Communtity Law Manual | Police powers | Being questioned by the police

Being questioned by the police

Overview

Are the police allowed to ask me questions?

High Court Practice Note [2007] 3 NZLR 297,

If you encounter the police when, for example, you’re just walking down the street, they’re allowed to ask you questions if they think you might have useful information about a crime they’re investigating.

But the police aren’t allowed to tell you, or suggest to you, that you have to answer the questions.

What are my rights when the police are holding me and questioning me?

High Court Practice Note [2007] 3 NZLR 297,

If the police are holding you (whether or not you’re under arrest) and they want to question you, they first have to tell you these basic rights:

  • You can keep quiet! – The police have to tell you that you don’t have to answer any of their questions or say anything at all. You can just stay silent.
  • You can talk to a lawyer – They have to tell you that you’ve got the right to talk to a lawyer, in private, and without any unreasonable delay, before you decide whether or not to answer the police’s questions. They also have to tell you that you can talk to a lawyer for free under the Police Detention Legal Assistance scheme (see the chapter “Legal aid”)
  • What you say can be used against you – The police have to tell you that anything you say to them will be recorded and can be given as evidence in court later on.
Talk to a lawyer before answering questions!

Although it’s up to you, it’s almost always best not to say anything to the police before you’ve had the chance to talk to a lawyer.

You can talk to one of the free lawyers available (usually by phone) under the Police Detention Legal Assistance scheme – these are all experienced criminal lawyers, and they can give you good advice about your rights and about dealing with the police (see the “Legal Aid” chapter for more details).

Rules for how the police behave when they’re questioning you

High Court Practice Note [2007] 3 NZLR 297, cl 3; Evidence Act 2006, s 4 (definition of “leading question”)

If the police are holding you and are asking you questions, there are some rules about how pushy and challenging they’re allowed to be.

They’re not supposed to question you like a prosecution lawyer does when cross-examining you in court. In general a cross-examination will be where they’re trying to attack or break down your version of events, asking you “leading” questions, and insisting to you that you’re lying to them.

Leading questions are ones that suggest, directly or indirectly, a particular answer to the question – like “You stole it, didn’t you?”. By contrast, a question put in a neutral way – “Did you steal it?” – isn’t a leading question and would be OK.

Also, if the police ask you about things other people have said or about other evidence they have, they have to give you a fair explanation of what was said or what the other evidence is. In other words, they can’t lie about other statements or evidence that they might have, as a way of pressuring you to admit a crime. For example, they can’t say that another person has said they saw you committing a crime when this isn’t true.

Note: All those rules explained above also protect you whenever the police have obtained enough evidence to charge you with a crime, even if you’re not under arrest and the police aren’t holding you.

What if the police break the rules about questioning people that they’re holding?

Evidence Act 2006, s 30(6); High Court Practice Note [2007] 3 NZLR 297

If the police don’t tell you your rights and follow all those rules explained above, and you do answer their questions, a judge in court later on might prevent the police using your answers as evidence against you, on the grounds that the police obtained this evidence unfairly – as in the example below.

Example: Drink-driving charge dismissed – defendant didn’t have proper chance to talk to a lawyer

Case: [2017] NZDC 7387

In April 2017, a judge in Christchurch dismissed an excess breath-alcohol charge against a driver because the police hadn’t made sure the driver had had a reasonable opportunity to talk to a lawyer at all of the key stages of the testing process.

The driver had just failed a breath screening test, and so the police then ordered him to go with them for an evidential breath test (evidential breath tests give more accurate results that can be used in court – see the chapter “Driving and traffic”, under “Drink/drug driving”). This meant that he was now being “detained” (held) by the police, and this triggered his rights under the Bill of Rights Act, including the right to talk to a lawyer.

The problem with the police case was that although they had made reasonable attempts to contact a lawyer at one stage of the alcohol testing process, they hadn’t done this again later on at another important stage.

Initially, when the police had told the defendant he legally had to go with them for an evidential breath test, they did what they were supposed to do – they told him his rights, including the right to talk to a lawyer, and they made reasonable attempts to get hold of a free lawyer under the Police Detention Legal Assistance (PDLA) scheme (see the chapter “Legal Aid” for information about the PDLA scheme).

You must be given “every reasonable opportunity” to talk to a lawyer

One factor in this case was that the PDLA scheme didn’t seem to be working effectively in Christchurch. At this initial stage the police had tried, unsuccessfully, to contact eight different lawyers from the PDLA list (from the case report, it looks like this was probably all happening in the very early hours of a Sunday morning). But after the driver had failed the evidential breath test, he then had the right to choose whether to have a blood test – at this point, the police again told him his rights and asked him if he wanted to speak to a lawyer. He told them he did want to speak to a lawyer, and so at this point, the judge said, the police should have tried to contact one other lawyer on the PDLA list.

The judge said the law requires that “every reasonable opportunity to get advice [from a lawyer] must be given and enforcement authorities must do what is reasonable in the circumstances to facilitate the right”. Here, the decision whether or not to have a blood test is an important one, and the police should have gone one step further than they did.

The outcome was that the police weren’t allowed to use the failed result from the evidential breath test as evidence in the case – and since they no longer had any evidence, the judge dismissed the case.

Problems with the free PDLA legal advice scheme

The judge said he was concerned about the fact that eight of the lawyers on the PDLA list couldn’t be contacted, and he sent a copy of his decision to the Canterbury Law Society so that they could take some action about this.

The news media later reported that the Canterbury Law Society (the local lawyers’ association) had contacted all the lawyers on the local PDLA list about this problem. The Law Society told them that once they’ve volunteered to go on the list, they have to make themselves available – they can’t just turn their phones off in the middle of the night.

The Law Society said this was a problem outside Canterbury as well. This news article said that, according to lawyers, the PDLA scheme is “under-funded and under-resourced nationwide”.

What information do I have to give the police if I’m not under arrest?

With a few exceptions, the police have no power to make you give them information when you’re not under arrest – for example, if they just see you walking in the street late at night. They don’t even have the power to get you to tell them your name and address and other personal details.

Land Transport Act 1998, ss 113, 114; Sale and Supply of Alcohol Act 2012, s 269

In some situations, however, the police have specific legal powers to require people to give them particular information. These are two common situations when they can do this:

  • Driving – If you’re driving, the police can stop you and ask you for your name, address and date of birth, and the name of the vehicle’s owner if it’s not yours (see the chapter “Driving and traffic law”).
  • Alcohol offences – If the police suspect you of committing an offence against the sale of alcohol laws, they can require you to give them for your name, address and date of birth.

If you don’t give the police the information they require in these situations, they can arrest you.

Note: Although you usually don’t have to give the police any information when they stop you and ask you questions, telling them what they want to know might sometimes be the easiest and fastest way to resolve a problem.

What information do I have to give the police if they’ve arrested me?

Policing Act 2008, s 32; New Zealand Bill of Rights Act 1990, s 23

If you’ve been arrested and are in police custody you have to give the police your name, age, date of birth, address and occupation. You also have to let them photograph you and take your fingerprints.

You don’t have to give the police any information other than those identifying details.

Police questioning of children and young people

Children, Young Persons, and Their Families Act 1989, ss 215-219

If you’re under 17, the police have to follow some special rules when they question you:

  • They have to explain your rights to you.
  • The way they do this and the language they use must be appropriate to your age and level of understanding.
  • When the police are taking a statement from you, you have to have a lawyer there, or an adult who you’ve chosen to be there, called your “nominated adult” (you can have both a lawyer and your nominated adult).
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