New Zealand Bill of Rights
Version : 12.0
Detailed table of contents
This chapter contains the following topics:
Summary of the Act and its application to policing
Released • Purpose of this chapter
•
Key rules for Police arising from the Act
•
Summary of the Act
•
Further information
Right not to be deprived of life
•
Rights under section 8
•
Deaths involving Police
pursuant
•
Deaths in Police custody
Right not to be subjected to torture or cruel treatment
•
Rights under section 9
•
Torture
•
Cruel, degrading or disproportionately severe treatment
Freedom of expression and peaceful assembly
to
•
Freedom of expression under section 14
the
•
Freedom of peaceful assembly under section 16
•
Demonstrations, behaviour offences and breach of the peace
•
Non-publication orders and contempt of court
Official
Freedom of movement
•
Rights under section 18
Freedom from discrimination
•
Rights under section 19
Right to be secure against unreasonable search and seizure
Information
•
Rights under section 21
•
What is a ‘search’?
•
What is a ‘seizure’?
•
Unreasonable searches and seizures
•
Electronic surveillance
•
Remedies for unreasonable search
Right to not be arbitrarily arrested or detained
Act
•
Rights under section 22
•
‘Arrest’
•
‘Detention’
1982
•
Holding in custody while making enquiries
•
Stopping vehicles to arrest
•
Remedies
Rights of people arrested or detained
(20
•
Rights under section 23
•
‘Arrest’ and ‘detention’
June
•
Giving the caution
•
Questions about statements or other evidence
•
Treatment with humanity and respect
•
Further information
2016)
Notifying rights
•
Ensuring rights are understood
•
Written notifications
•
Timing of the notification
Lawyers
•
Police Detention Legal Assistance Scheme
•
When are rights requested
•
Right to privacy
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New Zealand Bill of Rights, Continued…
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•
Reasonable assistance
•
Other phone calls
•
Waivers
Questioning a person in custody
Released
•
Recording statements
•
Questioning must not amount to cross-examination
•
Breach of rights and admissibility
•
Court appearances
pursuant
to the Official
Information
Act 1982
(20 June
2016)
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New Zealand Bill of Rights, Continued…
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Summary of the Act and its application to policing
This section contains the following topics:
Released • Purpose of this chapter
•
Key rules for Police arising from the Act
•
Summary of the Act
•
Further information
Purpose of this chapter
This chapter contains:
pursuant
•
a brief summary of the New Zealand Bill of Rights Act 1990 (NZBORA)
•
detailed discussion of Police obligations under sections 21 to 25 of the Act.
Section 23 relates to the procedures Police must follow when arresting and detaining
suspects. It must be considered alongside the ‘Chief Justice’s Practice Note on Police
Questioning’. It is the section of the Act with the most potential to impact on frontline
to
Police. (See ‘Rights of people arrested or detained’ in this chapter)
the
Key rules for Police arising from the Act
These are the most important rules associated with the NZBORA.
Official
Rule
1
When you are investigating an offence and you locate suspects or other people
you think may provide useful information, you may ask questions but must not
suggest that it is compulsory for the person to answer.
2
If you want to question someone and you have sufficient evidence to charge that
Information
person with an offence, you must caution the person before inviting them to
make a statement or answer questions.
3
If you have arrested or detained a person pursuant to any enactment, you must
caution them, even if you had already given the caution before the suspect was
arrested or detained.
4
There is no power to detain a person for questioning or to pursue enquiries,
although a person can assist voluntarily with enquiries.
Act
Summary of the Act
The NZBORA applies only to:
• acts done by the legislative, executive or judicial branches of the government (the
1982
actions of a trading company, such as TVNZ Ltd, even though a State enterprise
under the State Owned Enterprises Act 1986, are not done in the performance of a
public power and hence the NZBORA does not apply).
(20
• the performance of any public function, power or duty pursuant to law.
The NZBORA is primarily intended to affirm, protect and promote human rights and
June
fundamental freedoms. It provides:
•
protection against the powers of government agencies
•
minimum standards for public decision-making
•
protection for human rights and basic freedoms.
2016)
The Act:
•
gives statutory authority to many rights that have always existed but have done so
only in common law (examples include the right not to be deprived of life and the
right not to be subjected to torture or cruel treatment)
•
requires that any limits on the rights and freedoms contained in NZBORA are to be
reasonable such that they are capable of being “demonstrably justified in a free and
democratic society”.
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The Act applies to almost every aspect of policing. For example, policing demonstrations
may impact on the rights to freedom of expression, manifestation of religion and belief,
or peaceful assembly (ss14, 15, 16). Intelligence and prevention activities may impact
on the protection against discrimination on the basis of race (s19). A killing by police or
Released death in custody impacts on the right to life (s8).
The New Zealand Bill of Rights Act also imposes some specific obligations on Police:
•
s21 - protection against unreasonable search and seizure
•
s22 - protection against arbitrary arrest and detention
•
s23 - rights of persons arrested or detained
•
s24 - rights of persons
pursuant
charged with an offence
•
s25 - minimum standards of criminal procedure
Summary table
This table gives a broad outline of the sections in the Act and identifies matters relevant
to Police.
