CHAPTER 1

You and the Police

INTRODUCTION

RECOGNITION OF THE RIGHTS OF SUSPECTS IN HUMAN RIGHTS LAW

The Universal Declaration of Human Rights 1948

The International Covenant on Civil and Political Rights 1966

The New Zealand Bill of Rights Act 1990

A SUMMARY OF YOUR RIGHTS AND ENTITLEMENTS WHEN DEALING WITH THE POLICE

At home, work or in public places

At the police station

If you have not been arrested or detained

If you have been arrested or detained

Search and seizure

A summary of your rights concerning search and seizure

Bail

Complaints

ARREST AND DETENTION

Additional information

Arrest without a warrant

Arrest without a warrant on private property

Police power to enter private property without a warrant to arrest offenders and prevent

offences

Arrest with a warrant

Arrest by private citizens

Shopkeepers and store detectives

The use of force in making arrests

Remedies for unlawful arrest

Impact of the New Zealand Bill of Rights Act 1990

Questioning—obligations on the police in addition to the New Zealand Bill of Rights Act 1990

Practice Note on Police Questioning

Confessions

Improperly obtained evidence

Taking notes

SEARCH AND SEIZURE—ADDITIONAL INFORMATION

Entry and search of private property without a warrant

Police instructions on the powers of search under the Misuse of Drugs Act 1975

Entry and search with a warrant

Proposed new laws on search and surveillance

Impact of the New Zealand Bill of Rights Act 1990

INTERCEPTION OF PRIVATE COMMUNICATIONS

Current police interception powers

Interception devices

Emergency permits

Police reports

Evidence obtained by the use of interception devices

Destruction of relevant and irrelevant records

BODILY SAMPLE REQUESTS

Suspect request (under the Criminal Investigations (Bodily Samples) Act 1995)

DNA profile databank requests

Blood tests for suspected drink-driving offences (under the Land Transport Act 1998)

IDENTIFICATION

LEAVING THE POLICE STATION

Release on summons

Release on bail

COMPLAINTS AGAINST THE POLICE

The Independent Police Conduct Authority (IPCA)

Making a complaint to the IPCA

How complaints are processed

Powers of the IPCA

Other ways of complaining about the police

Private criminal cases

Civil proceedings

Complaints to members of Parliament and to the news media

Complaints to civil liberties organisations

COMPLAINTS AGAINST PRIVATE SECURITY POLICE

USEFUL CONTACT INFORMATION

RECOMMENDED READING

SCHEDULE TO THE CRIMINAL INVESTIGATIONS (BODILY SAMPLES) ACT 1995 PART 1

AND PART 2

INTRODUCTION

2009 – Major increases in police powers

A number of laws, some of them highly controversial, were enacted in 2009 extending the powers of the police. They included the -

• Criminal Investigations (Bodily Samples) Amendment Act 2009 (major expansion of police powers to collect DNA samples from suspects). When this law is fully in force in 2011 the police will be entitled to take such a sample from any suspect they 'intend to charge’ with an imprisonable offence;
• Crimes Amendment Act 2009 (expansion of police surveillance powers in relation to organised criminal groups);
• Land Transport Amendment Act 2009 (compulsory testing of drivers suspected of being under the influence of 'drugs: ln this context 'drugs' includes benzodiazepines — sedatives and anti-anxiety medications.);
• Land Transport (Enforcement Powers) Amendment Act 2009 (police given additional powers in relation to "street racer's" in particular, the power to stop cars "cruising" down certain streets);
• Sentencing (Vehicle Confiscation) Amendment Act 2009 (police given the power to seize the cars of "street racers"' who commit three street racing-related offences within 4 years. In certain circumstances these vehicles may be subject to a destruction order.);
• Domestic Violence (Safety Enhancing) Amendment Act 2009 (police given the power to make on-the-spot police safety orders that have the effect of a short term protection order).

Previous editions of the New Zealand Civil Rights Handbook began with a chapter on 'Police Powers’ denoting the significance of this area to those with an interest in civil rights. This Handbook continues that tradition. The 1980 Handbook complained of the complexity of the law in the area of police powers and the difficulty (impossibility?) of citizens knowing their rights and entitlements in many situations.

The 2001 Handbook noted that since 1980 the situation had, in some respects, become even more complex with the enactment of the New Zealand Bill of Rights Act 1990—not that the additional protections for those who came into contact with the police or other state officials were unwelcome. Indeed the new protections (eg, the legal obligation on the police to inform a detained or arrested person of the right to consult and instruct a lawyer without delay) were long overdue.

Since 2001, police powers have continued to expand considerably (eg, the additional surveillance powers granted to the police in the Crimes Amendment Act 2003) and, on occasions, the adoption by the police of new technological developments (eg, the Taser' stun-gun) has caused considerable controversy. So too did the revelation in December 2008 that a police informer had infiltrated and become an active member and participant in a number of protest-related groups as well as the Green Party of Aotearoa New Zealand.

The Policing Act 2008 explicitly recognises that 'effective policing relies on a wide measure of public support and confidence' (s 8(b)), importantly, police services must be 'provided in a manner that respects human rights' (s 8(d)). Under the new Act, 'every Police employee is required to act professionally, ethically, and with integrity' (s 8(f)).

The Supreme Court—now New Zealand's highest court—has recently recognised that, in addition to their extensive powers, the police in this country continue to have extensive common law duties (R v Ngan [2007] NZSC 105; [2008] 2 NZLR 48; (2008) 23 CRNZ 754). At the core of these non-statutory duties is the obligation on the police to take all steps that appear to them 'to be necessary for keeping the peace; for preventing crime; and for protecting property from criminal injury ...' (para [11]).

This chapter begins with a summary of your rights and entitlements when dealing with the police. For many readers, this information may be sufficient for their purposes. The summary is followed by additional general information and commentary on the impact of the New Zealand Bill of Rights Act 1990 in the areas of arrest and detention; and search and seizure. The law relating to bodily sample requests is then outlined.

The chapter concludes with discussion of the options available if you wish to complain about some aspect of police conduct or to consider commencing proceedings of some nature against the police.

Despite its length, this chapter is no substitute for the need (for legal and para-legal advisers at least) to consult the expert professional commentaries in this area. In this regard, the looseleaf commentary on the New Zealand Bill of Rights Act 1990 in Adams on Criminal Law (1992, Brookers, ch. 10) (referred to here as Adams) is highly recommended. See also Butler and Butler, The New Zealand Bill of Rights: A Commentary (2005, LexisNexis, chs 10, 18-23; referred to here as Butler and Butler).

RECOGNITION OF THE RIGHTS OF SUSPECTS IN

HUMAN RIGHTS LAW

The Universal Declaration of Human Rights 1948

• Everyone has the right to life, liberty and security of person. (Article 3)
• No one shall be subjected to torture or to cruel, inhuman or degrading treatment
• or punishment. (Article 5)
• Everyone has the right to an effective remedy for acts violating ... [their]

fundamental rights ... (Article 8)

• No one shall be subjected to arbitrary arrest, detention or exile. (Article 9)
• No one shall be subjected to arbitrary interference with [their] privacy, home or correspondence … (Article 12)

The International Covenant on Civil and Political Rights 1966

• No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment ... (Article 7)
• Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention, No one shall be deprived of [their] liberty except on such grounds and in accordance with such procedure as are established by law.
• Anyone who is arrested shall be informed, at the time of arrest, of the reasons for [their] arrest and shall be promptly informed of any charges against [them].
• Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release …
• Anyone who is deprived of [their] liberty by arrest or detention shall be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of [their] detention and order [their] release if the detention is not lawful ...
• Anyone … deprived of [their] liberty by arrest or detention shall be entitled to take proceedings before a court ...
• Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. (Article 9)
• All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person ... (Article 10)

The New Zealand Bill of Rights Act 1990

Everyone has the right to be secure against unreasonable search or seizure whether of the person, property or correspondence or otherwise (s 21).

Everyone has the right not to be arbitrarily arrested or detained. (s 22)

1. Everyone who is arrested or who is detained under any enactment—

(a) Shall be informed at the time of arrest or detention of the reason for it; and

(b) Shall have the right to consult and instruct a lawyer without delay and to be

informed of that right; and

(c) Shall have the right to have the validity of the arrest or detention determined

without delay by way of habeas corpus and to be released if the arrest or

detention is not lawful.

1. Everyone who is arrested for an offence has the right to be charged promptly or to be released.
2. Everyone who is arrested for an offence and is not released shall be brought as soon as possible before a court or competent tribunal.
3. Everyone who is—

(a) Arrested; or

(b) Detained under any enactment—

for any offence or suspected offence shall have the right to refrain from making

any statement and to be informed of that right.

1. Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person. (s 23)
2. Everyone who is charged with an offence—

(a) Shall be informed promptly and in detail of the nature and cause of the charge;

and

(b) Shall be released on reasonable terms and conditions unless there is just cause

for continued detention; and

(c) Shall have the right to consult and instruct a lawyer; and

(d) Shall have the right to adequate time and facilities to prepare a defence … (s 24)

A SUMMARY OF YOUR RIGHTS AND ENTITLEMENTS WHEN

DEALING WITH THE POLICE

At home, work or in public places

If the police stop you or question you but you are not sure what to say or do:

• tell them that you want to contact a lawyer, your parents or someone you trust before you make any statement to them
• stay calm and do not argue with the police

This advice and that following may also be useful if other state officials wish to question, search or detain you. For example, customs officers have very wide powers under the Customs and Excise Act 1996, ss 137-74, and Ministry of Fisheries officers have wide powers under the Fisheries Act 1996, ss 199, 201, 206-7.

When investigating an offence, the police 'may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect ... [However, they] ... must not suggest that it is compulsory for the person questioned to answer' (Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007, 1).

What personal details should you give to the police?

Although you do not have to give any details to the police in many situations it is advisable, if requested, to give your name, address and date of birth (ie, basic identifying information). If you are driving, you must stop, show your driver's licence and give your name, address and date of birth. You must also state whether you are the owner of the car and, if not, who is. If you are a young person in a place serving alcohol, you can be asked for identification or proof of age. If you refuse to provide it, you may commit an offence.

Under the very broad powers given to the police to stop vehicles for the purpose of conducting a search, the police can require 'any person in or on the vehicle' to give their name, address and date of birth (Crimes Act 1961, s 314C).

Should you give other information?

Unless you have been arrested, you are not obliged to give any other information to the police. You have a right to remain silent. It is usually better to say nothing in reply to police questions until you have consulted a lawyer, your family or a trusted friend, You are not obliged to provide a written statement. If you say anything to the police, they may later use what you say against you. Be careful that any statement you do make is exactly what you mean to say. Do not lie. Make sure you read and correct any statement before signing it.

What if a friend asks you for advice as to their rights?

If the police are questioning one of your friends and your friend asks you for advice, make sure your advice is as accurate as possible. If you give advice without being asked for it by your friend, you might be arrested for obstructing the police (ie, if they think your advice has made their work more difficult) (see Dash v Police [1970] NZLR 373).

What if the police question you at your work?

Other than giving the information recommended above, you are not under any obligation to answer police questions. Of course, you can, and should, refuse to speak with the police in the presence of your employer. If in any doubt, you should consult your trade union or professional association for advice. The police should not go to your place of work to make any inquiries on matters not related to your workplace.

What if the police question you at school?

There is no restriction against the police coming on to school property with the permission of the school authorities. However, children have the same rights as any other citizen. Teachers cannot force children to answer police questions.

Should you ask the police the source of their authority to question or detain you?

Yes. Always ask the source of their authority and if their response is unhelpful, keep asking, politely but firmly (ie, don't be fobbed off.).

When do you have to accompany the police?

You do not have to go anywhere with a police officer if you do not want to unless you are under arrest or are held by the police under a law that gives them a specific power to detain you. Examples of detention powers are where the police suspect you have been drinking and driving or they suspect you may have drugs on you. Always get the officer's identification number.

Can the police detain you for questioning?

Other than situations where the police can request identifying information from you (discussed above) the police do not have a general power to detain you for questioning without first arresting you (Blundell v Attorney-General [1968] NZLR 341 (CA)).

See also R v Goodwin [1993] 2 NZLR 153; (No 2) 390 (CA), where the Court of Appeal confirmed that the police have no power to detain unless given that power by a specific law (eg, the laws that give the police power to detain individuals for the purposes of a search in certain circumstances).

Rights Caution Adults

The following advice should be provided to people who are arrested or detained, or where police want to question someone where there is sufficient evidence to charge that person with an offence: You have been arrested/detained for (give reason) OR I am speaking to you about (give reason) You have the right to remain silent. You do not have to make any statement. Anything said by you will be recorded and may be given in evidence in court. You have the right to speak with a lawyer without delay and in private before deciding whether to answer questions. Police have a list of lawyers you may speak to for free. Note: if the advice is given before the suspect is arrested or detained, the advice must be repeated when the suspect is arrested or detained.

Rights Caution Child/Young Persons
Ensure that all advice is provided in a language or manner that the child or young person can understand. IN ALL CASES I am speaking to you about (give reason) OR You have been arrested/detained for (give reason). YOUTH NOT UNDER ARREST You may be arrested if you refuse to give your name and address (if sufficient evidence to arrest but a refusal to give details means a summons could not be served). You are not obliged to accompany me, and if you consent, you can withdraw that consent at any time. QUESTIONING Provide the following advice if there are reasonable grounds to suspect a child/young person has committed an offence or before asking the child/young person any question intended to obtain an admission of an offence. After giving each statement of the following rights caution to the child/young person, ask him/ her to tell you, in his or her words, what rights he or she has as follows:
You have the right to remain silent. (Please explain to me in your own words what this means to you) You do not have to make any statement or answer any questions (Please explain to me in your own words what this means to you) If you agree to make a statement and/or answer any questions you can change your mind and stop at any time. (Please explain to me in your own words what this means to you) Anything you say will be recorded and maybe given in evidence in court- this means if you are taken to court for (offence) what you say to me may be retold to the judge or jury.	(Please explain to me in your own words what this means to you) You have the right to speak with a lawyer and/or any person nominated by you without delay and in private before deciding whether to make any statement or answer any questions. (Please explain to me in your own words what this means to you) Police have a list of lawyers you may speak to for free. (Please explain to me in your own words what this means to you)
Note: Any nominated person also needs to be advised of these rights. (Source: New Zealand Police.)

What are your rights when you are suspected of drinking and driving?

Can the police pull you over for a breath screening test at any time? Yes.

Should you ask for the results of the test? Yes.

If you fail, do you have to accompany the police officer? Yes.

Can you contact your lawyer at the roadside? Yes, if a phone is readily accessible (eg, your mobile phone). Note that you do not have a right to a lawyer before undertaking an initial breath screening test (eg, at the roadside). You do have a right to a lawyer if you are required to accompany the police to a place where an evidential breath or blood test can be taken.

Ask to contact a lawyer when you arrive at the station before any testing of this nature begins. If you do not have a lawyer, ask for the list of lawyers who provide assistance under the Police Detention Legal Assistance Scheme. Choose a lawyer from that list. (These procedures are discussed in more detail at para [ ].)

Note that your 'right to consult and instruct a lawyer without delay' (New Zealand Bill of Rights Act 1990,s 23(1)(b)) does not mean that the police have to wait until the lawyer arrives. A reasonable opportunity to consult over the phone may be sufficient.

Are there situations, other than when you are suspected of drinking and driving, when you might be asked to give a bodily sample to the police?

Yes. You might be requested to give a bodily sample if you are suspected of committing a serious crime (eg, murder, sexual violation or the police wish to use your sample as part of a DNA profile databank). You should always get independent advice, preferably from a lawyer, before giving the sample. If you are in police custody, you have a legal right to consult privately with a lawyer.

If you are suspected of committing one of the serious crimes listed in the Schedule to the Criminal Investigations (Bodily Samples) Act 1995 (as amended) or have been convicted of one of these offences and you refuse to voluntarily give a blood sample, the police can apply to a High Court judge for a compulsion order requiring you to give a sample. (These procedures are discussed in detail at para [ ].)

What are your rights if the police want to arrest or detain you?

Under the New Zealand Bill of Rights Act you have the basic right not to be arbitrarily arrested or detained. If you are arrested or held by the police, you have the right to be informed at the time of the reason why (R v Tawhiti [1993] NZHC 2386; [1993] 3 NZLR 594 (HC)). The police must also inform you of your right to talk with and instruct a lawyer without delay.

If you are arrested or detained, you have the right not to make a statement. The police must inform you of your right to silence (New Zealand Bill of Rights Act 1990, s 23(4); Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007, para 2).

When you are arrested, the police must charge you promptly or release you. If the police do not release you, you have the right to be brought as soon as practicable before a court (New Zealand Bill of Rights Act 1990, ss 23(2)—(3)). (See R v Te Kira [1993] NZCA 451; [1993] 3 NZLR 257 (CA)), You also have the right to challenge whether your arrest or detention is lawful. If your arrest or detention is found not to be lawful, you must be released immediately.

When you are held against your will in any form of custody (by the police or any other law enforcement agency) you have the right to be treated decently and with respect rot your dignity (New Zealand Bill of Rights Act 1990, ss 22, 23(5)).

What constitutes an 'arrest'?

For you to be under arrest, the police must make it clear to you, by words or actions, that you are not free to go and that you are being held on suspicion of having committed an offence. This must be communicated to you. Your arrest must be made under a statutory provision that gives a power of arrest without a warrant in certain circumstances. (See R v Goodwin [1993] 2 NZLR 153; (1992) 9 CRNZ 1 (CA); R v P [1996] NZCA 661; [1996] 3 NZLR 132.)

