Is detaining burglars kidnapping?
May 10th, 2011 at 9:00 am by David FarrarStuff reports:
A North Canterbury businessman is fighting charges of kidnapping and assault after tackling two alleged burglars at his Kaiapoi premises.
Clemence Drilling owner Dave Clemence was arrested after the April 8 incident, during which he and several employees tackled two men believed to have stolen diesel from the Smith St site.
Clemence declined to comment yesterday, saying he did not want to “pervert the course of justice”.
However, he told the Northern Outlook newspaper last month he could not understand why he had been charged.
He said he took the men to the Kaiapoi police station on April 8 and did not know how the pair had been injured.
“It’s unbelievable. Kidnapping? We dropped them off to the police,” Clemence said.
If the alleged burglars were assaulted (beyond restraint) then I can understand charges being laid. But the kidnapping charge seems bizarre.
Detective Sergeant Rex Barnett said the two men told police they had been kidnapped and assaulted by Clemence, the paper reported.
Police considered the injuries to be serious and “consistent with the claims of assault”, he said.
The men required treatment at hospital.
Yesterday, Barnett said a kidnapping charge could include “just detaining someone”.
But if you have caught them in the middle of a burglary, then surely it is legal detention? Otherwise a store security officer who detains a shoplifter would also be a kidnapper.
UPDATE: This is only second hand, but have heard a whisper that the “burglars” may have been out into a car boot. If that is the case, then that could explain why the Police laid kidnapping charges. Also I understand that the injuries the “burglars” had were reasonably severe. It will be interesting to see the evidence when it gets to court.
UPDATE2: I’ve also now heard suggestions that the gap between detaining the “burglars” and handing them over to the Police might be measured in hours, not minutes. I don’t know the facts, but if there was indeed a gap of hours, then the Police actions seem much more reasonable.
May 10th, 2011 at 9:03 am
Typical of NZ justice where the criminals are treated better than the victims.
Vote:May 10th, 2011 at 9:14 am
Possibly the Police are doing him a favor, I can’t see any jury convicting the guy on kidnapping charges.
Vote:May 10th, 2011 at 9:23 am
Yea
Vote:But in the mean time he goes broke with 6 figure legal bills.
Cheaper to just leave everything unlocked and tell the crims to help themselves.
May 10th, 2011 at 9:26 am
I believe the colloquial term for what Clemence has done is complete a citizen’s arrest.
If memory serves me correctly, I seem to recall from crime lectures at Law School that there is no such legal thing as a citizen’s arrest unless undertaken at the behest of and to assist the Police.
I think it might be more appropriate to term what Clemence has done as false imprisonment rather than kidnapping.
Vote:May 10th, 2011 at 9:28 am
Once again the New Zealand police prove they don’t like competition. We’ve come a long way from Sir Robert Peel.
Vote:May 10th, 2011 at 9:31 am
The law is very clear, if you believe a person has commited an offence for which they could be jailed for a specified period of time (it actually depends on the offence and time of day with noght offences being of a lower period of jail time) then you have the right to areest and detain them.
“believed to have stolen diesel from the Smith St site.”
Bing there you go. they had cause to beleive that an offence had been committed and that they were acting lawfully. When you have arrested someone in these circumstances they have the right to be be dealt with by a legally appointed officer of the law without delay.
They were taken to the police station. Whats the freaken problem?
I am of course shocked that two potential theives might not be entirely honest about what happened, but who the hell kidnaps and beats up people then drops them off at the cop shop?
I’d sugest the problem is one of the police being pissy about other people doing their jobs for them and one they like to tell people they are not entitled to do. In fact we are entitled to do this and if the police are either unwilling or unable to do it for us then we have a duty to do it.
If the police are going to make up bullshit charges to prosecute people acting lawfull then what is the motivation to hand over people so arrested? Coreect there is none.
Vwery short sighted attitude from the police. These guys should be getting praise and an award, not this crap.
Vote:May 10th, 2011 at 9:32 am
Sounds like a job for Detective Constable Govers. Better ship him down there ASAP.
Vote:May 10th, 2011 at 9:33 am
If the men were detained on his (enclosed) premises ‘without lawful excuse’ where is the problem?
Vote:May 10th, 2011 at 9:34 am
smttc you are incorect, everyone has the right to detain and hold anothe rperson if they beleive an offence ahs been comitted as I outlined. It is these laws which are employed by security officers and shop staff as they otherwise have no special powers.
