was asleep and woke him. Although it was contested, the Court accepted that the Detective told P at 05.50 that the man had died and that P had said he was happy to speak to Police.

The Court accepted that at 05.55 a caution/Bill of Rights warning regarding the right to silence and the right to consult a lawyer was given and an understanding of these rights was acknowledged. P then made a statement.

P was arrested by the Detective at 06.50 and given his rights again. After arrest, P made some admissions to the Constable who took his fingerprints.

Decision

The admissions in dispute were the statements made to the Detective and the fingerprinting Constable.

The Court found that the cautions given in the patrol car and by the Detective were inadequate, as was a later further query made by the Detective as to whether P wished to consult a lawyer. That was because at no time was P told that he was detained and why he should consider consulting a lawyer. The Court accepted the defence submission that the position of a person who is detained and is to be formally arrested is different to a person who is not detained and no decision has been made regarding arrest. The Court noted that a person who knows that he is under arrest may well say nothing but a person who believes that there is some prospect of being allowed to go without arrest may recount his side of things.

The Court considered that specific advice that the accused was detained on a criminal charge might well have led P either to instruct a lawyer or to refrain from making further statements.

The statements made to the Detective were deemed inadmissible due to the double wrong of the unlawful detention and failure to give the s 23(1)(a) advice. However, the statements of admission made to the fingerprint officer were to be admitted as being spontaneous utterances rather than responses to police questioning and made at a time when the person was lawfully detained ie after arrest.

Comment

A person may only be lawfully detained pursuant to an enactment. In this case the detention could have been validated by P being initially arrested for assault. The delay of formal arrest does not effectively delay the time at which the Bill of Rights advice needs to be given. Section 23(1)(a) requires that notice of the fact of detention and reason for detention be given to a person. It is a matter of fact as to whether a person has been detained and the actions of Police in grabbing the accused; locking him in an interview room; coupled with the inevitability of arrest (accepted in evidence by Police) meant P was detained well before formal arrest.

34

What does the case R v Mallinson (1992) relate to?

Rights warnings, general principles; s 23(1)(b)

Facts

Mallinson was arrested initially on a minor and unrelated charge and taken to the police station. He told the arresting officer that he understood that he was being fingered for some armed hold-ups; that he wasn’t particularly concerned about this as he would get a solicitor who would get him off when he returned to prison. He was not told of his right to a lawyer at the time of this arrest.

About an hour later he was interviewed by another police officer. That officer began the interview by giving the standard caution to Mallinson; advised him that he had the right to consult and instruct a solicitor (but without adding ‘without delay’ or words to a similar effect); informed him that he was not obliged to make a statement; and asked him if he understood to which Mallinson replied that he did. Following the interview Mallinson was charged with three aggravated robberies.

In the High Court the Judge determined that the statements obtained by the police were inadmissible. He held that it was necessary for the Crown to show that it had been clearly explained to Mallinson that he had the right before questioning began to consult and instruct a solicitor and that if he wanted to exercise that right that it would be facilitated. The Judge held that both aspects were required so as to ensure that the person arrested understood what he or she was being offered.

Having concluded that the statements should be excluded, the High Court Judge ruled at the subsequent trial that without the statements there was insufficient evidence to support convictions on the aggravated robbery counts. He directed the jury to return verdicts of not guilty so that his ruling on the inadmissibility of the statement could be challenged in the Court of Appeal. The Crown duly appealed.

Held

This case sets out the test for effective communication of the right to consult and instruct a lawyer. The presence of factors suggesting possible non-comprehension of the lawyer information right in s 23(1)(b) imposes extra responsibility on police to communicate the information effectively. For the right to consult a lawyer without delay to be effective, the right to be informed must be accorded immediately on arrest.

The expression ‘without delay’ does not mean the same as instantly or immediately. It creates a test as to whether any delay that occurs is reasonable in all the circumstances having regard to the purpose of the right. If the right to legal advice is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised.

To be ‘informed’ of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide on whether or not to exercise the right. The obligation on the arresting officer is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. Using the language of section 23(1)(b) may save argument later. In the end whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable.

It is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, that is as soon as reasonably possible in the circumstances. The requirements is not satisfied if the person arrested may reasonably be left with the impression that access to a lawyer is not available until after any questioning is finished.

