Evidence

Question 1

List the grounds on which Police can apply for a witness to give evidence in an alternative way

Answer 1

• age/maturity
• physical, intellectual, psychological or psychiatric impairment
• trauma suffered
• fear of intimidation
• linguistic/cultural background or religious beliefs
• nature of proceeding
• nature of evidence of witness
• relationship with any party
• out of NZ
• any other ground likely to promote purpose of the Act.

Question 2

What is the age for whether the complainant falls into ASA or CPP?

Answer 2

ASA - complainant is 18 years or older at the time the complaint is made

CPP - complainant is 17 years or under at the time the complaint is made

Question 3

How can you prove penetration? (3)

Answer 3

• the complainants evidence
• medical examination including physical injuries and DNA evidence
• the defendants admissions

Question 4

What is the definition of a fabricated complaint?

Answer 4

A fabricated complaint is deliberately made and the complainant knows it to be untrue

Question 5

List 5 things a statement from a recent complaint or disclosure witness should include:

Answer 5

• the circumstances in which the conversation occurred
• what the victim said
• any questions the person asked the victim that might have elicited the complaint
• the victims demeanor and physical appearance during the conversation
• their association / relationship with the victim

Question 6

The requirement of ‘frequent contact’ being regarded as sufficiently frequent is a matter of what for who?

Answer 6

Matter of fact for the jury

Question 7

Intent - two different types of result intended by the offender of assault with intent to commit sexual violation?

Answer 7

The offender may assault the victim in the hope that:

• the complainant will change their mind and consent

Or

• intending to commit rape or sexual connection regardless of whether the complainant changes their kind

Question 8

What 4 points must be proved by the Crown for ‘beyond reasonable doubt’ sexual cases?

Answer 8

• intentional act by the offender involving sexual connection/conduct with complainant l
• the complainant did not consent
• the offender did not believe the complainant was consenting
  (If he did believe she was, the grounds for such a belief were not reasonable)

Question 9

With attempted sexual violation the crown must prove 3 things:

(Men’s rea element of attempts & ‘assaults with intent’)

Answer 9

At the time of the defendants conduct he:

• intended to have sexual connection with the complainant and
• the complainant did not consent to the intended sexual connection and
• the defendant did not believe on reasonable grounds that the complainant was consenting

Question 10

In proving that consent was not present in cases of sexual violation, what one of three things must the crown prove?

Answer 10

• 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

Question 11

To preserve trace evidence in sexual assault cases what things should complainants refrain from before a medical examination? (8)

Answer 11

Eating or drinking
Going to toilet (if necessary capture urine & ask not to wipe)
Washing or showering 
Washing their hands or biting their nails
Changing clothing
Smoking
Brushing or combing hair
Brushing teeth or rinsing mouth

Question 12

In cases that are not reported to police how long can SAATS vendor hold a ‘just in case’ MEK?

Answer 12

26 weeks = 6 months

Question 13

Primary objective of medical forensic examination?

Secondary objective?

Answer 13

Primary: the victims physical, sexual and mental health and safety

Secondary: trace evidence to support police investigation

Question 14

Before the MEK is sealed, Police debrief with the practitioner and ask… (6)

Answer 14

• Advise on any immediate needs of the victim
• Verbally summarize exhibits & importance
• Advise of photographs taken
• Identify any forensic items that need to be sent to ESR as priority to minimize loss of evidence
• Identify any injuries that should be photographed
• Identify any significant disclosures made by the victim during exam

Question 15

List points to cover with the complainant to explain the medical forensic examination procedure?

Answer 15

• Exam conducted by a medical forensic practitioner specifically trained in sexual assault examination
• The benefits of full medical exam include:
  ……benefit to their physical, mental & sexual health and….. oh exam can help Police obtain evidence to apprehend offended
• Expected duration for exam and if appropriate, possible outcomes
• Gender of doctor

Question 16

What is section 44 of the evidence act 2006?

Answer 16

In a sexual case no evidence or questions can be put to a witness relating to:

• The sexual experience of the complainant with any other person other than the defendant
• The sexual reputation of the complainant

Unless the judge gives permission and is satisfied it is of direct relevance to facts in issue and that it would be contrary to the interests of justice to exclude it.

Question 17

Section 35 Evidence Act 2006

Previous consistent statements

Answer 17

(1) previous consistent statement is not admissible unless (2) or (3) applies

(2) necessary to respond to challenge of witness veracity. Challenge based on
- previous inconsistent stmt of witness
- claim witness recently invented evidence

(3) admissible if circumstances provide reasonable assurance, it is reliable and it provides the court with information the witness is unable to recall

Question 18

Section 87 & 88

Evidence Act 2006

Answer 18

87: witness address
88: witness occupation in sexual cases

Unless judge determines is directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice

Question 19

Outline section 121
Evidence Act 2006
(corroboration)

Answer 19

In any criminal proceeding, the complainants evidence does not have to be corroborated

*it is not necessary for the judge to warn jury

Question 20

Discuss requirements under reg 28 Evidence Regulations 2007

Answer 20

Prosecutor to give transcript to defence after defendant pleads not guilty.

(1) typed transcript to be given to defence lawyer or defendant ASAP after not guilty plea
(2) to be prepared by police
(3) the court may adjourn the hearing to allow further time for the defendant. To consider the transcript of satisfied that (1) has not been complied with

Question 21

Reason why judge would allow questions on address and occupation?

Answer 21

If he is satisfied that the question to be out, the evidence to be given or the statement or remark to be made is of sufficient direct relevance to the facts in issue that to exclude would be contrary to the interests of justice.