Vote:May 10th, 2011 at 9:34 am
Citizen’s arrest should cover if if it was a burglary. I assume from the story that it was not by night. Citizen’s arrest is keyed by the seriousness of the offence. It is for that reason that a store detective has not powers of citizen’s arrest and detention of a shoplifter although most shoplifters consent to being held until the Police arrive.
Assault – well that depends on what they did to the suspect before they took them to the Police station.
But yes – it does seem strange that they should be arrested although from time to time charges are laid where clearly there may be a defence available such as self defence. It may be that the Police are acting out of an excess of caution. Leave the decision to the Courts rather than attempt to exercise common sense.
Vote:May 10th, 2011 at 9:42 am
Murray, I am sure F E Smith will be along shortly to clarify the law for us. But my understanding is that a so called citizen’s arrest is not lawful. Having said that, I am aware that the Police often chose to interpret the detention as something else. But as I say the criminal lawyers will be along shortly.
Vote:May 10th, 2011 at 9:42 am
Once again, the NZ Police are on a hiding to nothing on this one and prove how out-of-step they are with public opinion. Police do bugger all to stem the tide of burglaries occuring every other minute in NZ and instead waste precious resources bringing prosecutions against good people protecting their property. Farcical.
Vote:May 10th, 2011 at 9:43 am
Store security officers can’t detain shoplifters. And know it. It’s all “come with me” “wait here” etc. Somewhat intimidating, they act to make people think they have power, and contrary to popular belief, most alleged criminals aren’t all that aware of their rights, or the powers of others.
Vote:May 10th, 2011 at 9:44 am
Crimes Act, section 40(1)
If the force used is excessive in the context of the justification provided by this section, then the detention itself becomes unjustified and I can see how a charge of kidnapping could come into play.
And that is assuming there was a right to arrest in the first place.
Vote:May 10th, 2011 at 9:47 am
In such cases it is useful to look at the legislation:
Vote:http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM329775.html#DLM329775
s209 Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,—
(a) with intent to hold him or her for ransom or to service; or
(b) with intent to cause him or her to be confined or imprisoned; or
(c) with intent to cause him or her to be sent or taken out of New Zealand.
The issue here is how broadly or narrowly one interprets (b). As discussed by other posters, a broad interpretation would lead to all sorts of trouble. It is a ‘penal’ provision not involving road safety, so a court would interpret it fairly narrowly. I think the cops laid kidnapping to put the wind up the *real* victims, but it is unlikely to survive depositions. It might be the cops have forgotten that Helen Clark and co are still around – they had crom-friendly tendencies.
May 10th, 2011 at 9:47 am
“out-of-step they are with public opinion”
er, Arthur, I don’t think our system is quite at the point of arrest and conviction by popular vote. That’s not to say that it wouldn’t be good in some instances as evidenced by recent political developments, but we are not there yet …
Vote:May 10th, 2011 at 9:49 am
What a shock, the socialist jumps to the defence of the actual offenders.
Vote:May 10th, 2011 at 9:50 am
Toad, that section does not address the issue of when the arrest or assistance is lawfully authorised. It goes without saying that use of excessive force (eg in self defence) is unlawful.
Vote:May 10th, 2011 at 9:52 am
Yes, but in the meantime the poor bastard is bankrupted by legal costs. I am with the ‘crims have more rights’ people on this one.
Vote:May 10th, 2011 at 9:55 am
As to powers of arrest generally. It’s not correct to say that there is a power of citizens arrest, however there are legal defences for non-police who arrest people:
Note that some of these defences only apply to criminal action (e.g. a kidnapping or assault charge), while others protect the arresting person from both criminal prosecution and civil claim (e.g. a false imprisonment or battery claim).
“Citizen’s arrest” has been successfully used in New Zealand as a defence relatively recently. See, for example, this case, but please note that it is not limited to citzens
Vote:May 10th, 2011 at 9:56 am
Murray (7,497) Says:
May 10th, 2011 at 9:49 am
What a shock, the socialist jumps to the defence of the actual offenders.
Law breaking scum, particularly those with vandalistic tendencies, no doubt study how to beat the system.
Vote:May 10th, 2011 at 9:59 am
“It’s unbelievable. Kidnapping? We dropped them off to the police,” Clemence said.
There’s his mistake, dropping them off at the police station.
