Flashcards in Offenders, Evidence and Children, Young Persons and Their Families Act Deck (75)
What does Section 21 of the Bill of Rights Act state?
Every person should be secure against unreasonable search and seizure of their person, property or correspondence.
What constitutes a breach of Section 21 of the Bill of Rights Act?
An unreasonable search, conducted in excess of powers, in an unreasonable manner or in bad faith.
How would you ensure that you comply with Section 21 of the Bill of Rights Act?
Obtain informed consent to search the suspect. If no consent is given and the search is unreasonable, then it is also unlawful.
What does Section 22 of the Bill of Rights Act state?
Everyone has the right not to be arbitrarily arrested or detained.
What would you say to a suspect that is NOT under arrest or being detained, to ensure that you are not breaching Section 22 of the Bill of Rights Act?
"You are free to leave at any time" and "You do not have to remain to answer any questions"
What does Section 23 of the Bill of Rights Act state?
Everyone who is arrested or detained under any enactment shall be informed at the time of arrest or detention the reason for it (Section 23(1)(a)), have the right to consult and instruct a lawyer without delay and in private and be informed of that right, and have the right to refrain from making a statement and be informed of that right (Section 23(4)).
How would you ensure compliance with Section 23 of the Bill of Rights Act?
When arresting/detaining a suspect, say:
You are under arrest for ..... .
You have the right to remain silent.
You do not have to make any statement.
Anything you say will be recorded and may be given in evidence in court.
You have the right to speak to a lawyer without delay and in private before deciding whether to answer any questions.
Police have a list of lawyers you may speak to for free.
Do you understand?
What does Section 24 of the Bill of Rights Act state?
Every person charged with an offence shall be informed promptly and in detail of the nature and cause of the charge, and shall have the right to consult and instruct a lawyer without delay and in private as soon as practicable.
In practice, how do police ensure that Section 24 of the Bill of Rights is complied with?
By giving the caution/rights as per Section 23 again, when informing the person of the charge against them.
What must you do when executing a specific power of search?
Inform the suspect that they are being detained to be searched, and give them the caution/rights as per Section 23 of the Bill of Rights Act.
What are 4 possible consequences of breaching the New Zealand Bill of Rights, Evidence Act and Practice Note on Police Questioning?
Evidence may be disallowed, case may be dismissed, could cause officer's credibility to be doubted, could result in adverse publicity, legal criticism, formal complaints.
What does Practice Note 1 state?
A police officer can question anyone, but they do not have to answer.
What is an exception to Practice Note 1?
Where the law states that a person is compelled to give details, such as at a traffic stop.
What does Practice Note 2 state?
Whenever a member of the police: (a) has enough evidence to charge a person with an offence or (b) seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions.
What does Practice Note 3 state?
Questions of a person in custody of in respect of whom there is sufficient evidence to file a charging document, must not amount to cross-examination.
What constitutes cross-examination??
Literally "cross" examination - scaring someone into a confession. Also questioning someone that has stated that they do not wish to make a statement. You CAN however tell a person of the allegation against them.
What does Practice Note 4 state, and what does it mean?
Whenever a person is questioned about statements made by others or about other evidence, the substance of the statements or the nature of the evidence must be fairly explained. This means you can give someone A COPY of a statement made against them.
What does Practice Note 5 state?
Any statement made by a person in custody or in respect of whom there is sufficient evidence to charge should preferably be recorded by video recording unless that is impractical or unless the person declines to be recorded by video. Where the statement is not recorded by video, it must be recorded permanently on the audio tape or in writing. The person making the statement must be given an opportunity to review the tape or written statement or to have the written statement read over. Given an opportunity to correct any errors or add anything further. Where the statement is recorded in writing, the person must be asked if he or she wishes to confirm the written record as correct by signing it.
What should be done with a statement to ensure Note 5 is followed?
Any changes, mistakes or alterations should be initialled. At the end of the statement the person should write, in their own handwriting, "I have read this statement and it is true and correct". Each page should be signed by the maker and the statement as a whole should be endorsed by the officer.
What three things must any arrest contain?
"You are under arrest for..."
Formal Touch OR Agreement of submission.
What are your powers of arrest under Section 315(2)(a) of the Crimes Act?
Any person you FIND disturbing the peace or committing an offence punishable by imprisonment, may be arrested.
What are your powers of arrest under Section 315(2)(b) of the Crimes Act?
Any person that you have Good Cause to Suspect has committed a breach of the peace or committed an offence punishable by imprisonment.
What are your powers of arrest under Section 39(1) of the Summary Offences Act?
Any person you have Good Cause to Suspect has committed an offence against the Summary Offences Act EXCEPT Sections 17-20, 25, 32-38.
What are your powers of arrest under Section 39(2) of the Summary Offences Act?
Any person you SEE committing an offence against Sections 17-20, 25, 32-38 of the act AND refuses to give their details.
How does Section 39 of the Crimes Act justify use of force?
To make an arrest.
How does Section 40 of the Crimes Act justify use of force?
To prevent absconding to avoid of arrest or escape after arrest.
How does Section 41 of the Crimes Act justify use of force?
To prevent suicide, or prevent an offence happening RIGHT NOW that would cause serious damage to a person or property.
How does Section 42 of the Crimes Act justify use of force?
Enables ANYONE to stop a breach of the peace.
How does Section 48 of the Crimes Act justify use of force?
Self defence, or the defence of another.