007 Flashcards
CPP policy applies to which age group?
Under 18 years at the time of reporting
Criteria for CPP?
- Sexual Abuse
- Physical Abuse
- Neglect
Define Sexual Abuse? (CP)
Indecency with a child or sexual violation of a child or using a child in sexual imagery
Define Physical Abuse? (CP)
The actions of the offender result in, or could result in physical harm or injury being inflicted on a child.
This can also be non-accidental injury.
Three areas to consider in relation to physical abuse?
- The action (of the offender)
- The injury (outcome or result)
- The circumstances (factors in the case)
Define Neglect? (CP)
- Not providing adequate food/shelter
- Not protecting a child from physical harm/danger
- Not accessing medical treatment
- Allowing a child to be exposed to illicit drug manufacturing
Three Initial steps OT and Police must follow?
- Referral – info sharing
- Consultation – discussion at appropriate levels
- Agreement – on initial joint investigation plan (IJIP)
What topics to consider in relation to the IJIP?
Initial joint investigation plan
- Safety of the child/other children in house
- If joint visit is required
- Initial interview management
- Referral to medical practitioner/ authority to do so
- Collection of physical evidence
- Any further action agreed on
Rules around questioning a child?
1) If child has made a clear disclosure to an adult who can give the info then DON’T question
2) If it is unclear and no urgency / safety DON’T question
3) If absolutely necessary re safety ask open ended questions
4) Do NOT continue questioning if it becomes clear when speaking to them that an offence has occurred.
Only ask open ended questions
Eg. Tell me what happened, when did it happen?
OT Timeframes?
Critical – 24 hours
Very Urgent – 48 hours
Urgent – 7 days
Circumstances where police would remove a child from a house hold?
- Serious wilful neglect
- Serious physical Abuse
- Sexual assault
- When a child witnesses serious assault
Meet YP Following Grooming
131B(1)(a) Having met or communicated with a person under the age of 16 years on an earlier occasion, he or she takes one of the following actions:
I. Intentionally meets the young person;
II. Travels with the intention of meeting the young person;
III. Arranges for or persuades the young person to travel with the intention of meeting him or her.
At the time of taking the action s/he intends to do a sexual act with that YP or intends for the young person to do an act on them
Define ‘SERIOUS’ Child Abuse?
- Sexual abuse
- Serious physical abuse
- Serious wilful neglect
- Serious FV where the child is a witness
- Allegations against OT approved caregiver involving serious child abuse
- Allegations against OT employee involving serious child abuse
ASA policy applies to which age group?
Over 18 years of age at the time of reporting
9 Initial Action steps for ASA case? #
VVOOAASSD
- Victims details
- Victims safety & immediate health needs
- Offence location
- Offender description
- Advise specialist support
- Ascertain nature of offence – prelim
- Secure witnesses/ Suspects
- Scene preservation & exhibits
- Determine immediate action required
Primary purpose of the medical exam?
The wellbeing and safety of the victim
List the points you would cover with a victim to explain the medical forensic exam procedure? #
- Exam will be conducted by a specially trained medical forensic practitioner
- Benefits of exam i.e Physical, sexual and mental health & apprehension of offender
- Expected time of examination ‘a couple of hours’
- Whether they are concerned of the gender of the medical practitioner
Information to give the doctor prior to exam? #
- Advise the gender and age of the victim
- When the assault occurred
- Brief outline of the circumstances – including injuries
- Whether drugs or alcohol was involved
- Victims wishes – re gender of doctor
- Discuss if child medical more suitable
Debrief with the doctor after the medical should include..? #
- The immediate needs of the victim (safety)
- Verbally summaries the exhibits
- ID items for sending to ESR
- ID injuries requiring photographing (non-intimate)
- ID any significant disclosures (may be useful for investigation)
Feedback to victim
SPEC
- Specialist support services available
- Info about police investigation process
- Realistic expectations about timings-
e. g Initial action, medical exam, formal interview, exhibits being taken and the court process - Clarify their position re reporting eg formal complaint or do they want info from police on how to proceed
What is a Prelim interview?