Unless there are circumstances calling for obvious care and further inquiry, there is no reason for not taking the accused’s answers at face value. If, following advice as to the right to a lawyer, the accused answers that he or she understands the position the obvious inference is that the accused did indeed understand his or her rights. However, where the person arrested is suffering from some disability which could affect his or her ability to understand the rights being given, more than a bare statement of the right and a bare acknowledgement of understanding is likely to be required.

The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. The arrested person must genuinely put in the position where they do in fact understand the rights that have been given.

The obvious implication of informing persons of their rights is that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police would depend on the particular circumstances.

The Bill of Rights is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the right protected by the particular guarantee here. section 23(1)(b). And anyone complaining of a breach of the Bill of Rights must as the Canadian Courts say, invest the complaint with an air of reality.

Comment

If a person is not told at the time of his arrest of his right to a lawyer clearly there would be a breach of the Bill of Rights Act. However, such a breach may be excused and the statement subsequently obtained may be admitted in evidence provided the accused was informed of his rights before questioning began.

An omission of the words ‘without delay’ or words to similar effect will not necessarily be fatal. Provided the accused would have understood that he was entitled to consult a lawyer before answering any questions, the answers to the questions will normally be admissible.

Unless there is an evidential basis justifying the conclusion that the suspect did not understand his rights, proof that the police advised the suspect of his rights should lead to the inference that the suspect understood the position.

35

What does the case R v Tunui (1992) relate to?

Rights warnings, ensuring understanding; s23(1)(b)

Introduction
This case centres on the need to ensure that the Bill of Rights advice to people who have been arrested or detained is understood by them.

Facts

Police members entered a house to search it. Tunui was there and did not understand or accept the police advice that section 18(2) of the Misuse of Drugs Act allowed them to enter. He became aggressive and when attempts were made to arrest him for obstruction he became violent, requiring him to be forcibly restrained and handcuffed. While he was being moved from the floor he was told of his right to a lawyer.

He was kept in handcuffs at the house for an hour before being taken to the police station where the handcuffs were removed and he was interviewed. Tunui claimed he had asked to speak to a particular lawyer, but this request was ignored. He was then charged with drug related offences.

Issues

Whether Tunui’s statement to the police should be excluded because of breaches of the New Zealand Bill of Rights Act, especially section 23(1)(b) – right to consult and instruct a lawyer.

Held

It is not enough to inform a person of the right under section 23(1)(b) and not accord it, just as it would be insufficient to be prepared to recognise the right under section 23(1)(b) but not to inform a person of its existence.

Being told of the right to a lawyer is not the same as being told of the right to consult and instruct a lawyer without delay. It may be necessary to inform an arrested or detained person more than once of the right to ensure that the right to consult and instruct a lawyer without delay is in reality accorded to a person. For example, if may not be compliance with the Act for a person to be told perfunctorily of the stipulated right of consultation and instruction at a time of great stress in the course of an arrest.

Nor will it be sufficient compliance with the spirit of the Act in some cases merely to recite the exact words of section 23(1)(b). Some people may understand what is meant by “consult and instruct a lawyer without delay”; others may not have a clue what right is being indicated by reciting the statutory words. There may be persons whose first language is not English and who may require the statutory intent to be explained in comprehensive form as far as they are concerned.

The whole of the evidence of interview was excluded.

36

What does the case R v Hendry (2011) relate to?

Rights warnings, facilitating access to a lawyer

Background

Hendy was stopped by police, underwent a breath screening test and was given his rights under the NZ Bill of Rights Act 1990 and the Evidence Act 2006. He failed the breath screening test and returned with police to the station as required.

When Hendy arrived, he was advised of his rights again. He asked to speak to a lawyer and was given a list of lawyers from which he selected one. He spoke to the lawyer for about three minutes in private, but in his view the lawyer was unhelpful and seemed to be asleep at the time. Hendy told police; police did not give him the option of phoning another lawyer.

Hendy was breath tested for the first time and when he failed the test he again asked to speak to a lawyer. He rang the same lawyer and spoke to her for about four minutes in private. Hendy was again not satisfied with the advice given to him and he told police.

