New Zealand Law/Criminal/BORA
< New Zealand Law | Criminal
BORA is short for the Bill Of Rights Act 1990.
Rights[edit | edit source]
s21[edit | edit source]
against unreasonable search and seizure
s22[edit | edit source]
right against arbitrary arrest and detention
s23[edit | edit source]
when arrested, to:
- • be informed of reason for arrest/detention at time
- • lawyer with delay
- • be informed of right to lawyer
- • habeas corpus
- • be charged promptly or released
- • be brought before court asap
- • refrain from making statement
- • be informed of right to silence
- • be treated with humanity
- • be treated with respect for dignity
s24[edit | edit source]
when charged, to:
- • be informed of nature and cause
- • release on reasonable terms unless cause
- • right to lawyer
- • adequate time and facilities to prepare defence
- • benefit of trial by jury for 3 mths+ except military
- • legal assistance without cost if i.o.j and insufficient means
- • free interpreter
s25[edit | edit source]
- • fair and public hearing
- • independent and impartial court
- • trial without delay
- • to be presumed innocent
- • not to be compelled to be witness or confess guilt
- • to be present
- • to present defence
- • to examine witness
- • to obtain attendance of witnesses
- • if penalty changs btwn commission and sentencing, to the benefit of the lesser penalty
s26[edit | edit source]
- • not to be liable for act that was not offence at time
- • double jeopardy
s27[edit | edit source]
- • natural justice
- • judicial review
s28[edit | edit source]
• Note: rights are not abrogated or restricted because not enumerated
s29[edit | edit source]
• BORA applies to legal as well as natural persons (where possible)
Cases[edit | edit source]
R v Shaheed[edit | edit source]
- Facts
- First, D not told entitled to consult lawyer.
- Second told (incorrectly) that if he refused to give a blood sample, a court order would be obtained for one.
- The blood sample matched an open rape case (ie not the one for which he had been arrested).
- Court order then obtained.
- Held
- There is a balancing act between a breach of BORA and exclusion of evidence.
- There was a direct connection between the breach and the sample. The evidence would not have been obtained but for the unlawfully obtained sample.
- Sample therefore excluded.
R v Mallinson[edit | edit source]
- Facts
- Mallinson arrested but not informed of right to lawyer.
- An hour later, interviewed and given standard caution.
- Held
- No particular form of caution is needed.
- Proof that police advised should usually be taken that suspect understood.
Martin v Tauranga District Court[edit | edit source]
- Facts
- Through unilateral and unjustified actions of the Crown prosecutor, the trial date was vacated without substitute, resulting in 17 month delay.
- Held
- Undue delay – stay of proceedings granted.