- A brief outline of the facts
- An assessment of the safety of the victim & public safety
- Assessment of urgent investigation needs i.e medical exam, scene, suspect, evidence etc
What is the purpose of a prelim interview? #
A prelim interview is necessary for investigators to gain an understanding of what has occurred and determine:
• What further investigation actions are necessary
• Whether an offence may have occurred, and
• Whether the victim wishes to make a complaint
What should you consider after a Prelim Interview of an ASA victim? #
(PIISN)
P – Public safety, likelihood of similar offending
I – ID & locating witnesses
I – ID & apprehension of suspect
S- Securing any crime scene
N- Need to secure / preserve fragile or diminishing evidence
ASA timing categories?
Acute - 1-7 days
Non-acute - 7 days to 6 months
Historic - 6 months +
When a victim is the victim of an acute sexual assault what should you advise them NOT to do?
- Eat or Drink
- Bite fingernails
- Smoke
- Brush teeth or hair
- Change clothes
- Shower / washing
- Going to the toilet – if they need to make sure they go in a container so that it can be collected.
A sexual assault Medical forensic practitioner’s Role is to?
PPPRR
P- Primary medical Care
P- Provide examination reports
P- Provide unbiased expert evidence in court
R- Retrieve forensic medical evidence
R- Refer victims to follow up medical care
When interacting with victims of sexual offences what actions should you take to provide a safe + secure environment?
(CALMTEA)
- Conduct dealings in a sensitive and concerned manner
- Accept they are telling the truth – unless proven otherwise
- Listen to what they are telling you. Give opportunity to give account in their own words
- Medical Attention – do they require it
- Treat them courteously
- Explain the process you are following and why you need to follow it and ask them certain questions
- Advise them of the local counselling services available
What are the 12 steps of investigation in ASAI guidelines?
ICS PIM FIR PFP
- Initial action to contact
- Case Referral
- Specialist Support
- Prelim Interview
- Information feedback
- Medical Examination
- Formal interview
- Investigation & Evidence assessment
- Resolutions
- Prosecutions
- Final Actions
- Prevention
List 4 police responsibilities to victims and their rights? #
(OK GEW)
• Obligations under VRA 2002 met & record contacts
• Kept updated/ informed of investigation outcome- including no further enquirers and why no charges laid
• Given info about progress of the investigation within 21 days
• Ensure property returned promptly to victim
• When offender arrested/ charged, determine whether S29 offence and if victim wishes to be put on the Victim notification Register
- Victims must be informed of outcome of case and case closure
Front Counter Immediate Action?
Move victim to a place of safety, privacy, comfort and evidentially neutral.
Definition of Rape?
Sec 128(2) CA 61
Person A Rapes Person B if person A has sexual connection with person B, effected by the penetration of person B’s genitalia by person A’s penis
(a) Without person b’s consent to the connection
And
(b) Without believing on reasonable grounds that person B consents to the connection
Definition of Penetration?
Introduction and penetration have the same meaning. Introduction to the slightest degree is enough to effect a connection.
Sec 2(1A) crimes act 1961
Proof of penetration?
Proof may be provided by:
• The complainants evidence
• Medical evidence (DNA, Injuries)
• The accused admissions
Definition of Genitalia?
Organs of generation- includes penis and testicles/vulva and vagina.
Genitalia includes any constructed or reconstructed organ analogous to a naturally occurring male or female genitalia (whether the person concerned in male, female or of indeterminate sex)
Sec 2 Crimes Act 1961
Case law R v Koroheke?
The genitalia comprises the reproduction organs, interior and exterior, they include the vulva and the labia, both interior and exterior at the opening of the vagina.
Definition of Penis?
Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis. (Whether or not the person concerned in male, female or of indeterminate sex)
Sec 2 Crimes Act 1961
Definition of Consent and the case law?
“Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.
Consent must be full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgement.
