NZBORA

Question 1

Why are rights important

Answer 1

Inherent rights of person, their role
•fair and legitimate justice system
•crime control v Due process
•blackstones ratio
•beyond the court
•relationship between state and citizen

Question 2

How are human rights protected in NZ

Answer 2

• Universal declaration of human rights

NZ part of many international treating regarding human rights:
•HRA 1993
•PA 1993/2020
•NZBORA 1990

Question 3

BORA within the constitution

Answer 3

•Non-supreme law
• bora 1990 is entrenched law
• there is a breach of remedies which include:
-exclusion of evidence 
-reduction of sentence
-compensation
-others

Question 4

Right to be presumed innocent

Answer 4

• Adversarial criminal justice system and power imbalance
• Woolminton v DPP 1935
• s25 (c) of the BORA 1990
• mens rea and actus reus
• burden of proof and standard of proof
• reasonable doubt
• insanity

Question 5

Other substantive rights BORA

Answer 5

• s8 right not to be deprived of life
• s9 right not to be subject to torture or cruel treatment
• s14 right to freedom of expression
• s18 freedom of movement

Question 6

Procedural rights BORA

Answer 6

s21 right not to be subject to unreasonable search and seizure

Question 7

Section 26 BORA

Answer 7

• retroactive penalties (to be convicted,must be a law at the time of the offence
• double jeopardy (cannot be convicted or punished twice)

Question 8

Effect of Woolmington

4 steps

Answer 8

Step 1: prosecution = actus reus + men’s rea = beyond reasonable doubt

Step 2: defendant= raise reasonable doubt( burden to refute)

Step 3: defendants = raise evidence to suggest defence ( evidentiary burden)

Step 4: prosecution= prove defence not available ( beyond reasonable doubt)

Question 9

Examples illustrating the needs for human rights in criminal justice

Answer 9

• police brutality
• discrimination
• prisoners justice
• extrajudicial executions
• arbitrary detention

Question 10

Expectations regarding the onus of proof

Answer 10

• explicit override by legislation
• insanity
• statute silent on mens rea
• strict liability

Question 11

The right to freedom of movement

Answer 11

• s18 of the BORA

* limitations in terms of statute and regulation

Question 12

2 steps to whether a search and seizure was unreasonable

Answer 12

1. Was there a search and seizure

2. Was the search or seizure unreasonable

Question 13

What does proof beyond reasonable doubt mean?

Answer 13

• Defence does not have to prove innocence
• Defence does not have to collaborate or participate in defence
• Presumption of innocence gives rise to right to silence and right against self-incrimination

Question 14

Beyond reasonable doubt v balance of probabilities

Answer 14

• Criminal versus civil standard of proof
• Beyond reasonable doubt = acquit if reasonable, genuine, realistic, doubt
• Must be sure
• Constraint on decision to prosecute

Question 15

The right to not be deprived of life

Answer 15

• section 8 of the BORA
• Physician assisted dying ( seales v AG)
• police action
• death in state care

Question 16

What does proof beyond reasonable doubt mean?

Answer 16

• Defence does not have to prove innocence
• Defence does not have to collaborate or participate in defence
• Presumption of innocence gives rise to right to silence and right against self-incrimination

Question 17

Beyond reasonable doubt v balance of probabilities

Answer 17

• Criminal versus civil standard of proof
• Beyond reasonable doubt = acquit if reasonable, genuine, realistic, doubt
• Must be sure
• Constraint on decision to prosecute