Traditionally, in addition to words of arrest, the person being arrested had to either submit to being arrested or the arresting officer had to physically touch them (or seize them). However, in R v Edmonds [2007] NZCA 557, the Court of Appeal held that there had been a valid arrest where a police officer, without using actual words of arrest, made it clear that the arrested person was believed to have committed an offence, administered a caution to him and secured his hands (para [12]).

Commentators have suggested that it is 'probable that no touching is required were the [officer] making the arrest has the ability to physically restrain the person under arrest, and has made clear both an intention to arrest and an intention to use the power of restraint if needed …’ (Adams, para CA315.08). There must be 'some conduct on the part of the police that induces the belief in the suspect's mind that he or she is not free to go' (Adams, ch. 10.9.05).

Interestingly, the police Manual of Best Practice states that a police officer must say, 'You are under arrest’. If the police physically restrain you (eg, by holding on to you or handcuffing you) or place you in a locked room or cell, a court is most likely to take the view that you were under arrest.

Always ask the police, 'Am I under arrest?' If the answer is 'No; ask if you are free to go. If they say, 'No’, ask what statutory power they are detaining you under. They have to tell you whether you are under arrest (Crimes Act 1961, s 316(1)). You are entitled to be told 'in simple non-technical language that [you] can understand, the essential legal and factual grounds for [your] arrest' (Taylor v Chief Constable of Thames Valley Police [2004] EWCA Civ 858; [2004] 3 ALL ER 503 (English Court of Appeal) 510).

If you are under arrest or detained under a specific law, you are entitled to the protections contained ins 23 of the New Zealand Bill of Rights Act 1990.

If the police arrest you, how much force can they use?

They can use whatever force is reasonable to get you to go with them. If you think the police are arresting you unlawfully, tell them at every opportunity, but go quietly. If you resist arrest, you may be arrested either on a charge of resisting arrest or for obstructing the police in the execution of their duty.

If you have been arrested unlawfully, you may be able to complain later to the Independent Police Conduct Authority (IPCA) or even bring court proceedings against the police if, for example, you consider that they have breached your rights under the New Zealand Bill of Rights Act. Alternatively, if the police have acted unfairly or are shown to have breached your rights under the New Zealand Bill of Rights Act, they may not be able to use the evidence obtained as a result later in court (Evidence Act 2006, s 30).

At the police station

If you have not been arrested or detained

It is your decision whether you answer any questions or make any written or spoken statement. You do not have to do so. It is always best to contact a lawyer before saying anything or making any form of written statement. You may leave the police station (or other premises or vehicle being used for police purposes) when you wish. But if you are there for a breath or blood alcohol test and leave before the test has been completed, you will commit an offence and most probably be arrested.

Remember that if you are not under arrest or detained under a specific statute (eg, you are merely 'helping the police with their inquiries') you may not be protected by the rights contained in s 23 of the New Zealand Bill of Rights Act 1990.

If you have been arrested or detained

Once you are in 'lawful custody' the police can take your 'identifying particulars' (Policing Act 2008, s32). You do not need to be formally arrested. The police may exercise these powers provided you are being 'detained for committing an offence' (s 32(2)). This can either be at a police station or any other place being used for police purposes. They can photograph you and take your fingerprints. Palm prints and footprints can also be taken.

If the police request, you can be required to provide 'biographical details' (ie, your name, address and date of birth) (s 32(5)). If you refuse to supply any of the requested 'identifying particulars,' you will commit an offence. Other than supplying those particulars, you have the right to remain silent. (See Butler and Butler, ch. 20.11.1-36.)

The police have the power to search you and take from you any money or other property in your possession (Policing Act 2008, s 37). They are entitled to use 'reasonable force: If necessary, the police may ask 'a searcher to carry out a search' (s 37). The police must first be 'satisfied that the searcher has received appropriate training' (s 38(1)(b)). A searcher must be of the same sex as the person being searched and the search must take place 'within a reasonable time of the person being taken into custody' (s 38(1)(a)).

Other than supplying identifying particulars, you have the right to remain silent and the right to consult and instruct a lawyer without delay. Ask to be allowed to contact your lawyer or family as soon as it becomes clear that you are in some form of police custody; keep asking until the police let you.

If you are in custody, do the police have to tell you about your right to a lawyer?

Yes. Before the police question anyone in their custody (or before they charge anyone) they must inform that person of their 'right to consult and instruct a lawyer without delay' (New Zealand Bill of Rights Act 1990, s 23(1)(b); Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007, para 2). Similarly, the police Manual of Best Practice states that when 'cautioning someone who is arrested or detained ... the person must be told of their right to consult and instruct a lawyer without delay and in private …’ The right to a lawyer is discussed in more detail at para [ ].

What are your rights after you have been formally charged with an offence?

Under the New Zealand Bill of Rights Act 1990, you have the right to:

• be informed promptly and in detail of the nature of the charge (s 24(a))
• be released on reasonable terms and conditions unless the police give good reasons for wanting to continue to hold you in custody (s 24(b))
• consult and instruct a lawyer. Under the New Zealand Bill of Rights Act (and the Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007, para 2) you have a right to consult and instruct a lawyer at the time of arrest or when you are detained under a specific law. (This statutory right builds on the more limited common law right to legal assistance belatedly recognised by the New Zealand courts (R v Webster [1989] NZCA 387; [1989] 2 NZLR 129 (CA)).) You may have exercised the right to a lawyer before you are formally charged. The police should contact the lawyer you wish to see. There should be a list of legal aid lawyers at the police station. Contact one of them if you do not have a lawyer.
• free assistance of an interpreter (s 24(g))

Normally a friend or a relative named by you is told by the police that you have been arrested. Usually that person will be allowed to visit you.

Can you waive any of the rights given you by the New Zealand Bill of Rights Act 1990?

Yes, but you should never 'give away' any of your rights without first getting independent legal advice. Before you do so, make it very clear to the police that you are not waiving any of your rights. (See Butler and Butler, ch. 20.7.52-53.)

Any discussion you have with your lawyer should be in private unless the police put forward a very strong reason why they need to watch over you (eg, for security reasons). You do not need to ask for privacy when talking with your lawyer. However, it is better to ask the police to leave the room when you are exercising your right to legal advice because, if you do not, a court might say that any breach of your rights arising from the presence of the police was inconsequential. If you are not allowed to talk in private with your lawyer, in certain circumstances, this may be a breach of the New Zealand Bill of Rights Act.

Do young persons have any special rights when questioned by the police regarding an offence?

Yes. For example, if they are arrested and under 17 years of age, they are entitled to have a lawyer and their parent, guardian or some other adult nominated by them, present during any interview with the police. The young person is entitled to speak to these persons prior to answering questions (Children, Young Persons, and Their Families Act 1989, ss 215-32). Always ask the police what additional rights you have as a young person. (See Chapter 6, Children.)

Search and seizure

What rights does the New Zealand Bill of Rights Act give you in relation to search and seizure?

You have the right to be secure against any unreasonable search or seizure of yourself your property or your correspondence (New Zealand Bill of Rights Act 1990, s 21).

When can the police search you or your property?

The police can search you, your car or your property, if you agree. You should always ask the police what they are searching for and whether you can refuse. A police officer has no general right of search or entry onto private property without a search warrant. If the police have a warrant they must show it to you. The search warrant must specify what is to be searched and what alleged offence or offences the warrant relates to. The police should only search for and seize items specified in the warrant. They can use reasonable force to carry out the search. If you refuse to let them in, you will most likely be arrested for obstructing them. If they have a warrant, they can even search your home when you are not there. (The law in this area is discussed in more detail at para [ ].)

When can the police search you without a warrant?

The police have the right to search you or your property without a warrant where they have arrested you or where they have reasonable grounds to believe, for example, that you are in possession of drugs or offensive weapons or where they suspect that you have firearms or explosives. Many provisions give the police and other law enforcement officers (eg, customs officers) wide powers of search without a warrant. If the police claim they have a power to search without a warrant, always ask them to specify what that power is. The police have a general power to stop vehicles so that they can exercise statutory search powers.

After you have been arrested, the police can search you or your property (eg, your handbag and your motor vehicle) if they think, for example, there is evidence that could be destroyed or if they think you could get access to a weapon. The law is unclear in this area. (See Adams, para CA315.09.)

The current police General Instructions state that after arrest the police should 'make a preliminary search for weapons or easily disposed of items. A preliminary search takes only a few seconds and consists of checking the suspect's head, torso, arms and legs ... If possible, conduct the search out of view of the public to give the suspect privacy and to avoid interference from sympathisers and adverse public reaction …’

When you are arrested and taken to the police station, any personal property you have with you will be taken away from you. It will be recorded on the police Property Sheet, which you will be asked to sign to confirm that all your items of property are listed.

If you are arrested for possession or use of controlled drugs (or a drug-dealing offence) the police can even do an internal body search of you if they have reasonable grounds for believing that you may have illegal drugs 'secreted within' your body (Misuse of Drugs Act 1975, s 18A). You may be detained for up to two days during which time any application for bail will be put on hold. Any internal search will be done by a police doctor.

Even more extensive powers are available to the police in relation to people who are suspected of having illegal Class A or B controlled drugs hidden within their bodies (Misuse of Drugs Amendment Act 1978, ss 13A—M). If the police (or customs officers exercising border control powers) have reasonable cause to suspect that this may be the case, they can require you to submit to an internal search of your body by a police doctor. This can include an x-ray examination or an ultrasound scan. If you do not agree to one of these searches, the police may apply to a District Court judge for you to be detained for up to 21 days. During detention you may be subject to a rub-down search or to a strip search, or both (ss 13EA—ED). Schedule 2 of the Act contains a detailed 'statement of rights' of detained persons.

Note that even if the police act illegally in searching you or your property, this does

not necessarily mean that the search will amount to a breach of s 21 of the New Zealand

Bill of Rights Act. It will depend on whether the judge hearing your case considers that

the evidence has been improperly obtained, contrary to the Evidence Act 2006 (s 30).

Under this section a judge must exclude improperly obtained evidence if they consider

that 'its exclusion is proportionate to the impropriety involved' (eg, whether the police

impropriety was deliberate, reckless or done in bad faith). The judge must determine

whether the particular evidence should be excluded 'by means of a balancing process

that gives appropriate weight to the impropriety but also takes proper account of the

need for an effective and credible system of justice' (s 30(2)(b)).

A summary of your rights concerning search and seizure

You have the right:

• to know what the police are looking for
• to know under what authority the police are stopping or searching you or your

property

• to refuse the police admission to your property unless you are satisfied that they have authority to enter (to be exercised with care)
• to refuse to let the police search you or your property unless they can satisfy you of their authority (also to be exercised with care)
• to read carefully any warrant the police may produce
• to use as much force as is reasonably necessary to remove unauthorised police from your property (not recommended)

If you have no objection to being searched, you may help the police by agreeing, even though they cannot force you to do so. There is no sense in insisting on your rights just to be obstructive. If, however, you think that the police are exceeding their authority and you object, you may insist upon your rights and refuse to be searched.

The law on search and seizure is very complex. The police Manual of Best Practice lists over a hundred statutory provisions giving the police and, in certain circumstances, other officials (eg, customs and fisheries officers) powers of search and seizure.

Bail

Always ask for police bail, which will allow you to leave the police station subject to certain conditions. You do not have an automatic right to be bailed by the police but in many cases bail can be given. You will then have to appear in court the next day. If denied bail by the police, you should demand to be taken in front of a court as soon as practicable. (Aspects of police bail are discussed in more detail at para [ ].

Complaints

Try to get the name and identification number of any police officer you wish to complain about. Ask the officer to provide identification. Police officers have to give you this information. If you have been injured by a police officer, ask to see a doctor of your choice and obtain photos of your injuries as soon as practicable. Write out a full description of what you want to complain about. This statement will be very important in any investigation into your complaint. If your complaint is serious you will need a lawyer to help you. See your lawyer as soon as you possibly can. When dealing with any members of the police over your complaint, try to have a lawyer or support person with you. You can:

• discuss your complaint with the senior police officer attached to the main police station in the area
• make a formal complaint to the Independent Police Conduct Authority (IPCA)

ARREST AND DETENTION

Additional information

Why arrest?

The reasons are many. They include ensuring your appearance in court and preventing danger to others. Lesser offences should be dealt with by way of a summons.

Arrest without a warrant

There is a wide range of offences for which a police officer can lawfully arrest you without a warrant. Under s 315 of the Crimes Act 1961, the police may arrest without a warrant:

(a) Any person whom they find disturbing the public peace or committing any offence punishable by imprisonment (eg, assault, burglary);

(b) Any person whom they have good cause to suspect of having committed a breach of the peace or any offence punishable by imprisonment. This is the widest power of arrest without warrant and is the one most commonly used by the police.

There are many other statutory provisions at present in force in New Zealand that give the police and, in some situations, other officers (eg, customs officers) a power to arrest without a warrant. For example, the police have the power to stop vehicles for the purpose of arresting one of the occupants where they have reasonable grounds to suspect that that person is either unlawfully at large (ie, has escaped from some form of lawful custody) or has committed an offence punishable by imprisonment (Crimes Act 1961, s 317A). While the vehicle is stopped the police are entitled to search it.

Under the Summary Offences Act 1981, the police (and persons they call to assist them) are also given wide powers to arrest without a warrant (s 39).

Rather than attempt to memorise the many statutory provisions, the thing to remember is that the police have power to arrest, without warrant, anyone whom they have good cause to suspect of having committed or whom they find committing any offence punishable by imprisonment. Many lesser offences (eg, disorderly behaviour) carry possible terms of imprisonment, thereby giving the police a power to arrest without warrant.

If the police tell you they are arresting you, ask them what for, as they are bound to tell you (Crimes Act 1961, s 316). Note carefully what they say, take their identification numbers (if they are in uniform) and go quietly. If their action is unlawful, your remedy comes later.

The police have the right to call upon any person aged 18 years or older to help them apprehend or secure a person or to assist them to convey that person to a police station or other place (Policing Act 2008, s 51). If you fail to assist the police when requested to do so, you are liable to a fine of up to $2000.

At all times police officers are required to have regard to police General Instructions and manuals (Neilson v A-G [2001] NZCA 143; [2001] 3 NZLR 433; (2001) 19 CRNZ 1; (2001) 6 HRNZ 334). In Neilson, the court emphasised that there is no parliamentary intention that arrest should be the usual response or provide the usual method of bringing people within the criminal justice system. In other words, if some alternative may be appropriate (eg, issuing a summons for a person to appear before a court on a specific date) it should be considered.

Police policy on arrest without warrant Using discretion Before deciding to arrest without warrant, you must consider all the relevant factors and possible alternatives. This is particularly important in the case of minor offences. The purpose of arrest is to bring an offender to justice or to prevent a breach of the peace or the commission of other offences. Arrest deprives people of their liberty before a determination is made about their guilt. Unnecessary arrests tarnish the reputation of the police and violate people's human rights. If the circumstances indicate that the person can be dealt with by way of sum person should be summonsed and not arrested … Factors to consider When you arrest a person, you must be able to justify the action by demonstrating that you assessed the situation thoroughly. When deciding whether to arrest, work through the following issues: Is prosecution the best way to resolve the situation? Consider alternatives to prosecution, such as warning, counselling, caution, or referral to another agency. Can the suspect be brought before the court by summons? Consider: The nature and gravity of the offence The likelihood of — further offences being committed accomplices being warned witnesses being interfered with evidence being destroyed or concealed the suspect absconding to avoid court. The suspect’s— character, reputation and criminal history family circumstances, place of abode and employment physical and psychological condition. It may justify an arrest in the suspect's, or in the public's interest. If prosecution is the best option and you have concerns arising from the above considerations, you can arrest the suspect (Police Instructions, Arrest and Detention, 10-11).

Arrest without a warrant on private property

The power of arrest given by s 315 of the Crimes Act 1961 (or by any other law giving the police the power to arrest without a warrant) may be exercised anywhere the police may lawfully be at the time. If the police are lawfully on private property, then they are entitled to exercise the power of arrest (Police v Rushbrooke [1969] NZLR 774). This may occur in a variety of circumstances.

If the police are on private property with the express or implied consent of the owner or occupier, they may exercise their powers, provided the consent was validly given and was not the product of police coercion (eg, where the owner or occupier believes they have no option but to give consent). (See R v Hjelmstrom (2003) 20 CRNZ 208 (CA).)

Apart from the limited powers given to the police to enter private property without a warrant to arrest offenders and prevent offences (see below), a police officer, like any member of the public, has a right to enter private property and walk up to the door of the house for the purposes of making inquiries (Howden v Ministry of Transport [1987] NZCA 172; [1987] 2 NZLR 747 (CA); R v Bradley [1997] NZCA 333; (1997) 15 CRNZ 363; 4 HRNZ 153 (CA)). Police officers have no greater rights in this regard than do ordinary members of the public (R v Pou [2002] 3 NZLR 637; (2002) 19 CRNZ 563 (CA); R v Soma (2004) 21 CRNZ 23 (CA)). However, the courts have held that police officers entering private property in the early hours of the morning (ie, 2 a.m.) were acting within their implied licence (R v Hills [1999] NZCA 169; (1999) 16 CRNZ 673 (CA)).

