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Criminal & traffic law

Shoplifting

The shop’s powers and your rights

Shop staff have no right to search your bag, even if they have a sign by the entrance or inside the store that says they can do this. If they ask to search your bag you can refuse. If they then use force to search your bag, they may be committing a criminal assault, and you may also have a civil claim against them for damages (compensation).

However, shops can require you to leave your bag outside the store before you come in. They can also require you to leave the shop if you’re inside.

Trespass Act 1980, s 3

Even if shop staff or security guards carry out a lawful “citizen’s arrest” for shoplifting and forcibly keep you in the shop until police arrive (see below), they still have no right to search you or your bag.

Can a store stop me from leaving if they think I’ve been shoplifting?

Not usually. Shop staff or security guards can forcibly prevent you leaving the shop only in two kinds of situations:

Crimes Act 1961, ss 35, 37, 39, 219, 223

  • expensive items – if the things they suspect you of stealing are worth $1,000 or more (a higher-end laptop for example), or
  • night time – if it’s between 9.00 pm and 6.00 am (when you’re in an all-night service station for example).

They also need to have “reasonable and probable grounds” for believing that you’ve stolen the items. A vague suspicion won’t be enough.

In these cases, the shop staff or guard would be carrying out what’s sometimes called a “citizen’s arrest”, and they can use reasonable force to hold you. However, they still don’t have the right to search you or your bag without your consent.

If neither of those situations justifying a citizen’s arrest apply, the shop can ask you to remain but you don’t have to do so – you can simply walk away. The shop can then call the police if they choose to. If you do agree to staying or going back to the shop, you can change your mind at any time. You also don’t have to give them any information.

If the shop staff or security guards forcibly hold you when they’re not entitled to – for example, by locking you in a room – they may have committed a criminal assault. You may also have a civil claim against them for damages for false imprisonment or civil assault or both.

Can the shop make me pay them a fee or fine on top of the cost of the goods?

Some stores send out “civil recovery notices” to shoplifters, saying they have to pay a flat fee within a set time – for example, a fee of $275 to be paid within 21 days. It’s doubtful whether these notices are legally enforceable in themselves, and you can refuse to pay them.

You don’t have any legal responsibility to pay the amount stated in the notice unless and until the store proves a civil claim against you for that amount in the Disputes Tribunal or the District Court. To do that they would need to show that in your particular case you caused the specific loss they’re claiming, as opposed to simply claiming a “blanket” fee from all shoplifters.

If a store does obtain a decision in their favour from the Tribunal or the courts, they can then use the available measures to enforce the decision – such as getting a warrant from the court for your property to be seized so they can recover the amount of their claim.

Can a shop give me a trespass notice to prevent me entering?

Trespass Act 1980, ss 3, 4, 11

Yes. A shop is private property and the owner or manager can refuse to allow you to enter or can ask you to leave once you’re inside, so long as they don’t breach the anti-discrimination laws in doing this (see the chapter “Discrimination”). If you stay in the shop after you’ve been told to leave, you’re committing the criminal offence of trespass.

While you’re in the shop or after you’ve left, the shop can warn you to stay out of the shop, if they have good reason to think you’re likely to come back. The warning doesn’t have to be in writing. If you then go back into the shop within the next two years after the warning, this is a criminal offence. When the shop gives you a trespass warning, people sometimes call this “trespassing” you.

The courts can also give you a warning to stay out of the shop if you’re convicted of trespassing, and the same two-year ban will apply.

If you commit any of those trespass offences, you can be fined up to $1,000 or jailed for up to three months.

Note: If you go back into the shop after getting a trespass warning and you shoplift again, you could also be charged with “burglary”, rather than just being charged with trespass and theft. This is because you no longer have a legal right to enter the shop (unlike other members of the public).

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Common crimes

Where to go for more support

Community Law

www.communitylaw.org.nz

Your local Community Law Centre can provide free initial legal advice and information.

Ministry of Justice

www.justice.govt.nz/publications

The Ministry of Justice website has a range of pamphlets and other information on the criminal court system. You can access this information online, or you can order hardcopies of the pamphlets from:

Phone: 0800 587 847
Email: publications@justice.govt.nz

Drug Foundation

www.drugfoundation.org.nz

The New Zealand Drug Foundation has a large amount of information about different drugs and their effects, and about criminal offences and penalties. They also provide drug checking services.

KnowYourStuffNZ

www.knowyourstuff.nz

KnowYourStuffNZ provides free information, advice, and drug checking services using a range of testing methods at events around New Zealand.

The New Zealand Needle Exchange Programme

www.nznep.org.nz

The Needle Exchange Programme provides and collects needles for safe disposal, advice on harm reduction, and is licensed to provide drug checking services.

The Level

www.thelevel.org.nz

The Level provides free guides for people who use drugs. Click on “I’m looking for drug checking” on their website for a calendar of non-festival drug checking clinics in Aotearoa.

Ministry of Health

www.health.govt.nz

The Ministry of Health has information about the legal use of cannabis products for medical reasons, and which particular products have been approved. Look under “Our work / Regulation / Medicines control / Prescribing cannabis-based products”.

Ministry of Primary Industries

www.mpi.govt.nz/travel-and-recreation/fishing

The MPI website has information about recreational fishing rules and customary gathering rights.

The MPI also runs an automated information line that you can text to find out about minimum sizes and daily catch limits for particular species. Just text the name of the species in your message – just “paua” for example (it doesn’t work if you spell it “pāua”) – and send it to 9889.

How to find the cases we’ve cited in this chapter

This chapter cites a number of New Zealand court decisions as legal authority for the law as we’ve stated it. If you need to look up these cases, you can look at the references for each section and search for them either online or in a law library.

When we give the case citation, we give just the unique case reference – for example, “[2012] NZHC 15”. We haven’t included the case name (which is usually in a format like “Police v Douglas” or “R v Myers”).

You’ll be able to read most of these cases on the government website Judicial Decisions Online, at forms.justice.govt.nz/jdo/Search.jsp. The case will be on that site if the citation we’ve given includes either “NZHC” (for High Court), or “NZCA” (for Court of Appeal), or “NZSC” (for Supreme Court). You’ll need to search for the case on that site by inserting the citation (for example, “[2015] NZSC 135”) in the “Neutral Citation” search field.

Cases that have “NZLR” in the citation (for “New Zealand Law Reports”) usually won’t be available online, but they are available in hard copy in some larger city public libraries, published in orange-brown volumes. For the occasional case that we’ve cited from other report series (like CRNZ, for “Criminal Reports of New Zealand”), you’d need to go to a specialist law library at a university or local Law.

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