Part
Content
to
Part 1, sections 2-7
General provisions of the Act relating to interpretation and
the application of the Act and other NZ law
Part 2, sections 8-20
Relate to the life and security of the person, democratic and
civil rights, and minority rights. These sections affirm existing
Official
rights not previously included in statute.
Part 2, sections 21-22
Relate to actions Police might take while conducting
investigations, e.g. searching, seizing, arresting and
detaining.
Information
(Prior to the Act, these sections were not regulated by statute
but by cases such as
Entick v Carrington (1765) 19 State Tr
1029 and
Blundell v Attorney-General [1968] NZLR 341).
Part 2, section 23
Relates to the rights of people when they have been arrested
or detained.
Part 2, section 24
Sets out the rights of persons charged with an offence.
Applies to defendants appearing before the courts and
prisoners detained in Police cells after being arrested for an
Act
offence.
Part 2, sections 25-27
Relate to the administration of justice. 1982
Part 3, sections 28-29
Have no direct effect on Police.
Further information
For further information about the application of the NZBORA in specific situations refer to
(20
these Police Manual chapters:
•
Arrest and detention
June
• People in Police detention
•
Investigative interviewing suspect guide
•
Chief Justice’s Practice Note on Police Questioning
•
Youth justice
2016)
•
Search
•
Searching people
•
Use of force
•
Behaviour offences
•
Unlawful assembly and/or rioting
•
Demonstrations
•
People with mental impairments
•
Sudden death
•
Police involvement in deaths and serious injuries.
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Right not to be deprived of life
This section contains the following topics:
Released • Rights under section 8
•
Deaths involving Police
•
Deaths in Police custody
Rights under section 8
Under section 8 no one shall be deprived on life except on such grounds as are
established by law and are consistent with the principles of fundamental justice.
pursuant
Deaths involving Police
Police officers are occasionally required to use force in self defence or defence of
another, and in keeping the peace and apprehending offenders. Section 8 of the Act
applies where a person dies as a result of Police actions. Such actions must be lawful and
justifiable, for example in self defence or defence of another.
to
For more information see:
the
•
Use of force
•
Police firearms
Official
•
Homicide and Serious Crime Investigations
•
Police involvement in deaths and serious injuries.
Deaths in Police custody
There is no general obligation on Police to prevent deaths. However, there is a positive
Information
obligation towards vulnerable people under Police control, such as prisoners and people
in Police detention. See these chapters for the applicable procedures:
• People in Police detention
•
People with mental impairments
•
Youth justice
•
‘Care and suicide prevention’ in Arrest and detention.
Act 1982
(20 June
2016)
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Right not to be subjected to torture or cruel treatment
This section contains the following topics:
Released • Rights under section 9
•
Torture
•
Cruel, degrading or disproportionately severe treatment
Rights under section 9
Everyone has the right not to be subjected to torture, or to cruel, degrading, or
disproportionately severe treatment or punishment. The purpose of section 9 is to
pursuant
ensure that all persons are treated with respect for their inherent dignity and worth.
Section 9 is particularly relevant to the treatment of prisoners. For example, deliberate
deprivation of a mentally unstable prisoner, or deliberately strip searching a prisoner in a
public area in order to humiliate or subdue them, may breach section 9.
to
Section 9 and the ‘UN Convention Against Torture’ include an obligation to investigate
credible claims of torture and cruel, degrading and disproportionately severe treatment.
the
Police will often be involved in such investigations. The IPCA is the National Preventative
Mechanism for torture and cruel treatment, and oversees investigations into complaints
of torture and cruel treatment by Police. (See ‘Independent Police Conduct Authority
Official
(IPCA)’ in the ‘Police investigations of complaints and notifiable incidents’ chapter.
Breach of section 9 may lead to a substantial award of compensation by the courts (see
Taunoa v Attorney-General [2008] 1 NZLR 429).
Information
Torture
‘Torture’ is defined under the Crimes of Torture Act 1989 as any act or omission by
which severe pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as:
•
obtaining information or a confession
•
punishment for any act or omission
•
intimidation or coercion; or
•
for any reason based on discrimination of any kind.
Act
Cruel, degrading or disproportionately severe treatment
1982
‘Cruel, degrading or disproportionately severe treatment’ covers a range of treatment
which deliberately inflicts severe suffering, gravely humiliates and debases the person,
would shock the conscience of the community, or is grossly disproportionate to the
circumstances. The circumstances and the nature of the treatment are relevant:
(20
•
state of mind of the victim and whether he/she is especially vulnerable, e.g. suffers
a mental health condition
•
motive of the perpetrator and whether the treatment was deliberate
June
•
the duration of the treatment
•
the severity of harm.
2016)
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Freedom of expression and peaceful assembly
This section contains the following topics:
Released • Freedom of expression under section 14
•
Freedom of peaceful assembly under section 16
•
Demonstrations, behaviour offences and breach of the peace
•
Non-publication orders and contempt of court
Freedom of expression under section 14
Everyone has the right to freedom of expression, including the freedom to seek, receive
pursuant
and impart information and opinions of any kind and in any form.