This licence can extend to going up to the rear door of premises rather than the one closest to the street (R v Gurnick [1999] NZCA 19; (1999) 16 CRNZ 513 (CA)). However, where a multi- storey apartment building is involved, the licence may not extend beyond the intercom communication point (R v Yeh [2007] NZCA 580). The High Court has held that a closed but unlocked gate is unlikely to limit the implied licence available to the police to enter private property (R v Sharpe (CRI-2006-092-10560, Harrison J, 18 September 2007).

An owner or occupier of private property can terminate the entitlement of the police to enter private property pursuant to an implied licence by simply saying, No' when the police ask to come inside and by asking them to leave (Transport Ministry v Payn [1977] NZCA 1; [1977] 2 NZLR 50 (CA)). The police then become trespassers if they do not leave within a reasonable time (R v Ratima (1999) 17 CRNZ 227; 5 HRNZ 495 (CA)). The owner or occupier must make it quite clear that they want the police to leave—remaining silent will not be sufficient (R v Hewitt [1999] NZHC 1068; [2000] 2 NZLR 110; (1999) 17 CRNZ 236; 5 CRNZ 468).

If the owner or occupier does this, then not only may the police not step in and arrest but the occupier can use reasonable force to eject the trespassing officer. (This course of action is not recommended.) If you allow the police inside then, after completing their inquiries, it appears that they may arrest you without a warrant. (See Adams, CA317.05.)

Note that the police have authority to enter private property under specific laws, for example, the Misuse of Drugs Act 1975 (s 18) or the Arms Act 1983 (s 61).

Police power to enter private property without a warrant to arrest offenders and prevent offences

The police have limited powers to enter private property without a warrant to arrest offenders and prevent offences. The police may enter any property, by force if necessary, to arrest a person only if they:

(a) have found that person committing any offence punishable by imprisonment (note that many seemingly minor offences carry possible terms of imprisonment) and are freshly pursuing them

(b) have good cause to suspect that that person has committed any such offence on that property (Crimes Act 1961, s 317)

The officer must 'actually witness rather than just suspect, the commission of the offence and be in fresh pursuit …’ (Edwards v Police [1994] 2 NZLR 164, at 168; (1993) 11 CRNZ 271, at 275). For there to be 'good cause to suspect' there must be an evidential basis for the officer's suspicion.

A police officer is also permitted to enter onto any property, by force if necessary, to prevent any offence that would be likely to cause immediate and serious injury to any person (eg, assault or murder) if the officer believes, on reasonable and probable grounds, that any such offence is about to be committed (R v Fraser [2005] 2 NZLR 109; (2004) 21 CRNZ 158 (CA)).

The police may enter private property without a warrant where they believe in good faith that it is necessary to provide assistance to someone who has suffered serious physical harm. This authority to enter on the basis of necessity can also be exercised by emergency services officials. (See Adams, para CA317.06.)

If the police are not in uniform you can require them to produce evidence of their authority before they enter your property (s 317(3)). The police must produce evidence (eg, an identification card with a photo) that they are in fact police officers.

The police have the power to stop vehicles for the purposes of an arrest (s 317A). They can then search the vehicle if they have reasonable grounds to suspect that it contains someone unlawfully at large or is suspected of containing evidence of an offence punishable by imprisonment (Crimes Act 1961, s 317AA). They can search the vehicle using reasonable force, if necessary.

Arrest with a warrant

A warrant is an authority signed by a judicial officer (ie, judge, Justice of the Peace or court registrar) for the police or, in certain cases, other officials, to arrest the person named in the warrant on a specific charge.

Where the police consider that someone has committed an offence and should be arrested by way of a warrant, they will make a sworn statement, usually in writing, before a judicial officer who has the authority to issue warrants. Two preconditions must be satisfied before a warrant for arrest should be issued:

1. Reasonable grounds to believe an offence has been committed.
2. Belief in the judge, Justice of the Peace or court registrar issuing the warrant that a warrant is necessary to compel attendance before the court.

In theory, the judicial officer will not issue a warrant simply because the police believe that a person has committed an offence. They must show that it is necessary to compel that person's attendance before a court. If they are unable to show this then only a summons should be issued.

Armed with a warrant to arrest, a police officer is fully protected even if it should turn out that the person arrested is subsequently acquitted by a court (Crimes Act 1961, s 31). They will even be protected from criminal charges if they arrest the wrong person, provided they believed in good faith and on reasonable and probable grounds that the person arrested was the person named in the warrant (s 32). However, regardless of their reasonable beliefs, they can be sued in a civil action for damages if they arrest the wrong person.

The warrant does not have to be executed by the police officer who applied for it (ie, it may be executed by any constable). In executing a warrant for arrest, a police officer is entitled to use such force as may be necessary to overcome any resistance. The warrant also entitles the police to enter private property using force, if necessary, for the purpose of arresting the person named in the warrant (Summary Proceedings Act 1957, s 22). However, if the police are not in uniform and any person occupying the property asks them to produce evidence of their authority, they are required to produce the warrant and their identification badge or other evidence that they are police officers before entering onto the property (Crimes Act 1961, s 316(3)).

Recommendation: If the police say they have a warrant to arrest you, ask to see it. Although they can arrest you without having it on them, it must be shown to you as soon as possible after the arrest, if you so require. Even if you are doubtful about the warrant's validity, do not resist arrest as this may lead to further charges.

Arrest by private citizens

A citizen should only consider arresting someone in the most exceptional circumstances. The Crimes Act 1961 does not expressly confer a power of arrest on a citizen (R v N [1998] NZCA 665; [1999] 1 NZLR 713; (1999) 16 CRNZ 415 (CA)). (See J November, `Citizen's Arrest?' [1999] NZLJ 145.) Citizens are protected from the possibility of any civil or criminal proceedings against them if they arrest anyone whom they find committing any offence against the Crimes Act 1961 for which the maximum punishment is not less than three years' imprisonment (s 35). Private citizens are similarly protected if they arrest any person whom they find by night committing any offence against the Crimes Act. If they arrest someone whom they believe to be committing an offence by night against the Crimes Act 1961; the citizen is protected only against criminal liability—they may still be open to a claim for damages. (Note that `night' is defined in the Crimes Act as the time between 9 p.m. and 6 a.m.)

A citizen who arrests someone, believing that that person `has committed' an offence against the Crimes Act or that the person is 'escaping' after having committed any such offence, is protected only against criminal liability (Crimes Act 1961, ss 37, 38).

Anyone who 'witnesses a breach of the peace is justified [ie, protected from both civil and criminal liability] in intervening to prevent its continuance or renewal' and may detain any persons committing it in order to give them into the 'custody of a constable: If private citizens intervene in this manner, they must ensure that they use 'no more force than is reasonably necessary for preventing the continuance or renewal of the breach of the peace' (Crimes Act 1961, s 42(1)). In other words, this provision gives any person (not just a police officer) the legal authority to detain any person committing a breach of the peace. The Crimes Act does not define what is meant by a 'breach of the peace.’

The courts have defined the term as including the 'commission of some wrongful act

causing public alarm and excitement.’

Owners and occupiers of property have the right to arrest individuals found on their property committing one or more of a number of offences. They include being found on the property without reasonable excuse or found peering or peeping into a dwelling-house (Summary Offences Act 1981, s 39(3)). Other offences include common assault, wilful damage, and ill-treatment or wilful neglect of a child. The owner or occupier must contact the police and 'deliver the arrested person' into their custody 'as soon as practicable’.

Shopkeepers and store detectives

If a shopkeeper or store detective suspects you of shoplifting, they cannot detain you until the police come. If the shopkeeper does detain you, you have the right to sue them for damages for false imprisonment. If force is used, for example, they grab your bag, you have the right to sue for damages for assault.

Shopkeepers or store detectives who think you have shoplifted can, of course, make a 'citizen's arrest' (see para [ ] ). However, shopkeepers and store detectives never do this because if they turn out to be wrong, you can sue them for wrongful arrest, assault and false imprisonment. If successful, you could be awarded substantial damages. The shopkeeper or store detective is protected from civil liability only when the customer is caught in the act and for an offence that carries a possible term of imprisonment of three or more years. Although some varieties of theft carry a possible term of imprisonment of more than three years, shoplifting offences, unless involving property worth more than $500, would not be covered. For example, the maximum term of imprisonment for someone convicted of stealing goods with a value of up to $500 is three months. For goods in value between $500 and $1000, the maximum term of imprisonment is one year. For goods above $1000, the maximum term is seven years (Crimes Act 1961, s 227).

The use of force in making arrests

When executing any sentence, warrant or process (eg, arresting someone without a warrant) a police officer is protected from any form of legal proceedings unless the sentence, warrant or process could have been executed, or the arrest made, by reasonable means in a less violent manner (Crimes Act 1961, s 39).

Remedies for unlawful arrest

When an unlawful arrest has occurred the law provides various remedies. An unlawful arrest may, of course, be resisted. However, it cannot be too strongly emphasised that such a step should be taken only in extremely rare situations, as it is likely to lead to trouble. If you consider that you have been unlawfully arrested you should make a firm protest at the time of arrest and at every appropriate opportunity afterwards. If you are unlawfully arrested, you have the specific right laid down by law to claim damages for 'false imprisonment.’

To constitute the civil wrong of 'false imprisonment' there need be no actual imprisonment in the ordinary sense. (See Todd, ed., The Law of Torts in New Zealand, Brookers, 5th ed., 2009, 101-109.) It is enough that individuals have been in any manner wrongfully deprived of their personal liberty, that is, of their freedom to move about lawfully as they please (Niao v Attorney-General [1998] NZHC 2980; (1998) 5 HRNZ 269). But the interference must be 'wrongful’, in other words, without reasonable grounds for believing that the person detained has either committed or is likely to have committed some offence. Any person who considers that they have been unlawfully arrested should seek legal advice as soon as possible. Recent examples of successful proceedings for false imprisonment include Caie v Attorney-General [2005] NZAR 703 (HC) where $10,000 in compensatory damages was awarded; and Slater v Attorney-General (No2) [2006] NZHC 979; [2007] NZAR 47 (HC) where $5000 was awarded.

If you are detained or arrested and kept in custody it may be possible to challenge the legality of your detention using the procedures contained in the Habeas Corpus Act 2001. For a recent example of a successful habeas corpus application where the High Court held that a citizen had been deprived of his liberty unlawfully, see Kurariki v Singh [2008] NZHC 1218; [2008] NZAR 625 (HC).

Impact of the New Zealand Bill of Rights Act 1990

In what circumstances would you be considered to be 'detained under any enactment' (ie, under the New Zealand Bill of Rights Act 1990, s 23)?

When you are detained under powers contained in specific laws, such as:

• the Misuse of Drugs Act 1975, s 18(2)
• the Customs and Excise Act 1996, s 213 (ie, for suspected smuggling)
• the Land Transport Act 1998, ss 69-73 (ie, for suspected drink-driving)

In other words, you are detained under a specific law passed by Parliament that gives the police (or other law enforcement officers, eg, customs officers) a power to detain individuals in specific circumstances. 'Detained under any enactment' does not include de facto detention (ie, where the police detain you when they do not have specific legislative authority to do so).

What does your detention have to amount to in order to come within the New Zealand Bill of Rights Act?

It must be something more than temporary—that is, more than a 'temporary check, hindrance, or intrusion on [your] liberty' (Police v Smith and Herewini [1993] NZCA 585; [1994] 2 NZLR 306, 316; [1993] NZCA 585; (1993) 11 CRNZ 78, 88; per Richardson D. (See Adams, ch. 102.05.) A temporary detention might involve no more than a check while you are asked to provide particulars, for example, at a police road block under the Land Transport Act 1998.

The 'nature, extent, and duration of the constraint' must be considered (Adams, ch. 10.9.5). (See also Butler and Butler, ch. 20.5,10, for a list of examples where the New Zealand courts have held that there has been no 'detention' for the purposes of s 23(1) (b) of the New Zealand Bill of Rights Act.)

If you had a 'reasonably held belief that [you were] not free to leave’, a court is likely to hold that you were in detention (R v M [1994] NZHC 1787; [1995] 1 NZLR 242; (1994) 12 CRNZ 268; 3 HRNZ 393). In other words, your perception of your ability to leave is a critical consideration. This approach has been adopted by the Court of Appeal in a number of decisions (eg, Everitt v A-G [2001] NZCA 449; [2002] 1 NZLR 82; R v Koops [2001] NZCA 449; (2002) 19 CRNZ 309; 6 HRNZ 666).

Does the New Zealand Bill of Rights Act have any application in situations involving detention other than when you are 'detained under an enactment'?

Yes. Under the New Zealand Bill of Rights Act you have the right not to be arbitrarily arrested or detained (s 22). As a result, even if it is determined by a court that you were not detained under a specific statute, it may still be held that you have been arbitrarily detained, contrary to s 22. This is what happened in R v Goodwin (No 2) [1993] NZCA 391; [1993] 2 NZLR 390; (1993) 9 CRNZ 394 (CA), a leading decision on the concepts of 'arrest' and 'detention' under the New Zealand Bill of Rights Act. If a violation of s 22 occurs, the evidence obtained as a result may be inadmissible in any subsequent proceedings. (See J November, 'R v Goodwin: The Meaning of Arrest, Unlawful Arrest and Arbitrary Detention' [1993] NZ Law Journal 54.)

If there is no causal connection established between you being arbitrarily detained and your subsequent willingness to confess (ie, following your release) the confession is likely to be admissible (R v Grey [1995] NZCA 100; (1995) 2 HRNZ 254 (CA)).

Before a court will give serious consideration to your claim that any of your rights under the New Zealand Bill of Rights Act have been breached, you will need to provide an evidential foundation for your claim (R v Te Kira [1993] NZCA 451; [1993] 3 NZLR 257; (1993) 1HRNZ 230 (CA)).

Following the enactment of the Evidence Act 2006, the relevant considerations contained in s 30 will be of critical importance in determining whether improperly obtained evidence should be admissible in any subsequent proceedings. (See para[ ].)

What is meant by 'arbitrary' (ie, for the purposes of s 22 of the New Zealand Bill of Rights Act)?

Whether an 'arrest or detention is arbitrary turns on the nature and extent of any departure from the substantive and procedural standards involved. An arrest or detention is arbitrary if it is capricious, unreasoned, without reasonable cause: if it is made without reference to an adequate determining principle or without following proper procedures…’(Neilson v A-G [2001] NZCA 143; [2001] 3 NZLR 433; (2001) 19 CRNZ 1; (2001) 6 HRNZ 334 (CA)). (See Adams, ch. 10.9.08; Butler and Butler, ch. 19.6.2, 19.8.)

The courts have focused on whether a detention is lawful in determining whether an arbitrary detention has occurred. If the detention is found to be unlawful it is likely that it will also be held to be arbitrary, contrary to s 22 of the New Zealand Bill of Rights Act 1990. (See Edwards v Police [1994] 2 NZLR 164; (1993) 11 CRNZ 271; R v Grey [1995] NZCA 100; (1995) 2 HRNZ 254(CA).)

What rights does the New Zealand Bill of Rights Act give you in relation to legal advice?

The obligation on the police is to tell you that you have the right to consult and instruct a lawyer without delay. If you are in custody, the police must do so before they question you (New Zealand Bill of Rights Act 1990, s 23(1)(b); Practice Note on Police Questioning, issued

by the Chief Justice on 16 July 2007, para 2).

The police Manual of Best Practice (vol. 2, 1997) states: 'It is not enough to merely ask the suspect if he or she wants a lawyer. The suspect must be told: "You have the right to consult and instruct a lawyer without delay and in private:' If the suspect wishes to exercise that right [the police] ... must stop the interview until he or she has done so' (365).

Why is your right to a lawyer so important if you are in police custody?

Because unless you are someone well known to the police (eg, a professional criminal) you are likely to be at 'a significant disadvantage' when dealing with the police (MOT v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA)). The right to a lawyer is intended to at least reduce that imbalance. (See Adams, ch. 10.11.01.) The right is a continuing one—it does not end simply because your attempt to obtain a suitable lawyer is unsuccessful.

What can a lawyer do to help you when you are in police custody?

A lawyer can advise you on your rights and obligations. Criminal law and police procedure is an extremely complex area—far more so than it should be. Suspects who fail to obtain legal advice are almost always prejudiced in terms of their responses to police questioning. A lawyer can also act as your representative (ie, your advocate).

What is meant by obtaining legal advice 'without delay'?

It does not mean obtaining legal advice instantly or immediately. On the other hand, if the right is to be effective it must be exercised before your 'legitimate interests are jeopardised' (R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528; (1992) 8 CRNZ 707 (CA)). (See Butler and Butler, ch. 20.7.)

Determining whether this has happened will depend on the time, place and circumstances. If you wish to make an issue of the fact that there was some delay on the part of the police in informing, you of your right to consult and instruct a lawyer without delay, you will probably need to establish that the delay on the part of the police meant that your 'legitimate interests were irretrievably jeopardised (MOT v Noort; Police v Curran at 280, 134).

What do the police need to tell you when they are informing you of your right to a lawyer?

You must be made aware of the right. The purpose is to give you a fair opportunity to consider and decide whether or not to exercise the right (R v Mallinson at 530, 709). The police must 'communicate clearly to you what your rights are.’ No particular formula is required so long as the content of your right to a lawyer is communicated to you in a way that you can understand.

The fact that you were drunk at the time the police informed you of your right to a lawyer or that you suffer from some sort of mental or physical disability will clearly be relevant in determining whether the police fulfilled their legal obligations (R v Samuelu (2005) 21 CRNZ 902). Attempts in court by defendants to challenge the nature of the wording used by the police to communicate the right to consult and instruct a lawyer without delay have been for the most part unsuccessful. (See Adams, ch. 10.11.06.) To succeed, you would need to establish that the particular words used by the police did not communicate to you that you were entitled to consult and instruct a lawyer without delay.