Vote:May 10th, 2011 at 10:02 am
I would have detained the pricks with buckshot up the arse. Fuck what passes for so called justice in this country is a joke. Clearly the state can not and will not protect those that pay the bills. The state longs for weak gutless citizens and those that do stand up have shit like this thrown in their faces. The state and their gang, the coppers are saying stay in your place boy. This is all part of the global push of the NWO where the citizen will be brought to heel by any means possible. I note any excuse is used by the police now to confiscate fireman’s, Have had two mates done for DIC in the last few months, in both cases the police wanted to take firearms. The only convictions these people had were driving offences, so why the need to confiscate firearms, are the police getting nervous, if they continue with crap like the stuff stated above they have every right to be nervous.
Vote:May 10th, 2011 at 10:04 am
Isn’t the position simply this:
1. You find burglars on your property – you are able (“justified”) to arrest them under s35 of the Crimes Act, because it is a 3+ year crime.
2. You are justified in using necessary force to make the arrest – s39 of the Crimes Act.
3. You are justified in using necessary force to prevent escape – s40 of the Crimes Act.
Shoplifting isn’t a 3+ year crime (unless it’s something expensive, IIRC), so that’s why security guard’s can’t arrest them. But for burglary you can.
Vote:May 10th, 2011 at 10:05 am
er, Arthur, I don’t think our system is quite at the point of arrest and conviction by popular vote. That’s not to say that it wouldn’t be good in some instances as evidenced by recent political developments, but we are not there yet …
Yeah, I see what you mean, but I guess what I was getting at was that I – and I’d wager many others – see a complete lack of common sense being applied here.
“It may be that the Police are acting out of an excess of caution. Leave the decision to the Courts rather than attempt to exercise common sense.”
I actually think this is the case here and I think it’s wrong. But then again, I’m one of those people who doesn’t hold much stock in the rights of criminals.
Vote:May 10th, 2011 at 10:13 am
It’s clear the Police in this case didn’t use common sense or even applied their minds to the history of the situation when the alleged thieves were brought in to the Police station.
This has led to the rule of law and the law being brought into ridicule by their actions against the arresting citizens.
Their actions were bureaucratic and suggests to me that they are unable to correctly consider the concepts they should be to do their job and to keep the rule of law sacrosanct in the minds of the citizenary
Unaha-closp
Vote:shows where the failure to use common sense by the police leads to, and for that alone all the police involved in decision making in this instance should be subject to disciplinary measures.
May 10th, 2011 at 10:27 am
Hat tip chaps
Vote:Its not the Police constables who decide this shit, it’s the Police lawyers.
The ‘boys’ would be only too happy to see a bit of rough justice but there is this game to play.
May 10th, 2011 at 10:35 am
There is no problem in seeing the aggravation that the Police have caused by charging the victim of the crime. What would be a problem is framing a law that would give citizens guaranteed rights to detain someone caught committing a crime yet prevent someone like Water Woman or her mad mates arresting or detaining some poor bugger on the grounds of ‘natural justice’.
Vote:May 10th, 2011 at 10:39 am
So vigilantisim is a good thing from the tenor of the comments above. The facts, and the truth of those, will be a matter for the court but reading the article it appears that the burglars were 1. damaged and 2. dropped at the police station. Even on the scant information in the article there is quite a gap between the claim that ‘workers detained them whilst they called 111′ and the fact they ended up at the cop shop.
Now it may be that the burglars lied about being beaten and injuries were simply a result of reasonable force and that they were immediately taken to the police station. Or it might be that they were kidnapped and beaten in an appalling display of thuggery that has no place in a rule of law country.
Vote:May 10th, 2011 at 10:41 am
Mr Clemence’s mistake was to take these two to the Rozzers in the first place. What he and his “several employees” should have done was to kick the living shit out of these two and leave them somewhere dark and lonely to contemplate their actions.
Vote:May 10th, 2011 at 10:59 am
Amazing how so many people with such a low opinion of the Police also want to give them arbitary powers to decide which laws are valid and which they will just ignore to appease the baying of the ignorant mob.
Vote:May 10th, 2011 at 11:29 am
” Two Kaiapoi men, both in their 20s, have appeared in court charged with burglary and possession of instruments for committing burglary. They were bailed. ”
Well those offences are punishable by more than 3 years so the detention would seem lawful. The Police do seem to have abandoned all sense of discretion and judgement in recent years, and with it forfeit Public Confidence.