‘Expression’ covers manifestations of ideas and information of any kind and in any form,
including behaviour bordering on the offensive or disorderly. This right is particularly
relevant to policing demonstrations, offences of disorderly and offensive behaviour and
breach of the peace. In most cases the content of the expression is irrelevant, apart
to
from censorship, hate speech and defamation, which are unlawful.
the
The right is limited by the criminal and civil law, for example ‘offensive’ and ‘disorderly’
behaviour, insulting language, breach of the peace, hate speech, contempt of court,
censorship laws, and defamation. The limit must be reasonable in the circumstances of
Official
the behaviour - an issue which will be decided by the court in each case.
Freedom of peaceful assembly under section 16
Everyone has the right to freedom of peaceful assembly.
Information
An ‘assembly’ is two or more people meeting with a common goal. Assemblies must be
‘peaceful’ to be protected by the right. An assembly which inconveniences members of
the public may still be peaceful, and one non-peaceful person does not extinguish the
right for the rest of the assembly. For an assembly to be found non-peaceful requires a
serious and aggressive effect on people or property.
Demonstrations, behaviour offences and breach of the peace
Act
The rights to freedom of expression, association and peaceful assembly underpin public
protests, demonstrations and occupation of public spaces. When policing protests and
demonstrations, cognisance must be taken of:
1982
•
the rights to freedom of expression and peaceful assembly
•
the extent to which the expression/demonstration is impinging on the rights of
others to use the public space, and
•
whether the behaviour warrants the intervention of the criminal law. (20
The courts take a liberal approach to expressive behaviour by demonstrators. The level
June
of behaviour required for ‘disorderly’ and ‘offensive’ behaviour or ‘insulting language’ is
much higher for demonstrators conveying an opinion on a matter of public interest, than
for other types of behaviour. In order to reach the threshold of offensive or disorderly,
protestors’ behaviour must either:
2016)
•
substantially inhibit other people from enjoying their right to use the public amenity,
and/or
•
cause greater offence than those affected can reasonably be expected to tolerate, to
the extent that it is seriously disruptive of public order.
(Refer
R v Morse [2009] NZCA 623
, Brooker v Police [2007] 3 NZLR 91).
Breach of the peace is not an offence, but carries a power of arrest (s42 Crimes Act).
The rights to freedom of expression and peaceful assembly will impact on the validity of
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a decision to arrest to prevent a breach of the peace (refer
Police v Beggs [1999 3 NZLR
615).
The legal tests for disorderly and offensive behaviour and insulting language and breach
Released of the peace are likely to evolve further in the protest context. Generally, Police
employees should consider:
•
Does the behaviour express a view on a matter of public interest?
•
Does the behaviour intrude on the rights of others in a public space?
•
Does this intrusion go beyond what a reasonable person, respectful of the rights to
freedom of expression and assembly, could be expected to tolerate?
•
Does the behaviour pose an actual
pursuant
risk of public disorder (e.g. is it intimidation,
victimisation, bullying or pose a real risk of violence)?
•
Does the behaviour warrant the intervention of the criminal law?
For more information see these parts of the ‘Public Order Policing’ chapter:
•
Behaviour offences
•
Unlawful assembly and-or riot
to
•
Demonstrations
•
Mass arrest planning.
the
Non-publication orders and contempt of court
Official
Generally, judicial proceedings should be published to ensure transparency of the justice
system. However, in criminal cases the defendant's right to a fair trial may overcome the
right to freedom of expression, and may justify a non-publication order. Breach of a non-
publication order, or other expression which interferes with the administration of justice
may lead to conviction for contempt of court and imprisonment. See the ‘Sub-judice’
Information
‘Media’ chapter.
Act 1982
(20 June
2016)
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Freedom of movement
Rights under section 18
Released • Everyone lawfully in New Zealand has the right to freedom of movement and
residence in New Zealand.
•
Every New Zealand citizen has the right to enter New Zealand.
•
Everyone has the right to leave New Zealand.
•
No one who is not a New Zealand citizen and who is lawfully in New Zealand shall be
required to leave New Zealand except under a decision taken on grounds prescribed
by law.
pursuant
There are many prescribed limits on the right to freedom of movement, such as
immigration decisions, extradition, bail conditions, imprisonment and home detention.
Police often curtail individuals’ freedom of movement within New Zealand. Police actions
in detaining and arresting people are generally covered by section 22 arbitrary arrest
to
and detention. However, bail conditions, road closures (see ‘Powers>To close roads’ in
the ‘Unlawful assembly and-or riot’ chapter) and other short-term curtailments may
the
impinge on the right and must be reasonable.
Official
Information
Act 1982
(20 June
2016)
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Freedom from discrimination
Rights under section 19
Released Everyone has the right to freedom from discrimination on the grounds of sex, marital
status, religious belief, ethical belief, colour, race, ethnic or national origins, disability,
age, political opinion, employment status, family status and sexual orientation.
Affirmative action to advance a particular group does not amount to discrimination.
