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)
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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?