2926622
Description
Flashcards by PhilandTracy Sayers, updated more than 1 year ago
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Created by PhilandTracy Sayers
over 9 years ago
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| Question | Answer |
| Use of Force S.39 Force used in executing a process or arrest | When executing sentence, warrant or making an arrest, you may use such force as reasonably necessary to overcome any resistance unless it can be completed in a less violent manner |
| Use of Force s.40 Preventing escape or rescue | Use such force as necessary (unless can be prevented in less violent manner) to: Prevent escape of person if takes flight to avoid arrest - OR - Prevent the escape/rescue of that person after arrest |
| Use of Force s41 Prevent suicide or other certain offences | Use force as reasonably necessary to: -prevent suicide or any act which are RGB if committed would amount to suicide OR -commission of an offence which is likely to cause immediate and serious injury to any person or any property |
| Use of Force s42 Preventing a Breach of the Peace | EVERYONE witnessing a breach of the peace justified in interfering to prevent it continuing / renewal in order to give over to custody of a constable. Every Const witnessing BOP may arrest No more force than reasonably necessary. |
| Section 202a Possession of offensive weapons or a disabling substance definitions | OFFENSIVE WEAPON - anything made/altered for causing bodily injury or capable of such DISABLING SUBSTANCE - anaesthetising or other substance to disable persons |
| What is the offence of possession of offensive weapons | Without lawful authority has a knife/offensive weapon/disabling substance in public place - OR - Possess in ANY place, offensive weapon/disabling substance in circumstances that primae facie show intention to use it to commit an offence involving injury/threat/fear of violence |
| ATTORNEY GENERAL v REID Arrest for anticipated breach of the peace | Protesters arrested prior to BOP at Waitangi. APPEALED: there is no power for an anticipated breach of the peace. If directing a person to move etc. to stop a BOP and fail to do so, arrest for OBSTRUCTION |
| NZ Bill of Rights s8 Right not to be deprived of life | That's it! |
| NZ Bill of Rights s9 Right not to be subjected to torture of cruel treatment | Right not to be subjected to cruel, degrading or disproportionately severe treatment or punishment |
| NZ Bill of Rights s13 Right to freedom of thought, conscience or religion | Includes the right to adopt and hold opinions without inteference |
| NZ Bill of Rights s14 Freedom of expression | Includes to seek, receive and impart information and opinions of any kind in any form |
| NZ Bill of Rights s15 Manifestation of religion and belief | Right to religion or belief in worship, observance, practise, teaching in public or private |
| NZ Bill of Rights s17 Freedom of association | Says it all |
| NZ Bill of Rights s18 Freedom of Movement | Everyone lawfully in NZ, right to freedom of movement and residence in NZ Right to enter and leave NZ If not a NZ citizen but in NZ lawfully, can't be required to leave except on legal grounds |
| NZ Bill of Rights s20 Rights of minorities | Person belonging to ethnic, religion, language minority in NZ shall no be denied the right to enjoy their culture |
| NZ Bill of Rights s21 Right of unreasonable search and seizure | Right to be secure against unreasonable search and seizure or person, property or otherwise |
| NZ Bill of Rights s22 Liberty of person | Right not to be arbitrarily arrested or detained |
| NZ Bill of Rights s23 rights of persons arrested or detained | -Informed at time of arrest of reason -Right consult/instruct lawyer w/o delay -Right to have validity of arrest/detention determined (by habeas corpus) and to be released if not lawful -Right charged promptly or released -If arrested brought court/tribunal asap -Right to refrain from STX -Right to be treated dignity and respect |
| NZ Bill of Rights s24 Rights of persons charged | -Informed promptly nature of charge -Released on reasonable conditions unless cause for continued detention -Right to consult/instruct lawyer -Right adequate time to prepare defence -Right (except military) to jury trial (2yrs+) -Right to free legal assistance -Right to interpretor |
| NZ Bill of Rights s25 Minimum standards of criminal procedure | Right to: -Fair and public hearing -Tried without delay -Presumption of innocence -Not to be compelled as a witness -To be present at the trial -To examine witnesses -If convicted to lesser penalty if changed between offence and sentencing. -To appeal to higher court -As child to be in manner for age |