Discrimination means treating someone detrimentally because of one of the prohibited
grounds (such as race). A policy may also be discriminatory where it has the effect of
pursuant
treating a group of people differently, even if this is not the intention. However many
government policies and social programmes target specific groups, and are not
discriminatory. Policing operations or prevention programmes which target a particular
harm are unlikely to be discriminatory.
Police employees interact with people from all walks of life with all characteristics, and
to
should ensure conduct does not discriminate on any of the prohibited grounds. Respect
for people and avoiding discrimination is one of the principles of the Police ‘Code of
the
Conduct’
. Examples of Police policies outlining affirmative actions for certain groups of people or
Official
procedures to ensure that discrimination does not occur in certain situations include:
•
Identifying drivers with face coverings (see the section ‘Process to follow for
religious or cultural face coverings’)
•
Police cultural groups
•
Neighbourhood Policing Team (NPT) guidelines
Information
•
Deploying Iwi, Pacific and Ethnic Liaison Officers
•
People with mental impairments
•
Youth justice.
For discrimination in the workplace, see the ‘Discrimination and harassment policy’.
Act 1982
(20 June
2016)
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Right to be secure against unreasonable search and
seizure
Released This section contains the following topics:
•
Rights under section 21
•
What is a ‘search’?
•
What is a ‘seizure’?
•
Unreasonable searches and seizures
•
Electronic surveillance
•
Remedies for unreasonable search
pursuant
Rights under section 21
Under section 21, everyone has the right to be secure against unreasonable search or
seizure, whether of the person, property, or correspondence, or otherwise.
The basis of the right is the need to protect an individual's reasonable expectation of
to
privacy from intrusion by the government. This will vary depending on the nature, place
and extent of the intrusion on the privacy interest (
R v Grayson & Taylor [1997] 1 NZLR
the
399 (CA),
Hamed v R [2012] 2 NZLR 305 (SC)).
Official
Generally, a search or seizure will be reasonable if it is conducted under a statutory
power and the public interest in administering criminal justice outweighs the individual's
privacy interest (
R v Thomas (2001) 19 CRNZ 392 (CA)). Police have extensive search
and seizure powers, with and without warrant, provided in statute. (See the ‘Search’
Police Manual chapter).
Information
The protection against unreasonable seizure does not amount to a right to property (
P F
Sugrue Ltd v Attorney-General [2006] 3 NZLR 464 (PC).
What is a ‘search’?
There is no set definition of a ‘search’, either in statute or case law. Recent case law
suggests a ‘search’ requires a conscious act of state intrusion into an individual’s
reasonable expectation of privacy, as opposed to a mere observation (
Pollard v R [2010]
Act
NZCA 294;
Lorigan v R [2012] NZCA 294 applying
Hamed v R per Blanchard J).
A search is not:
1982
•
kneeling and using a torch to observe an article secreted inside a car headlight (
R v
Dodgson (1995) 2 HRNZ 300 (CA))
•
asking a person to hold up a bicycle so the serial number can be checked (
Everitt v
A-G [2002] 1 NZLR 82 (CA)
(20
•
asking a person to hold out their hands for inspection (
R v Yeung HC Akl 22 May
2009).
June
What is a ‘seizure’?
There is no statutory definition of ‘seizure’. Seizure is ‘removing something from the
possession of someone else’ (
Hamed v R). An item generated by exercising a search or
2016)
surveillance power (e.g. a photograph) is not a ‘seizure’ (s3 Search & Surveillance Act).
Unreasonable searches and seizures
A search is unreasonable if the circumstances giving rise to it make the search itself
unreasonable or if the search is carried out in an unreasonable manner. (
R v Grayson &
Taylor [1997] 1 NZLR 399). The principles of reasonable search by Police are set out in
the chapter on ‘Search’ (see ‘General principles applying to searches’ in the ‘Search
introduction’ chapter).
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Unlawful searches and seizures
Unlawful searches will almost always be unreasonable and breach s 21. However, a
search undertaken in good faith where the searcher was mistaken about their power of
Released search may not be unreasonable (
R v Jefferies [1994] 1 NZLR 290). For example, a
search may be reasonable where the wrong search power was used, but the search
could have lawfully been conducted under other powers (
R v Abraham 30/8/05,
CA253/05,
R v Timutimu [2006] DCR 38).
Minor irregularities during search
A search that is unlawful because
pursuant
of a minor irregularity may, depending on the
circumstances, not be unreasonable. In such a case, the evidence obtained in the search
may be admissible - see
R v Faasipa (1995) 2 HRNZ 50 (CA). However, even where a
breach is minor or technical, a search or seizure will not normally be held to be
reasonable if the police realised the error
before the search or seizure was undertaken.
(
R v Williams [2007] 3 NZLR 207, para [21]).
to
Searches carried out in an unreasonable manner
A search that would otherwise be
the reasonable is unreasonable if it is carried out in an
unreasonable manner (e.g. a strip search conducted in the street where there are no law
enforcement considerations necessitating that approach and when the search could have
Official
easily been carried out in private).
(R v Pratt [1994] 3 NZLR 21;
R v S (10 May 2001,
High Court Auckland, Paterson J, T001794),
R v Williams; Van Essen v A-G [2013] NZHC
917.
