5. Victims & Road Policing Flashcards
Who is classified as “immediate family” according to the Victim’s Rights Act?
(a) means a member of the victim’s family, whanau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and
(b) to avoid doubt, includes a person who is—
(i) the victim’s spouse, civil union partner, or de facto partner; or
(ii) the victim’s child or step-child; or
(iii) the victim’s brother or sister or step-brother or step-sister; or
(iv) a parent or step-parent of the victim; or
(v) a grandparent of the victim.
Define “Incapable” according to the Victim’s Rights Act
incapable, in relation to a person,—
(a) means that the person—
(i) lacks, wholly or partly, the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare; or
(ii) has the capacity to understand the nature, and to foresee the consequences, of decisions in respect of matters relating to his or her personal care and welfare, but wholly lacks the capacity to communicate decisions in respect of matters of that kind; and
(b) includes the person being in a state of continuing unconsciousness
Define “victim” according to the Victim’s Rights Act
victim —
(a) means—
(i) a person against whom an offence is committed by another person; and
(ii) a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and
(iii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iv) a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(b) for the purposes only of sections 7 and 8, includes—
(i) a person who, through, or by means of, an offence committed by another person, suffers any form of emotional harm; and
(ii) a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and
(iii) a person who has experienced domestic violence; and
(iv) a child or young person residing with a person who falls within subparagraph (iii); and
(c) despite paragraphs (a) and (b), if an offence is committed by a person, does not include another person charged (whether as a principal or party or accessory after the fact or otherwise) with the commission of, or convicted or found guilty of, or who pleads guilty to,—
(i) that offence; or
(ii) an offence relating to the same incident or series of incidents as that crime or offence
What is s7 of the VR Act?
Treatment of a victim - Any person who deals with a victim (for example, a judicial officer, lawyer, member of court staff, Police employee, probation officer, or member of the New Zealand Parole Board) should —
(a) treat the victim with courtesy and compassion; and
(b) respect the victim’s dignity and privacy.
What is s8 of the VR Act?
Access to Services - A victim or member of a victim’s family who has welfare, health, counselling, medical, or legal needs arising from the offence should have access to services that are responsive to those needs.
What is s11 of the VR Act?
Information about programmes & services - (1) A victim must, as soon as practicable after the victim comes into contact with an agency, be given information by the personnel of the agency about programmes, remedies, or services available to the victim through the agency.
(2) In this section, agency means—
(a) the Accident Compensation Corporation:
(b) a DHB (as defined in section 6(1) of the New Zealand Public Health and Disability Act 2000):
(c) the Department of Corrections:
(d) the Ministry of Justice
(e) The Ministry of Social Development:
(f) the New Zealand Police.
“Services includes participation in restorative justice processes”
(3) Nothing in this section prevents information of a kind that, under this section, must be given to a victim of an offence, from also being given to any other person (for example, to a person who was disadvantaged by the offence).
What is s12 of the VR Act?
Information about Proceedings - (1) A victim must, as soon as practicable, be given information by investigating authorities or, as the case requires, by members of court staff, or the prosecutor, about the following matters:
(a) the progress of the investigation of the offence:
(b) the charges laid or reasons for not laying charges, and all changes to the charges laid:
(c) the victim’s role as a witness in the prosecution of the offence:
(ca) the possibility (if any) of the court making an order prohibiting the publication of identifying information about the victim, and the steps that the victim may take in relation to the making of that order
(d) the date and place of each event listed in subsection (2):
(e) the outcome of the prosecution of the offence (and of any proceedings on appeal), for example –
(i) any plea of guilty or conviction entered, and sentence imposed or substituted; or
(ii) any finding that an accused in unfit to stand trial; or
(iii) any finding that the charge was not proved; or
(iv) any acquittal or deemed acquittal; or
(v) any grant of free pardon.”
(2) The events referred to in subsection (1)(d) are—
(a) the first appearance in court, in connection with the offence, of the person accused of the offence:
(b) any preliminary hearing relating to the offence:
(c) any trial relating to the offence:
(d) any hearings set down for sentencing for the offence:
(e) any hearings of appeals (if any) against conviction of the offence, or against the sentence imposed, or to be imposed, for the offence, or both.
(f) any hearing of a question of conviction or sentence referred by the Governor-General under section 406(a) of the Crimes Act 1961and any hearing of an appeal against the determination of that question.
(3) Nothing in this section prevents information of a kind that, under this section, must be given to a victim of an offence, from also being given to any other person (for example, to a person who was disadvantaged by the offence).
(4) In this section, investigating authorities means persons or bodies investigating the offence in the performance or exercise of their official functions, powers, or duties; but does not include a person exercising or performing functions, powers, or duties of a probation officer under any enactment.
Who is legally obligated to keep the victim informed as to the progress of the investigation?
