PR Flashcards
Abduction - Section 208 Crimes Act 1961
Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,— (a) with intent to marry him or her; or (b) with intent to have sexual connection with him or her; or (c) with intent to cause him or her to be married to or to have sexual connection with some other person.
Kidnapping - Section 209 Crimes Act 1961
Section 209: Every one is liable to imprisonment for a term not exceeding 14 years who unlawfully takes away or detains a person without his or her consent or with his or her consent obtained by fraud or duress,— (a) with intent to hold him or her for ransom or to service; or (b) with intent to cause him or her to be confined or imprisoned; or (c) with intent to cause him or her to be sent or taken out of New Zealand.
Section 209A Crimes Act 1961
For the purposes of sections 208 and 209, a person under the age of 16 years cannot consent to being taken away or detained.
Section 210 Crimes Act 1961 (abduction of young person)
(1) Every one is liable to imprisonment for a term not exceeding 7 years who, with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person, unlawfully takes or entices away or detains the young person. (2) Every one is liable to imprisonment for a term not exceeding 7 years who receives a young person, knowing that he or she has been unlawfully taken or enticed away or detained with intent to deprive a parent or guardian or other person having the lawful care or charge of him or her of the possession of him or her.
Section 210A Crimes Act 1961 - Defence to Section 209 and 210
A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence against section 209 or section 210 because he or she gets possession of the young person
Define Consent obtained by fraud
Consent obtained by the misrepresentation of the facts of the offenders intentions.
Define Consent obtained by duress
Consent obtained by actual or implied threat of force to the victim or another person. Can include other forms of pressure or coercion
Define Ransom
A sum on money demanded or paid for the release of a person being held captive.
Define Marry
To engage in marriage solemnised in accordance with the provisions of the Marriage Act 1955.
Define Service
To hold as a servant or slave
Define Cause to be imprisoned
To imprison means to put them in prison or confine them as if in prison. It has a narrower meaning than confine and may apply in situations where the victim is locked in a room or in the boot of a car.
Define Sent or taken from NZ
The term sent may include situations where the victim leaves the country on their own, perhaps as a result of a threat or other form of duress.The word taken suggests that the victim is in the company or custody of a person accompanying them out of NZ.
What was held in R v CHARTRAND
Unlawfully means without lawful justification, authority or excuse
What was held in R v WELLARD
Kidnapping is the deprivation of liberty coupled with a taking away from the place where the victim wants to be
What was held in R v PRYCE
Detaining is an active concept meaning to keep in confinement or custody, this is to be contrasted with the passive concept of harbouring of mere failure to hand over.
What was held in R v MOHI
The offence is committed at the time of the taking away, so long as there is at that moment the necessary intent. The crown does not need to show that is was carried out
What was held in R v CROSSAN
Taking away and detaining are two separate and distinct offences, the first consists of taking the victim away, the second of detaining them.
What was held in R v COX
Consent must be full voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement
Arson - Section 267 (1)(a) Crimes Act 1961
(1) Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who— (a) intentionally or recklessly damages by fire or by means of any explosive any property if he or she knows or ought to know that danger to life is likely to ensue
Arson - Section 267(1)(b) Crimes Act 1961
(1) Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who— (b) intentionally or recklessly, and without claim of right, damages by fire or by means of any explosive any immovable property, or any vehicle, ship, or aircraft, in which that person has no interest
Arson - Section 267(1)(c) Crimes Act 1961
(1) Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who— (c) intentionally or recklessly damages by fire or by means of any explosive any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person
Arson - Section 267(2)(a) Crimes Act 1961
(2) Every one commits arson and is liable to imprisonment for a term not exceeding 7 years who— (a) intentionally or recklessly, and without claim of right, damages by fire or by means of any explosive any property in which that person has no interest (other than property referred to in subsection (1)
Arson - Section 267(2)(b) Crimes Act 1961
(2) Every one commits arson and is liable to imprisonment for a term not exceeding 7 years who— (b) intentionally or recklessly damages by fire or by means of any explosive any property (other than property referred to in subsection (1)) with intent to obtain any benefit, or with intent to cause loss to any other person.
Arson - Section 267(3) Crimes Act 1961
(3) Every one is liable to imprisonment for a term not exceeding 5 years who intentionally damages by fire or by means of any explosive any property with reckless disregard for the safety of any other property.