Rub-down and strip searching a person
Information
The threshold for a strip search or rub down search of a person is very high. To be
justified, a strip search must be ‘necessary’ in the circumstances and the procedural
guidelines in section 125 Search and Surveillance Act and the ‘Searching people’ chapter
must be followed.
Unwarranted strip or rub-down searches may breach section 21 or s23(5) (see ‘Rights of
people arrested or detained’). Deliberate degrading and repeated strip searching to
punish a detainee may breach section 9 (see Right not to be subjected to torture or cruel
Act
treatment). (Refer
Forrest v A-G [2012] NZAR 798 (CA),
Reekie v A-G [2012] NZHC
1867,
Taunoa v A-G (CA)). The remedy for unjustified rub-down and strip searches is
usually compensation, although this may be limited by the Prisoners and Victims Claims
1982
Act 2005.
Electronic surveillance
(20
Searching includes electronic surveillance. Again, there is no set definition whether
surveillance without special capabilities (such as night vision) will be a ‘search’ (
Lorigan v
R,
Hamed v R).
June
Powers and duties regarding surveillance activities are set out in the Search and
Surveillance Act 2012 and the ‘Search’ chapter.
2016)
Remedies for unreasonable search
The usual remedy for a breach of section 21 is exclusion of evidence under section 30
Evidence Act (
Hamed v R).
Some unreasonable searches may also warrant compensation (
Baigent's Case [1994] 3
NZLR 667;
Forrest v A-G [2012] NZAR 798 (CA)). However, for prisoners in Police
custody, compensation will be limited by the Prisoners and Victims Claims Act 2005.
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Right to not be arbitrarily arrested or detained
This section contains the following topics:
Released • Rights under section 22
•
‘Arrest’
•
‘Detention’
•
Holding in custody while making enquiries
•
Stopping vehicles to arrest
•
Remedies
pursuant
Rights under section 22
Under section 22 everyone has the right not to be arbitrarily arrested or detained.
Police employees have powers to arrest and detain under various statutes (see ‘Arrest
and detention’).
to
‘Arrest’
The term ‘arrest’ has been thoroughly discussed by the Court of Appeal in
R v Goodwin:
the
“...arrest must have its Crimes Act meaning of a
communicated intention on the part
of the police officer to hold the person under lawful authority.”
(R v Goodwin (No 1)
[1993] 2 NZLR 153; (1992) 9 CRNZ 1)
Official
‘Detention’
A person will be regarded as ‘detained’ if:
•
there is physical deprivation of a person’s liberty, or
Information
•
there are statutory restraints on a person's movement, or
•
they have a reasonably held belief induced by police conduct (or other official
conduct) that they are not free to leave.
(R v M [1995] 1 NZLR 242 (per Blanchard J);
(Police v Smith and Herewini [1994] 2
NZLR 306).
Where a deprivation or restraint is only temporary, detention is less likely to have
occurred.
Act
Examples of arrest or detention include when a person has been:
•
formally arrested
1982
•
handcuffed
(R v Royal (1992) 8 CRNZ 342)
•
locked in a room or building, or put in a place that they cannot leave voluntarily
•
placed in a police vehicle against their will.
(20
Each of these acts can be described as a positive act of physical detention that
communicates an intention to hold a person under lawful authority. In such a situation,
June
the suspect is under arrest within the meaning of the Crimes Act and Police must inform
the suspect of their rights under section 23 by giving the caution.
Powers to arrest and detain are discretionary, and a Police employee must determine
2016)
whether to arrest or detain in the circumstances of each case. (See ‘Deciding whether to
arrest’ in ‘Arrest and detention’). An arrest or detention will be ‘arbitrary’ if it is
capricious or without reasonable cause. Also if the arrest/detention was unlawful or
proper procedures were not followed.
Before an arrest is made, the arresting officer must be clear in their own mind that the
arrest is justified and reasonable, and that alternative action, such as a summons, is not
appropriate. (
Neilsen v Attorney General [2001] 3 NZLR 433; (2001) 5 HRNZ 334 (CA)).
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A failure to consider the discretion to arrest will be arbitrary. (
Attorney-General v H [2000] NZAR 148).
Holding in custody while making enquiries
Released A reasonable arrest/detention may also become arbitrary if it lasts longer than
necessary, for example longer than required to bring an offender before the Court. (See
’Releasing arrested or detained people’ in ‘Arrest and detention’).
A suspect arrested on one offence cannot be kept in custody for "mere convenience
sake" while enquiries are made into another offence for which he or she may later be
interviewed. If the
pursuant suspect is eligible for bail, you must give it as soon as practicable.
(R v Rogers (1993) 1 HRNZ 282)
Stopping vehicles to arrest
You cannot stop a vehicle to undertake general enquiries. It may be classed as an
arbitrary detention. You can stop a vehicle to enforce any of the provisions of the Land
Transport Act or Traffic Regulations under section 114 of the Land Transport Act 1998.
to
the
You are entitled to stop a vehicle under section 9 of the Search and Surveillance Act
2012 for the purpose of arresting any person in the vehicle, if you have good cause to
suspect that person of having committed an imprisonable offence or of being unlawfully
Official
at large (for example, having breached a bail condition). Any deviation from the above
procedure will be viewed as an arbitrary detention, and any evidence seized as a result is
likely to be ruled inadmissible. (
R v P & F (31 July 1996, Court of Appeal, CA219/96
CA270/96))
Information
Note: The powers incidental to stopping a vehicle under section 9 are set out in section
10.
