4. Evidence and Investigation

Question 1

What does s121 of the Evidence Act 2006 say about corroborative evidence and why is this important?

Answer 1

states , in any criminal proceeding, the complainants evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.

Question 2

What does s103 of the Evidence Act 2006 say about why evidence in chief could be given?

Answer 2

• Age/maturity of the witness
• Physical, intellectual, psychological, or psychiatric impairment of the witness
• Trauma suffered by the witness
• Witness’s fear of intimidation
• The linguistic or cultural background or religious beliefs of the witness
• The nature of the proceeding
• The nature of the evidence the witness is expected to give
• The relationship of the witness to any party to the proceeding
• The absence or likely absence of the witness from NZ

Question 3

What do section 105 and 107 of the Evidence Act 2006 say about the alternative ways of giving evidence?

Answer 3

• while in the courtroom but unable to see the defendant or some other specified person (Screens)
• from an appropriate place outside the courtroom, either in New Zealand or elsewhere (CCTV)
• by a video record made before the hearing of the proceeding (DVD)

Question 4

What is the definition of child abuse?

Answer 4

the harming (whether physically, emotionally, or sexually), ill treatment, abuse, neglect or deprivation of any child or YP.

Question 5

What is the definition of child centered timeframes?

Answer 5

timeframes that are relevant to the child’s age and cognitive development.

Question 6

What are the three categories for CPP?

Answer 6

1. Sexual abuse – acts involving indecency with, or sexual violation, or using a child in the making of sexual imaging.
2. Physical abuse –
3. Neglect – intentionally ill-treats or neglects a child, or causes or permits the child to be ill-treated in a way likely to cause the child bodily harm, injury to health or mental disorder or disability.

Question 7

What are the 3 areas to consider in determining if physical abuse meets threshold for CPP referral?

Answer 7

a. The action (of the abuse) e.g. blow/kick to the head, shaking of an infant, strangulation, use of a weapon, attempted drowning.
b. Injury inflicted (outcome or result) e.g. bone fracture, burn, concussion, injury requiring medical attention.
c. The circumstances (factors in the case) e.g. vulnerability of the child, more than one offender, history of abuse, high degree of violence.

Question 8

What are the OT timeframes?

Answer 8

• Critical (24hrs) – no safety or care identified, risk of serious harm
• Very urgent (48hrs) – some protective factors present for next 48 hours
• Urgent (7 days) – limited protective factors

Question 9

Failure to protect a child (s195A, CA61) imposes criminal liability where it is known that a child was at risk of harm but nothing was done. Who does it apply to and what is the mens rea and actus reus?

Answer 9

It applies to members of the same household of the victim or people who were staff members at any hospital or institution where the victim resided. The offender must be 18 or over.
They must know (mens rea) that the victim was at risk of death, GBH or sexual assault and failed (actus reus) to take reasonable steps to protect the child from that risk. Must prove:
• The person at risk is a child and was under the age of 18.
• Defendant was over the age of 18.
• Defendant had frequent contact with the child as were member of the same household or staff member at hospital or institution where they resided.
• Defendant has knowledge of the risk of harm to the child.

Question 10

What is the definition of an adult under ASA?

Answer 10

a person aged 18 years or over at the time of the sexual assault. For the purposes of care, the age is at the time they are making the complaint, not when it happened.

Question 11

what are the ASA timeframes?

Answer 11

• Acute – reported within 7 days of offence
• Non acute – 7 days to 6 months of offence
• Historic - >6 months

Question 12

what are some of the way police can provide a safe and secure environment for victims in reporting sexual assault?

Answer 12

• Conduct dealings in a sensitive manner
• Accept they are telling the truth, unless evidence proves contrary
• Listen to what they tell you and give them the opportunity to tell their account
• Establish whether they need medical attention
• Treat them courteously
• Explain the process and why you need to follow that process
• Advise them of local counselling services

Question 13

It is important to preserve trace evidence in sexual assault cases so what should a victim refrain from doing?