Hendy was charged with driving with excess breath alcohol and defended the charge. He challenged the admissibility of the breath-test result on the basis that his rights under the NZ Bill of Rights Act 1990 were not given proper effect and that he never waived those rights. He contended police were required to do more than read him his rights; the officer needed to take all reasonable steps to facilitate his exercise of those rights, and had not done so.

Decision

The District Court considered that whether an individual has had the opportunity to exercise the right to consult a lawyer is determined by the extent to which police enabled that person to exercise the right in the particular circumstances.

The law does not require police to provide any particular material, or make any specific inquiries, regarding the exercise of a person's rights. The law only requires an individual should have a real opportunity to exercise their rights.

It is therefore not a legal requirement for police to offer an individual the opportunity to phone multiple lawyers if the individual is not satisfied with the legal advice they have obtained when their rights have been properly facilitated.

Comment

Police are under no obligation to offer a detained person a further opportunity to call another lawyer when that person has already spoken to a lawyer and is not satisfied with the advice provided to them.

37

What does the case R v Ji (Court of Appeal, 2004) relate to?

Facilitating access to a lawyer and exercising the right to silence; s 23(1)(b), s 23(4)

Background

Ji was a Chinese national with a limited grasp of the English language. A car he had been driving was found off the road down a hillside. His girlfriend’s body was found some distance from the car. Ji had suffered minor injuries.

It was not initially disclosed to Ji that his girlfriend had been found dead. Police spoke to Ji at the hospital. He was cautioned, read his rights and taken to Christchurch Central Police Station. A lengthy interview took place, through an interpreter, without videotaping. The interpreter made no record of the questions he relayed to Ji, nor of the answers received and communicated to the detective. Several hours into the interview, the fact of the girlfriend’s death was disclosed to Ji who became distressed and said he did not want to say any more.

The record of the interview then disclosed an interrogation uninterrupted apart from a break for Ji to visit the lavatory, for about seven hours. A solicitor then arrived to provide legal assistance to Ji under the police detention legal assistance scheme. The solicitor had been contacted after Ji advised he wanted a lawyer once he had been told one would be provided for him on legal aid.

Ji applied to the High Court for an order that his statement be held inadmissible on the following grounds: (i) that the evidence should have been excluded on a discretionary basis for unfairness relating to the way in which the interview was conducted; (ii) that the interview was conducted and the statement obtained in breach of Ji’s rights under s 23 of the New Zealand Bill of Rights Act 1990 (the NZBORA); and (iii) that the interview proceeded from the time Ji indicated, at about 3 pm, that he did not wish to say any more, in breach of Ji’s rights under s 23(4) of the NZBORA and in breach of the Judges’ Rules. The High Court found in favour of the Crown and declined to hold the alleged confessional statement as inadmissible evidence. Ji appealed to the Court of Appeal.

Held

(1) The failure by police to explain that free legal advice was available, where the interviewee had indicated that the right to consult and instruct a lawyer was not being exercised because of financial constraints, was a breach of the interviewee’s right under s 23(1)(b) of the NZBORA. However, there was no evidential basis for finding a causal link between the breach of the right and the making by the appellant of his statement.

(2) The appellant’s right under s 23(4) of the NZBORA to refrain from making any statement and to be informed of that right, and the Judges’ Rules, were breached immediately after the appellant was told of the death of his girlfriend. The appellant made it perfectly plain he did not wish to answer any more questions. The interviewer failed to respect that expressed wish and continued to question the appellant. In view of the length of the interview, the emotional state of the appellant, the need to use an interpreter and the failures to keep a record in the detainee’s native language and to videotape the interview meant there was a risk of serious injustice should the interview be held admissible despite the breaches.

Application successful in part.

Observation

Where an interview is lengthy, where it involves the use of an interpreter, where the interview record would otherwise be a police officer’s subjective written notes, and where there may be relevant incidents of the interview in terms of conduct or appearance, the absence of a videotaped record creates a serious danger of inaccuracy or other injustice.

Note: the statements in R v Ji concerning facilitating access to legal advice have now been formalised and extended by Rule 2 of the revised Judges’ Rules issued by the Chief Justice under s 30(6) of the Evidence Act 2006. This Rule is as follows:

Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a) that the person has the right to refrain from making any statement and to remain silent

(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.