R v Cox
Matters that do not constitute consent 128A?
NAASSMM
- Not protesting or offering physical resistance to use of force
- Application of force, threats of force or fear of force to self or others
- Asleep or unconscious
- So affected by drugs or alcohol they cannot consent
- So affected my a mental or physical impairment they cannot consent
- Mistaken ID
- Mistaken as to the nature and quality
Consent – Step 1?
Absence of Consent
What was the complaint thinking at the time?
Was s/he consenting?
Subjective test
Consent – Step 2?
Belief in Consent
If s/he were not consenting did the offender believe s/he was consenting? Ie what was the offender thinking at the time.
Subjective test
Consent – Step 3?
Reasonable grounds for belief in Consent
If the offender believed the complainant was consenting, was the belief reasonable in the circumstances. Ie what would a reasonable person have believed if placed in the same position.
Objective test
Case law - R v Gutuama?
Under the objective test the crown must prove that “No reasonable person in the accused shoes would have thought that the complainant was consenting”.
Definition of Person?
Gender neutral proven by judicial notice or circumstantial evidence
Definition of Unlawful sexual connection?
Sec 128 (3) Crimes Act 1961
Person A has unlawful sexual connection with person b If person A has sexual connection with person B
(a) Without person B’s consent to the connection
And
(b) Without believing on reasonable grounds that person B consent to the connection
Definition of Sexual Connection?
Sec 2 Crimes Act 1961
(a) Connection effected by the introduction into the genitalia or anus of one person (otherwise than for genuine medical purposes) of -
(i) A part of the body of another person; OR
(ii) An object held or manipulated
(b) Connection between the mouth and tongue of one person and another person’s genitalia or anus; OR
(c) The continuation of connection of a kind described in paragraph (a) or (b)
Definition of ‘Objects held or manipulated’?
Any object that can be held or manipulated by the other person ie bottle or vibrator
Definition of Assault?
Assault
Assault means the act of intentionally applying force or attempting to apply force to the person of another directly or indirectly or threatening by any acts or gesture to apply such force to the person of another, if person making the threat has or causes the other to believe on reasonable grounds that he has the present ability to effect his purpose.
Sec 2 Crimes Act 1961
Definition of Intent?
In a criminal law context there are two specific intentions in an offence.
Firstly the intention to commit the act and secondly an intention to get a specific result.
Definition of Sexual Violation?
Sexual Violation
(1) Sexual Violation is the act of a person who-
(a) Rapes another person; or
(b) Has unlawful sexual connection with another person
Sec 128(1) Crimes Act 1961
Dependant Family member
Sec 131A Crimes Act 1961
Dependant family member
For the purpose of section 131, one person is a dependant family member of another person if –
(a) The person has power or authority over him or her, and is –
(i) Her or her parent, step-parent, foster parent, guardian, uncle or aunt; or
(ii) A parent, step-parent, or foster parent of a person described in subparagraph (i); or
(iii) a child of his or her parent or step-parent; or
(iv) the spouse or de facto partner of a person described in subparagraph (i),(ii) or (iii)
Not listed in above sections but:
if they are members of the same family, whanau or other culturally recognised family group, has a responsibility for, or significant role in his or her care or upbringing.
If s/he is living with the other person as a member of the other persons family, power authority over him or her; and a responsibility for or significant role in his or her care or upbringing
R v Forrest and Forrest?
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the person as the person named in the certificate.
Definition of a Child?
Child means a person under the age of 12 years Sec 132 (6)(a) Crimes Act 1961
Definition of a Young person?
Young person is a person under the age of 16 years Sec 134 (6)(a) Crimes Act 1961
R v Harpur?
- The courts may have regards to the conduct viewed cumulatively up until the point where the conduct in questions stops.
The defendants conduct may be considered in its entirety
Considering how much is left to be done is always relevant, though not determinative.
- An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”
Case Law R v Leeson?
The definition of Indecent assault is an assault accompanied with circumstances of indecency.
R v Cox?