| Freedom of Expression Taueki v Police | Protest of Levin Cultural Centre. Police present. Protesters yelled abuse at person at centre. TAUEKI arrested for disorder. APPEALED. Conviction quashed as no part of law to regulate for good taste. Said presence of police meant violence was less of a risk |
| BROOKER v POLICE Disorderly behaviour, protest and BOR | BROKER went to off duty officers house and woke him and played protest songs outside. Other police arrived; he was told to move his car and did so.Told to leave and held his hands out - K9. APPEALED. No definite answer to exactly what behaviour is disorderly but time/place/circumstance must cause anxiety/disturbance at a level which is beyond what a citizen should be expected to bear. |
| MORSE v POLICE | Burning flag at ANZAC day ceremony. Conviction quashed for disorder. Defendants conduct must involve risk to public disorder - offensive and disorderly different sides of same coin. Court sided with freedom of expression |
| POLICE v BEGGS Trespass and BOR | 300 Students at Beehive. Speaker of house warned of disorder. Multiple warnings given to leave by speaker and police. Students arrested. APPEALED. Held as reasonable - many factors to consider and not formula provided incl: if disorderly / interferes with others / duration/ size of assembly content (eg racial hatred) |
| FALWASSER V ATTORNEY GENERAL Inhumane treatment | F arrested in stolen car. Taken to station and refused to leave holding cell. Refused pleas to leave including from family. Pepper sprayed and batoned. Loads more OC spray used. AG conceded OC spray and baton breached s23 (treat respect/humanely) Non compliant prisoner - all options short of force should be explored (simply wait!) |
| R v WILLIAMS Right to be secure against unreasonable search and seizure s21 | A lawful search may be unreasonable where conducted in an unreasonable manner (excess force, strip in public) -An U/L search/seizure breach of s21 except -if- error is minor -or -error not noticed before S&S begun. Minor may be a failure to report *MODA Wrong address in S/W not minor Failure to follow ID obligations not minor If an emergency where U/L error occurs may be admitted in balancing act |
| R v PRATT Search lawful but unreasonable | Searched in public for 18(2). Key found in pocket but searched until naked. Key for property under surveillance -1kg coke found. APPEAL. Strip search unreasonable and seizure of keys unlawful (no grounds to look for keys in MODA). |
| R v HUFFLETT Search, warrant, application of BOR and an "agent of the state" | Accountant interviewed and provided documents. After interview he continued to provide documents to police for 1.5yrs after which police executed a S/W. APPEAL HELD. Police should have obtained a warrant to obtain evidence. (doesn't apply to recorded calls where one party aware of recording) |
| R v BARLOW Recorded telephone calls | Must consider would the conversation taken place without the intervention of the state. In private calls between people known to one another it is likely the conversations would have occurred anyway. |
| BOR s22 AG v HEWITT Right not to be arbitrarily detained | HEWITT charged with MAF after domestic. Police took female stx at midnight. At 3:50am police entered address (key from female) and arrested HEWITT. Charged at 6am. Not bailed; remained custody several hours till granted bail. Dismissed at deps. Crown appealed. Police returned to simply arrest male (police of auto FV arrest) was unlawful. Failure to consider discretion to arrest unlawful - detention then U/L. Failure to grant bail U/L. If sufficient evidence, except in exceptional; circumstances FV suspects to be arrested. If offending disclosed and actions other than arrest discuss w/supervisor. Bail for FV same any other offence. |
| When considering an arrest is to be made or bail is to be refused in FV matters what factors may that include? | Need to remove suspect from situation Risk of further violence if not imm. K9 History of violence People to ensure safety of victim Suspect may flee Need to preserve evidence Risk interference of witnesses |
| NEILSON v AG Arbitrary detention, discretion Charged for failure to account in Oct 1992 for 2 cheques valued at $110 | March 1994, police visit, invited to accompany and advised would be arrested if failed to do so (detention). Custody for 1.5hrs before release. APPEAL. Poilce had GCS but didn't exercise discretion to arrest (summons) and subsequent detention then U/L. No need to arrest for f/prints and not evidence of offence. Significant delay from offence to arrest. Small sum money involved. No history of fraud. No evidence other offences. |