(c) that anything said by the person will be recorded and may be given in evidence.

See further the Ten-One commentary on the Practice Note on Police Questioning included below.

38

What does the case R v Kokiri (2003) relate to?

Questioning after an assertion of the right to silence; s 23(4)

The Facts

K crashed into an oncoming vehicle, killing the driver. K had earlier been sighted travelling at 180km per hour in a stolen car and had been unsuccessfully pursued by Police. K was apprehended at the scene of a car accident and was arrested, cautioned and told of his rights.

At the station, K was again advised of his rights and K asked to see a lawyer. A senior solicitor, Mr W, attended at the request of Constable T. He discussed the matter with K and advised him not to make a statement. Mr W then informed Constable T that Mr K would not be making a statement and left.

Constable T then approached K and a discussion took place for half an hour. No record of that conversation was made. An interview then took place in which K said that he was not happy to proceed with the interview but would anyway. He also asked for the Constable’s advice as to what to do, but was told that Police couldn’t advise him. K was reassured that he was entitled to speak to a lawyer, or have one present during the interview but the interview proceeded without one.

The decision

The High Court Judge found that K had exercised his right not to make a statement and had been inappropriately manoeuvred into a situation where a statement had been prised out of him whilst he was in a shaken state. The Court was critical of Constable T’s behaviour in not calling Mr W back to the station, when Mr K begrudgingly agreed to the interview.

The High Court found that there had been a breach of rights but decided to admit the statement on the basis that there were no contrary indications as to the truthfulness of it and that the Shaheed principles favoured admission.

The Court of Appeal reversed the decision and excluded the evidence. The Court noted that the freedom not to make a statement after arrest was entrenched in the legal system and was affirmed by s 23(4) of the Bill of Rights. The Court determined that the intrusion on the right weighed heavily in favour of exclusion and that the interest in having all relevant evidence available at trial did not displace the need for such. Where there are doubts as to reliability of confessional evidence, the admission of that evidence could potentially detract from the credibility of the justice system.

Comment

Because of the High Court findings that K had been “inappropriately manoeuvred into a situation where a statement had been prised out of him while he was in a shaken state”, the Court of Appeal determined that a breach of the right not to make a statement was established and no question of waiver arises. In this case, the lawyer acting should have been contacted before the interview proceeded.

39

What does the case R v Ormsby (2005) relate to?

Questioning after an assertion of the right to silence; s 23(4)

Facts

Cannabis plants and stolen property were found when the appellant’s house was searched pursuant to a warrant. He was questioned at the house but stated that he was waiting to be advised by his lawyer. Even so he answered some questions. A pre-trial ruling that these answers were inadmissible was not appealed.

The appellant was arrested and taken to Ngaruawahia Police Station. He contacted a lawyer who spoke to him and then left. The Constable then said that she would like to take a statement from him. He said that he did not want to make a statement as the lawyer said that he didn’t have to.

The Constable then said that she was going to ask some questions anyway and told the appellant that “You don’t have to answer me if you don’t want to”. He answered some questions and declined to answer others.

Appeal

The appellant submitted that the Constable had breached s 23(4) of the New Zealand Bill of Rights Act in that the appellant had indicated that he did not wish to make a statement but his requests to end the questioning were “always being overridden”.

The Court noted that:

a) the appellant had exercised his opportunity to see a solicitor,

b) there was no arrangement or understanding between the police and the solicitor that there would be no further questioning, nor even evidence of a request by the solicitor that there should not be further questioning,

c) the appellant knew that he did not have to answer any questions, and when he did not wish to answer a question he asserted his right not to do so,

d) the Constable did not, to any substantial extent, persist with any questions which the appellant declined to answer,

e) there was nothing in the circumstances to suggest overbearing or coercive police interviewing tactics.

The court interpretation of what happened in the Police station was that the appellant waived his right to silence. Therefore the statements made at the Police station were admissible.

Comment

This case holds that there is no absolute prohibition on the Police questioning a suspect who has received legal advice and has told the Police that they have received advice to remain silent. However Police conduct must not be overbearing or coercive and questioning must not be persistent. Note: this decision is in tension with the previous decision above: R v Ji [2004] 1 NZLR 59 where the Court of Appeal excluded the defendant’s statements because the police continued to question him after he expressed a desire to say nothing more.

