New Zealand Bill of Rights Act 1990 Flashcards Preview

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Flashcards in New Zealand Bill of Rights Act 1990 Deck (22)
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1
Q

NZ BOR Act 1990

Section 21 - Relates to what ?

A

Right to be secure against “Unreasonable Search and Seizure”

2
Q

NZ BOR Act 1990

Section 22 - Relates to what ?

A

Liberty - right not to be “arbitrarily arrested or detained”

3
Q

NZ BOR Act 1990

Section 23 - Relates to what ?

A

S.23(1) If arrested or detained;

  • informed of reason for it; AND
  • right to consult and instruct lawyer without delay and be informed; AND
  • right to validity of arrest determined without delay by “habeas corpus” and be released if not lawful

(2) - charged promptly or released
(3) - bought to Court ASAP
(4) - right to refrain from making statement
(5) - be treated with humanity, respect for inherent dignity of person

4
Q

NZ BOR Act 1990

Section 24 - Relates to what ? (When charged with an offence)

A

If charged with an offence, SHALL;

  • be informed promptly of nature of charge; AND
  • be released on reasonable terms and conditions, (unless just cause for continued detention); AND
  • right to consult and instruct lawyer; AND
  • right to prepare a defence; AND
  • right to Jury Trial (2+yrs prison) … except military; AND
  • right to legal aid;
  • right to interpreter
5
Q

NZ BOR Act 1990
Section 25, Minimum Standards of Criminal Procedure
What are the minimum rights ?

A
  • Fair and Public hearing, independent and impartial Court
  • Tried without undue delay
  • Presumed innocent until proven guilty
  • not be compelled as witness or confess guilt
  • be present at trial and present defence
  • examine witnesses
  • if convicted of offence where penalty has been varied, to lesser penalty
  • appeal sentence or conviction
  • if child, takes account of their age
6
Q

NZ BOR Act 1990

What are the “Key Rules” for Police arising from the Act ?

A
  • Suspects - can question, but not suggest compulsory to answer
  • If sufficient evidence to charge, must caution before questioning
  • If arrested, must caution, even if have done so before arrest
  • No power to detain for questioning, but person can assist voluntarily
7
Q

NZ BOR Act 1990

Is primarily intended to affirm, protect and promote human rights and freedoms. It provides this … how ?

A
  • Protection against powers of government agencies
  • Minimum standards of public decision-making
  • Protection for human rights and basic freedoms
8
Q

NZ BOR Act 1990

What ‘is’ and ‘is not’ a “search” ?

A
  • Search requires conscious act of state intrusion into individuals reasonable expectation of privacy, as opposed to mere observation
  • Search is not
  • kneeling, using torch to look inside car headlight
  • checking serial number on bike
  • asking person to hold out hands to inspect
  • voluntary request to power company for monthly usage
9
Q

NZ BOR Act 1990

Is a photograph considered a “seizure” ?

A

NO

10
Q

NZ BOR Act 1990

The usual remedy at Court for a breach of section 21 is … what?

A
  • Exclusion of evidence under S. 30 Evidence Act.

- Some unreasonable searches may also warrant compensation.

11
Q

NZ BOR Act 1990
Rub-down and strip searching a person
Unwarranted strip or rub-down searches may breach S.21 or s.23 … what is the usual remedy ?

A
  • The remedy for unjustified rub-down and strip searches is usually compensation
12
Q

NZ BOR Act 1990

The term ‘arrest’ ../. means what (R v GOODWIN)

A

A communicated intention on part of Police to hold person under lawful authority

13
Q

NZ BOR Act 1990

A person will be regarded as ‘detained’ if … there is ?

A
  • Physical deprivation of person’s liberty; OR
  • Statutory restraints on person’s movement; OR
  • Reasonable belief induced by Police conduct that they are not free to leave.

NOTE: Where detention or restraint temporary - detention less likely to have occurred

14
Q

NZ BOR Act 1990

Giving Cautions … Failure to give the caution may result in a … what ?

A
  • Finding the evidence was improperly obtained and evidence excluded under S.30 of Evidence Act.
15
Q

NZ BOR Act 1990
Not every restraint will amount to detention for purpose of section 23(1). Courts have recognised particular circumstances in which a short delay in affording rights may be necessary to “preserve evidence” or to “ensure personal safety”. Examples of this are …?

A
  • Motorist stopped at roadside to undergo EBA testor asked to supply details under LT Act 1998
  • Motorist taken to hospital following accident and doctor requests blood sample for alcohol testing
  • Executing SW reasonable directions may be given to persons whom RG to believe will obstruct or hinder the search, e.g. persons may be excluded from the house or instructed that if they remain in the house, they are to stay in a specified room.
16
Q

NZ BOR Act 1990
Ensuring rights are understood (R v HINA)
It is the detainer’s obligation to ensure … what ?

A

“The whole right is conveyed and understood … or at least in a manner open to understanding.”

17
Q

NZ BOR Act 1990

What was stated in R v TUNUI and R v DOBLER in regards to informing arrested and detained persons ?

A

“May be necessary to inform arrested/detained person more than once of rights … may not be in compliance with Act for person to be told ‘perfunctorily’ (routinely/automatically) of the stipulated right…”

18
Q

NZ BOR Act 1990

What “exceptions” are there when having to give rights to a person ?

A
  • When in danger / safety threatened

“The expression ‘without delay’ is not synonymous with ‘instantly’ or ‘immediately’ … was delay reasonable in circumstances, having regard to the purpose of the right.” (R v MALLINSON)

19
Q

NZ BOR Act 1990
Are there any legal requirements for Police to offer a suspect the opportunity to phone multiple lawyers, if they are not satisfied with the legal advice they have obtained

A

NO

20
Q

NZ BOR Act 1990
Waivers to having Lawyer present
A valid waiver is when … ? (Police v Kohler)

A

“A valid waiver requires a conscious choice, both informed and voluntary, it cannot be implied from silence or failure to request rights.”

21
Q

NZ BOR Act 1990
Once a breach of section 23(1)(b) - “Right to Consult and Instruct Lawyer” has been established, the trial judge acts rightly in ruling out a consequent admission unless … what? (R v Kirifi)

A

There are circumstances satisfying him that it’s fair and right to allow the admission into evidence.”

22
Q

NZ BOR Act 1990
An arrested person must be charged promptly or be released …There is an urgency around this, but what things are allowable that can impact upon it ?
(R v Rogers)

A

Matters such as “reasonable time for processing”, “obtaining legal advice” and other police emergencies are ‘justified limitations’ on it