FAQ

You should contact me as soon as you think you are in trouble. If the police or some other law enforcement officer has come looking for you, call me. I can arrange to meet with the police and help you through the interview stage. Being prepared and getting effective legal advice at the start can have a huge impact later on.

If you have been arrested you are entitled to call a lawyer. Don’t answer any questions until you speak to me or my staff. Effective legal advice could stop you from saying you regret for a very long time.

If you already been charged and have to go to Court, call me. My staff and I are in Court every day, we can assist you with your hearing.

If you have a lawyer already but want a second opinion or change of approach. You are entitled to choose who you like to represent you.

The sooner you get effective legal help, the sooner you start building your defence case.

If you are arrested you have the right to remain silent. You also have the right to contact a lawyer. If you are offered these rights you should take them. I see many people who think that they can explain their way out of trouble, not knowing what evidence the police have against them.

It is much better to remain silent at the police station until you have spoken to a lawyer. Even if you refuse to answer questions the police officer may still try to encourage you to answer questions. In my experience it is very rare that someone who has been arrested can persuade the police officer that arrested him or herself that its all a big mistake and they should be un-arrested.

When arrested, the police are entitled to:

take your finger-print and palm-prints;
take a photograph of you;

You must provide the police with your full name, address and date of birth if asked.

It is best to check with the local Police Stations. Phone them and ask to speak to the watch house staff.

You can call the Manukau Police Station on 09 261 1300 or the Auckland Central Police Station on 09 302 6400.

A lawyer can arrange with the investigating officer for an arrested person, charged with any offence such as those listed below, to be released on bail by the police at any time before his or her first appearance in court.
Police can set bail for most crimes such as:
Common assault
Theft (such as shoplifting)
Possession of cannabis
Drunken driving
Reckless or dangerous driving.

In some situations where the charge faced is very serious police bail is not possible.

In these situations you will be taken to the district court and be seen by the judge.

One option is to conduct your own defence.

I don’t recommend this. A person not legally trained will not know how criminal procedure works. They will not know, for example, how to cross-examine, object to inadmissible evidence or how to present their own evidence.

If you can’t afford the services of a lawyer, you can apply for legal aid. Legal aid is operated by the Ministry of Justice and can assist in meeting the cost of a lawyer. In some cases legal aid will fund the entire defence case, in others you will be required to repay some or all of the cost of the case.

Applications for legal aid are made by completing a legal aid application form and submitting it to the Ministry of Justice. Applications are considered primarily based upon a person’s income and whether they can afford to defend their own case. Other factors include things like the seriousness of the charge (legal aid will not be granted for some minor charges).

I have flexible payment terms and delegate work between my staff to minimise costs for my client. If you are not eligible for legal aid because of your income we may be able to reach a fees agreement.

My fees are explained in a transparent manner that makes sure you know what to expect as your case proceeds.

Much of my work is charged based upon a fixed fee model where I will tell you the cost for me to deal with your case in a specific way. If things change, for example more charges are laid or there are additional appearances required my fee may need to be modified.

I enter into written fee agreements with my clients and their funds are held in my instructing solicitors trust account until the work has been completed.

Fees are very much dependent on what kind of case I am dealing with, how much time will be involved, the level of skill required and the Court in which the case is being held.

I regularly appear in Courts outside of Auckland where arrangements have been made to meet travel and associated costs.

Check points are generally established to detect offences pursuant to the Land Transport Act. In particular Drink Driving or Driving Whilst Disqualified.

If you are the driver of a motor vehicle, then you must;

-stop if requested,
-Provide the police officer with your details if requested. (Name, address and date of birth).
-Blow into the device and provide a sample of your breath if requested.

There is no device available in New Zealand to detect driving under the influence of drugs. You may be asked to participate in an impairment test where a trained police officer will ask you to perform different tasks to establish whether you are high/ impaired. If the officer determines that you have failed the test he or she will call a doctor who will then come to take a blood sample from you to determine whether there are any drugs in your system. If you decline a blood test at this stage in proceedings you will be charged with Refusing to provide a sample.

In limited situations the police can search you or your vehicle without warrant.

These situations may include police searching for drugs or stolen property. The police however need reasonable grounds.
Eg. The vehicle may smell of cannabis or the driver looks rather wasted.

Do not consent to any search. Advise the police officer “I do not consent to this search” Ask the police officer “What is your lawful basis for searching me” and ensure that the police officer records it in his notebook. You should not resist the search as this will likely result in charges being laid.

I have also encountered police checking a vehicle to see if it is road worthy, this testing has included checking the spare tyre in the boot and testing the seat belts. These tests of course give the police wide access to the vehicle and could result in items being found that lead to criminal charges.

At the roadside the police will usually ask you to blow into an initial breath test device (sometimes called a sniffer). This device gives a rough detection as to whether you have been drinking alcohol or not.

If the device indicates that you have, you will likely be asked to provide an evidential breath test. This could be on a booze-bus if you are stopped at a police checkpoint or it could be back at a police station.

If an officer requests, you are legally required to accompany that officer to the police station or booze-bus for the purpose of the test. It is an offence not to accompany the officer.

You are not legally obliged to provide a breath sample (but it is advisable that you do). If you do not provide a breath sample the police officer will tell you that he or she now requires you to provide an evidential blood sample. The police will contact an on-call doctor or nurse who will come to take a blood sample from you. If you do not provide a blood sample you will be charged with Refusing to Provide a Blood Sample. This is a more serious offence and carries a mandatory loss of licence.

The Police enjoy wide ranging search powers provided under the Search and Surveillance Act.