Police are legally obliged to inform promptly – and keep informed – the victim as to the progress of the investigation, the reasons for the decision made with respect to a prosecution and the progress of the proceedings. This obligation will most often be discharged by the OC case.
Although Court Victim Advisors and Prosecutions staff often notify the victim of such matters, it is important to remember that only the police have a statutory responsibility to meet these obligations.
NIA Victim Contact node is to be used by the OC case throughout the investigation, to record contact with the victim and the action taken to provide the victim with information updates. It is required to be completed for all files, not just arrest files.
Define a “victim Impact Statement” according to s17AA of the VR Act
(1) In sections 17AB to 27, victim impact statement—
(a) means information that –
(i) is ascertained under section 17 from
(A) a victim, or
(B) a person who, under section 20 is treated as a victim; and
(ii) is to be, or has been submitted –
(A) under section 21AA on request, to a judicial officer for the purpose of giving the accused a sentence indication
(B) under section 21 to a judicial officer sentencing the offender, and
(b) includes any recording, summary, transcript, or other copy of that information
(2) In this section, information may include any photographs, drawings, or other visual representations provided by the victim.
What is the purpose of a victim impact statement according to s17AB of the VR Act?
The purpose of a victim impact statement is to—
(a) enable the victim to provide information to the court about the effects of offending; and
(b) assist the court in understanding the victim’s views about the offending; and
(c) inform the offender about the impact of offending, from the victim’s perspective.
What should be ascertained from a victim for a VIS according to s177 of the VR Act? (4)
The matters referred to in subsection (1) are:
(a) any physical injury or emotional harm suffered by the victim through, or by means of, the offence; and
(b) any loss of, or damage to, property suffered by the victim through, or by means of, the offence; and
(c) any other effects of the offence on the victim; and
(d) any other matter consistent with the purpose of victim impact statements set out in section 17AB.
(3) If a person is a victim in terms of paragraph (a)(iii) of the definition of ‘victim’ in section 4, then a reference in subsection (2)(a) to (c) of this section to the victim includes a reference to the child or young person concerned.
(4) If a person is a victim in terms of paragraph (a)(iv) of the definition of victim in section 4, because a member of that person’s immediate family is incapable, then a reference in subsection (2)(a) to (c) of this section to the victim includes a reference to the incapable person concerned.
S17 of the VR Act ensures that who is included in a VIS?
A child or young person who is present, or involved as a victim or a witness, or as the child of a victim, should be included in the victim impact statement process the same way as the primary victim.
A VIS Serves 4 purposes. What are they?
(a) It assists the Court generally by providing information;
(b) Information about the effect of a crime on the victim helps to balance the information in any pre-sentence report on the offender;
(c) It provides the victim with input into the administration of justice. This assists the Court in seeing things from the victim’s perspective and may aid in the healing process; and
(d) The offender is forced to recognise what he or she has done. This may advance the rehabilitative process, and prevent further offending.
What should a VIS not include?
‘Victim impact statements should not contain the victim’s account of the actual offending. In cases where the offender has pleaded guilty, details of the offending come before the court either in an agreed statement of facts or by way of a disputed facts hearing. Victim impact statements are to inform the sentencing judge of the effects of the offending, not the details of the offending’.
While it is good practice for the O/C file to ensure that a victim impact statement is prepared for the first Court appearance, this is not always possible. When is it Mandatory for a VIS to be available by?
The second appearance
Where should any additions to the original VIS be added?
Any updates to the victim impact statement should be added to the bottom of the original. This will allow the victim impact statement to be given in its entirety to the judge rather than the more recent version. Over time the content tends to become minimised and the last up dated version may look very different to the original. Police want the Judge to see the full extent of the effect of the crime on the victim.
Can VIS include photos & diagrams?
Yes- it can also be presented as an electronic recording
What is s18 of the VR Act?
Procedure before ascertaining information from victim - The prosecutor must make all reasonable efforts to ensure, before information is ascertained from a victim under section 17,—
(a) that the victim is informed—
(i) that the information is being ascertained for a victim impact statement; and
(ii) that the victim must ensure that any information that he or she gives is true; and
(iii) that the information must be recorded, and may be verified in the way stated in section 19(3) or (4); and
(b) that the victim is informed about who may properly see or make or keep copies of the victim impact statement , and about the orders, directions, and conditions, relating to disclosure and distribution of it, that may be made under sections 24(3)(b), 25, and 27; and
(c) that any views the victim has on whether the prosecutor should apply for orders, directions, or conditions of that kind, are ascertained.
According to s29 of the VR Act, what is a specified offence?
In this Act a specified offence is—
(a) an offence of a sexual nature, specified in—
(i) Part 7 of the Crimes Act 1961, excluding the offences in sections 143 and 144
(ii) sections 216(H) to 216(J) of the Crimes Act 1961; or
(b) an offence of serious assault that does not come within paragraph (a); or
(c) an offence that resulted in serious injury to a person, in the death of a person, or in a person becoming incapable; or
(d) an offence of another kind, and that has led to the victim having ongoing fears on reasonable grounds—
(i) for his or her physical safety or security; or
(ii) for the physical safety or security of 1 or more members of his or her immediate family.