40

What does the case R v Falala relate to?

Mr Falala faces 11 charges relating to eight burglaries or attempted burglaries. He was released on bail that day. However, later in the evening the Police decided that Mr Falala was connected to another serious burglary. The Police went to Mr Falala's home at approximately 10.55 pm. Mr Falala was accompanied back to the Avondale Police Station and arrested Mr Falala at approximately 11.10 pm in relation to the later burglary.

After arresting him, the arresting detective advised Mr Falala of his rights under the New Zealand Bill of Rights Act 1990, including the right to remain silent and not make a statement. Mr Falala confirmed that he understood his rights and exercised his right to speak to a lawyer. The Detective provided a list of lawyers and Mr Falala telephoned a lawyer and spoke to him for approximately 15 minutes. The detective then commenced an interview that was recorded by way of DVD.

On at least nine other occasions during the 90 minute interview Mr Falala indicated to the interviewing detective that he did not wish to make a statement. On each occasion, the Detective would then proceed to ask him a few more questions, drawing Mr Falala into some form of response. The Court in this case considered the extent to which a breach of Mr Falala’s rights under s23(1) of the New Zealand Bill of Rights Act 1990. The Court considered the application of the Ormsby case (above), but distinguished it on the basis that in the Ormsby case, after the initial statement from Mr Ormsby that he did not wish to make a statement, the interviewing officer did not persist in asking questions that Mr Ormsby declined to answer. In this case the interviewing detective:

“continued to persist in asking questions directly in the face of the unambiguous wish expressed by Mr Falala not to make any statement. Mr Falala almost immediately reiterated his wish not to make a statement and his repetition of that wish made the Police persistence unacceptable and in breach of the s 23(4) right.

Held

F's repetition of wish not to make a statement made the Police persistence unacceptable and in breach of the s 23(4) New Zealand Bill of Rights Act 1990 right; although the Detective was not threatening or coercive in his manner, this mode of questioning was unfair and insofar as F’s expressed wish was entirely ignored, overbearing; not a case of knowing and informed waiver of the right, but of capitulation in the face of persistent questioning.

The evidence was successfully excluded and the appeal upheld.

41

What does the case R v Williams relate to?

Questioning, letters from lawyers; s 23, s 24(c)

Background

W was picked up by police for his part in an aggravated robbery which had occurred two days earlier. W made a statement regarding that robbery and was arrested and charged. W then participated in a trip undertaken by police to find items connected with the robbery. During that trip W gave information to police regarding three other attempted aggravated robberies that had occurred in the area in the past few days.

The next day, W and two others who had been arrested and charged in respect of the aggravated robbery appeared in the District Court. Police opposed bail and indicated they were intending to investigate other attempted aggravated robberies that W had told them about.

The lawyer for W did not want W to speak to police unless he was present and he had anticipated that police might well want to interview W in respect of the other robberies. He got W to sign a document advising that he: “… wish to remain silent and elect not to make a statement or any comment to anyone whatsoever in respect of any and all matters relating to my presence here. I do not want to discuss anything further with any Police Officer or other person unless my lawyer ... is present. I exercise this right to remain silent pursuant to s 23 of the New Zealand Bill of Rights Act 1990 on the advice of my lawyer ...”

W’s lawyer faxed the document to police on the afternoon of the failed bail application marked to the attention of a Detective Sergeant at the relevant station. That was at 3.25pm. The Judge found the officer who conducted a further interview with W at 3.52pm did not know of the fax at the time he conducted the video interview (at which W was given the caution and Bill of Rights advice).

The issue

Amongst other issues raised on appeal, the Court of Appeal considered whether there was an enforceable arrangement between W and his advisers and police; and whether W had mistakenly believed the video interview could not be used (given what he understood his lawyer had put in place).

The Court of Appeal agreed with the trial judge there was no enforceable arrangement. The Court observed police did not know the notice was being sent; and there was no evidence that anyone connected with the inquiry saw the notice prior to the completion of the video interview. Further, on the facts, there was insufficient evidence to establish W believed he was protected by the notice and he was specifically told whatever he said could be used in evidence against him.