Attempted Arson - Section 268 Crimes Act 1961
Everyone is liable to imprisonment for a term not exceeding 10 years who attempts to commit arson in respect of any immovable property or any vehicle, ship, or aircraft
Intentional damage - Section 269(1) Crimes Act 1961
(1) Every one is liable to imprisonment for a term not exceeding 10 years who intentionally or recklessly destroys or damages any property if he or she knows or ought to know that danger to life is likely to result.
Intentional damage - Section 269(2)(a) Crimes Act 1961
(2) Every one is liable to imprisonment for a term not exceeding 7 years who— (a) intentionally or recklessly, and without claim of right, destroys or damages any property in which that person has no interest
Intentional damage - Section 269(2)(b) Crimes Act 1961
(2) Every one is liable to imprisonment for a term not exceeding 7 years who— (b) intentionally or recklessly, and without claim of right, destroys or damages any property with intent to obtain any benefit, or with intent to cause loss to any other person.
Intentional damage - Section 269(3) Crimes Act 1961
(3) Every one is liable to imprisonment for a term not exceeding 7 years who intentionally destroys or damages any property with reckless disregard for the safety of any other property
Define intent
Deliberate act:“Intent” means that act or omission must be done deliberately. The act or omission must be more than involuntary or accidental.Intent to produce a result:The second type of intent is an intent to produce a specific result. In this context result means “aim, object, or purpose”. Simester and Brookbanks
Define Recklessness
A conscious and deliberate taking of an unjustifiable risk.
Define damages by fire
Fire is the result of the process of combustion, a chemical reaction between fuel and oxygen, triggered by heat. Although fire damage will often involve burning or charring, it is not necessary that the property is set alight.
Define danger to life
Life in this context means human life, and the danger must be to the life of someone other than the defendant.
Define knows/ought to know - Simester and Brookbanks
Knowing means “knowing or correctly believing. Defendant may believe something wrongly, but cannot know something false.
Define Explosive - Section 2 Crimes Act 1961
Any substance or mixture or combination of substances which in its normal state is capable of either decomposition at such rapid rate as to result in an explosion or of producing a pyrotechnic effect, (gun powder, gelignite)
Define Property - Section 2 Crimes Act 1961
Includes any real or personal property, and any estate or interest in any real or personal property, money, electricity, and any debt and anything in action and any other right or interest.
Define Claim of right - Section 2 Crimes Act 1961
In relation to any act means a belief at the time of the act in a proprietary or possessory right in property in relation to which the offence is alleged to have been committed, although that belief may be based on ignorance, or mistake of fact or any other matter of law other than the enactment against which the offence is alleged to have been committed.
Define immovable property
Property will be considered immovable if it is currently fixed in place and unable to be moved, even though it may be possible to make it movable.
Define vehicle - Section 2 Crimes Act 1961
A contrivance equipped with wheels tracks or revolving runners on which it moves or is moved
Define Obtain - Section 217 Crimes Act 1961
Means to obtain or retain for himself or herself or any other person
Define benefit - Section 217 Crimes Act 1961
Any benefit, pecuniary advantage, privilege, property, service or valuable consideration
What was held in R V HARNEY
R v Harney [1987] 2 NZLR 576 (CA)“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
What was held in R v ARCHER
Property may be damaged if it suffers permanent or temporary physical harm of permanent or temporary impairment to its use or value.
What was held in R v HARPUR
[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
What was held in R v MORLEY - Cause loss
Loss is assessed by the extent to which the complainant’s position prior to the offence has been diminished or impaired.
Define Adult in regards to ASA
A person aged 18 years or older at the time of reporting a sexual assault
Define Sexual Assault
Sexual assault includes but is not limited to: • Sexual violation by rape or unlawful sexual connection • Indecent assault • Any form of unwanted or coercive touching or actions of a sexual nature or in the circumstances of indecency • Any sexual abuse or exploitation by way of coercion, deceit, power of authority or mistaken belief • incest
Define victim
The person whom a sexual assault has been committed against. Can also be referred to as the survivor.