Remedies
An arbitrary arrest or detention may lead to exclusion of evidence, release from
detention, or compensation. For further information see Arrest and detention, Youth
Justice, People with mental impairments.
Act 1982
(20 June
2016)
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Page 14 of 21
New Zealand Bill of Rights, Continued…
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Rights of people arrested or detained
This section contains the following topics:
Released • Rights under section 23
•
‘Arrest’ and ‘detention’
•
Giving the caution
•
Questions about statements or other evidence
•
Treatment with humanity and respect
•
Further information
pursuant
Rights under section 23
Section 23 codifies Police duties during arrest and detention, so that basic human rights
and freedoms are protected. Under the section, people who are arrested or detained
under an enactment have the rights to:
•
be informed of the reason for arrest or detention at the time of the arrest or
detention
to
•
consult and instruct a lawyer without delay and to be told of that right
•
have the arrest or detention’s validity determined by the Court by way of habeas
the
corpus and to be released if it is not lawful
•
after arrest, to be charged promptly or released
•
if not released after arrest, to be brought before a court or tribunal as soon as
Official
possible
•
refrain from making any statement and to be informed of that right
•
be treated with humanity and respect.
‘Arrest’ and ‘detention’
Information
See ‘Right to not be arbitrarily arrested or detained’ (s22) for determining whether a
person has been arrested or detained. See also the ‘Arrest and detention’ chapter.
Giving the caution
The Chief Justice’s Practice Note on Police Questioning, issued under section 30(6) of the
Evidence Act 2006, provides guidance on police questioning. It includes a caution,
containing the advice requirements of section 23.
Act
The wording of this caution for adults and young persons is detailed on an insert card in
constable’s notebooks.
1982
A caution must be given to:
•
adults who are arrested or detained, or where Police want to question an adult
where there is sufficient evidence to charge that person with an offence
(20
•
children or young persons when detained or arrested and, in accordance with section
215 CYPF Act, before questioning a child or young person when there are reasonable
June
grounds to suspect them of having committed an offence, or before asking any child
or young person any question intended to obtain an admission of an offence. (See
the ‘Youth Justice’ chapter.
2016)
Failure to give the caution may result in a finding that evidence was improperly obtained
and the evidence excluded under section 30 of the Evidence Act.
Questions about statements or other evidence
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
(Chief Justice’s Practice Note on Police Questioning).
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New Zealand Bill of Rights, Continued…
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Guidance on detention
Not every restraint will amount to a detention for the purposes of section 23(1). The
courts have recognised particular circumstances in which a short delay in affording rights
may be necessary to preserve evidence or to ensure personal safety. In such cases,
Released there is no detention under an enactment for the purposes of section 23(1)(b)(right to
consult and instruct a lawyer without delay and to be informed of that right) — examples
include:
•
When a motorist is stopped at the roadside to undergo a breath-alcohol screening
test (
Temese v Police (1992) 9 CRNZ 425 (CA))
pursuant
•
When a motorist is stopped at the roadside and asked to supply his or her
particulars as permitted by the land transport legislation
•
When a motorist is taken to hospital following an accident and a doctor is requested
to take a blood sample for alcohol testing (
Police v Smith and Herewini [1994] 2
NZLR 306 (CA))
•
When undertaking the execution of a search warrant reasonable directions may be
given to persons whom there are reasonable grounds to believe will obstruct or
to
hinder the search, e.g. persons may be excluded from the house or instructed that if
they remain in the house, they
the are to stay in a specified room (
Powerbeat
International Ltd v Attorney-General (1999) 16 CRNZ 562 (HC)).
Official
Treatment with humanity and respect
There is a positive obligation on Police to ensure that all people who are arrested,
detained or deprived of their liberty are treated with humanity and respect for the
inherent dignity of the person. Serious deliberate or reckless ill-treatment of a detainee
may breach section 9.
Information
Treatment in breach of section 23(5) includes:
•
excessive use of force against a detainee (
Archbold v A-G,
Falwasser v A-G)
•
failure to provide medical treatment when requested
•
unlawful restraint to prevent self-harm (
Reekie v A-G)
•
failure to comply with regulations or policies which provide minimum entitlements,
such as food, clothing, exercise time (
Taunoa v A-G, Reekie v A-G)
•
routine or deliberate unnecessary strip searching (
Taunoa v A-G,
Reekie v A-G)
Act
•
failure to ensure the detainee's safety and protect them from other employees or
detainees.
1982
Remedies for breach of section 23(5) typically include compensation ($30,000 in
Falwasser - excessive use of O/C spray against a detainee in Police cells; $35,000 in
Taunoa - long-term policy of reduction in minimum entitlements in prison, designed to
(20
reduce prisoner’s resistance; $4,000 in
A-G v Udompun [2005] 3 NZLR 204
- failure to
provide sanitary products or allow a shower). However, the Prisoners and Victims Claims
Act 2005 will impact on compensation for prisoners.