While a search warrant is usually required warrantless searches can be conducted for a number of reasons including where police have reason to believe that you are in possession of illicit drugs, unlawfully in possession of a weapon, firearm or ammunition.

If you are subject to a search, with or without warrant the police are required to tell you your rights. Those rights include the right to speak to a lawyer. My strong advice is that you call me as soon as you are told you are being subjected to a search. Make no statement and answer no questions, other than confirming your identity until you have received legal advice.

Search warrants give the police (or sometimes other law enforcement officers like Customs Officers) the power to enter into a property to search for items listed in the warrant.

A search warrant is a document that gives a law enforcement officer a lawful power to enter a property and to search. Search warrants are issued under the Search and Surveillance Act 2012.

The warrant will describe the property that is to be searched and what the officers are searching for.

If there is a warrant to search a house the search power will extend to searching everyone who is on the property, this includes people who arrive at the property while the search is taking place. If there are vehicles parked on the property (for example on the driveway) these can also be searched.

After executing the search warrant an officer must provide a copy of the warrant document and a list of all items seized as a result of the search.

If the warrant was not properly obtained or if the police do not follow the conditions of the warrant the search could be unlawful. This can be a reason to exclude evidence at trial.

A police officer, who may lawfully search any person or any premises, may use force as may be reasonably necessary to overcome any resistance, provided that he must first audibly demand entry to the premises and declare the purpose for which he seeks to enter such premises.

The force that may be used includes the breaking of any door or window of such premises.

The police officer does not have to first demand entry and give the reason therefore if he reasonably believes that an article which is the subject of the search may be destroyed or disposed of if he complies with those requirements.

A police officer must perform his or her duty in a manner that is reasonable in the circumstances.

Where the police officer is authorised by law to use force, he or she may use only the minimum force that is reasonable in the circumstances.

The mere fact that a person’s rights were not brought to his attention, does not automatically result in the dismissal of the charges. If the fact that an accused does not know his rights renders his trial unfair or negatively impacts on the administration of justice, he can be acquitted at trial.
Here follows some examples where courts have ruled a trial to be unfair:
Where a suspect was not informed of his right to remain silent and not to incriminate himself, and he points out to the police where he hid stolen goods, he may be acquitted at trial because he has a right not to incriminate himself.

Where an accused was not informed of his right to legal representation and right to apply for legal aid, and was subsequently convicted after conducting his own defence

Theft

A person commits theft if he unlawfully and intentionally takes property from the owner or lawful possessor with the intention to permanently deprive that person of his rights thereto.
Examples:
X walks into his neighbour’s garden and, without his permission, takes the neighbour’s lawnmower with the intention of never returning it. (If his intention was to return the lawnmower at some stage, it is not theft.)

X enters a shop, puts a chocolate in his pocket and walks out without paying.

Robbery

Robbery consists of theft of property by intentionally using violence or threats of violence to force the owner or lawful possessor into submission. Robbery is sometimes referred to as “theft by violence”

Examples:
X approaches someone on the street, threatens the person with a firearm or physically assaults him to make him hand over his valuables, and runs off with his wallet.

Aggravated Robbery.

Robbery becomes Aggravated Robbery if the offending is committed with two or more people, of if there is only one offender, being armed with a weapon.

Fraud

Fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial to another.
When an accused makes a representation about the existence of a fact, which in reality does not exist, and thereby causes or could potentially cause the person to act in a way that is prejudicial to himself, fraud has been committed.

The misrepresentation can be a positive act or an omission. It is very important that the fact or facts on which the misrepresentation is based, must be ascertainable at the moment when the representation is made.

Examples
X completes and signs another person’s cheque without his permission, and presents it for payment.

X buys clothing on credit, but never intends to repay the account. Where a person buys on credit, he makes an implied representation that he is willing to pay, that he intends to pay in the future and that he will have enough money to

Any person who is arrested with or without warrant for allegedly committing an offence, or for any other reason, must as soon as possible be brought to a police station and released on police bail, as soon thereafter as reasonably possible, he must be informed of his right to apply for bail.

If police bail is not possible, then, the arrested person must be brought before the district court within 48 hours after arrest.

If the period of 48 hours expires outside ordinary court hours or on a day the court does not sit, the arrested person must be brought before the district court not later than the end of the next court day.
Although an arrested person may not be detained for more than forty-eight hours, the police are not obliged to detain him for the full 48 hours.
A detainee is entitled to, even before the expiration of the 48 hour period, arrange a first court appearance in order to bring a bail application.
The police, being part of the state machinery, are obliged to assist in making it possible for a court to hear such an application

The criminal procedure is a body of rules and prescribed procedures which governs the enforcement of the country’s laws in prosecuting criminals in criminal courts. It regulates, amongst other things, arrest, bail, the trial, sentencing and procedures of appeal.
Criminal Procedure in New Zealand law is largely contained in the Criminal Procedure Act .

The Bill of Rights Act is also an important source of criminal procedure, and entrenches every accused person’s right to a fair trial.

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The Criminal Records (Clean Slate) Act came into force on the ( insert date here).

The legislation allows for certain convictions to be removed from your record after a period of 7 years. They will still be use for any further court apperances.

This is a complex area of law as you can see from the chart above.

In the first instances an application to the district court needs to be made. This can be done by
e mail. The ministry will send you a copy of yoyr previous convictions pursuant to the Clean Slate Act. If there are convictions listed that you think should not be there, then call us.

Anyone who has been convicted of a crime has a right to appeal to a higher Court.

You usually have 28 days from the date that sentence is passed to file your notice of appeal. This time frame can be extended and frequently is.

If you would like advice about appealing your sentence or conviction please contact me.