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How to know your rights when arrested or charged with an offence

Introduction

The NEW ZEALAND BILL OF RIGHTS ACT 1990 sets out a number of important legal rights and protections, including a person's rights if arrested (see sections 21 to 27 of the Act). These rights are outlined below.

For further information on appearing in court and applying for bail, see How to: Facing criminal changes and How to obtain bail.

Restrictions on Police powers of arrest

  • Arbitrary arrest - Everyone has the right not to be arbitrarily arrested or detained.
  • The reason for the arrest - Everyone who is arrested or who is detained under any statutory power must, at the time of the arrest or detention, be informed of the reason for it.
  • Unreasonable search and seizure - Everyone has the right to be secure against unreasonable search and seizure, whether of the person, property, correspondence or otherwise.

Your rights after the arrest is made

  • The right to a lawyer - A person who has been arrested or detained has the right to consult and instruct a lawyer without delay, and to be informed of that right. "Without delay" does not mean instantly or immediately, but means without any unreasonable delay; the point is that you must be able to exercise your right to a lawyer before your interests are jeopardised.
  • Being charged - Everyone who is arrested for an offence has the right to be charged promptly or to be released. (For information on facing criminal charges generally, see How to: Facing criminal changes.)
  • Statements to the Police - Everyone who is arrested or detained for an offence or suspected offence has the right to refrain from making any statement and to be informed of that right (see the Cautionary Notes below).
  • Habeus corpus - Everyone who is arrested or detained has the right to have the validity of the arrest or detention determined without delay by bringing a writ of habeus corpus to the court (it means "produce the body"), and to be released if the arrest or detention is not lawful.
  • Human treatment - Everyone deprived of liberty must be treated with humanity and with respect for the inherent dignity of the person.

Preparing your defence & undergoing trial

  • Adequate time to prepare - A person who has been charged has the right to adequate time and facilities to prepare a defence.
  • No undue delay - Equally, however, you have the right to be tried without undue delay.
  • Legal aid - Everyone charged with an offence has the right to receive legal assistance without cost if the interests of justice require it and the person does not have sufficient means to provide for that assistance (see How to obtain criminal legal aid).
  • Interpreters - Every person charged has the right to have the free assistance of an interpreter if he or she cannot understand or speak the language used in court.
  • A fair hearing - Every person charged has the right to a fair and public hearing by an independent and impartial court.
  • Presumption of innocence - You have the right to be presumed innocent until proven guilty.
  • Trial by jury - If the crime is of a more serious nature with a penalty of more than three months' imprisonment, you have the right to a trial by jury.
  • Confessing guilt - Every person charged has the right not to be forced to be a witness or to admit guilt.
  • Your presence at the trial - You have the right to be present at your trial and to present a defence.
  • Witnesses - You have the right to examine the prosecution's witnesses and to have your own witnesses attend and be examined under the same conditions as those for the prosecution.
  • Penalties that change before sentencing - If the penalty for the offence changes between the time you committed the offence and the time at which you are sentenced, you have the right to the benefit of the lesser penalty.
  • Appeals - If you are convicted of the offence, you have the right to appeal to a higher court against the conviction or the sentence or against both.
  • Children - Children have the right to be dealt with in a way that takes account of their age.
  • No retrospective convictions - You cannot be convicted of an offence if the act in question was not a criminal offence at the time it took place.
  • "Double jeopardy" - You cannot be tried or punished for an offence if you have already been acquitted or convicted of the offence or if you have been pardoned for it.

What if my rights are breached?

If the Police breach any of these rights contained in the Bill of Rights, there are a number of potential consequences. One is that any evidence they obtain can be excluded. Another consequence is that they may be ordered to pay money to you to compensate you for the breach of your rights. It is important that you obtain the advice of a lawyer to see if these options may apply in your case.

Cautionary notes
  • If you are arrested you should contact a lawyer before you make any statement to the Police. Your lawyer should be present while the Police question you.
  • If you make a statement, the Police can use it in evidence against you.

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