Consent of a child
Although we do not exclude the possibility that a child of 10 or 11 may be able to give full, voluntary, free and informed consent to sexual intercourse.
The circumstances that would justify that conclusion would be exceptional if not rare.
Indecent Act?
An Act that is ‘indecent’ has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
(Time/date/circumstance)
Section 128(1)(a) Crimes Act 1961?
Sexual Violation by Rape
(20 years)
A person
Rapes
Another person
Section 128(1)(b) Crimes Act 1961?
Sexual Violation by Unlawful Sexual Connection
(20 years)
A person
Has unlawful sexual connection
With another a person
Section 129(2) Crimes Act 1961?
Assault with intent to commit sexual violation
(10 years)
Everyone who Assaults Another person With intent to commit sexual violation of the other person
Section 131 Crimes Act 1961
1),(2) + (3
Sexual conduct with dependant family member
(7/7/3 years)
Everyone who
(1) has sexual connection
(2) attempts to have sexual connection with
(3) does an indecent act on
With/ on a dependent family member under the age of 18 years
Victim can’t be charged / consent is no defence
Section 132 Crimes Act 1961
1),(2)&(3
Sexual conduct with a child under 12 years
(14/10/10 years)
Everyone who (1) has sexual connection (2) attempts to have sexual connection (3) does an indecent act With/ on a child
Section 134 Crimes Act 1961
1),(2)&(3
Sexual conduct with a young person under 16 years
(10/10/7years)
Everyone who (1) has sexual connection (2) attempts to have sexual connection (3) does an indecent act with/ on a young person
Section 135 Crimes Act 1961
Indecent Assault
(7 years)
Everyone who
Indecently assaults
Another person
Section 4, Evidence Act 2006?
Definition of sexual case
Criminal proceedings which a person or being charged or sentenced for
any offence against section 128 – 142A
OR 144A of Crimes Act 1961
Offence of a sexual nature
Section 44, Evidence Act 2006?
Victim Reputation
• No question or evidence can be put to the complainant about their sexual experience with any person other than the defendant (expect judge given permission to)
• However still subject to propensity rule
• No witness can give evidence of Victim’s reputation
Section 87, Evidence Act 2006?
Witness Addresses
Witnesses address may not be subject to question in court proceedings by any person
(includes – number/ street name. town name or community)
(Unless approved by judge who belives it is directly relevant to the facts at issue)
Section 88, Evidence Act 2006?
Victim’s occupation
- Restrictions to disclose complainant’s occupation in sexual case or have questions put to them about their occupation
- However an application can be made to the judge to disclose
Section 103(3), Evidence Act 2006, under subsection (1) what are the grounds that a witness can give evidence in an alternative way?
- Age & maturity
- Physical, intellectual or impairment of witness
- Trauma suffered by witness
- Witness fear of intimidation
- Absence of witness from NZ
- Nature of proceedings
Section 105, Evidence Act 2006, what other ways can a witness can give evidence?
- Screens – so unable to be seen by the defendant or specified person
- CCTV/AVL – from appropriate place outside of court room(in/out of NZ)
- Video Recording – video made before hearing
Section 121, Evidence Act 2006?
Complainant evidence does not have to be corroborated
“Corroborate” is not defined in the crimes act 1961.
Ordinary Dictionary means “to strengthen or support other evidence, or make more certain.”
Discuss the two elements that need to be proved in a charge of ‘Assault with intent to commit sexual violation’?
• Assaulted the victim
AND
• Intended to commit sexual violation
When can a previous consistent statement be admitted?
35(2) As rebuttal evidence only
Necessary to respond to a challenge to the witnesses veracity or accuracy.
In an Indecent Assault case the Crown must prove?
- The defendant intentionally assaulted the complainant
- Circumstances accompany the assault were indecent
- Defendant intended the conduct that a reasonable person would find indecent
In a sexual Violation the crown must prove beyond reasonable doubt that:
- The offender intended the sexual connection with the complainant.
