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.

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 – The police 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 about the Police Detention Legal Assistance scheme, which allows you to talk to a lawyer for free (usually over the phone).
• 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.

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.

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.

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.
• 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.

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 and address. 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.

Mitchell v Police HC WGTN AP244/95, 22 November 1995; [2022] NZDC 10954

If you don’t have an address (for example, if you’re currently homeless) you should tell the police. You shouldn’t just give them a different address, like your parents’ or friend’s address, as this could be seen as giving them false or misleading information and could be a criminal offence.

You shouldn’t be prosecuted for not giving the police an address if you don’t have one.

Oranga Tamariki Act 1989, ss 215–219

If you’re under 18, 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).

To read more about police questioning of people under 18, go to the YouthLaw website, here (or go to: www.youthlaw.co.nz and search “Questioning and searches”).