June
Further information
Refer to the ‘Arrest and detention’ chapter for information about what constitutes arrest
and detention.
2016)
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New Zealand Bill of Rights, Continued…
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Notifying rights
This section contains the following topics:
Released • Ensuring rights are understood
•
Written notifications
•
Timing of the notification
Ensuring rights are understood
“Unless there is an evidential basis justifying a contrary conclusion, proof that the Police
advised the suspect of the section 23(1)(b) rights should lead to the inference that the
pursuant
suspect understood the position.” (
R v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ
707)
However:
•
“...it is the detainer’s obligation to ensure the whole right is conveyed and
understood...or at least in a manner open to understanding.”
R v Hina (24 June
to
1992, High Court Wanganui, Greg J, T7/92), and
•
“It may be necessary to inform an arrested or detained person more than once of
the
his rights...it may not be in compliance with the Act for a person to be told
‘perfunctorily’ of the stipulated right...” (
R v Tunui (1992) 8 CRNZ 294), (
R v Dobler
[1993] 1 NZLR 431).
Official
This extended obligation would apply, for example, where the suspect:
•
is stressed, confused or fatigued at the time of the arrest
•
has a poor command of the English language
•
has a passive nature, or limited intelligence
Information
•
may have difficulty hearing because of background noise
•
needs an interpreter (e.g. of sign language or a foreign language).
However, over a period of time, re-advising a suspect may be necessary, depending on
how long the interview has lasted. If a serious offence is uncovered in the interview, the
best practice would be to re-advise.
Note there are particular requirements relating to explanations of rights to be given to
Act
children or young persons. Note these must be given in a manner and in language that
the child or young person can understand (section 218 Children, Young Persons and
1982
Their Families Act 1989,
R v Z [2008] 3 NZLR 342; (2008) 24 CRNZ 1 (CA)) (See the
‘Youth Justice’ Police Manual chapter).
Written notifications
(20
If the suspect is given the caution in approved written form, the Act has been complied
with. “There is nothing in the Act which requires that an arrested person be advised of
his/her rights verbally rather than in writing.” (
R v Grant (1992) 8 CRNZ 483)
June
Timing of the notification
The admissibility of a confession will be jeopardised if the person was not informed of
2016)
their rights at the proper time.
Exceptions
There are exceptions:
“Police officers cannot be expected to be concerned with uttering warnings while their
safety is threatened. However, once control is established by Police the suspect should
be informed of his/her rights.” (
R v Butcher & Burgess [1992] 2 NZLR 257; (1991) 7
CRNZ 407)
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Where time is of the essence (e.g. where delay will cause danger to others, or an
ongoing and real danger that evidence will be lost) then efforts to contact a lawyer will
be considered in the light of those dangers.
Released
“The expression ‘without delay’ is not synonymous with ‘instantly’ or ‘immediately’...was
the delay reasonable in all circumstances, having regard to the purpose of the right.” (
R
v Mallinson [1993] 1 NZLR 528; (1992) 8 CRNZ 707))
See also ‘Detaining while searching’.
pursuant
to the Official
Information
Act 1982
(20 June
2016)
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Page 18 of 21
New Zealand Bill of Rights, Continued…
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Lawyers
This section contains the following topics:
Released • Police Detention Legal Assistance Scheme
•
When are rights requested
•
Right to privacy
•
Reasonable assistance
•
Other phone calls
•
Waivers
pursuant
Police Detention Legal Assistance Scheme
When cautioning someone who is arrested or detained, or someone against whom there
is sufficient evidence to charge with an offence, the person must be told:
•
of their right to consult and instruct a lawyer without delay and in private, and
•
that the right may be exercised without charge under the Police Detention Legal
Assistance Scheme.
to
When are rights requested
the
If the suspect indicates a desire to exercise their rights, the interview must be stopped
until they have contacted a lawyer.
Official
Once the suspect has invoked the lawyer access right, Police are under a duty to refrain
from attempting to elicit evidence from that person until they have had a reasonable
opportunity to consult a lawyer (
R v Taylor [1993] 1 NZLR 647 (CA)).
“The detainer is required to refrain from attempting to gain evi
Information dence from the detainee
until the detainee has had a reasonable opportunity to consult and instruct a lawyer.”
MOT v Noort; Police v Curran [1992] 3 NZLR 260, 280 (CA), quoted in Butler & Butler,
The New Zealand Bill of Rights Act: A Commentary, p463.
However, in
R v Ormsby (8/4/05, CA493/04), the Court of Appeal concluded that there is
no absolute prohibition on Police questioning a suspect who has received legal advice
and has told Police that the burden of that advice is that the suspect should remain silent
but despite this the suspect continues to answer questions. Act
The interviewing officer can continue the interview once the suspect has consulted and
1982
instructed a lawyer. However, the court will decide whether any evidence elicited before
the lawyer's arrival will be admissible. If the lawyer is on their way, best practice would
be to suspend the interview until they arrive (
R v Aspinall (13 March 1992, High Court,
Christchurch, Holland J, T8/92))
(20
Right to privacy
June
The Chief Justice’s Practice Note states that a suspect is entitled to consult a lawyer in
private. However, Butler & Butler,
The New Zealand Bill of Rights: A Commentary, p
681, consider that advice as to privacy must be given on detention as this is part of the
right to a lawyer guaranteed by section 23(1)(b).