Comment

This case considered the analysis enunciated in R v Rogers [2006] 2 NZLR 156 (NOT the case below) that asks firstly whether an arrangement existed between Police and counsel in regards to questioning of the applicant, and secondly, whether the failure by the officers to comply with such an arrangement undermined the applicant’s s23 rights. [On the facts in this case, no such arrangement was found.]

Standing advice is staff should not enter into an agreement not to talk to a suspect, but should respect a suspect’s right to remain silent under the New Zealand Bill of Rights Act 1990. If such a demand or request is made by a suspect’s lawyer the officer should inform the lawyer they are not able to enter into undertakings that relate to how police will further their enquiries in a particular case. Police could, however, advise the lawyer any police enquiries will be conducted in accordance with the law respecting the suspect’s rights under the Bill of Rights.

It is the suspect’s right to remain silent and not the lawyer’s, so a suspect can reject a lawyer’s advice if they wish to. This genuine waiver of the right to remain silent or to consult their lawyer should be recorded or entered in a signed notebook entry.

42

What does the case R v Rogers (1993) relate to?

282 (CA) right to be charged promptly; s 23(2)

A detective was searching Rogers’ house for burglary proceeds but found a quantity of cannabis instead.

Rogers was arrested for possession and taken to the police station. The detective was then called away on urgent business and, instead of being interviewed, Rogers was placed in a holding cell until he was able to be bailed.

Some five hours later the detective returned to Rogers and questioned him about the burglaries, obtaining an immediate confession. The cannabis was not mentioned.

Rogers appealed against an order, made pursuant to s 344A Crimes Act, declaring the confession admissible.

It was conceded by the Crown during the hearing that the right to be charged promptly or released (NZ Bill of Rights Act s 23(2)), accruing to Rogers upon his arrested, had not been accorded.

Decision

The Court of Appeal discussed the time at which the breach of s 23(2) occurred. It was noted that while a reasonable time must be allowed for rights under s 23 to be actioned, only in rather exceptional circumstances could the demands of police duty justify some delay in their observance. The prosecution had failed to show that this was such a case.

It could not fairly be said that the length of Rogers’ detention (without charge) was not a factor prompting him to confess. Accordingly the appeal was allowed, and the evidence of confession was held to be inadmissible.

Points to note

The right to be charged promptly or to be released, whether without charge or on police bail following charge, is one aspect of a process that is to be completed “as soon as possible”.

Only exceptional circumstances or an emergency situation (eg danger to life or property) may justify a delay.

It is reiterated that bail should not be denied a person being held on a charge simply because police are carrying out enquiries into another offence and wish to question the suspect after these are completed.

Confessions obtained as a result of such practice may be held to be inadmissible.

Questioning of persons about an offence for which they are not being held is clearly permissible, but bail cannot be denied on the ground that the person is being held for questioning later.

43

What does the case R v Tira (1993) relate to?

Right to be brought before a court as soon as possible; s 23(3)

Facts

At 10.30am a constable saw Te Kira wearing a jacket taken in a robbery. Te Kira refused to go to the police station, was arrested for theft, cautioned, and told of his right to a lawyer. At the police station he made a statement and at about 11.55am he was charged with receiving and put in the cells. By 1.30pm the court file was ready.

Te Kira was refused bail. Due to CIB enquiries he was not taken to court. At about 3.00pm he was refused police bail because he was likely to be charged with robbery. That evening he was interviewed by a detective and admitted involvement in the robbery. He appeared in court the next day charged with robbery.

Despite finding that s 23 (3) was breached because Te Kira was not brought before court “as soon as possible”, the District Court Judge ruled the confession admissible because it would have been forthcoming anyway, and there was no unfairness. Te Kira appealed to the Court of Appeal on the basis of s 23(3) of the Bill of Rights.

Issues

1 Whether, despite a clear breach of Te Kira’s rights under s 23(3), his confession was properly admitted in evidence.

2 What casual link is required between the breach and the obtaining of evidence before the breach affects the admissibility of the evidence.

3 How are relevant public interests identified and balanced when deciding whether the evidence should still be admitted.

4 The onus and standard of proof in such an enquiry.

Held

More than a reasonable time had been deliberately allowed to go by before bringing Te Kira before the court, therefore his confession is inadmissible.