Vote:May 10th, 2011 at 11:33 am
@backster 11:29 am
Beating the shit out of them would make it unlawful though.
Vote:May 10th, 2011 at 11:35 am
Amazing how so many people with such a low opinion of the Police also want to give them arbitary powers to decide which laws are valid and which they will just ignore to appease the baying of the ignorant mob.
{baying} The Police have always had the power to decide when to prosecute, but it is their decisions in this regard that will affect the opinion held of them by the ignorant mob. {/baying}
Vote:May 10th, 2011 at 11:41 am
Ok…so the moral of the story is this….
If you catch a low life stealing from you then detain him and beat the crap out of him, make sure the injuries he receives are severe enough that they send a message to all the other left wing voting scum who think that to steal is a right.
Just don’t bother with calling the cops.
Vote:May 10th, 2011 at 11:42 am
It seems that Toad thinks a stern telling off and family group cuddle conference is still the best way to deal with criminals.
Come to think of it, Toad thinks that is the best way to deal with terrorists as well.
Vote:May 10th, 2011 at 11:43 am
Toad and the Greens think the “rule of law” should be applied when it comes to dealing with home invaders, violent crims and mass murdering terrorists, but thrown out when it comes to left wing/eco protesters who destroy property or interfere with a company or corporation going about its legal business.
Good to see where their sympathies lie. Total hypocrisy.
Vote:May 10th, 2011 at 11:46 am
“It seems that Toad thinks a stern telling off and family group cuddle conference is still the best way to deal with criminals.”
That is Green Party policy. They have opposed every measure to give more protection to law abiding citizens and keep violent repeat offenders off the streets.
Vote:May 10th, 2011 at 11:55 am
“The Police have always had the power to decide when to prosecute”
Only in some circumstances when the offending is extremely minor and a warning would suffice. At least you got the ignorant part down though.
Vote:May 10th, 2011 at 11:58 am
@Lee01 11:43 am
Actually, I think nothing of the sort. The rule of law should apply to everyone, including eco protesters and others who engage in civil disobedience protest. Genuine civil disobedience involves an acceptance that what someone is doing as a protest action is unlawful and a preparedness to accept the consequences of that under the law.
Vote:May 10th, 2011 at 12:28 pm
reading between the lines. the trick here is that you have to make any injuries they suffer while you are restraining them not look consistent with assault.
Back when i was a bouncer, if we had to restrain someone and they were being violent we only ever hit them in soft places like the floating rib, or liver, or worked their joints. never the face, the cops don;t like that. something that won;t bruise till much later.
Then when you have them face down on the concrete in an arm bar or something, just as the cops show up you rile them up by flicking them on the ear and telling them whats going to happen to them in jail. they then go apeshit so the cops see some violent abusive dickhead you just had to subdue and throw him in the van, ignoring everything they say. worked every time
Vote:May 10th, 2011 at 12:36 pm
“Genuine civil disobedience involves an acceptance that what someone is doing as a protest action is unlawful and a preparedness to accept the consequences of that under the law.”
Which merely proves my point. Double standards. Its ok for eco-protesters to break the law, so long as they “accept the consequences”, which is meaningless drivel, but not ok for the US to kill terrorists or citizens to defend their homes.
Vote:May 10th, 2011 at 1:00 pm
“The Police have always had the power to decide when to prosecute”
Only in some circumstances when the offending is extremely minor and a warning would suffice. At least you got the ignorant part down though.
Just one example I found with a quick Google:
http://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=3545619
Now that I know you’re talking out of your ass, I’ll be sure to skip over your posts from this point on.
Vote:May 10th, 2011 at 1:20 pm
Mistake 1 delivering them to the police, best move a severe stomping then left naked 20 miles out of town on a back rd, give the poor little misguided souls the opportunity to reflect on where their lives are going wrong during their walk home.
Vote:Better still force them to interfere with each other then post the video on youtube, let them live that one down.
As it stands the they will probably get sent to bed without tea, this seems to be the strongest punishement handed down by our justice system.
May 10th, 2011 at 1:39 pm
And now you have the baying part down pat as well, nice work Arthur.
Now how about you find a case that remotely fits these circumstances. And have a read of this while your at it.
