Must know Flashcards

Question 1

Q

Section 129A and subsection (5)

Answer

A

Offence of inducing someone to commit sexual connection, in response to an implied or explicit threat that does not involve force.

Nature of threat:
- accusation or disclosure about misconduct of a person, likely to damage the reputation of that person.

make threat, improper use of another power of authority, an occupational or vocational position held by the person making the threat or, a commercial relations between the person making the threat and the person consenting.

Question 2

Q

Section 130, what is incest

Answer

A

Sexual connection is incest if-

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

Relates to any over 16.

Not included (Step parent or step child).

Question 3

Q

Section 131, sexual conduct with a dependant family member.

Answer

A

Sexual conduct with dependant family member
(1) & (2) A person has / attempts / sexual connection with a dependent family member under the age of 18
years.

(3) A person does an indecent act on a dependent family member under the age of 18 years.

Question 4

Q

Dependant family member

Answer

A

Person is a dependent family member:

(a) if the other person has power or authority over him or her, and is—
(i) his 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) or subparagraph (ii) or subparagraph (iii); or
(b) if they are members of the same family, whanau, or other culturally recognised family group, and the other person—
(i) is not a person referred to in paragraph (a); but
(ii) has a responsibility for, or significant role in, his or her care or upbringing; or

(c) if he or she is living with the other person as a member of the other person’s family, and the other person is not a person referred to in paragraph (a), but has—

(i) power or authority over him or her; and
(ii) a responsibility for, or significant role in, his or her care or upbringing.

Police need to prove that the offender, in addition to having one of the roles set out, had power or authority over the dependent person.

Question 5

Q

S131B, meeting with YP following sexual grooming?

Answer

A

Meeting young person following sexual grooming:

(1) Every person is liable:
(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.

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

Question 6

Q

For purposes of S.138, what is a significant impairment?

sexual exploitation of person with significant impairment

Answer

A

S.138, (1) & (2) A person who has / attempts to have exploitative sexual connection with a person with a significant impairment.

(6) A significant impairment is an intellectual, mental, or physical condition or impairment (or a combination of 2 or more intellectual, mental, or physical conditions or impairments) affects a person to such an extent that it significantly impairs the person’s capacity—
(a) understand nature of sexual conduct; or
(b) understand nature of decisions about sexual conduct; or
(c) foresee consequences of decisions about sexual conduct; or
(d) communicate decisions about sexual conduct.

Question 7

Q

S.144 acts committed outside of NZ

Answer

A

S.144: This section allows for the prosecution of a New Zealand citizen who commits an offence under s132 or s134, pursuant to s144A if the act was committed outside of New Zealand.

S.144B: No charging document may be filed for an offence against section 144A of this Act except with the consent of the Attorney-General.

Question 8

Q

S.44 Evidence Act 2006

Answer

A

S.44
Generally, no evidence or questions (except with the judge’s permission) can be put to the complainant about their sexual experience with any person other than the defendant.

However, s44(1) is subject to the propensity rule in s40(3). Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.

Question 9

Q

S.87 Evidence Act 2006

Answer

A

Section 87 of the Evidence Act 2006 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.

However, these details may be disclosed where the judge determines that they are directly relevant to the facts in issue and that to exclude them would be contrary to the interest of justice.

Question 10

Q

S.88 Evidence Act 2006

Answer

A

Section 88 (Restriction on disclosure of complainant’s occupation in sexual cases) of the Evidence Act 2006 protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.

However, an application can be made to the judge to disclose this information in court.

Question 11

Q

S.121 Evidence Act 2006

Answer

A

Section 121 (Corroboration) of the Evidence Act 2006 provides that, in any criminal proceeding, the complainant’s 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.

“Corroborate” is not defined in the Crimes Act 1961. Ordinary dictionary terms means, to strengthen or support with other evidence, to make more certain.

Question 12

Q

S.35 Evidence Act 2006

Answer

A

Section 35(2) previous consistent statement admissible to the extent that if it is necessary to respond to a challenge to the witness’s veracity or accuracy, the challenge must be based on:

a previous inconsistent statement of the witness, or
a claim that the witness recently invented evidence.

Question 13

Q

Advantages of visually recorded evidence?