After receiving a complaint, what must you tell a Victim about support services? (Crisis support)
- Advise the victim asap after receiving the complaint of adult sexual assault of: - Their right to support during the investigation and that police will arrange for a specialist sexual assault support worker to speak to them - That they can have input into decisions about who provides support and when. 2. Contact local specialist sexual assault support service regardless of the victim’s response. Encourage the victim to meet the specialist support person alone. 3. If the victim chooses not to have specialist support and elects family or friends, discuss the implications including: - The experience of the specialist support b. Family members may also be traumatised from the incident - Family members or others may be potential witnesses and may influence or exert pressure on the victim - The presence of intimate partners and parents can create issues around frank and open disclosure - Friends and families may disclose to others
What is the purpose of the preliminary interview
To gain a better understanding of what has occurred and to determine: • What further investigative actions are necessary • Whether an offence may have occurred; and • Whether the victim wishes to make a formal complaint
What steps to take after the preliminary interview
Re-assess the investigation and consider: • Public safety and the likelihood of similar or connected further offending • The need to secure and preserve fragile or diminishing evidence • Securing and containing the crime scene • Identifying and locating witnesses • Identification and/or apprehension of suspects
What information should you provide the Victim as to the investigation?
- Give information about support and provide access to it - Provide information about the investigation process and realistic expectations including: • Initial actions • Medical / forensic examination • Formal interview • Explanation regarding exh
What is the primary objective of medical examination?
Is the victim’s physical, sexual and medical health and safety. Of secondary importance is the opportunity to collect trace evidence
Actions after the medical - debriefing the Doctor
Discuss with the medical doctor: • The immediate needs of the victim • Verbally summarise the exhibits and possible significance • ID forensic items with urgency to ESR • Injuries requiring photographs • Any significant disclosures made by the victim during the examination
Procedures for conducting preliminary interview
- Ensure:- victim safety- all necessary initial actions have been undertaken- the interview environment is comfortable and private, and evidence neutral2. As soon as established that a sexual assault may have occurred, immediately arrange for a specialist sexual assault support worker to provide emotional care. If victim is very distressed don’t proceed without specialist support, unless information is required urgently or a persons safety is at risk.3.Follow investigative interviewing procedures - TEDS questions to establish:- what has happened- when did it take place- where did it take place- who is the offender4. Don’t conduct a formal interview unless asked to do so by CIB supervisor or specialist adult interviewer
Timing of medical examinations:Acute or suspected drug facilitated sexual assault (within 7 days)
Medical practitioner must be contacted as soon as possible. Ideally an examination should take place within 24 hours and before evidence is lost.If three or four days have passed since assault, examination may not be as urgent, however it should still be considered.
Timing of medical examinations:Non Acute (7 days to 6 months)
Always refer victim to SAATS medical care, even if forensic examination unlikely due to time passed.Useful forensic evidence can still be captured, eg bruising or genital symptoms may still be evident 10 or more days after serious assault.
Timing of medical examinations:Historic (more than 6 months)
Refer vicitm to SAATS to determine whether they may benefit from medical examination or medical care.
What should you explain to the Victim and then Doctor prior to medical examination?
- Explain to the victim that the examination:- will be conducted by medical practitioner specially trained in examining persons who have been sexually assaulted - explain potential health benefits - explain that it can help Police obtain evidence to apprehend the offender.- The expected duration of the exam, possible outcomes.- Ask if they have any concerns about gender of practitioner and advise will do your best to accommodate their wishes.2. Contact medical practitioner on call and:- advise the age and gender of victim- when the sexual assault was believed to have occurred- give a very brief outline of information known so far including if drugs are involved, details of injuries, level of intoxication or other known health concerns- if relevant discuss victims wishes about gender of examining practitioner- when necessary discuss whether child sexual assault complaint should be investigated using ASA procedures3. Arrange with the practitioner, a time and place for the medical examination. 4. Ensure the victim has had the opportunity to speak to specialist sexual assault support worker.5. Use toxicology kits for early evidence capture pending medical examination.6. If required arrange change of clothes for victim7. If necessary take MEK. In appropriate cases take a toxicology kit.8 Ensure officer attending the examination has all the relevant information to fully brief the medical practitioner.
Parties - Section 66(1) Crimes Act 1961
(1) Every one is a party to and guilty of an offence who— (a) actually commits the offence; or (b) does or omits an act for the purpose of aiding any person to commit the offence; or (c) abets any person in the commission of the offence; or (d) incites, counsels, or procures any person to commit the offence.
Parties - Section 66(2) Crimes Act 1961
(2) Where two or more persons form a common intention to prosecute any unlawful purpose, and assist each other therein, each of them is party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the of the common purpose.