“It scarcely needs to be said that discretions reposed in the Executive and in particular the discretion to prosecute, must be exercised on proper grounds and for proper purposes. If the exercise of a discretionary power has been influenced by irrelevant considerations, that is, considerations that cannot properly be taken into account, a Court will normally quash the decision. And clearly the Courts may and will intervene where a power has been exercised for collateral purposes, unrelated to the objectives of the statute or the prerogative in question. A discriminatory exercise of discretion without authority infringes the fundamental principle of equal treatment under the law and the equal protection of the laws for every person which has long been recognised as an essential pillar of the rule of law.”
Vote:May 10th, 2011 at 2:16 pm
Nah f* it, these guys got what they deserved.
After all , we know the judge won’t offer justice.
Vote:May 10th, 2011 at 2:23 pm
It doesn’t change the fact that you were wrong when you said “Only in some circumstances when the offending is extremely minor and a warning would suffice.” A crime punishable by a 14-year sentence is not extremely minor. I’m sorry if you weren’t making your point at all clear Einstein.
Vote:May 10th, 2011 at 2:50 pm
@ Dexter 80 11 55 That is a steaming pile, the police decide what to charge any perp with, in light of the crime, the circs and the evidence. eg causing death, manslaughter or murder or with traffic offenses, dangerous driving, careless use, insufficient care and attention or when the alleged criminal is a socialist Prime minister they may well deem that a prima facie case is established but it would not be in the public interest to lay charges in a case
of fraud.
The police make calls every day whether to lay charges and at what level.
Mr Clemence would have no chance of conviction if I made the jury, those two little scroats were very lucky that he took them to the police station, I would have taken them to Lake Sumner and dropped them off there.
These charges will cost the real victim a lot of money as I doubt there is much chance of early dismissal, he won’t be able to access legal aid and he dare not take any chances with our rather pissant judicial system of getting the justice he deserves.
Vote:May 10th, 2011 at 3:07 pm
Thanks for stating the obvious. Have you stopped to think that maybe the “circs and evidence’ in this particular case are such that it is indeed appropriate for Police to lay charges?
I have absolutely no sympathy for the crooks in this case, but would rather that any decision to prosecute is made on the circumstances and evidence in each particular case, rather than the Police going to a panel of public relations experts to decide whether or not it will increase their approval ratings to lay charges or not.
Vote:May 10th, 2011 at 3:32 pm
There was a time when the police would have sent the thieves off with a thick ear and a reminder of how lucky they were to escape so lightly…on this occasion they should have charged them with wasting police time.
Vote:May 10th, 2011 at 3:36 pm
NZ is a crims paradise. Its a surprise the travel companies arent running tours here from other countries for crims.
We have a soft cock Police force a soft cock judicary a soft cock law society and worst of all a soft cock Parliament.
All are enemies of the law abiding citizen. All want to molly coddle and protect the crims.
Vote:May 10th, 2011 at 4:37 pm
I am left wondering at what point do we, as citizens, forgo our right to protect our property by any means and any extent we choose. When did we hand over personal protection to the Government? How do we get it back when the Government is incapable of giving the protection that we require?
Vote:May 10th, 2011 at 5:15 pm
UPDATE 3: Maybe Police are not such freedom-hating, criminal loving socialists after all?
Vote:May 10th, 2011 at 6:28 pm
Rest assured, most cops aren’t.
Vote:May 10th, 2011 at 6:47 pm
UPDATE 3: Maybe Police are not such freedom-hating, criminal loving socialists after all?
No way! They wanna make criminals breakfast in bed. Fact.
Vote:May 10th, 2011 at 8:05 pm
BlairM @9.28
Once again the New Zealand police prove they don’t like competition.
Absolutely – assaulting while in custody should be an exclusive preserve of the police. Like the West Auckland police sgt – found not guilty despite evidence to the contrary given by a number of his colleagues
Vote:May 10th, 2011 at 10:44 pm
Mmmm…Blair’s probably right but there you go. The coppers can be a bit short on commonsense these days. A tickle up from a pissed off….ahhh….”property donor” would’ve resulted in a pat on the back & quiet ticking off once upon a time. The crims would’ve got booted down the road followed by a letter informing them of a court date.
The lesson was, a thick ear for the dodgy ones and satisfaction for the normally law-abiding people. Has commonsense, and a clear delineation of good people & shit heads, left the cop shop too?
Wonder what Gooner would have to say, being ex filth.
Vote: