New Zealand Law/Criminal/BORA

BORA is short for the Bill Of Rights Act 1990.

Rights

s21

against unreasonable search and seizure

s22

right against arbitrary arrest and detention

s23

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

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

• 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

• not to be liable for act that was not offence at time

• double jeopardy

s27

• natural justice

• judicial review

s28

• Note: rights are not abrogated or restricted because not enumerated

s29

• BORA applies to legal as well as natural persons (where possible)

Cases

R v Shaheed

• Facts

1. First, D not told entitled to consult lawyer.
2. Second told (incorrectly) that if he refused to give a blood sample, a court order would be obtained for one.
3. The blood sample matched an open rape case (ie not the one for which he had been arrested).
4. Court order then obtained.

• Held

1. There is a balancing act between a breach of BORA and exclusion of evidence.
2. There was a direct connection between the breach and the sample. The evidence would not have been obtained but for the unlawfully obtained sample.
3. Sample therefore excluded.

R v Mallinson

• Facts

1. Mallinson arrested but not informed of right to lawyer.
2. An hour later, interviewed and given standard caution.

• Held

1. No particular form of caution is needed.
2. Proof that police advised should usually be taken that suspect understood.

Martin v Tauranga District Court

• 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.