Answer

A

The advantages of visually recording interviews can include:

greater quality and quantity of information obtained
minimising trauma to the witness by simplifying the process and having their interview played as their 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 14

Q

Why are Video/DVD recording of child interviews the best way to meet both the child needs and interests and the interests of justice?

Answer

A

the interview process is focused on the child and allows them to state clearly and freely what (if anything) has happened according to the rules of evidence
the recorded interview 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 for different purposes.

Question 15

Q

Section 103, Evidence Act 2006, grounds for Witness to give evidence in alternative way?

Answer

A

(a) age or maturity of the witness:
(b) physical, intellectual, psychological, or psychiatric impairment of the witness:
(c) trauma suffered by the witness:
(d) witness’s fear of intimidation:
(e) linguistic or cultural background or religious beliefs of the witness:
(f) nature of the proceeding:
(g) nature of the evidence that the witness is expected to give:
(h) relationship of the witness to any party to the proceeding:
(i) absence or likely absence of the witness from New Zealand:
(j) any other ground likely to promote the purpose of the Act.

Question 16

Q

S.107 Evidence Act 2006, Alternative ways of giving evidence by child witnesses in criminal proceedings

Answer

A

(1) A child witness, when giving evidence in a criminal proceeding, is entitled to give evidence in 1 or more alternative ways so that—
(a) the witness gives evidence in 1 or more of the following ways:
(i) by a video record made before the hearing of the proceeding:
(ii) while in the courtroom but unable to see the defendant or some other specified person:
(iii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere:

Question 17

Q

Whose responsibility is it to get transcripts prepared and when must it be done by?

Answer

A

It is the responsibility of the O/C Case to ensure the transcript is prepared, including all noticeable non-verbal communication, and is accurate.

Police must ensure that a typed transcript of a video record to be used in proceedings is given to the defendant or defendant’s lawyer as soon as practicable after the defendant has pleaded not guilty.

If the matter is to be tried summarily, the transcript must be prepared as soon as reasonably practicable after the defendant has entered a not guilty plea.

Question 18

Q

Section 195A relates to ?

Answer

A

Section 195A, Crimes Act 1961 imposes criminal liability in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.

The offence applies to:
• members of the same household as the victim
• people who are staff members of any hospital, institution or residence where the victim resides.

Criminal liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:
• knows (mens rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of the acts or omissions of another person; and
• fails (actus reus) to take reasonable steps to protect the victim from that risk.

Where the person “at risk” is a child it will need to be shown that they were:
• under the age of 18 at the time of the offence, and
• that the defendant was over the age of 18, and,
• the defendant, by virtue of being a member of the same household as the victim or a staff member in a hospital or institution or residence where the victim resides had “frequent contact” with them, and
• the defendant had knowledge of the risk of harm to the child

Question 19

Q

When interacting with victims of sexual offences, what actions should you take to provide a safe and secure environment in which they may regain some control of their lives?

Answer

A

Conduct your dealings in a sensitive manner. Complaints from victims frequently relate to police not being as sensitive to the victim’s needs as they could be.
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.
Establish whether they require medical attention.
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 20

Q

It is important to preserve trace evidence in sexual assault cases. List four things that victims should refrain from (where possible) before a medical examination.

Answer

A

eating or drinking
going to the toilet (if necessary, use a toxicology kit to capture urine and ask victims not to wipe)
washing or showering
washing their hands or biting their fingernails
changing clothing
smoking
brushing or combing hair
brushing teeth or rinsing their mouth.

Question 21

Q

List the points that you would cover with a victim to explain the medical forensic examination procedure.

Answer

A

− that the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
− the benefits of a full medical forensic examination including:
• the potential benefit to their physical, sexual and mental health
• how the examination can help Police obtain evidence to apprehend the offender
− the expected time for the examination and, if appropriate, possible outcomes of the examination.

Question 22

Q

List the three areas to consider when determining “seriousness of physical abuse”.

Answer

A

There are three areas to consider in determining whether physical abuse is serious and therefore meets the threshold for referral as a CPP case under this protocol:
− the action of the abuse
− the injury inflicted, and
− the circumstances (factors of the case).

Question 23

Q

List four Police responsibilities to victims and their rights.

Answer

A

Victim rights:
− 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 arrested and charged Police must determine whether it is a s29 offence. If so, the victim must be informed of their right to register on the Victim Notification System (if the victim wishes to do so)
− victims must be informed of the outcome of the case and the case closure. Ensure any property belonging to the victim is returned promptly.

