NZ BOR ACT 1990 Flashcards
NZ BOR Act 1990
Section 21 - Relates to what ?
Right to be secure against “Unreasonable Search and Seizure”
NZ BOR Act 1990
Section 22 - Relates to what ?
Liberty - right not to be “arbitrarily arrested or detained”
NZ BOR Act 1990
Section 23 - Relates to what ?
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
NZ BOR Act 1990
Section 24 - Relates to what ? (When charged with an offence)
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
NZ BOR Act 1990
Section 25, Minimum Standards of Criminal Procedure
What are the minimum rights ?
- 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
NZ BOR Act 1990
What are the “Key Rules” for Police arising from the Act ?
- 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
NZ BOR Act 1990
Is primarily intended to affirm, protect and promote human rights and freedoms. It provides this … how ?
- Protection against powers of government agencies
- Minimum standards of public decision-making
- Protection for human rights and basic freedoms
NZ BOR Act 1990
What ‘is’ and ‘is not’ a “search” ?
- 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
NZ BOR Act 1990
Is a photograph considered a “seizure” ?
NO
NZ BOR Act 1990
The usual remedy at Court for a breach of section 21 is … what?
- Exclusion of evidence under S. 30 Evidence Act.
- Some unreasonable searches may also warrant compensation.
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 ?
- The remedy for unjustified rub-down and strip searches is usually compensation
NZ BOR Act 1990
The term ‘arrest’ ../. means what (R v GOODWIN)
A communicated intention on part of Police to hold person under lawful authority
NZ BOR Act 1990
A person will be regarded as ‘detained’ if … there is ?
- 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
NZ BOR Act 1990
Giving Cautions … Failure to give the caution may result in a … what ?
- Finding the evidence was improperly obtained and evidence excluded under S.30 of Evidence Act.
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 …?
- 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.
