IMPORTANT QUESTIONS FOR EXAM

Question 1

What is the definition of ‘Sexual Connection’, as per s2 CA1961?

Answer 1

Sexual connection means -

(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 by another person or

(b) connection between the mouth or tongue of one person and a part of another person’s genitalia or anus or
(c) the continuation of connection of a kind described in paragraph (a) or paragraph (b)

Question 2

Outline the statutory defence to a charge of Sexual Conduct with Young Person under 16 s 134 CA 1961, and state the section and subsection that provides the defence.

Answer 2

Section 134A – Crimes Act 1961

(1) It is a defence to a charge under section 134 if the person charged proves that,—
(a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years; and
(b) at the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years; and
(c) the young person consented.

Question 3

What is the definition of ‘genitalia’ provided in R v Koroheke?

Answer 3

R v Koroheke
The genitalia comprise the reproductive organs both interior and exterior. They include the vulva and labia interior and exterior at the opening of the vagina.

Question 4

In a Sexual Violation by Rape, which body parts are going to be involved?

Answer 4

Penis and Vagina

Question 5

For a Sexual Violation by Unlawful Sexual Connection involving the offender using their tongue on the victim’s genitalia, is penetration required?

Answer 5

No, penetration is not required for Sexual Violation by Unlawful Sexual Connection when the connection is between mouth/tongue and genitalia/anus.

Question 6

Does a person’s anus fall with the definition of genitalia?

Answer 6

No anus is not defined under the Crimes Act so non-consensual penile penetration of the anus is not rape but unlawful sexual connection.

Question 7

If an adult squeezes an adult female’s vagina over the top of her jeans without her consent and without any reasonable belief in her consent, what offence is that going to be and why?

Answer 7

The offence would be indecent assault – Section 135 CA 1961

Because he has committed an assault but applying force (the squeeze) and the circumstances around the assault are indecent because it was her genital area but was over her jeans and it was an act that any reasonable person would consider an affront to the sexual modesty of the complainant.

Question 8

What are the parameters of consent as provided in R v Cox?

Answer 8

Consent must be full, voluntary, free and informed. A freely and voluntary agreement given by a person in a position to form a rational judgement.

Question 9

What did the Court of Appeal say about consent in R v Gutuama? (mentioned twice)

Answer 9

Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that the complainant was consenting”

Question 10

What are the age brackets for CP vs ASA cases, and do these relate to the offenders or the victims, or both?

Answer 10

Only relates to the ages of the victim.

CP - under the age of 18
ASA - of or over the age of 18

Question 11

What are the elements of incest, s130?

Answer 11

Everyone of or over the age of 16 who commits incest.

Sexual connection is incest if—

(a) it is between 2 people whose relationship is that of parent and child, siblings, half-siblings, or grandparent and grandchild; and
(b) the person charged knows of the relationship.

Question 12

List the prohibited relationships that are covered by the offence of incest.

Answer 12

• Parent and Child
• Siblings
• Half-siblings
• Grandparent and Grandchild

Question 13

How old does an offender have to be for you to charge them with incest?

Answer 13

16

Question 14

What do section 44(1)&(2) Evidence Act 2006 say about the sexual experience of complainants and the reputation of complainants in sexual matters? What must the judge consider in deciding whether to allow this type of evidence? (s44(3))

Answer 14

44(1) - 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, except with the permission of the Judge.

44(2) - No evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.

44(3) - Judge must only give permission if satisfied the evidence or question is of such direct relevance to facts in issue, or to issuing the appropriate sentence, that to exclude it would be contrary to the interests of justice

Question 15

For the purposes of an offence under s131 CA1961 Sexual Conduct with Dependent Family Member, list the types of people who are classed as dependent family members. (I recommend learning s131A(1)(a) pretty much verbatim, and adding a paraphrased version of subs (1)(b)&(c).)

Answer 15

131A(1)(a)
If he or she has power or authority over him or her and is
(i) His or her parent, step parent, foster parent, guardian, uncle or aunty
(ii) A parent, step parent or foster parent of a person described in paragraph (i)
(iii) A child of his or her parent, step parent or foster parent
(iv) A spouse or de facto partner of a person described in paragraph (i), (ii) and (iii)

131A(1)(b) - member of the same family/whanau or other culturally recognised family group AND
- has responsibility or significant role in his or her care or upbringing.

131A(1)(c) - living with the other person as a member of their family AND

• has power or authority over him or her AND
• has responsibility or significant role in his or her care or upbringing.

Question 16

List the elements of the three offences set out in s131 CA1961.

Answer 16

Everyone who 
(1)	Has sexual connection 
(2)	Attempts to have sexual connection 
(3)	Does an indecent act on
With a dependant family member 
Under the age of 18 years

Question 17

Is it a defence to a charge under s131 CA1961 that the dependent family member consented?

Answer 17

No

Question 18

How might you establish proof of penetration?

Answer 18

• Complainant’s evidence
• Medical examination (physical injuries / DNA evidence)
• Defendant’s admissions

Question 19

What is the definition of ‘indecent assault’ as per R v Leeson?

Answer 19

The definition of an indecent assault is an assault accompanied by circumstances of indecency.