- The complainant did not consent
- The offender did NOT believe the complainant was consenting
- If the offender did believe they were consenting, the grounds for belief were not reasonable
In negating consent, the crown has to prove One of Three things?
In proving a case where consent was not present for Sexual violation the crown must prove that:
- The victim DID NOT consent (or)
- The victims consent was NOT VALID (or)
- The defendant did not believe on reasonable grounds that the victim was consenting
In attempted sexual violation the crown must prove..
• The defendant intended to commit the full act of sexual violation
AND
• Acted as he did for the purpose of achieving that aim- take real and substantial steps towards achieving that aim
Objective test for indecency?
Indecency must be judged in light of the time, place and circumstance.
It must be something more than trifling and be sufficient to “warrant a sanction of the law”.
Section 127, Crimes act 1961 define No Presumption because of age?
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
This provision means that any person of any age is capable, in a legal sense, of being involved in sexual connection.
Therefor it would not be a defence to a sexual related charge to say that either of the parties was too young or too old to have sexual connection.
What does section 128(4) of Crimes Act 1961 state?
Makes it clear that a spouse who sexually violates their spouse has no LEGAL DEFENCE due to the fact that the couple are legally married
Discuss the penalty provisions for sexual violation as set out in section 128B Crimes act 1961?
Outlines:
• Punishment for sexual violation is imprisonment for a term of 20 years
• Imprisonment should always be imposed on conviction, UNLESS there are special circumstances that justify departure from the rule
Section 129A Crimes Act 1961
Outlines sexual conduct with consent induced by certain threats. This section creates an offence of “Inducing someone to commit sexual connection” in response to an implied or explicit threat that does not involve force
Is it an offence for an adoptive parent to have sexual intercourse with his 18 year old daughter? #
Yes, an adoptive parent is a ‘parent’ thus it is incest.
Can a 17 year old uncle be charged with failing to protect a child?
No, an offender must be in the same household or visit frequently AND must be over the age of 18
Section 130 Crimes Act 1961
Incest
(1) Sexual connection is incest if it is in between two people whose relationship is
(a) parent/child, siblings, half-siblings, grandparent/grandchild; AND
(b) the person charged knows of the relationship.
* consent no defence / gender neutral / includes adoption / offender must be 16 or over
Defence to a charge under Section 134 Crimes Act 1961 if the defendant proves?
134A-
• Before the sexual activity they had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
• At the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16 years, and
• The young person consented
(Where both parties are under the age of 16, they both commit the offence. However if one party is 15 and the other is 16, only the 16 year old can be charged under (s134(5))
How far out must Police give a transcript to the defence? #
- Sec. 28 of evidence Act. Typed transcript to defendant / lawyer as soon as practicable after NG plea
- Typed and prepared by the Police
- Court may adjourn the trial if this section is not complied with
Male has sexual intercourse with 18 year old home stay student, is there any offence? #
No offence committed
Can a 16 year old female be charged with having sexual intercourse with a 14 year old male?
Yes
The difference between sexual violation and attempted sexual violation? (Mens Rea)’ #
The only difference between sexual violation and attempted sexual violation is that the attempt, the offender was unsuccessful in effecting he intended sexual connection.
The mental elements of two offences, in terms of intent and reasonable belief in consent, are the same.
What are the two different intentions in ‘Assault with intent to commit sexual violation’? #
• Intending the complainant will change their mind and consent
OR
• Intending to commit ‘Rape or Sexual Connection’ regardless of whether the complainant changes their mind
Section 195A Crimes Act 1961, refers to failure to protect a child or vulnerable adult.
This offence applies to? #
• Members of the same household (can include closely connected people who don’t live at the address- look into frequency and duration of visits)
OR
• Staff members of hospital, institute or residence of care where victim resides
AND
• KNOWS the victim is at risk of death/GBH or sexual assault
AND
• FAILS to take reasonable steps to protect the child
Defendant must be over 18 years of age
Victim under 18
Define ‘Reluctant Consent’?