If you are drunk at the time the police want to question you, make it clear that you will contact a lawyer when you sober up. While that occurs, tell them to leave you alone.

Do the police have to communicate your right to a lawyer in a way that you can understand?

Yes. For the right of access to a lawyer to be effective you must understand fully the nature of your right to legal representation. If the police have any doubts as to your understanding, they should question you to make sure that you understand fully the nature of your right of access to a lawyer. If there remains a risk that your rights are not fully understood by you, the police should arrange for you to be seen by a lawyer without any further questioning by them (R v P [1994] NZCA 382; (1993) 1 HRNZ 293 (CA); R v Udompun [2005] NZCA 128; [2005] 3 NZLR 204; (2005) 7 HRNZ 8111 (CA), paras [119]—[121]).

The New Zealand courts have held that the prosecution must establish that suspects understand their rights. In some cases, this may mean that the police are required to repeat the information relating to the right to consult a lawyer (R v Jones, CA 312/92, 16 July 1993). This could occur where, for example, there had been 'a substantial lapse of time, or the intervention of obviously distracting events; or a second line of enquiry may have been so entirely disassociated from the first that the subject was effectively ambushed …’ (Jones). (See Adams, ch. 10.11.09.)

Should the police advise you of your right to consult and instruct a lawyer in private?

Yes. Your exercise of the right should be in private unless there are special circumstances (eg, security reasons). (See Police v Kohler [19931 [1993] NZCA 606; 3 NZLR 129; (1993) 10 CRNZ 118 (CA).) In other words, your entitlement to privacy is not absolute.

Make it clear to the police that you want to exercise your right to consult and instruct a lawyer in private. If they state that this is not possible, for example, they require you to use a telephone within the hearing of police officers, ask them to justify why you cannot make the call in a private situation. Note their reasons. This record may be valuable in subsequent proceedings.

Should you request access to a lawyer when in custody?

Yes. Once you are aware of your right, you should request that you be able to consult your lawyer or a lawyer at the earliest opportunity. If there is any delay, you should complain strongly and continue to do so until the police allow you to exercise the right to consult and instruct a lawyer without delay.

How do you make contact with a lawyer?

Usually this will be by telephone. If you require the lawyer's phone number, ask the police to provide you with a copy of the relevant telephone directory. They are under a duty to assist you.

Do you have to use the police telephone?

No. If you have a mobile phone, ask that you be permitted to use it.

What if you experience difficulty contacting a lawyer?

You should ask the police to provide you with a list of the lawyers in your community who have agreed to make themselves available to provide legal advice to suspects outside of normal office hours. This is known as the Police Detention Legal Assistance (PDLA) Scheme. Details of it should be available at all police stations. The police are required to tell suspects of the existence of the PDLA Scheme. In other words, the police must advise you that a system of free legal advice for people in custody is available (ie, if you do not have sufficient money to engage your own lawyer).

The Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007, makes the nature of this obligation clear. Before the police question anyone in their custody (or before they charge anyone) they must inform that person that the 'right to consult and instruct a lawyer without delay' may be 'exercised without charge' under the PDLA Scheme (para 2).

In R v Tye [2007] NZCA 330 (para [18]) the Court of Appeal made it clear that paragraph 2 of the Practice Note changed the previous law, as stated in R v Alo [2008] 1 NZLR 169 (CA). In Alo, the Court of Appeal held that there was no absolute requirement for the police to advise suspects of the availability of free legal advice under the PDLA Scheme. This is no longer the case. (See Adams, ch. 10.11.11).

What should the police do once you indicate that you wish to consult and instruct a lawyer without delay?

They should hold off trying to obtain any further information from you until you have had a reasonable opportunity to obtain legal advice. This may mean that they have to wait for some time until your lawyer is able to give you the advice you seek.

If you do not have your own lawyer, are you free to choose any other lawyer?

Yes. The right you have is to the lawyer of your choice. If for some reason you are unable to contact your own lawyer, you are under no obligation to call one of the lawyers on the list provided by the police. You may elect to call some other lawyer, even if it requires making a toll call (McMillan v Police [1995] NZHC 1206; (1996) 2 HRNZ 445).

Are the police required to grant you access to your lawyer in person?

No. Access to a lawyer will usually be by telephone. This is especially so in contexts such as testing for suspected blood—alcohol offences where, to wait for a lawyer to arrive in person might prevent the testing being conducted effectively. In other contexts, it may be possible for you to argue that telephone access to your lawyer is not sufficient and that the police should be required to wait until your lawyer arrives in person at the police station.

How might the police attempt to frustrate your right to consult and instruct a Lawyer without delay?

Examples include:

• by telling you your rights too quickly or in a way that you do not understand
• by answering your queries unhelpfully or incorrectly
• by telling you that you do not need a lawyer for this type of offence
• by telling you that there is no way a good lawyer will visit you at this time (eg, in the

early hours of the morning)

Source: Walker and Starmer, Miscarriages of Justice: A Review of Justice in Error (1999, Blackstone Press, UK) 88-89.

How long are the police required to refrain from attempting to question you further once you have made it clear that you wish to contact a lawyer?

The police are under a duty to leave you alone until you have had reasonable opportunity to consult a lawyer (R v Taylor [1992] NZCA 536; [1993] 1 NZLR 647 at 651; [1992] NZCA 536; (1992) 9 CRNZ 481 at 486 (CA). See also R v Butcher & Another [1991] NZCA 135; [1992] 2 NZLR 257; (1991) 7 CRNZ 407 (CA); R v Etheridge (1992) 9 CRNZ 268 (CA); R v Harder (2004) 21 CRNZ 255 (CA)).

If the lawyer you contact advises you to remain silent until they are in a position to assist you, but you elect to answer police questions, your responses may in some circumstances be admissible against you (R v Ormsby (CA 493/04, 8 April 2005). (See Adams, ch. 10.11.13.)

If you elect to answer police questions after unsuccessfully trying to contact your lawyer, any breach of the New Zealand Bill of Rights Act 1990 might be regarded as inconsequential (Dallas v R [1996] NZCA 418; (1996) 3 HRNZ 204 (CA)).

Your opportunity to consult and instruct a lawyer is one that you must exercise within a reasonable time. If you do not, any subsequent argument by you that your right of access to a lawyer had been breached is likely to be rejected by the court. (See Adams, ch. 10.11.14.) Once a reasonable time has expired, the police may begin questioning you again or, for example, resume testing for suspected blood—alcohol offences under the Land Transport Act 1998.

Can you make a number of calls when trying to find a lawyer to help you?

Yes. You are not limited to making one phone call. You can make a number of calls to try to find a lawyer to assist you. However, if after these calls your attempts to obtain legal advice have been unsuccessful, the police may resume their questioning or testing of you.

What is your right to a lawyer once you have been formally charged with an offence?

Again, you have the right to consult and instruct a lawyer, that is, unless you have done so already. This is intended to enable you to consult with a lawyer regarding any matter relating to the charge or charges. You also have a right to a state-funded lawyer, if you do not have the financial resources to engage one on a private basis (New Zealand Bill of Rights Act 1990, s 24(f)). This can be the lawyer of your choice, provided they are in a position to represent you and are registered as a criminal legal aid provider with the Legal Services Agency (LSA). Provided you are eligible for such aid, any attempt by the LSA to limit the availability of it to you could be challenged as being inconsistent with s 24(f).

How can lawyers be more effective in providing legal advice to persons in police custody?

Read and follow the advice given by Becroft and O'Driscoll, Advising Suspects at the Police Station—A Practical Guide for Lawyers (1998, Butterworths, New Zealand).

Questioning—obligations on the police in addition to the New Zealand Bill of Rights Act 1990

When a person has been arrested, they should not be questioned further by the police unless the well-known caution has first been administered. Until recently, the usual caution was: 'You are not obliged to say anything, but anything you say may be given in evidence’.

This caution formed part of a set of rules known as the Judges' Rules. These Rules were originally laid down by the English judges in 1912 and were subsequently accepted by the New Zealand courts. However, the above caution has now been replaced by the much more detailed one contained in the Practice Note on Police Questioning, issued by the Chief Justice on 16 July 2007 (see below).

The police use methods based on the psychology of suspects and they are skilled interrogators. It may therefore be very hard to resist making some sort of statement. The police want evidence of your guilt and suspects (both innocent and guilty) have a natural urge to talk to someone.

A refusal to make a statement or to answer police questions cannot be used against you at trial, however, it is virtually impossible for a lawyer to explain away an incriminating statement that you have made at the police station. Even the slightest difference between your statement and your evidence in court can be used against you.

If the police ask repeated questions, tell them you have 'nothing to say: If you cannot resist talking, repeatedly deny your guilt and demand to see your lawyer. Any suggestion by the police that by making a statement you will make things easier should be regarded with suspicion. Do not make any 'arrangements' with the police.

Practice Note on Police Questioning This Practice Note was issued by the Chief Justice on 16 July 2007. It updates and expands upon the former Judges' Rules (referred to above). The Practice Note increases the protections available to individuals being questioned by the police. Rights contained in the New Zealand Bill of Rights Act 1990 (eg, the right to consult and instruct a lawyer without delay) form an important part of the new Practice Note. A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer. Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is— (a) that the person has the right to refrain from making any statement and to remain silent (b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme. (c) that anything said by the person will be recorded and may be given in evidence Questions of a person in custody or in respect of whom there is sufficient evidence to lay a charge must not amount to cross-examination. 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 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 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, and must be 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 by signing it.

What is the status (le, legal effect) of the Practice Note on Police Questioning?

Judges must take it into account when deciding whether a statement obtained by the police has been unfairly obtained (Evidence Act 2006, s 30(6)). The Practice Note expressly prohibits the police from suggesting to a person that they must answer questions (Rule 1). Similarly, the police are prohibited from cross-examining a person in custody (Rule 3). Previously, only excessive or oppressive cross-examining was regarded as a breach of the former Judges' Rules. (See Mahoney, McDonald, Opticon and Tinsley, The Evidence Act 2006: An Analysis, 2007, Brookers, EV30.10.)

Confessions

A confession must be excluded unless the judge is satisfied on the balance of probabilities that the circumstances in which it was made were not likely to have affected its reliability (Evidence Act 2006, s 28(2)). In determining whether the confession should be admitted as evidence, the judge must take into account:

• the defendant's physical, mental or psychological condition at the time they made the statement
• whether the defendant suffers from any mental, intellectual or physical disability (whether apparent or not)
• the nature of any questions put to the defendant and the manner and circumstances in which they were put
• the nature of any threat, promise or representation made to the defendant or any other person (s 28(4))

Confessions resulting from oppression must be excluded (Evidence Act 2006, s 29). The Act defines 'oppression' as 'oppressive, violent, inhuman, or degrading conduct towards, or treatment of, the defendant or another person' or 'a threat of conduct or treatment of that kind' (s 29(5)). (See Mahoney et al., The Evidence Act 2006: An Analysis, 2007, Brookers, EV28.01-29.10.)

Improperly obtained evidence

A court may exclude improperly obtained evidence but it is not automatically excluded. Improperly obtained evidence covers both unfairly obtained evidence and evidence obtained by any law enforcement agency in breach of the law (ie, illegally obtained). If an issue of this nature arises in the course of a hearing a judge must consider whether the appropriate course of action is to exclude the particular evidence. (See R v Williams [2007] NZCA 52; (2007) 23 CRNZ 1 (CA).) The judge is required to adopt 'a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice' (Evidence Act 2006, s 30(2)).

Relevant factors include:

• the importance of the right breached and the seriousness of the intrusion on it
• the nature of the impropriety, in particular, whether it was deliberate, reckless or done in bad faith
• the nature and quality of the improperly obtained evidence
• whether there were any other investigatory techniques not involving a breach of any rights that were known (ie, to the law enforcement agency) but were not used
• whether there are any alternative remedies to the exclusion of the evidence that adequately provide redress to the defendant (eg, a civil action for damages against the law enforcement agency involved or a complaint to the Independent Police Conduct Authority)
• whether the impropriety was necessary to avoid apprehended physical danger to the police or others
• whether there was any urgency in obtaining the improperly obtained evidence (s30(3))

Despite the complexity of s 30 of the Evidence Act 2006, the law it replaces was even more complex and confusing. See Mahoney et al., The Evidence Act 2006: An Analysis (2007, Brookers) paras EV 30.01-13.

Taking notes

You should write down an account of the incident that led to your arrest as soon as possible after it happens (preferably white at the police station). When your case comes to court, you will be allowed to refer to your 'contemporaneous note: In other words, you can produce your notes in court to 'refresh your memory: Police officers nearly always write statements into their notebooks at the time of an incident and refer to these statements when giving evidence in court.

The authors of the United Kingdom equivalent of this Handbook suggest that if you are questioned, searched or arrested by the police you should:

• Write out a full and legible note of everything that happened in the correct sequence of events.
• Write down everything that was said, word for word if possible, particularly any conversation you had with police officers.
• Record the names and numbers, if you know them, of the police officers involved.
• Sign the notes at the bottom and put the time and date.
• If you see a [lawyer], hand over the notes and make sure you get a copy to keep for yourself.
• If you are going to court, take your notes with you.
• If there are witnesses to the incident, take their names and addresses if possible and ask them to make notes.

(Addis and Morrow, eds, Your Rights—The Liberty guide to Human Rights, 8th ed., 2005, Pluto Press, 124-25.)

Sometimes, particularly if you are kept at the police station, you will not be able to write your notes for some hours. Don’t worry about this—the court may still allow you to use the notes. It is better to make notes some hours or even a day after the incident, than have none at all. Even if you cannot use them at court they will be a helpful record of events.

SEARCH AND SEIZURE—ADDITIONAL INFORMATION

Can the police search you without first arresting you?

The general rule is that the police can search you only after first arresting you. Search warrants usually apply to property only. They do not allow the police to search persons found there. An exception is the Misuse of Drugs Act 1975, which gives the police power to search persons while they are legally conducting a search of property.

In an increasing range of situations the police and, on occasions, other enforcement officers, have the power to search individuals without first arresting them. Laws that give them this power include:

• the Crimes Act 1961, s 202B (possession of knives, offensive weapons and disabling substances)
• the Aviation Crimes Act 1972, ss 12-13. Members of the police, aviation security officers, customs officers and airline employees are given power to search passengers (with their consent) before they board an aircraft. The purpose of these searches is to detect any item or substance 'that could pose a threat to aviation safety and security' (s 12(1)). If a passenger refuses to be searched the airline 'must refuse to carry' them (s 12(2)). Permissible searches include what is known as a 'pat down search: This is defined in some detail ins 12(8). Any search under the Aviation Crimes Act 1972 (as amended in 2007) must not be done by 'an aid or device that produces an unclothed image of the person' being searched (s 12(7)). Note that the 2007 Amendment also makes provision for 'inflight security officers' (ss 15A—G).
• the Misuse of Drugs Act 1975, s 18(3). Where the police have reasonable grounds for believing that you are in possession of any illegal controlled drug or precursor substance and that, as a result, an offence against the Misuse of Drugs Act may have been committed; they may detain and search you (s 18(3)). They may also seize any controlled drug or precursor substance found on you. However, before the police can search you they must identify themselves and also inform you that the search is being made under the Misuse of Drugs Act (s 18(4)). The police may also stop vehicles for the purpose of searching persons within those vehicles under these provisions (ie, without first arresting them) (s 18(3A)).
• the Arms Act 1983, ss 60-61 (possession of firearms)
• the Customs and Excise Act 1996, s 149B. Customs officers are given very wide powers to detain and search persons without first arresting them and may seize any dangerous items found.
• the Maritime Security Act 2004, s 55

Can the police stop and search vehicles?

Yes. The police have a general power to stop vehicles so that they can exercise statutory search powers (Crimes Act 1961, s 314A). Police exercising the power of search must state the basis for stopping the vehicle. This may be done in non-technical language without reference to the particular statutory provisions if the basis for stopping the vehicle is clearly articulated (R v Holtham [2008] 2NZLR 758 (HC)).

In certain circumstances, the police may seize and impound vehicles for 28 days (Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003, s 8).

Can the police enter private property for road safety-related purposes?

Yes. The police have the power to enter premises if they are in the course of freshly pursuing a driver who has failed to stop when requested to do so and who is reasonably suspected of having committed specified driving offences or for the purpose of determining whether the driver should be breath tested (Land Transport Act 1998, s 119(2)). Once on the property, the police may exercise the testing procedures.

In certain circumstances the police may also enter any building or place to seize a vehicle to be impounded, eg, where an officer is freshly pursuing the vehicle or suspects on reasonable grounds that the vehicle is about to be used in the commission of a crime (Land Transport Act 1998, s 119(3)).

Do the police have power to 'frisk'?

This seems to be an uncertain power. Apparently, it is used by the police on certain occasions. It is something less than a search—merely a running of the hands over the outside clothing and removing anything that could cause harm. It would appear that the provisions that give the police power to detain people for the purposes of a search without first arresting them also give the police power to 'frisk: The police Manual of Best Practice refers to this type of search as a 'preliminary search!

When you are searched, what can be seized?

The police can seize only things relevant to the offence for which you were searched. For example, if you are searched without first being arrested under the Misuse of Drugs Act 1975 and the police discover evidence of some other offence (eg, a stolen watch), technically, the police cannot legally seize this evidence unless they arrest you. If they do not arrest you—something that is rather unlikely—the seizure is likely to be illegal (Barnett and Grant v Campbell [1902] NZGazLawRp 77; (1902) 21 NZLR 484 (CA)).