Comment

The Court of Appeal has taken a very strong view that at common law in New Zealand (and s 316(5) Crimes Act 1961) a police officer is not entitled to delay taking an arrested person before a Justice or Judge in order to further police investigations.

The right expressed in s 23(3) applies to “everyone who is arrested for an offence”: it is not expressed as a right of “everyone who is charged with an offence”. “Released” in s 23(3) covers release on police bail pursuant to what is now s 21 of the Bail Act 2000, as well as release without charge. From arrest to appearing in the court the process is to be completed “as soon as possible”.

44

What does the case Doughty v R relate to?

Police have no obligation to re-interview an alleged offender who initially denies offending.

Background

The Crown alleged that an incident took place between D and his ex-partner, and as a result he was charged with numerous serious offences.

D was arrested in the early hours of the morning, but his lawyer was unable to see him at the station before mid-afternoon on that day. D discussed the allegations, but denied any wrongdoing. Conversations between the Detective and D's lawyer indicated that if the lawyer could not arrive earlier, D would be taken to Court without consulting him. D signed notes in the Detective's notebook that recorded his understanding of these conversations, and what he had already said. D was brought before a Judge before being able to see his lawyer in person, and was remanded in custody.

D argued that any trial for the alleged offending would be unfair and in breach of the New Zealand Bill of Rights Act 1990 (NZBORA). He specifically referred to s 25(a) (the right to a fair and public hearing by an independent and impartial Court) and s 25(d) (the right not to be compelled to be a witness or to confess guilt). D claimed he was never given the chance to make a police statement, which he believes was against his rights, and that the police were motivated to get him to Court as quickly as possible. D also argued the police's failure to interview him meant they didn't get available evidence that would support his defence. Unless he elected to give evidence, his trial would be unfair because the jury would only hear evidence from the complainant. As a result, D would be compelled to be a witness.

Decision

The Court did not consider that a trial would be unfair because the Detective did not re-interview D. The Court also found there was no misconduct; that D could not be compelled to give evidence; and his rights under NZBORA were not breached.

The reasons for the Court’s findings were:

1. At D’s first interview, he was given the opportunity to put his version of events to police. He denied the offending.

2. There is no statutory provision or case law of which the Court was aware that made it mandatory for police to further interview an accused who has denied offending. The NZBORA only provides for the right to refrain from making any statement.

3. An accused has no right to be interviewed, let alone re-interviewed.

4. D was not compelled to give evidence simply because police did not further interview him. The law was clear that D was under no such compulsion.

5. Section 23(3) of NZBORA makes it clear police are obliged to bring any person who is arrested before a Court as soon as possible. This is a fundamental right. Police couldn't afford to delay the meeting between D and his lawyer to accommodate the lawyer, as it would have meant a delay in taking D to Court and therefore a breach of his rights under s 23(3).

Comment

This case affirms that an alleged offender has no right to be interviewed by police, let alone re-interviewed.

45

What is Practice Note 1 on Police Questioning (section 30(6) Evidence Act 2006)?

A member of the police investigating an offence may ask questions of any person from whom it is thought useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.

Comment
Guideline 1 confirms that Police may ask questions of any person to assist with inquiries. However, Police must not suggest that the person must answer.

46

What is Practice Note 2 on Police Questioning (section 30(6) Evidence Act 2006)?

Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a) that the person has the right to refrain from making any statement and to remain silent

(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme

(c) that anything said by the person will be recorded and may be given in evidence.

Comment
Whenever there is sufficient evidence to charge a person with an offence, the advice in Guideline 2 must be provided. The requirement will arise when the evidence, objectively considered, supports a prima facie case: that is, that if that evidence is accepted as credible, a judge or jury could find guilt proved beyond reasonable doubt. The advice in Guideline 2 should be provided at the same time as the caution would have been provided under Rule 2 of the Judges’ rules.

If a person is arrested or detained, then the first obligation on the part of

Police is to provide the advice required under section 23 of the New Zealand Bill of Rights Act. But if the person were then questioned, the more fulsome advice under the Practice Note would need to precede any such questioning.

