NZ Bill Of Rights Act 1990 Flashcards
(23 cards)
What are the five key sections that relate to policing under the Bill of Rights act?
Section 21
Section 22
Section 23
Section 24
Section 25
What are outlined in the five key sections under the NZ BORA S21-25
S A R R S
Unreasonable, search, and seizure
Arbitrary arrest and detention
Rights of a person arrest arrested
Rights of a person charged
Minimum standards of criminal procedure
What are the four most important rules around speaking to someone about an offence arising from NZ BORA?
- you can talk to anyone if investigating an offence, but it is not compulsory for them to talk to you.
- If you have sufficient evidence to charge that person, and you want to talk to them, you must caution them first.
- If you have arrested would detain someone, you must caution them, even if you have already done it.
- There is no power to detain someone for questioning.
What is considered a search?
Conscious act
Of state intrusion
Into an individual’s reasonable expectation of privacy
When would a search be considered unreasonable?
When it’s unique circumstances, make it unreasonable
Or if a search warrant was not considered when it should’ve been
If a search is unlawful, does it always make it unreasonable?
Usually yes
But in some cases when a search is undertaken in good faith, but the searcher is wrong about their power. It may not be unreasonable.
S 22 NZ BORA :
Right not to be arbitrarily arrested or detained
What does arbitrarily mean?
It means capricious, unreasoned, and without reasonable cause
It will really depend on the circumstances, for example the nature and duration of the person being detained
NZ BORA S 22
What is the definition of arrest?
A communicated intention
By a police officer
To hold the person under lawful authority
What does it mean for a person to be detained?
A physical deprivation of a person’s liberty
Restraints on a person’s movement
Where they have a reasonably held belief that they are not free to leave
Can you stop a vehicle to make general inquiries?
No,
anything outside of the land transport act S114
Or s9 SSA to arrest someone inside a vehicle that is committed an offense or has a warrant
Will be deemed an arbitrary detention
What are the 7 rights of people arrested or detained?
Under S23 NZBORA
- To be informed of the reason for arrest.
- To consultant instructor Lawyer without delay and to be told so.
- Refrain from making any statement.
- To have the arrest or detention questioned in court under habeus corpus.
- To be charged promptly or released.
- If not released to be brought to court as soon as possible.
- To be treated with humanity and respect.
What happens if Police failed to give the caution?
Evidence and improperly obtained could be excluded
Sometimes it’s OK to have a slight delay in affording someone their rights.
What could be an example of when that is OK?
When a motorist just stopped at the roadside for brief screening test
When a motorist is stopped roadside and required to provide the detail details
When taking hospital blood sample
When executing a search warrant, and it is required for safety reasons to hold them in one place
What are some examples of when a person is not treated with humanity and respect?
Excessive use of force
Failure to provide medical treatment
Unlawful restraint to prevent 1 X
Failure to comply with minimum entitlements, such as food, clothing, or exercise time
Preventing access to bathroom facilities
It is important that police ensure that rights are understood…
When might have been necessary to repeat the rights or make extra effort to ensure they are understood?
When a suspect is stressed, confused or fatigued
If they have poor English
If they have limited intelligence
If there is excessive background noise and hearing is difficult
Does someone’s rights need to be explained to them immediately?
If officer safety is an issue, it doesn’t need to be immediate,
there can be a slight delay.
When cautioning someone who is arrested,
What, regarding lawyers
Must be explained to the suspect?
They have the right to consult instructed lawyer without delay and in private
Police have a list of lawyers that they can speak to for free under the police attention, legal assistance scheme
Are Police under obligation to find someone a lawyer of their choice?
No
But you can make a reasonable effort to try and find the contact phone number for a requested Lawyer .
Can someone ring anyone they want upon being arrested?
No
There is no legal requirement for Police to consult any other person
Do police have to find another lawyer just because a person is not satisfied with their legal advice?
No
There is no requirement for Police to offer multiple lawyers if they’re not satisfied with their advice
If a suspect indicates that they want to talk to a lawyer during an interview
What must happen?
Police must refrain from eliciting evidence until they have spoken to a lawyer
In other words, stop the interview
If a suspect has exercised their right to silence during an interview
But upon further questioning the suspect wishes to answer questions
What must Police do?
There must be a waiver established
Which is informed and voluntary
That the suspect is there waving that Wright that they have earlier exercised
How should statements be recorded?
Preferably on video or DVD
But at minimum recorded permanently on audio tape or in writing.
