Danielle Beston talks about your rights after an arrest.

Last month, I summarised some of the legal rights and protections enshrined in the New Zealand Bill of Rights Act 1990. These primarily related to the early stages of an encounter with the police before being charged. Of course, you also have rights once you have been charged, and they continue as you prepare your defence. If your rights are breached, there are remedies you can pursue, but these are dependent on the nature of the breach.

Rights after arrest

Everyone arrested for an offence has the right to be charged promptly or released. If there is a question about the validity of the arrest or detention, everyone has the right to have this determined without delay by bringing a writ of habeas corpus to the court and to be released if the arrest or detention is not lawful. If you have been charged, the police must promptly inform you in detail of the nature and cause of the charge.

Appearing in court

If you do not have a lawyer at your first appearance, you can speak to one of the duty lawyers at court for some free preliminary advice. Duty lawyers are generally not available for a defended hearing or sentencing, so unless you want to represent yourself, it is a good idea to apply to have a legal aid lawyer assigned to you before your next appearance if you can’t afford to instruct private counsel.

Bail

Once you have been brought to court, you have the right to be bailed on reasonable terms and conditions unless there is just cause for continued detention until your next court date. You may be required to sign a bail bond with conditions, and if you breach the terms of your bail, you can be arrested without a warrant and brought before the court to determine whether you should be re-admitted to bail.

When considering whether a bail condition should be imposed, the starting point is section 8(1) of the Bail Act 2000, which requires that the condition must be reasonably necessary to ensure that the defendant appears in court, does not interfere with any witness or evidence and does not commit any offences while on bail. There must be a rational link between the condition and the reason for its imposition. For example, a bail condition “not to consume alcohol” would not be appropriate if there was no evidence alcohol was being consumed by the alleged offender at the time of the incident.

Preparing your defence

A person who has been charged has the right to adequate time and facilities to prepare a defence. This includes the right to see all the evidence the police have against you. It is a good idea to formally request full disclosure because if you don’t, it may be assumed that you only want to see the summary of facts and your list of previous convictions (if any), which is called initial disclosure.

Equally, you have the right to be tried without undue delay, be present at your trial and offer a defence. That means that you have the right to examine witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution. You also have the right to a fair and public hearing by an independent and impartial court, and you are presumed to be innocent until proven guilty. These rights are fundamental to criminal procedure because they recognise the equal dignity and worth of all persons.

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, and you do not have to give evidence at your own hearing. 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 a lesser penalty. You cannot be convicted of an offence if the act in question was not a criminal offence at the time it took place, and 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.

Appeals

If you are convicted of an offence, you have the right to appeal to a higher court against the conviction, the sentence or against both. Before doing so, it would be wise to obtain documents relevant to the appeal, such as the judge’s notes of evidence, to seek advice from a lawyer about whether there are legitimate grounds for an appeal. While an oral hearing of an appeal is the norm, the Court of Appeal can dispense with such a hearing and decide a case on the papers alone. However, in making such a decision, the court must conclude that the appeal “can be fairly dealt with on the papers” and “either has no realistic possibility of success or clearly should be allowed”.

Remedies for breaches

If the police breach any of the rights contained in the act, there are several potential consequences. One is that any evidence obtained 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.

Next month, I will be changing direction to focus on police powers that can be exercised in relation to heavy-transport drivers and operators.