| R v BRIGGS How far court reviews the discretion of arrest | BRIGGS a prisoner who attacked another prisoner. K9 and taken from prison to station. Appeal- arresting officer not exercising discretion of alternatives. HC said U/L arrest calling for discretion as prisoner already in custody. Evidence post arrest was excluded. Appeal court disagreed and said evidence was admissible; court may review discretion to arrest but that power is exceptional for very limited circumstances. Where offices has GCS person committed offence, that officer has discretion to arrest or not and is not obliged to invoke criminal justice process every time. Where an arrest carried out under direction senior officer, it is not necessary for each arresting officer to independently consider whether to use discretion to arrest. |
| R v PAKU Rights following arrest, detention and charge | Police dispatched to unconscious male. At scene advised of fight. Male fitting description seen and ran. Caught and escorted to police vehicle. At car given rights; understood. Admits to pushing male. Taken by another officer to station who asked if returning by free will and he agreed. When asked if male was ok officer didn't respond. Male locked in interview room. Unconscious male died. Detective spoke to PAKU and told him male died, rights given and PAKU made STX. APPEAL. Statements excluded because he was not told he was detained and why he should consider contacting a lawyer. Court said position of person detain and to be charged is different from a person not detained and no decision made to arrest. A person arrested may say nothing and a person who believes a prospect of being released may recount his side of things. |
| R v MALLINSON Rights, warnings, general principles | Male K9 minor charge. Told arresting officer understood fingered for ag. robbery. Said he wasn't worried his lawyer would get him off. Not told of right to lawyer at time of arrest. Hour later he was interviewed under caution. Rights didn't say "...lawyer without delay". HC said stx inadmissible as right to lawyer not explained before interview. Crown appealed. For the right to consult a lawyer to be effective the right to be informed must be given immediately on arrest (or delay reasonable in circumstances). To be informed of a right is to be aware of it. Important that anyone arrested be made aware of the right to lawyer w/o delay (asap). Were person arrested has some disability affecting ability to understand, more than a bare reading of rights required. If a person is not told of their rights to a lawyer at time of arrest = breach of BOR. But that breach may be excused provided the accused informed of his rights before any questions. An omission of words "without delay" not necessarily fatal provided understood entitled to lawyer before questions. |
| R v TUNUI Warning and ensuring understanding | Need to ensure BOR is understood to person given. TUNUI arrested for obstruction and violence during search. Handcuffed and told of right to lawyer. Kept cuffed at address 1hr before removed to station asked for lawyer but was ignored. Interviewed but evidence excluded. Not told of right to lawyer w/o delay/ Also not appropriate to be perfunctorily told of rights at time of great stress during arrest. |
| R v HENDRY Rights, warnings and facilitating access to a lawyer | HENDRY stopped for EBA failed. Rights given. Spoke to lawyer of his choice but he didn't like their advice. Police refused to provide another lawyer. Formal EBA failed - asked for lawyer and rung same one. He told police not satisfied with lawyer. Appealed. Conviction held. No requirement for police to offer multiple lawyers if individual isn't happy with advise they receive when rights properly facilitated |
| R v JI Access to lawyer and right to silence | JI Chinese with limited english. Crashed his car and killed girlfriend. Police spoke to JI at Hospital (not told g/f dead). Cautioned and taken to station. Interviewed with interpretor (not on DVD) who made no record of Q and A. When told of death of g/f he said wanted to end interview but questions continued for 7 hours in total. Defence said unfair way interview conducted, breach of BOR (not told of free lawyer) and interviewed after JI said he didn't want to say more. This care let to rights cards. |
| R v KOKIRI Questioning after right to silence | KOKIRI in pursuit 180kph and escaped. Later in a crash killing another driver. Arrested at crash, rights given. Taken to station, rights again and asked for lawyer. He spoke to a lawyer who advised him not to make stx. Lawyer told police KOKIRI would not be making a stx and left. Police spoke to him and .5hr then interviewed. Court of Appeal excluded stx saying KOKIRI manoeuvred into situation where a stx prised out while in shaken state. COA said breach of right not to make stx and lawyer acting for him should have been contacted before interview. |