Question 24

Q

Define “child abuse” as outlined in the Children, Young Persons and their Families Act 1989.

Answer

A

Child abuse is defined in the Children, Young Persons and their Families Act 1989 as the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.

Question 25

Q

In relation to child abuse investigations, define what the term “child-centred timeframes” means.

Answer

A

Child-centred timeframes are timeframes that are relevant to the child’s age and cognitive development. The younger the child the more vulnerable they are and therefore they require a quicker response. As an example, for a 5-year-old, a week is a very long time for an event to be recounted with reliability. However, a 16-year-old would have less difficulty recalling the same event several weeks later.

Question 26

Q

List the two main forms of sexual violation.

Answer

A

The two forms of sexual violation are rape and unlawful sexual connection.

Question 27

Q

Discuss the penalty provisions for sexual violation as set out in s128B of the Crimes Act 1961.

Answer

A

Section 128B of the Crimes Act 1961 outlines that the punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction unless there are special circumstances that justify a departure from the rule.

Question 28

Q

Define the term ‘genitalia’.

Answer

A

Genitalia are the external organs of reproduction in males and females. As the term literally means the organs of generation, it does not include pubic hair or breasts. It also includes surgically constructed organs.

Question 29

Q

In negating consent, the Crown has to prove one of three things. List the three things.

Answer

A

In proving that consent was not present in a case of sexual violation, the Crown must prove that:
− the victim did not consent, or
− the victim’s consent was not valid, or
− the defendant did not believe on reasonable grounds that the victim was consenting

Question 30

Q

Discuss the two elements that need to be proved in a charge of Assault with Intent to Commit Sexual Violation, section 129 Crimes Act 1961.

Answer

A

The two elements to be proved in the charge of assault with intent to commit sexual violation are that the offender:
− assaulted the victim, and
− intended to commit sexual violation.

Question 31

Q

What is the definition of ‘consent’?

Answer

A

Consent” is a person’s conscious and voluntary agreement to something desired or proposed by another.

Question 32

Q

Define ‘sexual connection’.

Answer

A

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 33

Q

Discuss the statutory defence for s134A – sexual conduct with a young person under 16 years.

Answer

A

There is a statutory defence for sexual conduct with a young person (s134A). This statutory defence applies only when:
− the person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
− the person charged believed on reasonable grounds that the young person was aged 16 or over, and
− the young person consented to that sexual connection.

Question 34

Q

Define sexual conduct with a child under 12.

Answer

A

Sexual conduct with a child under 12 is:
− sexual connection with a child;
− attempted sexual connection with a child; and
− does an indecent act on a child.

Question 35

Q

Discuss whether a 16-year-old girl can be charged with having consensual sex with a 14-year-old boy.

Answer

A

Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (s134 Crimes Act 1961).

Question 36

Q

Define ‘indecent act’.

Answer

A

Indecent act’ is generally accepted as an act accompanied by circumstances of indecency. Indecent acts are usually consensual acts. In age-specific sexual offences, doing an indecent act with a child or young person can also include indecently assaulting that child or young person.

Question 37

Q

List three grounds on which a direction can be made under s103(3) of the Evidence Act 2006 in regards to a witness giving evidence in an alternative way.

Answer

A

Under s103(3):

(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness
(c) the trauma suffered by the witness
(d) the witness’s fear of intimidation
(e) the linguistic or cultural background or religious beliefs of the witness
(f) the nature of the proceeding
(g) the nature of the evidence that the witness is expected to give
(h) the relationship of the witness to any party to the proceeding
(i) the absence or likely absence of the witness from New Zealand
(j) any other ground likely to promote the purpose of the Act.

Question 38

Q

Discuss the requirement under reg 28 of the Evidence Regulations 2007.

Answer

A

Under reg 28:
Prosecutor to give transcript to defence after defendant pleads not guilty
(1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendant’s lawyer as soon as practicable after the defendant has pleaded not guilty.
(2) The typed transcript is to be prepared by the police.
(3) The Court may adjourn the hearing to allow further time for the defendant to consider the transcript if satisfied that subclause (1) has not been complied with.

Question 39

Q

List three ways under s105 that a witness may give evidence.