A true consent may be given reluctantly or hesitantly and may be regretted after wards, but if the consent given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.
Sexual exploitation of a person with a significant impairment
Section 138 Crimes Act 1961
A person has exploitive sexual connection with a person with a significant impairment if? #
a) Has sexual connection with an impaired person knowing they have a significant impairment
b) Has obtained impaired persons acquiescence by taking advantage of their impairment
Case law R v Court?
Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of the complainant”
If an indecent act is done with consent of the child, it is immaterial whether?
- The offender does the act on the child
- The child does the act on the offender
- The act is mutual
R V Koroheke- Fear
It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. E.g submission by a woman because she is frightened of what might happen if she doesnt cooperate, is no true consent
R v Collister
Intent can be inferred from the circumstances
Circumstantial evidence of intent
The offenders actions and words before during and after the event
The surrounding circumstances
The nature of the act itself
Acts that are suff proximate
- lying in wait, searching for or following the contemplated victim
- enticing the victim to go to the scene of the contemplated crime
- unlawful entry of a structure, vehicle or enclosure in which it is contemplated that the crime will be committed
- possession, collection or fabrication of materials to be employed in the commission of the crime
Attempts- Conduct must be
Sufficiently proximate to the offence. Progressed past the point of preparation and taken real and practical steps towards committing it
R v cox reasonable belief in consent of a child
save in exceptional and rare circumstances even where she indicates an agreement to the act. No reasonsable adult would have the ground for believing that a 10 or 11 year old has the experience or maturity to understand the nature and significance of the act
Belief in consent Indecent Assault
With indecent assault an honest belief alone is sufficient even if not reasonable
Sexual Connection With Children/YP outside NZ
144A This section allows for the prosecution of a NZ citizen who commits an offence under 132 or 134, if the act was committed outside of nz.
No charging document may be filed for this offence without the consent of the attorney general.
You may arrest that person and hold them in custody or release them on bail, but no further proceedings shall take place without consent.
When complainant gives oral evidence no person allowed except:-
- Judge
- Prosecutor
- Defendant and custodian
- Lawyer
- Officer of the Court
- Police in charge of the case
- Media (accredited)
- Any person whose presence is requested by the complainant
Advantages of visually recording evidence
- Greater quality / quantity of information
- Minimising trauma by simplifying process
- Having interview played as evidence in chief
- Reducing contamination by the interviewer through the process of transposing the interview into a statement
- Providing a valuable means for witness to refresh memory before court
CPP
Primary Objective of Examination
Wellbeing and safety paramount so …
- Physical / sexual / mental health primary
THEN
- Opportunity to collect race evidence secondary
CPP
Actions to meet threshold
Blow or kick to head Shaking an infant Strangulation Use of an object as a weapon Attempted drowning
CPP
Injuries / outcome to meet threshold
A bone fracture
Burn
Concussion or loss of consciousness
Any injury that requires medical attention
Any bruising or abrasion when the child is very young eg. Infant not yet mobile
And or position and patterning make it unlikely to be caused by play and / or
Another child or accident.
Meet YP Following Grooming
Offence complete when
- Parties meet, or depart on travels or makes arrangements to meet the comp with the relevant intent.
- To be intentional the meeting need only be ‘purposely arranged.’
Impairment effects to such an extent, impairs capacity to
a) understand the nature of the sexual conduct OR
b) understand the nature of decisions about sexual conduct OR
c) foresee consequences of decisions about sexual conduct OR
d) communicate decisions about sexual conduct
Definition of Child abuse
The harming (whether physically, emotionally or sexually), ill treatment, abuse, neglect or deprivation of any child or YP
Child centered time frames
Time frames that are relevant to the child’s age and cognitive development. The younger the child the more vulnerable they are and therefore require a quicker response.
Section 195 Crimes Act 1961, refers to ill treatment of a child or vulnerable adult.
This offence applies to?
• Person who has actual care or charge of the victim
OR
• Staff members of hospital, institute or residence of care where victim resides