Can the police search you after you have been arrested?

Yes. If you have been arrested the police have the power, incidental to your arrest, to search you. The power appears to be limited to searching for and seizing articles in your possession or under your control as evidence tending to show your guilt (Barnett and Grant v Campbell (1902) (CA); R v Everitt [2001] NZCA 449; [2002] 1 NZLR 82 (CA)). The purpose of giving the police this power to search an arrested person is to preserve the evidence and make it available at the trial. The power maybe exercised whether the arrest is made with or without a warrant. The police may take away from arrested persons any offensive weapon or other means of injuring themselves or anyone else while they are in custody. This power of search probably extends to a search of the body of the arrested person where the circumstances would justify such a course. The police certainly act on the assumption that they have this power.

In certain circumstances, the police may be able to search a vehicle incidental to an arrest (R v Noble [2006] NZHC 1673; (2006) 22 CRNZ 442 (HC), paras [16]—[35]).

The police should not seize property that is evidence of an offence other than that for which you were arrested (R v Pratt [1994] NZCA 448; [1994] 3 NZLR 21). Any such seizure may be contrary to the New Zealand Bill of Rights Act 1990 (s 21).

When can the police search your property?

The general rule is that state officials may not enter and search private property without the consent of the occupier or unless they have lawful authority. This lawful authority may be found in statutes that confer power to search with a warrant (eg, the Summary Proceedings Act 1957) or without a warrant (eg, the Misuse of Drugs Act 1975).

Entry and search of private property without a warrant

Under a considerable number of statutory provisions, the police (and various other enforcement officers) have power to enter and search private property without a warrant. For example, warrantless powers of entry, search and seizure are to be found in the Arms Act 1983 (ss 60-61).

If the police have reasonable grounds for believing that there is in or on any building, aircraft, ship, vehicle, property or other place any 'controlled drug' (discussed above) and that an offence against the Act has been or is suspected of having been committed in respect of that drug, they may not only enter and search the place, but also search any person found on the property (Misuse of Drugs Act 1975, s 18(2)). They may then seize evidence of any offence involving 'controlled drugs’.

Police instructions on the powers of search under the Misuse of Drugs Act 1975

In these instructions, issued by the Commissioner of Police, the police are reminded that the 'authority provided under section 18(2) or (3) of the Misuse of Drugs Act 1975 is to be exercised with utmost discretion. The authority is to be exercised only in an emergency and where there is the strongest suspicion and a search warrant cannot be obtained under the Summary Proceedings Act …’ (Note that this is in line with the decision in R v Laugalis [1993] NZCA 551; (1993) 10 CRNZ 350 where the Court of Appeal held that a search without warrant would be unreasonable where there were no urgent circumstances and a warrant could have been applied for.) 'Where a search without a warrant reveals evidence of an offence other than a breach of the Misuse of Drugs Act, no prosecution action is to be taken unless the offence constitutes a crime …’ (ie, an offence against the Crimes Act 1961).

If the police wish to search your property without a warrant, always ask them to produce evidence of their identity (ie, that they are police officers) and the authority they are acting under (ie, the statute that gives them the power to enter your property without a warrant). They are bound to tell you.

Without a search warrant, the police cannot search the property (including the house, car or office) of an arrested person who is away from that property. For example, if you are arrested in the street, the police do not have lawful authority, without a search warrant, to search your house. Any search conducted must be incidental to your arrest. For example, if you are arrested on the street while carrying a suitcase, the police would be acting within their powers if they conducted a thorough search of the contents of the suitcase. If you are arrested while in your house, the police would be justified in conducting a search of the house. These provisions apply to arrest with or without a warrant.

What can the police seize?

If the police search your property without a warrant, they may seize anything relevant to the offence of which you are suspected. For example, if the police, acting under the very wide powers given to them by s 18(2) of the Misuse of Drugs Act 1975, search your property, they can seize anything that can be connected in any way with any suspected drug offence. The police would not be permitted, in theory at least, to seize anything relevant to any other offence (eg, theft). The courts have on occasions condemned the police practice of using the opportunity to enter private property without a warrant to `have a look' in the hope that some evidence may be found of some other crime—in other words, what has been termed a 'fishing expedition.’ Such a search and seizure may amount to a breach of the New Zealand Bill of Rights Act 1990 (s 21), (See R v Ratima (1999) 5 HRNZ 495 (CA).)

Entry and search with a warrant

Most search warrants are issued by a District Court judge, justice of the Peace, community magistrate or District Court registrar, following an application by the police setting out the grounds on which the search warrant is sought (Summary Proceedings Act 1957, s 198). The application must be in writing and on oath (R v Burns [2001] NZCA 492; [2002] 1 NZLR 204; (2001) 19 CRNZ 280). The person issuing the search warrant must be satisfied that there are reasonable grounds for believing that there is, in the place specified, property of some nature (eg, goods or implements) in respect of which an offence punishable by imprisonment has been or will be committed (R v Thompson [2001] 1 NZLR 129; (2000) 18 CRNZ 401 (CA)). There must be sufficient evidence in support of the application. Places' can include a building, aircraft, ship, carriage, vehicle or receptacle.

Persons issuing warrants must exercise their own judgment (see Adams, SA198.04). They are not entitled to issue it merely at the request of a police officer (R v Sanders [1994] NZCA 390; [1994] 3 NZLR 450; (1994) 12 CRNZ 12 (CA)).

The warrant must refer to:

• a particular place (not simply, eg, 'Newtown' or 'Brighton')
• a particular offence punishable by imprisonment (not simply, eg, 'abortion')
• particular things (ie, state the exact nature of the items sought not simply, eg, 'stolen goods') (see Adams, para SA 198.05)
• be supported by the content of the warrant and be compatible with it in every way

A search warrant issued under the Summary Proceedings Act 1957 (s 198) may be issued to a police officer by name or generally to every police officer but, whatever procedure is adopted, the warrant may be executed by any police officer. Under some Acts that contain search warrant provisions, the warrant must be exercised by a specific enforcement officer.

A search warrant confers specific authority to search specified property and objects, using force if necessary, at any hour of the day or night (see R v Briggs [1994] NZCA 548; [1995] 1 NZLR 196; (1994) 2 HRNZ 85 (CA)). The person conducting the search is bound to have the warrant with them and to produce it if required to do so. You should always demand to see the warrant. An invalid search warrant may mean that not only is the subsequent search invalid but that it is in breach of the New Zealand Bill of Rights Act 1990 (s 21). The effect—if the search was unreasonable—may be that the evidence obtained is inadmissible (R v McColl (1999) 5 HRNZ 256 (CA)).

In determining whether improperly obtained evidence is admissible, the considerations contained in s 30 of the Evidence Act 2006 will be of critical importance.

The police may use reasonable force to gain entry and may arrest anyone who obstructs them. The force of a search warrant is not exhausted by the police stopping their search and departing from the property. They may return later to continue their search, provided the period specified in the warrant has not expired. It should be noted, however, that a warrant issued under s 198 of the Summary Proceedings Act 1957 (the section under which most search warrants are issued) may authorise entry 'at any time or times' but remains effective for only one month from its date of issue.

What can the police seize?

In theory, the police are limited in what they may seize as evidence of crime. The only goods that may be lawfully seized under the authority of the search warrant are things of the type named in the warrant (McFarlane v Sharp [1972] NZLR 838 (CA); R v Power [1999] NZCA 299; (1999) 17 CRNZ 662 (CA)).

According to the police Manual of Best Practice, the police cannot seize evidence other than of the offence specified in the warrant unless:

• they obtain another warrant
• the occupier consents to the seizure
• the evidence is such that they can arrest the occupier for an offence in connection with it

Goods providing evidence of some other offence may not be seized except, perhaps, as incidental to the arrest of the person whose property is being searched (Barnett & Grant v Campbell [1902] NZGazLawRp 77; (1902) 21 NZLR 484 (CA)). Despite these limitations the police do, on occasions, seize goods quite unconnected with the crime they are investigating and these goods have subsequently been successfully used as evidence for another prosecution (R v Taylor [1993] NZHC 2387; (1993) 9 CRNZ 563). New Zealand courts do not automatically exclude improperly obtained evidence. Judges do, however, have the discretion to disallow evidence of this nature (Evidence Act 2006, s 30).

In R v Horsfall [2008] NZCA 449, police officers had accompanied a local authority enforcement officer executing a search warrant under the Resource Management Act 1991 (s 334). While doing so, the police officers became suspicious that drug offences might be taking place on the property. Acting independently of the enforcement officer, they searched a dwelling on the property, interviewed Hand found evidence of serious drug offences. The Court of Appeal held that 'once the police parted company with' the enforcement officer 'their actions ... became unlawful and any evidence they obtained was improperly obtained' ([43]). The Court then determined—using the balancing process required by the Evidence Act 2006 (s 30(2)(b))—that the evidence obtained by the illegal police search should be excluded. This was despite the fact that the 'evidence obtained was highly probative' and the alleged offending serious. In the particular circumstances, the Court of Appeal considered that the exclusion of the evidence 'would be proportionate to the [police] impropriety' ([45]). The court concluded that 'the police had effectively unlawfully entered the premises' occupied by H 'and there had been a serious intrusion on his rights' ([46]).

If you believe that the police have acted illegally in entering, searching or seizing, it advisable to consult a lawyer about the possibility of taking legal action against them. Certain remedies are available to you. For example, any person who considers that articles have been seized and retained by the police unlawfully may apply to the court for an order for their return. Where there has been an unlawful search and seizure of goods, the persons responsible may well be held liable for damages for trespass. Remedies may also be available under the New Zealand Bill of Rights Act (eg, an action for damages). Although the right of self-defence against a trespasser is recognised, a person who complains that a search and seizure is unlawful should, except in the rarest cases, confine themselves while the search and seizure is taking place to making a vigorous protest. Any legal remedies come later.

Proposed new laws on search and surveillance

In September 2008, the Search and Surveillance Powers Bill was tabled in Parliament. It followed a 500-page Law Commission Report, Search and Surveillance Powers (June 2007), which described the present law in this area as 'quite simply, a mess.’ However, on 3 July 2009 the National-led government introduced the Search and Surveillance Bill to replace the Search and Surveillance Powers Bill 2008 tabled by the previous government.

The 2009 Bill is intended to give 'law enforcement agencies a more sophisticated set of tools to investigate drug offences, organised crime, and other offending' (Minister of Justice, press release, 3 July 2009). The Explanatory Note to the Bill states that it 'will reform the law to provide a coherent, consistent and certain approach in balancing the complementary values of law enforcement and human rights' (1).

The Bill:

• increases considerably the search without warrant and seizure powers given to law enforcement agencies (eg, in relation to motor vehicles)
• allows search scenes to be secured and persons present to be detained while searches are carried out
• puts new legal obligations on those in charge of computers/networks to assist in computer-related searches
• permits law enforcement agencies to intercept communications and track the movements of people/vehicles/things on a much wider basis than is permissible at present
• makes provision for applications for search warrants to be made electronically
• provides for the issuing of a surveillance device warrant in circumstances where a search warrant could be obtained in relation to that suspected offending
• Introduces a police-only examination power whereby persons believed to have information about suspected offending can be made to answer questions in certain circumstances
• attempts to regulate the use of visual surveillance—an area not currently subject to legislative regulation

The Bill, albeit in amended form, is not expected to come fully into force until 1 April 2011.

Impact of the New Zealand Bill of Rights Act 1990

What is the significance of s 21 of the New Zealand Bill of Rights Act 1990?

It recognises your right to be secure against unreasonable searches and seizures, not just illegal ones. (See R v Jefferies [1993] NZCA 401; [1994] 1 NZLR 290; (1993) 10 CRNZ 202 (CA); see also Butler and Butler, ch. 18.)

Traditionally, laws and decisions of the courts limiting the powers of search by law enforcement officers were aimed at protecting property rights (Entick v Carrington [1765] EWHC J98; (1765) 95 ER 807). By way of contrast, decisions of the New Zealand courts interpreting aspects of s 21 have emphasised the need to protect 'reasonable expectations of privacy: (See R v Grayson & Taylor [1996] NZCA 565; [1997] 1 NZLR 399; (1996) 14 CRNZ 426 (CA). See also Adams, ch. 10.8.03.)

What is meant by a 'search' (ie, for the purposes of s 21)?

The New Zealand courts have been reluctant to give a precise meaning to what is meant by 'search: or 'seizure' for that matter. This has been criticised by some commentators (eg, Butler and Butler, para 18.9).

Conventional searches (eg, of property or of a person) are covered. The courts have emphasised that a 'search' will usually involve 'investigation or scrutiny in order to expose or uncover; going beyond or penetrating some degree of concealment …’ (R v Fraser [1997] NZCA 506; (1997) 15 CRNZ 44 at 53; [1997] NZCA 506; 3 HRNZ 731 (CA) at 740). (See Adams, ch. 10.8.04.) As a result, where something is 'visible from an external inspection' (eg, drugs contained in a headlight) it may not constitute a search (R v Dodgson [1995] NZCA 435; (1995) 2 HRNZ 300 (CA) at 303).

How do the courts decide whether a search or seizure is 'unreasonable'?

It may be contrary to s 21 'if the circumstances giving rise to it make the search itself unreasonable, or if a search that would otherwise be reasonable is carried out in an unreasonable manner …’ (R v Grayson & Taylor [1996] NZCA 565; [1997] 1 NZLR 399, 407). The New Zealand courts have emphasised that whether a particular search or seizure is unreasonable will depend both on the subject matter and the time, place and circumstances (R v Smith (Malcolm) [2000] NZCA 99; [2000] 3 NZLR 656 (CA)). For example, 'the urgency of the moment' (R v Grayson & Taylor, at 408) may excuse an otherwise unreasonable search. Where the police have plenty of time to get a warrant but elect to search you or your property in an unauthorised way without a warrant, the search may be unreasonable, contrary to s21 (R v Hapakuku [1999] NZCA 94; (1999) 5 HRNZ 127 (CA).

Adams divides searches and seizures into four categories:

1. Illegal, but reasonable searches
2. Illegal and unreasonable searches
3. Legal and not unreasonable searches
4. Legal, but unreasonable searches

(See Adams, ch. 10,8.09-12, for a full discussion of the significance of the various categories.)

The key thing to remember is that s 21 only gives you protection against 'unreasonable searches and seizures: If the court determines that in the particular circumstances the search was reasonable, s 21 will have no application. (See R v Faasipa [1995] NZCA 519; (1995) 2 HRNZ 50 (CA).) Nor will it have application unless you can establish an evidential basis to your claim that the police breached s 21 in the way they treated you. (See R v Pointon [1999] NZCA 8; (1999) 5 HRNZ 242 (CA).)

Until recently, the New Zealand courts, especially the Court of Appeal, had been enlarging considerably the spectrum of 'illegal searches' that still may be held to be 'reasonable’. This development was the subject of strong criticism by a number of academic commentators. (See, for example, Schwartz, 'The Short Happy Life and Tragic Death of the New Zealand Bill of Rights' [1998] NZLR 59-311.) That trend may now be changing again (ie, to one where the courts are more willing to exclude evidence if the police (or other law enforcement officers) act unlawfully when carrying out a search (eg, R v Horsfall [2008] NZCA 449)).

In R v Williams [2007] NZCA 52; [2007] 3 NZLR 207; (2007) 23 CRNZ 1, the Court of Appeal held that 'an unlawful search will normally be an unreasonable search' (para [11]). The court stated that earlier decisions indicating a different approach should not be followed. However, where some form of minor unlawfulness has occurred, a search might still be considered to be a reasonable one (ie, not a breach of s 21 of the New Zealand Bill of Rights Act 1990).

In Cropp v Judicial Committee [2008] NZSC 46; [2008] 3 NZLR 774 the Supreme Court held that the power to make a rule conferring an entitlement to conduct a search, in this case a urine test of a jockey by a racecourse inspector that revealed the presence of illegal drugs, did not authorise searches that would be unreasonable and so infringe protected rights under s 21 of the New Zealand Bill of Rights Act.

It is important to keep in mind that improperly obtained evidence is not automatically excluded. These days, any decision to exclude improperly obtained evidence will be determined by the application of the relevant factors contained in s 30 of the Evidence Act 2006.

What are examples of searches that may be legal, but still held to be unreasonable?

These include:

• where although there was a power of search without a warrant, for example, under the Misuse of Drugs Act 1975, the court considers that the police had time to obtain a search warrant and should have done so (R v Laugalis [1993] NZCA 551; (1993) 10 CRNZ 350; 1 HRNZ 466 (CA));
• where in conducting a search for drugs without a warrant, the police strip-search a suspect in a public place. In one case, the Court of Appeal considered that the person should have been searched in a private place. As a result the entire search was declared unreasonable and the evidence obtained inadmissible (R v Pratt (1994) 11 HRNZ 392; 1 CRNZ 323 (CA)). (See Adams, ch. 10.8.12, for a full discussion of relevant decisions.)

If a search of you or your property is declared by a court to be unreasonable, will the evidence obtained be inadmissible?

Not automatically. The evidence may be excluded if the court considers that it has been improperly obtained (Evidence Act 2006, s 30). (See para [ ]).

Can you consent to a search?

Of course (R v Fletcher (2002) 19 CRNZ 399 (CA)). However, any consent you give should be informed (R v Rodgers (CA 65/06; 29 May 2006). That is, you should know whether you have the option to say, No: Where a person gives consent to being searched because they believe there to be no option, when in fact they have a right to refuse, may mean that the resulting search is 'unreasonable; contrary to s21 of the New Zealand Bill of Rights Act 1990 (R v Wojcik [1994] NZCA 384; (1994) 11 CRNZ 463 (CA)). (See Adams, ch. 10.8.17.)

What if the police get someone to record conversations you have with a person?

Participant surveillance (as it is known) is not against the law (Crimes Act 1961, s 216B). However, it may be possible for you to argue that even if it is lawful, it was 'unreasonable' in the particular circumstances and therefore a breach of your rights under s 21 of the New Zealand Bill of Rights Act (Adams, ch. 10.8.20).

Can the use of audio or visual surveillance constitute a 'search'?

Yes and no. The New Zealand courts have held that while such surveillance may constitute a search, whether it is reasonable will depend on the time, place and circumstances (R v A [1994] 1 NZLR 429 (CA)). More recent decisions of the Court of Appeal have doubted whether participant surveillance (using audio or video technology) constitutes a search at all (R v Barlow [1995] NZCA 423; (1995) 14 CRNZ 9 (CA); R v Fraser [1997] NZCA 506; (1997) 15 CRNZ 44; 3 HRNZ 731 (CA); R v Gardiner (1997) 15 CRNZ 131; 4 HRNZ 7 (CA)). (See Rishworth, Huscroft, Optican, and Mahoney, The New Zealand Bill of Rights, 2003, Oxford University Press, 466-72.)

In Fraser, the Court of Appeal held that the general search warrant regime (ie, the issuing of warrants under the Summary Proceedings Act 1957, s 198) does not apply to visual observations from outside the property that is being observed. Rather, the search warrant regime is directed to an 'entry' onto property or places to 'search' and/ or 'seize' things. As a consequence, any forms of surveillance (see below) not involving a trespass onto property do not come within the current law relating to search warrants. Note, however, that under the Crimes Act 1961 (as amended in 2003) an interception warrant will now be required for the use of any form of device to intercept private communications in any form (see below).

In R v Peita [1999] NZCA 157; (1999) 5 HRNZ 250 (CA), the court held that aerial reconnaissance by a police drug squad spotter plane was reasonable in the circumstances. The plane's entry into the airspace above P's property was lawful and of limited duration and did not intrude intimately on P's privacy. The court did not consider it necessary to determine whether the fly-over constituted a 'search' for the purposes of s 21.

INTERCEPTION OF PRIVATE COMMUNICATIONS

Without legal authority, any intentional interception of private communications may constitute a serious offence, punishable by imprisonment for up to two years (Crimes Act 1961, Part 9A (ss 216A—P)). These provisions prohibit the unlawful use of interception devices to intentionally intercept any private communication. 'Private communication' covers communication in any form made in circumstances that indicate that any party to it wants it to be considered private. However, communication is not considered private if, in the particular circumstances, any party to it ought to reasonably expect that it may be intercepted without consent by a third party. (See Chapter 14, Privacy.)

Current police interception powers

Both the police and the intelligence agencies have wide powers to intercept private communications in certain circumstances. The current powers given to intelligence agencies are discussed in Chapter 17, Intelligence Agencies.

Acts that give the police wide powers to intercept communications include:

• the Crimes Act 1961, Part 11A
• the Misuse of Drugs Amendment Act 1978, ss 14-29
• the International Terrorism (Emergency Powers) Act 1987, ss 10(3)—(4)

When an international terrorist emergency has been declared by the government of the day under the 1987 Act the police have the power to connect 'any additional apparatus to ... any part of the telecommunications system' for the purpose of intercepting 'private communications in the area in which the emergency is occurring' (s 10(3)). These powers may be exercised only if a commissioned officer of the police (ie, a senior police officer) 'believes, on reasonable grounds, that the exercise of that power will facilitate the preservation of life threatened by the emergency' (s 10(4)). Essentially, the police are given powers under this Act to connect interception devices to any part of the telecommunications system. They do not require the consent of the network operator.

Under the Telecommunications (Residual Provisions) Act 1987 (as amended in 2001), police or customs officers are entitled to obtain call-associated data either from the network operator or by connecting a telephone analyser (ss 10A—S). A warrant must first be obtained from a District Court judge. Warrants last for 30 days and they can be renewed for a further 30 days. The safeguards, on paper at least, include detailed record keeping, reporting and other forms of accountability.

Call-associated data include information such as the billing name and address of the caller, the called number, and the date, time and duration of the call. The Telecommunications Act expressly excludes access to call content. It is expressly prohibited to use a telephone analyser other than:

• under a call data warrant
• for network maintenance
• for detection, investigation or prosecution of specific telecommunications offences
• by subscribers to monitor their own calls

Employees of network operators, however, when acting in the course of their duties, are permitted to intercept 'any telecommunication by means of a ... device for the purposes of maintaining telecommunications services' (Telecommunications (Residual Provisions) Act 1987, s 10).

Under the Misuse of Drugs Amendment Act 1978 the police have the legal authority to use both tracking and interception devices when they suspect that drug-dealing offences in relation to Class A or B controlled drugs (or what is known as a prescribed cannabis offence) may be taking place (ss 14(1), 15A).

Under Part XIA of the Crimes Act 1961, the police may apply for interception warrants in relation to suspected organised criminal enterprises, serious violent offences and suspected terrorist offences. The warrant gives the police authority to intercept private communications by means of an interception device. It includes 'any electronic, mechanical, or electro-magnetic instrument, apparatus, equipment, or other device that is ... capable of being used to intercept communications’. 'Intercept' includes 'heal; listen to, record, monitor, acquire or receive' the private communication in question (s 216A).

In relation to organised criminal enterprises, the police may intercept the private communications of any alleged member who is 'planning, participating in, or committing ... criminal offences of which at least one is a specified offence, as part of a continuing course of criminal conduct planned, organised or undertaken by members of that enterprise' (Crimes Act 1961, s 312B(1)(a)). An 'organised criminal enterprise' means 'a continuing association of 3 or more persons having as ... one of its objects the acquisition of substantial income or assets by means of a continuing course of criminal conduct' (s 312A).

In relation to serious violent offences, the police have wide powers to intercept private communications by means of an interception device where they have 'reasonable grounds for believing that ... a serious or violent offence has been committed, or is being committed, or is about to be committed' (Crimes Act 1961, s 312CA). The procedures involved in obtaining an interception warrant under the Crimes Act 1961 and the various accountability mechanisms are similar to those contained in the Misuse of Drugs Amendment Act 1978.

In relation to suspected terrorist offences, the police now have specific powers to intercept private communications (ss 312CC—CD). A 'terrorist offence' means an offence against ss 6A-13E of the Terrorism Suppression Act 2002. These offences include terrorist acts (s 6A), terrorist bombings (s 7), recruiting members of terrorist groups (s 12) and participating in these groups (s 13).

The Court of Appeal has held that evidence of a confession obtained by intercepting the conversation of two suspects while in police custody is admissible (R v Te Kahu [2005] NZCA 438; (2005) 22 CRNZ 133).

Interception devices

The following commentary highlights aspects of the interception warrant process under the Misuse of Drugs Amendment Act 1978. A very similar process operates under the Crimes Act 1961 (as amended) for the issuing of interception warrants in relation to organised criminal enterprises, serious violent crime and suspected terrorist offences (ss 312A—Q).

Under the Misuse of Drugs Amendment Act 1978 (ss 14(2), 15A(2)), the police may apply to a High Court judge for an interception warrant when:

• there are reasonable grounds for believing that a drug-dealing offence or prescribed cannabis offence has been or will be committed
• relevant evidence is likely to be obtained by means of an interception device to intercept private communications
• other police investigative methods have failed, would be likely to fail or would be too dangerous or the urgency of the case makes other police methods impracticable
• the intercepted communications would not be privileged (as between a lawyer and client or religious adviser and individual)

The police must satisfy the High Court judge that all these conditions exist before they can issue a warrant (s 15).

An interception warrant may authorise forcible entry by the police for the purpose of placing, servicing or retrieving an interception device (s 16). The police could, for example, re-enter a house to 'turn up the sound' or replace the batteries in an interception device. An interception warrant remains valid for 30 days (s 16) and may be renewed for a further 30 days (s 18).

The interception powers given to the police under the Misuse of Drugs Amendment Act 1978 (and under the Crimes Act 1961, ss 312A—Q) extend far beyond what used to be called 'telephone tapping! In both Acts, the definition of 'interception device' covers any device capable of intercepting private communications. Before 2003, 'private communication' meant an oral communication considered by the parties to it to be private (ie, a conversation). It now covers oral, written and purely electronic communications (eg, email or text messaging).

Emergency permits

A judge may issue an emergency permit (orally or otherwise) where the urgency of the situation requires that an interception should begin before a normal interception warrant could with all practicable diligence be obtained (s 19(1)). An emergency permit remains valid for 48 hours. Since 1997, emergency permits have been able to be used to authorise the interception of private communications (s 19(Z). After receiving a report from the police involved, the judge must decide whether to confirm the permit. The judge can only do so if satisfied that, had the application for the permit been an application for an interception warrant, they would have granted the warrant. If a certificate is not issued, any evidence obtained under the provisions of the emergency permit is inadmissible in any subsequent court proceedings (s 19(10)).

Police reports

At the earliest opportunity after an interception warrant or an emergency permit has expired, the police must make a written report to the judge on how the powers authorised under the warrant or permit were exercised and the results obtained. The report must also include:

• where the interception device was placed
• the number of interceptions made
• whether any relevant evidence was obtained
• whether any relevant evidence has been or is intended to be used in any criminal proceedings whether any records of relevant or irrelevant private conversations have been destroyed (discussed below) whether the interception device has been retrieved and, if not, why it has not (s 28(3)(a)—(f))

The Commissioner of Police's annual report to Parliament must include the following information:

• the number of applications for interception warrants, warrant renewals and emergency permits
• the number of applications for permits and warrants that were either granted or refused
• the average duration of warrants
• the number of prosecutions arising out of the use of interception devices and the result of those prosecutions (s 29)

Evidence obtained by the use of interception devices

If the offence is a drug-dealing offence or a prescribed cannabis offence, evidence obtained by the use of an interception device cannot normally be given in any court, unless there was compliance with the provisions of the interception warrant or emergency permit. However, if the judge in any criminal proceedings of this nature is satisfied that the evidence is relevant and the defect in form or procedure is neither substantive nor the result of bad faith they may allow the evidence to be given (s 25(2)).

Evidence of private communications lawfully obtained by the police by means of an interception device may be given in court if the evidence relates to a specified offence, a terrorist offence, a serious violent offence (or a conspiracy to commit any of these offences) or a drug-dealing or prescribed cannabis offence (Crimes Act 1961, s 312N).

Destruction of relevant and irrelevant records

Irrelevant records (ie, records of private conversations that do not relate directly or indirectly to drug-dealing offences) obtained by the use of interception devices must be destroyed by the police at the earliest opportunity (s 21). Failure to do so amounts to an offence, the penalty for which is a fine of up to $500. Relevant records (ie, records of private conversations that do relate directly or indirectly to drug-dealing offences) must be destroyed as soon as it is clear that they are unlikely to be required for court proceedings (s 22).

Under the interception warrant regime contained in the Crimes Act 1961 (as amended) the destruction of 'irrelevant records' does not include evidence of a 'specified offence.’ This covers a wide range of offences (eg, theft of an object with a value of over $1000).

BODILY SAMPLE REQUESTS

When might you be asked to give a bodily sample?

You may be asked to give a bodily sample for three purposes:

1. You are suspected of having committed one of the crimes listed in the Schedule to the Criminal Investigations (Bodily Samples) Act 1995
2. For use on a DNA profile databank
3. You are suspected of having committed a drink-driving offence under the Land Transport Act 1998

Suspect request (under the Criminal Investigations

(Bodily Samples) Act 1995)

What is a bodily sample?

It covers both blood and saliva (ie, a sample of the epithelial cells inside your mouth).

Do you have to give a sample?

In most circumstances, you do not have to give a bodily sample if you do not want to (s 6(2)(b)(iii)).

If you are under 17 years of age, but over 14, the police must obtain your consent and the consent of one of your parents before taking a bodily sample (s 8(2)).

If you are under 14 years of age you are not required to give a bodily sample in any circumstances (s 8(1)). However, you may be asked to consent to the taking of a buccal sample (ie, a sample of your saliva).

If you are or were a child at the time when an offence or offences the police suspect you of committing occurred, you may be asked to consent to the giving of a sample of your saliva. Before it can be taken, the police must obtain your signed, written consent (s 24G(1)(a)).

What will the bodily sample be used for?

If you give a bodily sample it will be analysed on behalf of the police. The results of the analysis may provide evidence that could be used in criminal proceedings.

Do you have to give a bodily sample Immediately?

You have 48 hours from the time the police request is made to decide whether or not you want to give a bodily sample. If you have not given your consent within that period, you will be taken to have refused to give your consent (s 7(b)(vi)).

What if you are under 17 years of age?

You and one of your parents have 48 hours to decide from the time the police request is made whether you want to give a bodily sample. If both you and one of your parents have not given consent within that period, you will be taken to have refused to give your consent (s 8(d)).

Can you change your mind once you have given consent?

Yes. If you give your consent to the taking of a bodily sample, you may withdraw your consent at any time before the sample is taken. You will then be taken to have refused to give your consent (s 10).

Can you withdraw your consent if you are under 17 years of age?

If you and one of your parents give consent to the taking of a bodily sample from you, either of you may withdraw your consent at any time before the sample is taken. You will then be taken to have refused to give your consent (s 10).

What will happen if you refuse to give a bodily sample?

If you refuse to give a bodily sample, the police may apply to a High Court judge for a suspect compulsion order requiring you to give a bodily sample (s 13).

The police can make an application only if:

• there is good cause to suspect that you committed a relevant offence (ie, one of the offences listed in Part 1 or Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act 1995) or an offence punishable by imprisonment for seven years or more, and
• you refused to consent to the taking of a bodily sample in respect of that offence or a related offence

If the application is successful you will be compelled to give a bodily sample (s 6).

What if you are under 17 years of age (but over 14)?

If you or one of your parents refuses to consent to the taking of a bodily sample from you, the police may apply to a High Court judge for a juvenile compulsion order requiring you to give a bodily sample (s 18).

The police can make an application only if:

• there is good cause to suspect that you committed a relevant offence for which you may lawfully be prosecuted
• that offence is one of the offences listed in Part 1 or Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act 1995 or an offence punishable by imprisonment for seven years or more

If you are or were a child at the time the offence was committed, this can only be done

when the offence is either murder or manslaughter.

Can you be forced to give a bodily sample after a compulsion order has been made by the High Court?

If you refuse to give a bodily sample, a member of the police may use reasonable force to assist the doctor to take a sample from you (s 54(1)(b)). If force is necessary, the sample will be taken by means of a sample of your saliva or a finger-prick sample of your blood (ss 48-56).

The judge can specify in the order whether the sample taken is to be of your saliva or of your blood. If the judge does not specify what type of sample is to be taken and you refuse to allow a sample to be taken, a finger-prick sample of your blood will be taken.

If you have been compelled to give a sample under an order from the High Court, can the place and time for taking the sample be changed?

Yes. You or the police can apply to a High Court judge to have this order changed by:

• varying the date on which the sample is to be taken
• varying the place where the sample is to be taken

If you want to apply for the compulsion order to be varied, talk to your lawyer (s 47).

Who will take the bodily sample?

A bodily sample may be taken only by a doctor or, if you agree, by a suitably qualified person (s 49).

Can you have someone present with you when you give a sample?

Yes. You can ask to have a doctor, lawyer and one other person with you when you give a bodily sample. You can choose who you want to be there (s 50(1)(a)).

If you are under 17 years of age, in addition to the above persons, you may also ask to have one of your parents or someone who is caring for you, with you. You can choose who you want to be there or you can let your parent or caregiver choose for you (s 50(3)).

Do you have any privacy entitlements when a bodily sample is taken?

The sample must be taken in such a way that you are given 'reasonable privacy' (s 53).

Can you get your own analysis done?

Yes. If you give a sample of blood from a vein, then you will be asked whether you want to have part of the sample in order to have your own analysis done (s 55).

If you give a finger-prick or buccal sample, then you will be asked whether you want a second sample taken in order to have your own analysis done (ss 56-56A). If you want your own analysis done, you will have to make your own arrangements.

What information will you get about the analysis?

When your bodily sample has been analysed on behalf of the police, a copy of that analysis will be made available to you or your lawyer (s 59). The police will also make available a copy of any comparison made between that analysis and any analysis of material that may have come from the person who allegedly committed the offence (eg, blood found at the scene of the crime) (s 59).

What will the police do with your sample and the analysis of it?

Your bodily sample and any information that comes from the analysis of it will be held by the police. Information that comes from an analysis of your sample may be stored on a police DNA profile databank. This can only be done if:

• you are convicted of one of the offences referred to in Part 1 or Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act 1995 (s 26(a))
• you have consented to or been required to provide a blood sample for storage in a DNA profile databank

How long will the police hold your sample and the analysis of it?

Your bodily sample, any analysis of it and all information linking you to the sample, must be destroyed by the police:

• if you are not charged with the offence referred to in the bodily sample request or a related offence, within one year of the date when the bodily sample was taken
• if you are charged, but the charge is withdrawn or you are acquitted
• if you are convicted, but the offence is not one of the offences listed in Part 1 and Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act 1995 (s 60(1))

If you are convicted of one of the offences listed in the Schedule to that Act:

- the bodily sample must be destroyed after a certain period (ie, three months after the

time for making any appeal) however, information from an analysis may be kept on a

DNA profile databank (s 60(3))

Should you seek legal advice about a request for a bodily sample?

You may wish to consult a lawyer:

• before deciding whether or not to consent to the taking of a bodily sample
• if there is anything you do not understand about the procedures involved

The police must comply strictly with the procedures contained in the Act, otherwise the sample will be inadmissible (R v Accused (CA 302/98) [1998] NZCA 643; (1998) 17 CRNZ 49).

What happens if an order is made compelling you to give a bodily sample but you refuse to let the sample be taken?

The judge or jury (if there is one) is entitled to draw an adverse inference from that refusal by you. However, the judge may tell the jury that there may be good reasons for your refusal to allow a sample to be taken (s 70).

DNA profile databank requests

What is a DNA profile databank?

It is a databank operated by the police that contains DNA profiles obtained by taking bodily samples from people (s 25).

Who can the police ask to give a bodily sample for these purposes?

Anyone aged 17 years or over (s 30). You do not need to be suspected of any offence. You might be completely innocent, but agree to give a bodily sample to convince the police of your innocence.

If you are not a suspect but you allow a sample to be taken, the DNA profile obtained from that sample will remain on the databank unless you withdraw your consent to the use of the sample (ss 30(2), 36).

Note: In his submission to the parliamentary select committee considering the then Criminal Investigations (Blood Samples) Bill 1995, the Privacy Commissioner expressed concern that the power of the police to ask any person over the age of 17 years to agree to give a sample might mean that a 'reasonable databank proposal could without legal impediment, become a wide-scale population databank over the years' and that 'samples of innocent people [would] quickly out-number those of convicted people many times over' (Submission, paras 4.2-4.3).

Do you have to give a bodily sample?

You do not have to give a bodily sample if you do not wish to do so (s 31). However, in certain circumstances the police can apply and obtain a compulsion order from a High Court judge. This can be done only after you have been convicted of one of the offences listed in Part 1 or Part 2 of the Schedule to the Act (s 39).

What happens if you refuse to give a bodily sample after a databank compulsion order has been granted by the High Court?

If you refuse to give a bodily sample, a member of the police may use or have cause to use reasonable force to assist the doctor to take a sample. If force is used, the sample will be taken from a needle-prick to your finger or thumb.

Is it against the law to refuse to give a sample?

If a DNA databank compulsion order has been granted and you refuse to allow a bodily sample to be taken, you commit an offence. That offence carries a maximum penalty of three months' imprisonment or a fine of $2000 or both (s 77). It is not against the law to refuse a mere request.

What will the bodily sample be used for?

If you give a bodily sample it will be used to obtain a DNA profile. The results of the analysis will be stored on a DNA profile databank maintained by the police. This may result in you being charged with a criminal offence.

Are there any controls on the use of information on a DNA profile databank?

No one may have access to or disclose information stored on a DNA profile databank except for one or more of the following purposes:

• comparing a DNA profile on the databank with another DNA profile in the course of a criminal investigation by the police
• making information relating to you available to you in accordance with the Privacy Act 1993
• administering the DNA profile databank

Information stored on a DNA profile databank may also be used by the police when applying for certain orders under the Criminal Investigations (Bodily Samples) Act 1995 and in prosecuting people who commit certain offences against that Act (s 27). The restrictions on use and disclosure do not apply, however, to the release of DNA profile information that does not identify any person (s 27(Z).

Can you later withdraw consent to the use of your bodily sample?

Yes. If you give a bodily sample, you may generally withdraw your consent to the use of that sample at any time (s 36(1)). Simply notify the Commissioner of Police in writing of your decision. The police are then obliged to destroy the sample, any analysis of it and all information linking you with the sample.

Are there situations when you cannot withdraw your consent to the use of your bodily sample?

Yes. In certain circumstances, you cannot withdraw your consent to the use of your sample and it will be retained on a DNA profile databank. You cannot withdraw your consent if, after the sample is taken, you are convicted of one of the offences listed in Part 1 or Part 2 of the Schedule to the Criminal Investigations (Bodily Samples) Act 1995 or an offence punishable by imprisonment for seven years or more (unless that conviction is later quashed).

If you give a sample for a DNA profile databank, you may at the same time agree to let the police use the sample in the investigation of a specific offence (ie, in response to a suspect request). In that case, you may withdraw your consent to the use of the sample for DNA databank purposes, but the police may continue to use the sample for the purposes of that specific investigation.

At the time you withdraw your consent, the police may be taking or may want to take steps to obtain from you another bodily sample for use in the investigation of a specific offence. In that case, the bodily sample you gave for the DNA profile databank and the DNA profile obtained from it may be retained until those steps have been taken (ss 36(2), 37, 38).

If a dual request is made (ie, both a suspect request and a DNA profile databank request) do you have to comply with it?

You do not have to give a bodily sample for either purpose. However, you may consent to give a sample for both requests or consent to only one of the requests (s 33(0W).

If you consent to the taking of a bodily sample for only one purpose, then information obtained from the analysis of that sample may generally be used for that purpose only (s 33(a)(ii)).

What if the taking of a blood sample affects some medical condition that you have?

You may offer to provide another type of bodily sample from which a DNA profile may be obtained (s 16(3)(4)).

What offences may be committed by those who administer the Criminal Investigations (Bodily Samples) Act 1995?

If anyone:

• knowingly falsifies any DNA profile stored on a DNA profile databank
• knowingly provides false information with the intent that it should be stored on a DNA profile databank
• knowing that one is not authorised to do so, adds or deletes any information
• gains or attempts to gain access to a DNA profile databank or a blood sample that is not for an authorised purpose
• discloses any information stored on a DNA profile databank for an unauthorised purpose
• uses any blood sample in an unauthorised manner

they commit an offence and can be prosecuted under the Criminal Investigations (Bodily Samples) Act 1995. Conviction may lead to imprisonment for up to three years (s 77).

Can the information stored on the DNA profile databank be used in criminal proceedings?

The bodily sample and any analysis of it can be admitted as evidence in criminal proceedings only if the sample was taken for the purpose of the offence that you have been charged with or for a related offence (s 71).

Blood tests for suspected drink-driving offences (under the Land Transport Act 1998)

To get to the stage where you have been asked to give a blood test under the Land Transport Act 1998 you will have gone through the following procedure:

• you will have undergone an initial breath screening test at the roadside (s 68). This is used to screen out those people who will be subjected to an evidential breath and/or blood test
• if a positive test is obtained from the initial breath screening test (ie, 400 micrograms of alcohol per litre of breath or you are under 20 years of age and the initial test detects the presence of some alcohol') or you refuse to undergo the initial roadside breath test, then an enforcement officer will require you to accompany them to a place where an evidential breath or blood test (or both) can be carried out (s 69(1)). If you refuse to accompany the enforcement officer you may be arrested (s 69(5)).
• you will have been given the opportunity to take an evidential breath test. If this test fails for some reason you may be asked to take another evidential breath test. The results of any evidential breath test can be used in evidence for any offence under the Land Transport Act 1998.

Why would you have been asked to undertake a blood test?

• you either refused or failed to undergo without delay an evidential breath test, or the test could not be carried out for some reason
• the evidential breath screening test was positive and you were advised that this is sufficient to lead to a conviction and that you have a right to undergo a blood test within 10 minutes. (This can occur if your evidential breath test appears to be positive. In other words, you have the option to take a blood test to assess the proportion of alcohol in your blood (s 70A).)
• you have been arrested under the Land Transport Act 1998 for a drink-driving offence (s 72(1)(d))

What if you refuse to allow a blood sample to be taken?

You will be arrested and charged with an offence against the Land Transport Act 1998. (See Aylwin v Police [2008] NZSC 113; (2008) 24 CRNZ 235 (SC).)

When do you have a right to a lawyer?

You have no right to a lawyer before undergoing an initial breath screening test, for example, at the roadside (s 58A). You do have a right to a lawyer after you are required to accompany an officer and before undergoing an evidential breath or blood test (Ministry of Transport v Noort; Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260; (1992) 8 CRNZ 114 (CA)). The right to consult a lawyer continues throughout these procedures (Rae v Police [2000] NZCA 156; [2000] 3 NZLR 452 (CA)).

Facilitation of the 'right to consult and instruct a lawyer without delay' (New Zealand Bill of Rights Act 1990 s 23(1)(b)) does not mean that the police have to wait until your lawyer comes to the police station before they conduct any test. A reasonable opportunity for consultation with a lawyer over the phone may be sufficient for there to be police compliance with the New Zealand Bill of Rights Act 1990 (MOT v Noort; Police v Curran).

There is no right to a lawyer before a hospital blood test is taken (s 58D). This would cover, for example, the situation where a person is in hospital as a result of a car accident and a doctor wishes to take a blood sample (Police v Smith and Herewini [1993] NZCA 585; [1994] 2 NZLR 306; (1993) 11 CRNZ 78 (CA)). (See Brookers, Law of Transportation, BR23.01-28.)

Can you get your own analysis done?

Yes. To do so, a written request to the Commissioner of Police should be lodged (s 74(5)).

Who will take the blood sample?

A doctor or other authorised person (eg, a nurse or medical laboratory technologist). You cannot demand that your own doctor take the sample.

How many samples will be taken?

Only one sample will be taken unless that sample cannot be divided into two parts. In such a case, a second sample may be taken (s 72(4)).

What if your cultural beliefs do not permit blood to be taken from your body?

You may be charged with an offence of refusing to undergo a blood test even if it is against your cultural beliefs. (See Rapana v Police, HC, Hamilton AP63/94, 11 July 1994, Hammond J.)

Can you change your mind after saying that you will give a blood sample?

You can, although this is likely to result in you being charged with an offence for refusing to undergo a blood test (s 72(1)(d)). If, however, you have given an evidential breath test, you can change your mind about the blood test with no further consequences.

What can you do if you feel that you have been unfairly treated?

You should consult your lawyer. In some situations use of unwarranted force or coercion by an enforcement officer may be a factor in a court finding the blood sample inadmissible in court.

What if you have been involved in an accident and you are asked to give a blood test?

Before any blood sample is taken you will be asked if you are the driver of the motor vehicle or, if the officer cannot ascertain the driver of the motor vehicle, you may be asked to give a blood test if the officer has good cause to suspect that you were the driver of the motor vehicle at the time of the accident.

What if you are in hospital or at a doctor's surgery receiving treatment (ie, following a motor accident)?

A blood specimen may be taken from you by a doctor who is in immediate charge of the examination and care or treatment by their own choice or, if requested, by an enforcement officer (s 73). Consent is not required but the blood specimen probably cannot be gained by force (MOT v Atherton [1991] NZHC 1226; [1991] 3 NZLR 509). The doctor must be satisfied that the taking of the blood sample would not be prejudicial to your proper care and treatment.

How will the blood sample be taken?

The blood sample will be taken from a vein.

IDENTIFICATION

Do you have to submit to an Identification parade?

No. The police may ask you to take part in an identification parade but they cannot force you to do so (Crimes Act 1961, s 3448(1)). An accused person can ask to be put on an identification parade to establish their innocence but should not do so without first obtaining legal advice. If you agree to take part in an identification parade you are entitled to have a lawyer present while the identification parade takes place (s 344B(2)).

The police must inform you of your rights in relation to an identification parade R v Mei [1989] NZCA 213; [1990] 3 NZLR 16 (CA)). If you elect not to take part in a parade, no adverse comment can be made by the prosecution at your trial (s 3448(3)).

If the police follow some form of formal procedure for identification (eg, an identification parade or the use of a photo montage) any evidence obtained from witnesses to it will be admissible, unless the defendant is able to establish on the balance of probabilities that the evidence is unreliable (Evidence Act 2006, s 45(1)). If the police use an informal procedure, any identification evidence that results from it is inadmissible unless it can be proven beyond reasonable doubt that the circumstances of the identification produced a reliable identification (s 45(2)). The police are entitled to use an informal procedure if they have good reasons for doing so (s 45(4)). Good reasons include a substantial change in the suspect's appearance after the offence occurred and before it was practical to hold a formal procedure (s 45(4)(c)). The good reason must be presented to the court otherwise the identification evidence may be excluded on the ground of fairness.

Can the police take your fingerprints and photograph?

The police have no specific power to do so unless you are in 'lawful custody' (Policing Act 2008, s 32(2)) or the police have good cause to suspect you of having committed an offence and they intend to commence criminal proceedings against you by way of summons, rather than by arresting you (s 33).

In these situations, the police may take any of your 'identifying particulars: This includes your photograph, fingerprints, palm prints and footprints (together with any 'biographical details'). If necessary, they may use reasonable force in doing so. If the police are intending to proceed against you by way of summons, they can detain you 'at any place' for the purpose of having your particulars taken. Otherwise, they can be taken once you are in lawful custody at a police station or any other place being used for police purposes.

An instance when a police car could be designated as a temporary police station is where the number of persons arrested at a particular time and place makes it more convenient for the police to collect particulars from a vehicle, rather than deplete their forces by taking arrested persons to the police station, for example, at a demonstration.

Although the police have no power to take the photograph, fingerprints, palm prints or footprints of a person, unless they are exercising their powers under ss 32 and 33 of the Policing Act 2008, they certainly do so on occasions, presumably because people have given their consent. Should the police ask for permission to take your fingerprints in such a situation, the wisest thing to do is to refuse until you have obtained legal ad-vice. Police photographers frequently take photographs and video recordings at public meetings, demonstrations, etc. Although this practice may be considered objectionable by some people, the police are fully entitled to do so.

The police are subject to the requirements of the Privacy Act 1993 regarding the collection, use and disclosure of personal information. You have a qualified right of access to personal information relating to you that is held by the police (see Chapter 14, Privacy).

The police are entitled to file, for future use, any particulars that are properly obtained. However, such records must be destroyed if the police decide not to prosecute you or you are acquitted of the charge for which you were arrested (Policing Act 2008, s34). You have no right, however, to witness the 'physical destruction' of your records if you are acquitted.

Fingerprints are not destroyed if your acquittal is due to insanity under the Crimes Act 1961 or, although found guilty or you pleaded guilty, you are discharged without conviction under the Sentencing Act 2002 (s 106).

LEAVING THE POLICE STATION

Release on summons

An arrested person may be released 'on summons' by the police (Summary Proceedings Act 1957, s 19A). Where you have been arrested without warrant and charged with a summary offence and cannot practicably be brought immediately before the court the police may, if they 'deem it prudent' to do so, release you without bail to appear on summons to answer the charge. This summons must be signed by and served on you. The summons will specify the court in which you will be required to appear. This appearance will be on a day not later than two months after the date on which the summons is issued.

Release on bail

If you have been arrested on a particular charge, you should always ask for bail. The police may allow you bail if the following conditions apply:

• you have been arrested without a warrant
• you are charged with an offence that can be dealt with summarily
• it is impracticable to bring you immediately before a court
• the police 'deem it prudent' to do so (Bail Act 2000, s 21)

There is no right to police bail (s 21(2A)). The police have a complete discretion as to whether or not to grant you bail. They need only do so if they 'deem it prudent.’ Relevant factors would include:

• the nature of the offence
• the likelihood of your appearing in court
• the likelihood of the offence being repeated
• the certainty or otherwise of your identification

If the police do decide to release you, you will be required to appear in court within seven days of the date when bail is granted. Although the police have what amounts to a complete discretion in deciding whether to grant bail, you should always apply for bail at the earliest opportunity in the hope that it will be granted. Remind the police that under the New Zealand Bill of Rights Act, you have the right to be released 'on reasonable terms and conditions unless there is just cause for continued detention' (s 24(b)).

COMPLAINTS AGAINST THE POLICE

If you want to make a complaint of any nature against the police, it is important to act quickly. You should:

• see a lawyer for advice and, if necessary, a doctor
• discuss your complaint with the senior police officer of the main police station in your area
• make a formal complaint to the police
• make a complaint to the Independent Police Conduct Authority
• in appropriate cases, consider bringing legal proceedings against the police

If necessary, approach the registrar of your local District Court or your local member of Parliament for assistance.

If the police do something to you that you want to complain about, what should you do?

• if there were any witnesses, make sure you know their names and how to get hold of them. Ask them straight away to write down what they saw.
• if you saw the identification numbers of the police involved, write them down straight away. They are easy to forget and are important. If you cannot remember their numbers and do not know their names, write down what they looked like. Draw a picture of them if you can.
• make a note of anything the police said to you or you said to them
• if you were injured by the police, go and see your doctor as soon as you can. Get a doctor's certificate saying what your injuries are. If you were taken to a hospital for treatment, you should find out the contact details of the doctor who treated you, in case you need to call them later on.
• get photographs of your injuries. Make sure that the photographer will be around later if you need them to say when and where the photographs were taken.
• if you are complaining about the police damaging your property, photographs and any other pieces of evidence will be useful. (Fight Back Manual (Mangere Legal Resources Trust, 1988).)

What should you think about before making a complaint?

• it can be a lot of hassle
• it may mean having quite a lot of contact with the police
• if the police have charged you with something as a result of what happened, you could give the police more to use against you
• the majority of complaints against the police are not successful

How do you make a complaint?

You can make it in writing or in person at a police station. Alternatively, you can complain in writing to the Independent Police Conduct Authority (IPCA).

What should you do if you decide to complain to the police (le, rather than making a complaint directly to the IPCA)?