Question 20

What conduct amounts to ‘exploitative sexual connection with a person with a significant impairment?’ Cite the section number as well. (mentioned twice)

Answer 20

Section 138

A person has exploitative sexual connection with a person with a significant impairment (the impaired person) if he or she—

(a) has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment; and
(b) has obtained the impaired person’s acquiescence in, submission to, participation in, or undertaking of the connection by taking advantage of the impairment.

Question 21

What are the three separate offences contained in s132 CA1961, and what is the maximum penalty for each?

Answer 21

132(1) – sexual connection with a child under 12 – 14 years
132(2) – attempted sexual connection with a child under 12 – 10 years
132(3) – indecent act on a child under 12 – 10 years

Question 22

A statement previously made by a witness that is consistent with their evidence is generally NOT admissible. State the three exceptions to this rule and cite the section number of the Evidence Act covering this.

Answer 22

Section 35 - Evidence Act 2006

(a) responds to a challenge that will be or has been made to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of invention on the part of the witness; or
(b) forms an integral part of the events before the court; or
(c) consists of the mere fact that a complaint has been made in a criminal case

Question 23

What three things particular to indecent assault cases must the prosecution always prove?

Answer 23

• The defendant intentionally assaulted the complainant
• The circumstances surrounding the assault were indecent
• The defendant intended the conduct that a reasonable person would find indecent

Question 24

Re: s195A CA1961 Failure to Protect Child or Vulnerable Adult, what is the required mens rea for this offence?

Answer 24

Knows the victim is at risk of death, GBH or sexual assault as a result of the acts or omissions of another person.

Question 25

What is the required actus reus for the offence?

Answer 25

Fails to take reasonable steps to protect the victim from that risk.

Question 26

Who can be liable for the offence in s195A?

Answer 26

• defendant over 18
• member of the same household
• have actual care or charge
• staff member of hospital, institution or residence where child or vulnerable adult resides

Question 27

What things can you do to provide a safe and secure environment for victims reporting adult sexual assaults?

Answer 27

CONDUCT your dealings in a sensitive manner.
ACCEPT they are telling the truth until/unless there is evidence to prove the contrary.
LISTEN to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
MEDICAL attention - establish whether required.
TREAT them courteously.
EXPLAIN the process you are following and why you need to follow that process and ask certain questions.
ADVISE them of the local counselling services available.

Question 28

When can you remove a child WITHOUT warrant, and where do you find your authority for doing so?

Answer 28

Section 42 - Oranga Tamariki Act 1989

Police believe on reasonable grounds it is critically necessary to remove child to prevent injury or death.

Can enter and search by force if necessary any dwelling, building, vehicle etc. and

Remove or detain, by force if necessary and place in custody.

Question 29

List the seven types of circumstances that are set out in s128A CA1961 as examples of circumstances in which a person allowing sexual activity does not amount to consent.

Answer 29

• lack of resistance
• force, threat or fear of force
• asleep or unconscious
• affected by alcohol or drugs
• affected by intellectual, mental or physical condition or impairment of such a nature and degree
• mistaken ID
• mistaken about nature and quality

Question 30

What are the types of threats provided for in s129A CA1961 that would negate consent?

Answer 30

A threat that the person making the threat or some other person will:

• commit an offence punishable by imprisonment but does not involve the actual or threatened application of force and
• make an accusation or disclosure whether true or false about misconduct by any person that is likely to seriously damage the reputation of the person against or about whom the accusation or disclosure is made and
• make improper use, to the detriment of the person consenting, of a power or authority arising out of an occupational or vocational position held by the person making the threat or commercial relationship existing between the person making the threat and the person consenting.

Question 31

What are the two categories of people who cannot (as per s134 CA1961) be charged in relation to Sexual Conduct with a Young Person under 16?

Answer 31

134(4) Married to the young person

134(5) The young person cannot be charged as a party to the offence if the offender was 16 years or over at the time

Question 32

List the main objectives of a preliminary interview of an ASA victim. (mentioned twice)

Answer 32

Gain a better understanding of what has happened and establish:

• brief outline of facts
• victim safety
• public safety
• urgent investigations needs considering: potential loss of evidence, medical circumstances and suspects likely actions

Question 33

What should you tell an ASA victim prior to a medical examination taking place?

Answer 33

• examination will be conducted by a medical forensic practitioner specially trained in examining people who have been sexually assaulted
• examination has potential health benefits and can help Police obtain evidence to apprehend the offender
• expected duration of examination and possible outcomes
• ask them about any concerns about gender of practitioner and will do the best to accommodate them

Question 34

What is the protection afforded to a witness under s87 of the Evidence Act 2006 regarding details of their address, and in what circumstances can a Judge override that protection?

Answer 34

Protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street, but also the name of the town or community the witness lived in.

Where the judge determines that they are sufficiently directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 35

What three things must the Crown prove to succeed on a charge of Attempted Sexual Violation?

Answer 35

At the time of the defendant’s 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 36

Under s131B CA1961, having met or communicated with a person under 16 on an earlier occasion, what are the three actions an offender can then take to complete the actus reus of ‘grooming’?

Answer 36

(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