For practical purposes, given that the advice requirements of the New Zealand Bill of Rights Act are brought into the new caution, the advice in Guideline 2 should be provided to people who are arrested or detained, or where Police seek to question someone where there is sufficient evidence to charge that person with an offence. If such advice is provided, the equivalent advice under the New Zealand Bill of Rights Act does not need to be repeated. However, giving the advice prior to a suspect being arrested or detained does not obviate the necessity to repeat the advice upon arrest or detention.

The following advice should be provided to people who are arrested or detained, or where police want to question someone where there is sufficient evidence to charge that person with an offence:

• You have been arrested/detained for (give reason) OR

• I am speaking to you about (give reason)

• You have the right to remain silent.

• You do not have to make any statement.

• Anything you say will be recorded and may be given in evidence in court.

• You have the right to speak with a lawyer without delay and in private before deciding whether to answer any questions.

• Police have a list of lawyers you may speak to for free.

Similar to Rule 5 of the Judges’ Rules, Guideline 2(c) requires anything said by the suspect or person who has been arrested or detained to be recorded. If it is not recorded, and Police seek to give evidence of what was said, particularly if it is inculpatory, then that evidence may be held to be inadmissible or given very little weight. It is not anticipated that idle chat will need to be recorded, but anything relevant to the offence will need to be recorded in some way. Police should record the fact that other topics were discussed with a suspect, and invite the suspect to sign a record of that fact (say for example in a notebook). If the suspect refuses to sign that record then it would be prudent to record the general topics discussed (briefly) as soon as is practicable thereafter. If a video interview is conducted, then the fact that other topics were discussed could be mentioned as part of the introduction to that interview.

Section 215 of the Children, Young Persons and Their Families Act 1989 sets out what advice must be provided to a child or young person whom there are reasonable grounds to suspect of having committed an offence or before asking any child or young person any question intended to obtain an admission of an offence. It is important to ensure that children and young people do not have fewer rights than adults. Therefore, the advice that should be provided to children and young people is as follows (in a language and manner that they can understand):

IN ALL CASES

I am speaking to you about (give reason) OR you have been arrested/detained for (give reason).

NOT UNDER ARREST

• You may be arrested if you refuse to give your name and address (if sufficient evidence to arrest for an offence but a refusal to give details means a summons could not be served).

• You are not obliged to accompany me, and if you consent, you can withdraw that consent at any time.

QUESTIONING: IN ALL CASES

After giving each statement of the following rights caution to the child/young person, ask him/her to tell you, in his or her words, what rights he or she has as follows: *Please explain to me in your own words what this means to you.

• You have the right to remain silent.*

47

What is Practice Note 3 on Police Questioning (section 30(6) Evidence Act 2006)?

Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination.

Comment
Previously the Courts had permitted limited (not excessive) cross-examination of persons in custody. This Guideline is effectively a re-statement of Rule 7 of the Judges’ Rules. Depending upon the nature/extent of the breach, answers to questions obtained under cross-examination may be held to be inadmissible, particularly if the questioning is oppressive, overbearing or unfair.

48

What is Practice Note 4 on Police Questioning (section 30(6) Evidence Act 2006)?

Whenever a person questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained.

Comment
Police are under no obligation to advise suspects of everything known before asking for the suspect’s version of events. When a suspect is questioned about statements made by others, the substance of the allegation must be put to the suspect. It will not be sufficient, for example, to refer to general evidence (such as “we have witnesses who will identify you at the scene, what do you say to that”); instead the substance of that part of the statement should be put (for example, the description of the suspect that the person has given). Police must not deceive suspects by trickery or by misrepresenting the truth.

49

What is Practice Note 5 on Police Questioning (section 30(6) Evidence Act 2006)?

Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over, and must be given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.

Comment
In many respects, this Guideline is a modern re-statement of Rule 9 of the Judges’ Rules. As is the case now, it is best practice to record interviews on video (or DVD). Where a suspect declines to be interviewed on video, but is willing to make a statement, it needs to be recorded in writing or on audio tape (or by other electronic means).

For electronically recorded statements, the suspect must be given an opportunity to have the statement played back to them, and following this, to correct any errors or add anything further.

For written statements, the statement should be read back to the suspect or they should be given an opportunity to read it. The suspect should then be given an opportunity to add anything or correct any errors, and should also be asked if s/he wishes to confirm the accuracy of the record by signing it.