| R v ORMSBY questions after asserting right to silence | Cannabis and stolen property located S/W Questioned at house, said waiting for lawyer but answered some questions. Arrested and taken to station. He contacted and spoke to his lawyer. Const asked for stx but he said his lawyer said he didn't have to make one. Const asked questions anyway and told he didn't have to answer. He answered some and didn't answer others. Appeal admitted stx because: exercised right to lawyer, no arrangement made between lawyer/police that no further questions not a request of lawyer not to interview, ORMSBY knew he didn't have to answer, const didn't persist with questions he failed to answer, police not overbearing or coercive in tactics. |
| R v FALALA Right to silence | Interviewed re burglaries on DVD. Spoke to lawyer first. During his interview said x9 didn't want to make stx but interview continued. Excluded as a breach of his BOR |
| R v WILLIAMS Questioning, lawyers letters | WILLIAMS picked up for part in ag robbery. Made stx regarding robbery and arrested and charged. Went on drive with police to find items connected to robbery. During trip gave info regarding 3 other robberies. His lawyer didn't want him to speak to police and got him to sign letter to that effect which they faxed to police. Interview admitted. Staff should not enter into agreement not to talk to suspect. If such a demand is made officer should inform lawyer not able to enter any undertaking that relates to how police further their enquiries in a particular case. Suspect has right to silence not the lawyer. A suspect can reject a lawyers advice if they wish. This waiver should be recorded (notebook/dvd) |
| R v ROGERS Right to be promptly charged | S/W at house for burglary, cannabis found and male arrested. Taken to station but Det who arrested called away on urgent business. Male not interviewed>placed into holding cell until 5hrs later Det returned and admission obtained. Stx excluded-charge withdrawn. -Right to be promptly charged or released (w/o charge or bail) asap -only exceptional circum (danger to life/prop) will delay be justified |
| Denying bail for questioning | -Bail shouldn't be denied because police carrying out enquiries into another offence and wish to question suspect after enquiries complete. -Questioning for an offence on which they are not being held is permissible but bail cannot be denied on grounds person is being held for questioning |
| R v TE KIRA Right to be brought to court asap | Male wearing jacket taken in robbery. Refused to accompany and arrested. Cautioned. Male made stx, charged with receiving and placed in cell. Refused bail and due to CIB enquiries not taken to court. Stayed in custody all day; re interviewed in evening and made admissions. Evidence excluded - police not entitled to delay taking arrested person to court for further enquiries |
| R vDOUGHTY Police have no obligation to re-interview offender who initially denies offending | Male arrested, lawyer unavailable for several hours. Male spoken to and denied offending. Det told male if lawyer couldn't come earlier he would be taken to court w/o consulting him. Male taken to court before seeing lawyer and RIC. Appealed saying never given chance to make stx. Court said given opportunity to explain to police and denied offending, no requirement for police to re-interview who denies, accused not right to be interviewed yet alone RE-INTERVIEWED, male not compelled to give evidence at court, police obligated to bring to court asap and any delay to wait for a lawyer would be a breach of his BOR |
| Police investigating an offence may ask questions of any person from whom it is thought useful information may be obtained, whether or not that person is a suspect, but must not suggest it is compulsory for that person to answer | Confirms police may ask questions of any person to assist with enquiries. However, police must not suggest that the person must answer |
| What is the definition of sufficient evidence to charge | When the evidence, OBJECTIVELY considered, supports a primae facie case, meaning if the evidence is accepted as credible a judge or jury could find guilt proved beyond reasonable doubt. |
| If you give someone their rights before arresting or detaining them do you need to give them again after arrest/detention? | Simple answer - YES |
| What rights should you tell a youth suspect if they are NOT under arrest and you wish to obtain their details or take to station | You may be arrested if you refuse to give your name and address (if sufficient to arrest for an offence meaning a summons couldn't be served) You are not obliged to accompany me and if you consent you can withdraw consent at any time. |
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