MUST KNOW Flashcards
Define rape
non consensual penetration of the complainants genitalia by the offenders penis
penetration
For “sexual connection”, introduction of the slightest degree is enough to effect a connection
Any degree of penetration, no matter how slight or fleeting, is sufficient
If a part of the offenders body or an object held or manipulated by him is between the complainant’s labia to the slightest degree, it will constitute penetration for the purposes of sexual violation
How is proof of penetration established
- complainants evidence
- medical examination, including physical injuries and DNA evidence
- The defendants admissions
Define
Sexual connection
Connection effected by the introduction into the genitalia or anus of one person, other 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
connection between the mouth or tongue of one person and a part of another persons genitalia or anus or
the continuation of connection of a kind described in paragraph a or paragraph b
continuation
sexual activity is started consensually, but consent is later withdrawn
the subjective/ objective test in relation to consent
the complainant did not consent to the sexual act (a subjective test) AND
The offender did not believe the complainant was consenting (a subjective test) OR
If he or she did believe she was consenting, the grounds for such a belief were not reasonable (objective test)
What does section 44 of the evidence act 2006 cover?
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, evidence of the complainants propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission
What section and act covers complainants address?
Section 87 of the evidence act 2006 protects a witness from having ti 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 an issue and to exclude them would be contrary to the interest of justice
What section and act covers the complainants occupation?
Section 88 of the evidence act 2006
protects a complainant from having put to them or to teh witness about the complainants occupation, or having evidence given, or statements/ remarks made about the complainants information
However, an application can be made to the judge to disclose this information in court
What section covers corroboration?
Section 121 of the evidence act 2006
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 complainants account
What is the standard committal procedure?
Application for the court to agree to hear oral evidence.
if this is granted then the complainant of sexual offences will have protection surrounding who can be present and what can be asked.
What legislation covers the previous consistent statements rule and describe it
Section 35 of the evidence act 2006
A witness (the victim)’s previous statement is INADMISSIBLE UNLESS defence challenges the veracity of the witness. THEN it is admissible as a response
Section 35(2) makes a 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 a witness, or
- a claim that a witness recently invented evidence
Veracity
the disposition of a person to refrain from lying, whether generally or in the proceeding
Why use a level 3 specialist interviewer?
The specialists use enhanced cognitive interview techniques to maximise the quality and quantity of information obtained from cooperative witnesses
What are the advantages of visually recording interviews?
- Greater quality and quantity of information obtained
- minimising trauma
- reduce contamination
- witness can refresh memory before court
For the purposes of the evidence act, who is a child?
person under 18
With a child complaint, how will evidence usually be given?
By way of video record
How does DVD recording of child interviews meet the child’s needs?
- child focused: allows them to state clearly and freely what (if anything) has happened
- recorded interview can be used for basis of an investigation
- avoids the need to re interview the child for different purposes
What are the three complaint types in ASA
Acute: Within 7 days
Non acute: 7 days to 6 months
Historic: After 6 months
Regulation 8 of the evidence regulations 2007
What must be on video record
Regulation 17 of the evidence regulations 2007
How master copy identified and kept
Regulation 31 of the evidence regulations 2007
Custody of lawyer’s copy
What does sections 103-105 of the evidence act 2006 cover?
the basis for the crown to present the DVD as evidence in chief in court
List 3 grounds on which a direction can be made under s 103(3) of the evidence act 2006 in regards to a witness giving evidence in an alternative way
- age or maturity of the witness
- physical impairment of the witness
- witness fear of intimidation
- trauma suffered by witness
Discuss the requirements under regulation 28 of the evidence regulations 2007
The prosecutor to give transcript to defence after defendant pleads NG
1) The prosecutor must ensure a typed transcript of a working copy is given to the defendant or the defendants lawyer as soon as practicable after the defendant has pleaded NG
2) transcript is OC RESPONSIBILITY
3) court may adjourn the hearing to let defence consider transcript if 1) not complied with
List 3 ways under s105 that a witness may give evidence
SCREENS
In the courtroom but unable to see defendant
CCTV
From an appropriate place outside courtroom
VIDEO RECORDING
made before the hearing of the proceeding
ASA: what are the two priorities that need to be balanced?
- Undertaking the investigation as quickly as possible
- Meeting the complainant’s physical and emotional needs
What are the OT time frames?
Critical: 24 hours
Very urgent: 48 hours
Urgent: 7 days
Details to be gathered on initial contact
- victims details
- BRIEF circs of alleged offence
- scene location
- offender description
For ASA, what are the timings of the complaint?
Acute: within 7 days
Non acute: 7 days to 6 months
historic: after 6 months
Define Victim
A person against whom an offence is committed by another person
A person who, through , or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to property
Define “attempts” as in legislation
intent to commit the offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt to commit the offence whether in the circumstances it was possible to commit the offence or not
When would you remove a child?
It is not safe to leave them there or you believe, on reasonable grounds that if left, they will suffer ill treatment, neglect, deprivation abuse or harm and
There is no other practical means of ensuring their safety