2016)
Police cannot deny privacy on the grounds that no private room is available.
However, in some circumstances, the right to privacy may be overridden by other
considerations. In
R v Piper [1995] 3 NZLR 540; (1995) 13 CRNZ 334, the Court of
Appeal stated that Police may be justified in not offering privacy, where it would not be
safe to leave the accused alone or because there was a risk that the appellant would try
to dispose of evidence and warn others.
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Privacy may not be necessary where the suspect has indicated that they do not require
it.
Reasonable assistance
Released In some situations, contacting a lawyer will require considerable time and effort on the
part of the interviewing officer.
You must make a reasonable, honest and determined effort to contact a lawyer. (
R v
Himiona & Anor (10 February 1992, High Court Rotorua, Doogue J, T69/91))
The time and effort
pursuant given to contacting a lawyer before the interview is continued need
only be ‘reasonable’. If Police can convince the courts that an honest and determined
effort was made to contact a lawyer, the failure of this effort will not automatically
exclude an admission made after the suspect has asked for a lawyer.
Other phone calls
The right to consult a lawyer is not a right to consult any other person or organisation.
to
The person can do this for the purpose of obtaining a lawyer, but not for the purposes of
the
obtaining advice that a lawyer might give if contacted directly.
Ellis v Police (AP 93/94)
and
Chisholm v Police (AP 92/94, 12 October 1994, High Court, Dunedin).
Official
Waivers
A suspect is not obliged to have a lawyer present during the interview. However, the
waiver of the right to a lawyer under section 24(c) must be established in an unequivocal
manner (Butler and Butler, The New Zealand Bill of Rights: A Commentary, p 762).
Information
“The right conferred by section 23(1)(b) to consult a lawyer is clearly a right which the
arrested person is able to waive, provided that this is done clearly and with full
knowledge of that right.” (
R v Biddle (1992) 8 CRNZ 488)
“A valid waiver requires a conscious choice that is both informed and voluntary, and it
cannot be implied from silence or failure to request rights.” (
Police v Kohler [1993] 3
NZLR 129)
Act 1982
(20 June
2016)
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Page 20 of 21
New Zealand Bill of Rights, Continued…
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Questioning a person in custody
This section contains the following topics:
Released • Recording statements
•
Questioning must not amount to cross-examination
•
Breach of rights and admissibility
•
Court appearances
Recording statements
Where a person in custody or in respect of whom there is sufficient evidence to charge
pursuant
makes a statement, that statement should preferably be recorded on video or DVD. If
not, the statement must be recorded permanently on audiotape or in writing. The person
making the statement must be given the opportunity to review the tape or written
statement or to have the written statement read over, and must be given the
opportunity to make corrections and or add anything further.
to
Where the statement is recorded in writing the person must be asked if they wish to
confirm the record as correct by signing it (Chief Justice’s Practice Note on Police
the
Questioning).
Further information
Official
For further information about recording suspect's statements refer to the ‘Account:
statements and notes’ section in the ‘Investigative interviewing suspect guide’.
Questioning must not amount to cross-examination
Any questions you put to a person in custody, or in respect of
Information whom there is sufficient
evidence to file a charge, must not amount to cross-examination (Chief Justice’s Practice
Note on Police Questioning).
Breach of rights and admissibility
“Once a breach of section 23(1)(b) has been established, the trial judge acts rightly in
ruling out a consequent admission unless there are circumstances in the particular case
satisfying him or her that it is fair and right to allow the admission into evidence.”
Act
(
R v Kirifi [1992] 2 NZLR 8; (1991) 7 CRNZ 427)
Breaches of other people’s rights cannot be relied upon by third parties to secure a
1982
personal remedy of evidentiary exclusion:
R v Williams [2007] 3 NZLR 207; (2007) 23
CRNZ 1; R v Wilson [1994] 3 NZLR 257 (CA).
Court appearances
(20
An arrested person must be charged promptly or be released, whether without charge or
on police bail following charge (see information on police bail in the ‘Bail’ chapter>
June
Deciding whether to grant or oppose bail). There is an urgency about this requirement
but matters such as reasonable time for processing, obtaining legal advice and other
police emergencies are ‘justified limitations’ on it (
R v Rogers (1993) 1 HRNZ 282).
2016)
A person charged must appear at the next available court sitting. They cannot be held
while enquiries are conducted into separate offences. (
R v T (1994) 11 CRNZ 380)
A person who is arrested on a Friday and is refused police bail is entitled to a Saturday
morning hearing, so that they can apply for bail to the court. The person must be
informed of this right. (
R v Greenaway [1995] 1 NZLR 204; (1994) 12 CRNZ 103)
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Page 21 of 21