Answer 13

• Eating or drinking
• Going to the toilet (if necessary, use a toxicology kit to capture urine and ask the victim to not wipe)
• No washing or showering
• Now washing of hands or biting of fingernails

Question 14

What needs to be covered off with the victim about the medical forensic procedure process?

Answer 14

• The examination will be conducted by a forensic medical practitioner specially trained in examining sexual assault victims
• The benefits of the forensic examination include the potential benefit to their physical, sexual and mental health and it can help Police obtain evidence to apprehend the offender
• The expected timeframe for the exam and possible outcomes of the exam

Question 15

What are some of the police responsibilities to victims and their rights?

Answer 15

• All obligations under the Victims Rights Act 2002 must be met and all victim contact must be recorded
• Victims must be given information about the progress of their investigation within 21 days
• Victims must be kept updated and informed of the outcome of the investigation, including no further avenues of enquiry or the reason for charges not being filed
• As soon as the offender is arrest, determine if it is a s29 offence and inform the victim of the VNR
• Keep victim informed of outcome of case and its closure

Question 16

what is the definition of neglect and examples of how it can arise?

Answer 16

when a person intentionally ill-treats or neglects a child or causes or permits the child to be ill-treated in a way that is likely to cause actual bodily harm or injury to health e.g. not providing adequate food, shelter or clothing, not protecting a child, not accessing medical treatment or care, exposing them to clan lab

Question 17

what are the grounds for removing a child?

Answer 17

when it is not safe to leave them there or you believe on reasonable grounds that if left they will suffer, or are likely to suffer, ill treatment, neglect, deprivation, abuse or harm, and there is no other practical means of ensuring their safety.

Question 18

what must an IJIP consider?

Answer 18

• The immediate safety of the child involved and any other children identified as at risk
• Referral to a medical practitioner and authority to do so
• The management of the initial interview with the child
• If a joint visit is required due to the risk of further offending, loss of evidence, potential for offender to be hostile
• Collection of any physical evidence

Question 19

types of case requiring referral to OT

Answer 19

child abuse, family violence, environment/neglect, other criminal activity.

Question 20

what does s44 of the Evidence Act say about evidence of sexual experience of complainants?

Answer 20

No evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, or the reputation of the complainant in sexual matters, except with the permission of the judge. The judge must not grant permission unless satisfied that it is of such direct relevance to the facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it.

Question 21

what does s87/s88 of the Evidence Act 2006 say about privacy to the witnesses address and occupation?

Answer 21

The particulars of a witnesses address or occupation may not, without permission of the judge, be the subject of a questions or included in any evidence. The judge must not grant permission unless satisfied that it is of such direct relevance to the facts in issue in the proceeding that it would be contrary to the interests of justice to exclude it.

Question 22

what are some advantages of using visually recorded evidence

Answer 22

• Greater quality and quantity of information obtained.
• Minimising trauma to the witness by simplifying the process and having their 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 the witness to refresh their memory before judicial proceedings.

Question 23

what does s17/18 of Evidence Regulations Act 2007 say about master and working copy?

Answer 23

Master copy must be sealed and placed in safe custody with Police. Records kept of date received and who dealt with it.

Question 24

What does s28 of Evidence Regulations Act 2007 say about transcripts?

Answer 24

Prosecutor must ensure a typed transcript of interview is given to the defendant as soon as practicable after the defendant has pleaded not guilty. This is to be prepared by the Police.

Question 25

Why would a child be removed from a home?

Answer 25

suffer, or are likely to suffer, ill treatment, neglect, deprivation, abuse or harm, and there is no other practical means of ensuring their safety.

Question 26

Why is the use of recording child interviews so good?

Answer 26

• the interview process is focused on the child and allows them to state clearly and freely what has happened.
• it can be used for the basis of an investigation, subsequent criminal prosecution and/or care and protection purposes
• it avoids the need to re-interview the child