Answer

A

The witness may give evidence:

(i) while in the courtroom but unable to see the defendant or some other specified person; (screens) or
(ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; (CCTV) or
(iii) by a video record made before the hearing of the proceeding. (video recording)

Question 40

Q

R v Koroheke

Answer

A

The genitalia comprise the reproduction organs, interior and exterior … they include the vulva [and] the labia, both interior and exterior, at the opening of the vagina.

Question 41

Q

R v Cox

Answer

A

R v Cox 7/11/96, CA213/96
Consent must be “full, voluntary, free and informed … freely and voluntarily given
by a person in a position to form a rational judgment”.

Question 42

Q

R v Gutuama

Answer

A

R v Gutuama 13/12/01, CA275/01
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 43

Q

S.128A - Circumstances are not consenting:

Answer

A

(1) does not protest or offer physical resistance to the activity.
(2) A person does not consent to sexual activity if he or she allows the activity because of—
(a) force applied to him or her or some other person; or
(b) the threat (express or implied) of the application of force to him or her or some other person; or
(c) the fear of the application of force to him or her or some other person.

(3) if the activity occurs while he or she is asleep or unconscious.
(4) so affected by alcohol or some other drug that he or she cannot consent or refuse to consent to the activity.
(5) A affected by an intellectual, mental, or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent to the activity.
(6) he or she is mistaken about who the other person is.
(7) he or she allows the act because he or she is mistaken about its nature and quality.

Question 44

Q

R v Korheke (Consent)

Answer

A

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. For example,
submission by a woman because she is frightened of what might happen if she
does not give in or co-operate, is not true consent.

Question 45

Q

R v Harpur

Answer

A

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

Question 46

Q

R v Harpur

Answer

A

“[The Court may] have regard to the conduct viewed cumulatively up to the point
when the conduct in question stops the defendant’s conduct [may] be considered in its entirety. Considering how much remains to be done.. is always relevant, though not determinative.

Question 47

Q

R v Cox (Consent child)

Answer

A

“Although we do not exclude the possibility that a child of ten or eleven may be able to give a full, voluntary, free and informed consent to sexual intercourse, the circumstances that would justify that conclusion would be exceptional if not rare.

Question 48

Q

R v Cox (Reasonable belief child)

Answer

A

“Save in exceptional and rare circumstances … even where she indicates an agreement to the act occurring … no reasonable adult would have grounds for believing that a ten or eleven year old girl has the experience or maturity to understand the nature and significance of the act.”

Question 49

Q

R v Forrest and Forrest

Answer

A

“The best evidence possible in the circumstances should be adduced by the prosecution in proof of [the victim’s] age.”

Question 50

Q

R v Court

Answer

A

Indecency means “conduct that right-thinking people will consider an affront to the sexual modesty of [the complainant]”.

Question 51

Q

R v Leeson

Answer

A

“The definition of ’indecent assault’ … is an assault accompanied with circumstances of indecency …”

Question 52

Q

In most sexual assault investigations, an appropriately recorded preliminary interview is necessary for investigators to gain a better understanding of what has occurred and to establish:

Answer

A

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

Question 53

Q

ASA timing of complaints

Answer

A

Acute within seven days of the sexual assault

Non-acute at seven or more days after the sexual assault, but before six months

Historic after six months of the sexual assault

Question 54

Q

CPP - OT Timeframes

Answer

A

Critical
24hrs

No safety of care identified: mokopuna is at risk of serious harm, and requires immediate involvement to establish safety.

Very urgent
48hrs

At risk of serious harm but has some protective factors present for the next 48 hours. However, as the present situation and/or need is likely to change, high priority follow up is required.

Urgent
7 days

At risk of harm or neglect and the circumstances are likely to negatively impact on mokopuna. Options of safety and supports have been explored but remain unmet. Vulnerability and pattern exists which limits the protective factors.

Question 55

Q

There are three areas to consider in determining whether physical abuse meets the threshold for referral as a CPP case:

Answer

A

the action (of the abuse)
the injury inflicted (outcome or result)
the circumstances (factors in the case).

Question 56

Q

12 key process points in the ASA investigation

Answer

A

Initial action on contact
Case referral
Providing specialist support
Prelim interview
Information feedback
Medical exam
Formal interview
Investigation and evidence assessment
Resolution options
Prosecution
Final actions and record keeping
Prevention opportunities and responsibilities

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Must know Flashcards

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