New Zealand Law/Criminal/BORA

BORA is short for the Bill Of Rights Act 1990.

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)

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.