NOTE: This section prescribes the victims who may go on the “Victim Notification Register”.
Section 29(a) refers to an offence of a sexual nature as listed in Part 7 of the Crimes Act 1961.
Part 7 covers most major sexual offences (sexual violation, incest, indecent assault, meeting a young person following sexual grooming, etc).
In relation to section 29(b) or (c) relating to serious assaults or causing serious injury or death, the focus is still on the characteristics and seriousness of the offending in the particular case, rather than the offence category with which the offender is charged. For example, presentation of a loaded firearm, which has been held to be a ‘serious assault’ for the purposes of paragraph (a) in Hetherington v Police HC Auckland CRI-2011-404-46, 30 March 2011.
Paragraph (d) broadens the range of eligible victims to cover those who have not suffered physical harm, but who have good reason to fear the offender’s release – for example, victims of offences such as threatening to kill, or arson, or breach of protection order.
As soon as practicable after the victim comes into contact with Police and an arrest occurs, Police must determine whether or not the crime perpetrated against the victim falls within the criteria outlined in section 29. If it does then the victim must be told of their right to register on the what?
Victims Notification Register
If a victim is on the VNR, what events can they expect to be notified of? (9)
• Temporary release or escape from prison
• Absconding from home detention
• Impending release from prison
• Convictions for breaching conditions of release
• Recalls to prison
• Pending parole hearings, and how to make submissions to the Parole Board
• Notification of the Parole Boards decision
• Deportation Hearings
• Claim opportunities under the Prisoner and Victims Claims Act 2005
Where can staff check if a VNR registration has been successful?
Staff can check to see if the registration has been successful by simply checking on the front page of the intranet Applications & Databases /Notifications/Queries; and entering the offender’s or victim’s details in the lower query section
What is s29A of the VR Act?
Commissioner of Police to determine whether an offence affecting the victim is a specified offence. NOTE: The duty of the Commissioner of Police contained in section 29A is delegated to all Police staff for completing.
What is s30 of the VR Act?
Victim’s views about release on bail of accused or offender
(1) This section applies if—
(a) the victim is the victim of a specified offence; and
(b) The persons accused of the offence, or, as the case requires, the offender applies to a court for release on bail
(2) If this section applies, the prosecutor must—
(a) make all reasonable efforts to ascertain any views the victim has about the accused, or, as the case requires, the offender, being released on bail; and
(b) inform the court of any views ascertained under paragraph (a)
When must a Prosecutor make all reasonable efforts to put before the Court the views of the victim (or the immediate family if the victim is deceased or incapable) as to the release of the offender on Bail?
If the victim has experienced any of the specified offences outlined in s29, and the person accused of the crime applies to the court to be released on bail
Where are the victim’s views on bail to be written?
The victim’s views are to be either written in the Opposition to Bail or in the covering 258 to the Prosecutor.
What is s31 of the VR Act?
Police to give victims of specified offences information about right to ask for notice and to appoint representative
What is s40 of the VR Act?
Representatives for notice - A victim to whom this section applies may, for any reason he or she thinks fit, appoint any other person (in sections 41 to 45 called the representative) to receive on the victim’s behalf, and ensure that the victim is given and understands, any notice to be given to the victim under any of sections 34 to 39 (in sections 41 to 45 called the information).
NOTE: This section applies to Victims registered or applying to receive Victim Notifications. If any such victim appoints a representative and informs the relevant agency of the representative’s details, the notice that the agency is required to give to the victim by ss34-39 is to be given instead to that representative. The representative has obligations to receive and pass on the notifications to the victim (s41(c)).
The representative will act as the go-between on behalf of the victim, and will receive all notifications and make all comment in regards to the victim’s views and wishes, including bail. Therefore, the level of service to the victim does not change in any way. Information is passed via the representative.
If a victim chooses to make a complaint under s49 of the VR Act, who could they complain to?
The victim or person may complain to—
(a) the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right:
(b) an Ombudsman, in accordance with the Ombudsmen Act 1975, if the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right, may be the subject of a complaint under that Act:
(c) the Independent Police Conduct Authority, in accordance with the Independent Police Conduct Authority Act 1988, if the person who, under the relevant specified provisions, appears to be required to accord the victim or person the right, is a member of the police:
(d) the Privacy Commissioner, in accordance with the Privacy Act 1993, if the matter involves, or may involve, an action that is, or appears to be, an interference with the privacy of the victim or person.
As stated in section 50(2), is there financial liability as a result of a breach only of the victim’s rights under the Act?
No - (Although if the breach occurs in combination with other rights (such as that of privacy) there may be some financial liability – see s50(3))