You should go to the police station where the police alleged to be involved came from or closest to where the incident happened.

Alternatively, you can make a complaint in writing. The police are required to notify the IPCA of any complaints they receive involving allegations of misconduct, neglect of duty or grievances concerning police practice, policy or procedure.

The police are also required to notify the IPCA of any matter in which police actions have caused or appear to have caused death or serious bodily harm. These notifications are treated as if they are complaints.

Who should you see when you get to the police station?

Ask to see the senior officer who deals with complaints from members of the public. If necessary, ask to speak to the District Police Commander for the particular area.

Should you take someone with you?

Yes. Support people can be very important. They can be with you while you make your complaint and can be useful, as witnesses, if there is any question later about what was said when you made your complaint.

Can you take a lawyer with you?

Yes. But if you have to pay them it would be cheaper to take a trusted friend.

What will the police ask you to do?

You will be asked to go through your story in full and a statement will be written up. If you do not agree with any part of the written statement, do not sign it until it is changed. Make sure that you say everything you want to and think is important. Do not lie or stretch the facts.

Can they ask you questions?

Yes. But you do not have to answer any of them. Only tell them what you want to and think is important.

Will the police respond to your complaint if you do not answer their questions?

They have to receive your complaint but they might decide that you have made it impossible for them to take it any further because of your attitude.

What if you say things that could be useful to them in any court proceedings against you?

There is nothing to stop them using anything you say in their inquiries into the charges against you or even as evidence against you.

If you make a complaint in writing, who do you send it to?

You should send it to the officer in charge of the police station where the police officer or officers involved came from or the District Police Commander in the area. If you send the complaint to the Commissioner of Police in Wellington, it will usually be sent back to the senior officer handling complaints in your area. Also send it to the Independent Police Conduct Authority (IPCA).

What should you put in your complaint?

You should put:

• all the facts you think are important to back up your complaint
• the names or identification numbers of the police involved, if you know them, or any description you can give
• the time and place the incident happened
• a copy of your doctor's certificate (eg, if you suffered an injury at the hands of the police)
• copies of any photographs—keep the original copies yourself
• the names and contact addresses of any witnesses—but check with them first

Make sure you keep a copy of everything you send. Ask someone to help you if you are not sure what to put in your complaint.

What will happen after you send your written complaint to the police?

The police officer delegated to deal with your complaint may say that they do not think there is anything to investigate or may say that they want to talk to you about it and ask to make a time to see you.

If you do not want a particular officer to investigate your complaint, you should make that clear. Police investigators are required to be objective and independent. They must not investigate any matter in which they have a personal involvement of some nature.

Do you have to see the investigating officer?

You can respond to any questions in writing. If you want to see the investigating officer you can say where and when you will meet them.

What should you do if the investigating officer telephones you?

Take notes of what is said to you and of your responses.

What will happen when the police have finished looking into your complaint?

The investigating officer will make a report. Any final decision about what is done with a complaint is made by the District Police Commander, the Commissioner of Police or the IPCA (ie, if your complaint involves an allegation of misconduct, neglect of duty or an incident involving death or serious bodily harm).

What can happen to your complaint?

• the police may take the view that your complaint was unfounded and not be prepared to take it any further
• if they cannot identify the police involved, the police are likely to say that they cannot take it any further
• they may deal with it unofficially by giving the officer or officers involved a warning or a 'telling off'
• they may determine that the officer has not acted in accordance with the police Code of Conduct and that some more formal disciplinary process is required
• they may decide to commence a prosecution against the police officer or officers involved
• they must refer it to the IPCA if it involves an allegation of misconduct or neglect of duty, grievance over practice, policy and procedure, or an incident involving death or serious injury

What is the police Code of Conduct and why is it significant?

It was introduced following the Commission of Inquiry into Police Conduct (2007).

The Code covers all police employees. They are required to 'work to the highest ethical standard.’ Police employees must 'avoid any activities, either work-related or non-work-related, that may bring [the] Police into disrepute, or damage the relationship between Police and ... the community.’ They must 'exercise sound discretion and judgment at all times.’ Police employees must 'treat all people and their property with dignity and respect.’

Breaches of the Code will either amount to misconduct or serious misconduct. Misconduct includes 'treating a person harshly' and 'using abusive or offensive language.’

Serious misconduct, on the other hand, includes 'knowingly making a false declaration or Statement,’ 'being convicted of an offence which ... brings into question [the employee's] suitability for continued [police] employment' or the 'use of excessive force.’

If established, misconduct may lead to a warning or warnings and, eventually, to dismissal following a disciplinary hearing. An allegation of serious misconduct, if established following a formal disciplinary hearing, may also lead to dismissal.

What happens if your complaint goes to court?

The police will bring the case against the police officer or officers involved. You will be called to give evidence, as will any other witnesses. The police officer is theoretically in the same situation as any other person charged with an offence before the court.

If the police will not take action against the police officer on your complaint, what can you do?

If you are unhappy with the way the police handled your complaint, you could complain to the Office of the Ombudsmen. However, if you complain directly to an Ombudsmen's Office you are likely to be referred to the procedure for making complaints to the IPCA.

The Ombudsman's authority to investigate police decisions is limited to those decisions 'relating to a matter of administration' (Ombudsmen Act 1975, s 13(1)).

The Independent Police Conduct Authority (IPCA)

The IPCA arose from the recommendations of an inquiry in 2000 (headed by retired High Court judge, Sir Rodney Gallen) into the effectiveness of the former Police Complaints Authority (PCA), established in the late 1980s. The Gallen inquiry recommended that the PCA should be renamed and given its own investigative capacity and enhanced powers to make it more independent of police involvement, at least when investigating allegations of serious police misconduct.

The IPCA is a three-person body headed by a High Court judge and supported by two teams of independent investigators. The presence of a High Court judge as the chair of the IPCA is intended to emphasise the IPCA's independence.

Making a complaint to the IPCA

Complaints to the IPCA can be made orally or in writing. If you go to the IPCNs website— www.ipca.govt.nz—you can make a complaint online or download a complaints form to fill in. You can also complain by sending a letter, fax or email, or by phoning the IPCA to make an oral complaint. If you choose to phone, make it clear that you are making an oral complaint.

You can also make a complaint at a police station, courthouse or by sending it to the Ombudsmen's Office. They will forward your complaint to the IPCA.

Anonymous complaints may be made, however, they may be harder to investigate.

You can ask someone (eg, a friend or lawyer) to assist you to write your complaint. It should indicate:

• the conduct complained of (eg, when and where it happened)
• the nature of your complaint (ie, the conduct of any police officers you wish to complain about)

The IPCA will acknowledge receipt of your complaint. It will then examine your complaint and decide what action to take. The IPCA independently investigates the most serious complaints or incidents. Other complaints are referred to the police for investigation and resolution, for example, because the investigation might lead to criminal charges or because the matter can be more appropriately resolved directly with the police.

Sometimes the IPCA and the police conduct parallel investigations. The IPCA would investigate misconduct, neglect of duty or breach of practice, policy or procedure; the police would investigate criminal allegations and may also conduct an internal conduct investigation.

The IPCA can defer action, for example, while police complete a criminal or disciplinary investigation or while court proceedings are taking place.

The IPCA can also decide to take no action on a complaint, for example, if it is minor, trivial or vexatious, if the identity of the complainant is not known, if there is some other appropriate way to resolve the complaint (such as court proceedings) or if for some reason the IPCA regards action as unnecessary or inappropriate.

There is nothing to stop the IPCA from investigating a historic complaint (eg, older than 12 months). It has in fact accepted complaints relating to alleged police misconduct pre-dating the establishment of the original PCA in 1989.

How complaints are processed

If the IPCA conducts its own investigation, any police officers who are subject to the complaint are likely to be interviewed. The IPCA may also interview you and any witnesses, examine any statements made or evidence gathered by the police and gather any other evidence the IPCA needs to complete its investigation.

If a complaint is referred for police investigation, any police officers who are the subject of the complaint will be interviewed. Other police officers may be involved either in receiving the complaint or investigating it. Some complaints may be able to be dealt with by the police within the district where the complaint arose.

The IPCA cannot lay criminal charges, so if your complaint alleges that a police officer has committed an offence, the police will have to investigate.

If the IPCA refers a serious or significant complaint for police investigation, it will take steps to ensure that the complaint is handled properly. These steps include actively overseeing the police investigation, reviewing or auditing it and monitoring any court or disciplinary action that arises.

If a complainant does not want a particular officer to investigate their complaint, that should be made clear. Police investigators are required to be objective and independent. They must not investigate any matters in which they have a personal involvement of some nature.

If the IPCA refers a complaint to the police, the police investigation is usually carried out by an experienced police officer. These officers will be appointed by the Police District Commander for the area where the complaint arose.

The IPCA is required to notify the police of any complaints it receives. Similarly, the police are required to notify the Authority of any complaints they receive.

Witnesses may be asked to make statements. The IPCA has the power to order hearings where evidence can be given on oath. Any decision arrived at after investigation will be communicated to the complainant by the IPCA.

Powers of the IPCA

The IPCA can make any recommendation to the police, including that the police lay criminal charges against an officer, take disciplinary action or change practices, policies or procedures. If the police response is not satisfactory, the IPCA must inform the Minister of Police.

The IPCA does not have the power to award compensation or damages against the police.

Other ways of complaining about the police

Private criminal cases

You can bring a criminal case against the police yourself if you file an Information (obtained from the District Court) within six months of the incident occurring. You will have to pay a filing and a fixture fee.

The court can get the Information served on the police involved if you wish. You will need the names of those you want to proceed against. If you have only their identification numbers you can ask the Police District Commander to identify them.

To succeed in such a case you generally need convincing witnesses who can personally confirm what happened. You do not have to have a lawyer. You can conduct the case yourself, if you prefer. However, remember that you are likely to have costs awarded against you if you lose.

You may be able to find a lawyer who will take this sort of case for you 'on the cheap' or for free (pro bono) by contacting one of the civil liberties/human rights groups or contacting someone recommended to you who is involved in advocating for people's rights.

Civil proceedings

In certain circumstances, you can sue the police for damages. It is essential that you obtain legal advice before commencing any civil proceedings. You will need satisfactory supporting evidence. The grounds for a civil action against the police include:

• false imprisonment—this covers unlawful arrest
• trespass to property—if the police forced their way into your house without your permission or a lawful reason
• assault—if the police injured you
• breach of the New Zealand Bill of Rights Act 1990—if one of your statutory rights is breached (eg, the right to be secure against unreasonable search and seizure, s21) (See Chapter 8, The New Zealand Bill of Rights Act 1990.)

Any civil action against the police is brought by suing the Attorney-General on behalf of the police. The procedural hurdles involved are extremely complex and time-consuming. The services of a competent lawyer who specialises in this area are essential.

Complaints to members of Parliament and to the news media

In certain situations, it may well be worth complaining to your local member of Parliament or publicising your complaint through the news media. The police are naturally very sensitive to public opinion.

Complaints to civil liberties organisations

These organisations have had experience over a number of years in taking up complaints against the police. They will examine a complaint against the police and may assist in pursuing it, where there is a substantial case.

COMPLAINTS AGAINST PRIVATE SECURITY POLICE

Employees of these organisations have no powers beyond those of the ordinary citizen. They have no power to detain for questioning, no power to search and only the very limited citizen's entitlement to arrest.

The Private Investigators and Security Guards Act 1974 attempts to regulate the activities of security guards. No person can be a security guard unless they hold a licence under the Act (s 16). Any employee is required to have a Certificate of Approval from the Registrar of Private Investigators and Security Guards (s 40). Anyone wishing to complain about the activities of a security guard may do so to the Registrar (s 57). The Registrar has the power to cancel or suspend the security guard's licence, as well as to fine them up to $500 (s 57). Employees operating under Certificates of Approval may also have their authority to operate cancelled or suspended by the Registrar.

In 2008, the Ministry of Justice released a discussion paper, Regulating Private Investigators. Subsequently, the Private Security Personnel and Private Investigators Bill was introduced into Parliament on 11 September 2008. It is expected to become law, albeit in amended form, in 2010.

USEFUL CONTACT INFORMATION

Auckland Council for Civil Liberties

Private Bag 68905, Newton, Auckland

Phone: 09 376 9670

Fax: 09 376 4469

Email: cbu@xtra.co.nz

Independent Police Conduct Authority Whai Te Pono, Ma Puawai Ko Te Tika (IPCA)

Physical address: Level 8, Baldwins Centre, 342 Lambton Quay, Wellington 6011

Postal address: PO Box 5025, Lambton Quay, Wellington 6145

Freephone: 0800 503 728 or phone: 04 499 2050

Fax: 04 499 2053

Email: enquiries@ipca.govt.nz

Website: www.ipca.govt.nz

The Authority's website contains clear information on the process of making a complaint and offers various methods to do so. It is now possible to complete an online complaint form: www.ipca.govt.nz/Site/makeacomplaint/makeacomplaint.aspx

The FAQ section of the site—www.ipca.govt.nz/Site/faq/faq.aspx—is presented in

a question—answer format not dissimilar to this Handbook

New Zealand Council for Civil Liberties

c/o PO Box 24347, Manners Street, Wellington 6142

Phone: 04 499 4879

Fax: 04 499 1464

New Zealand Police Nga Pirihimana 0 Aotearoa

The main website of the New Zealand Police has a page clearly detailing the process of

making complaints against the police. There is also a page outlining your rights with the

police. These pages can be browsed in a variety of languages, but the English version

can be found at: www.police.govt.nz/service/ethnic/english/

YouthLaw Tino Rangatiratanga Taitamariki

Physical address: Level 1, 219 Federal Street, Auckland 1010

Postal address: PO Box 7657, Wellesley Street, Auckland 1141

Advice Line: 09 309 6967—if you are a child or young person, you can call this number free of charge from anywhere in New Zealand. Dial 010 and ask the operator for a collect call to 09 309 6967.

Email: info@youthlaw.co.nz

Website: www.youthlaw.co.nz

RECOMMENDED READING

Burns, 'Courage Under Fire' [2003] NZ Law Journal 434.

Conte, 'Tracking devices, search warrants and self-incrimination' [2003] NZ Law

Journal 235.

Becroft and Hall, Transport Law (2000) LexisNexis (NZ), Vol 1—loose-leaf/regularly

updated.

Brookers, Law of Transportation (1999) Brookers, Vol 1—loose-leaf/regularly up-

dated.

Law Commission, Search and Surveillance Powers (June 2007), 500 pp.

Lithgow, 'The right to be told of free legal advice' [2005] NZ Law Journal 23.

Mahoney, Reviews of developments in the law of evidence, NZ Law Review.

Optican, 'The New Exclusionary Rule: Interpretation and Application of R v Shaheed'

[2004] NZ Law Review 451.

---

'What is a "Search" under s 21 of the New Zealand Bill of Rights Act 1990? An

Analysis, Critique and Tripartite Approach’ [2001] NZ Law Review 239.

Rowan, 'The New Judges' Rules' [2007] NZ Law journal 304-05.

Young and Trendle, 'The Police’, in Tolmie and Brookbanks, eds, Criminal justice in

New Zealand (2007) LexisNexis (NZ), ch. 5.

Zindel, `Fruit of the Poisoned Tree' [2001] NZ Law Journal 134.

SCHEDULE TO THE CRIMINAL INVESTIGATIONS

(BODILY SAMPLES) ACT 1995

Relevant offences

Part 1

Offence:

Sexual violation

Attempted sexual violation

Assault with intent to commit sexual violation

Inducing sexual connection by threat

Inducing indecent act by threat

Incest

Sexual connection with dependent family member

Attempted sexual connection with dependent family member

Indecent act with dependent family member

Meeting young person under 16 following sexual grooming, etc

Sexual connection with child under 12

Attempted sexual connection with child under 12

Indecent act on child under 12

Sexual connection with young person under 16

Attempted sexual connection with young person under 16

Indecent act on young person under 16

Indecent assault

Exploitative sexual connection with person with significant impairment

Attempted exploitative sexual connection with person with significant impairment

Exploitative indecent act with person with significant impairment

Murder

Manslaughter

Attempt to murder

Wounding with intent to cause grievous bodily harm

Wounding with intent to injure

Injuring with intent to cause grievous bodily harm

Injuring with intent to injure, or with reckless disregard for the safety of others

Aggravated wounding

Aggravated injury

infecting with disease

Abduction for purposes of marriage or sexual connection

Kidnapping

Burglary

Aggravated burglary

Robbery

Aggravated robbery

Assault with intent to rob

Entering with intent

Part 2

Offence:

Hijacking

Other crimes relating to aircraft

Crimes relating to international airports

Smuggling migrants

Trafficking in people by means of coercion or deception

Compelling indecent act with animal

Sexual conduct with children and young people outside New Zealand

Counselling or attempting to procure murder

Conspiracy to murder

Using any firearm against law enforcement officer, etc

Commission of crime with firearm

Acid throwing

Poisoning with intent

Endangering transport

Abduction of young person under 16

Theft or stealing

Theft by person in special relationship

Theft of animals

Theft by spouse

Being in possession of an instrument for conversion

Being disguised or in possession of instruments for burglary

Arson

Attempted arson

Intentional damage

Being armed with intent to break or enter

Wilful damage (aggravating factors)

Wrecking

Attempting to wreck

Inducing sexual intercourse under pretence of marriage

Indecent act between woman and girl

Abduction of child under 16

Terrorist bombing

Financing of terrorism

Recruiting members of terrorist groups

Participating in terrorist groups