Accessory After the fact - Section 71(1) Crimes Act 1961
(1) An accessory after the fact to an offence is one who, knowing any person to have been a party to the offence, receives, comforts, or assists that person or tampers with or actively suppresses any evidence against him or her, in order to enable him or her to escape after arrest or to avoid arrest or conviction
Attempts - Section 72(1) Crimes Act 1961
(1) Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his or her object, is guilty of an attempt to commit the offence intended, whether in the circumstances it was possible to commit the offence or not.
What is the ‘all but’ rule? (Intention to commit an offence)
The acts must be sufficiently proximate to the full offence. Effectively the accused must have started to commit the full offence and gone beyond the phase of mere preparation, this is the all but rule
Receiving - Section 246(1) Crimes Act 1961
(1) Everyone is guilty of receiving who receives any property stolen or obtained by any other imprisonable offence, knowing that property to have been stolen or so obtained, or being reckless as to whether or not the property had been stolen or so obtained.
When is the offence of receiving complete?
Section 246(3) - The act of receiving is complete as soon as the offender has, either exclusively or jointly with the thief or any other person, possession of, or control over, the property or helps in concealing or disposing of the property
What is the punishment for receiving?
Section 247 - Under $500 - 3 months imprisonment$500 - $1000 - 1 year imprisonmentover $1000 - 7 years imprisonment
Conspiracy - Section 310 Crimes Act 1961
(1) Everyone who conspires with any person to commit any offence, or to do or omit, in any part of the world, anything of which the doing or omission in New Zealand would be an offence, is liable to imprisonment for a term not exceeding 7 years if the maximum punishment for that offence exceeds 7 years’ imprisonment, and in any other case is liable to the same punishment as if he or she had committed that offence.
Punishment for accessory after the fact?
Section 312 Crimes Act 1961 - - 7 years if offence punishable by life imprisonment- 5 years if offence punishable by 10 or more years- half the penalty for any other offences
Define Recklessness
Acting “recklessly” involves consciously and deliberately taking an unjustifiable risk.
What knowledge must accused have for accessory after the fact?
The accused must have a knowledge that the person they are being an accessory to was party to an offence at the time of assisting them.
Define knowing - Simester and Brookbanks
Knowing means correctly believing, the defendant may believe something wrongly but cannot know something that is false.
Define Offence
Act or omission that is punishable on conviction under any enactment, and are demarcated into four categories.
What can an accessory challenge?
A person charged with being an accessory after the fact is entitled to insist of proof of the principal crime and to challenge the evidence of it, even if the principal offender has pleaded guilty.
Define tampers with or actively suppresses evidence
Must do a deliberate act in relation to evidence against the offender for the purpose of assisting the person to evade justice. The act must actually help the person.
What was held in R v MANE about completion of the completion of the offence?
R v MANE - to be considered an accessory after the fact the acts done by the person must be after the completion of the offence
Define stolen - Section 219 Crimes Act 1961
Dishonestly without claim of right takes any property with intent to deprive any owner permanently of that property or any interest in that property.
Define receives, comforts, assists
The accused does a deliberate act for the purpose of assisting the person to evade justice. The act done must actually help the person in some way.
Define agreement - conspiracy
The conspiratorial agreement requires the operation of both the physical and mental faculties.The actus reus of the conspiracy is the agreement between two or more people to put their common design into effect.The mens rea necessary is:• an intention of those involved to agree• an intention that the relevant course of conduct should be pursued by those party to the agreement
What was held in R v HARNEY in relation to recklessness?
R v Harney [1987] 2 NZLR 576 (CA)“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
What was held in R v CROOKS in relation to knowledge?
Knowledge means actual knowledge or belief in the sense of having no real doubt that the person assisted was party to the relevant offence.
What was held in R v BRIGGS in relation to wilful blindness?
Knowledge may also be inferred from wilful blindness or a deliberate abstention from making enquiries that would confirm the suspected truth
What was held in R v MANE to being an accessory?
To be considered an accessory, the acts done by the accessory must be after the completion of the offence
What was held in R v RING about stealing rings?
In this case the offender’s intent was to steal property by putting his hand into the pocket of the victim. Unbeknownst to the offender the pocket was empty. Despite this he was able to be convicted of attempted theft, because the intent to steal whatever property might have been discovered inside the pocket was present in his mind and demonstrated by his actions. The remaining elements were also satisfied.
What was held in R v HARPUR to overall conduct?
[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
What was held in Police v JAY in regards to cannabis?
A man brought hedge clippings, believing it was cannabis.
What was held in R v DONNELLY in regards to stolen property?
Where stolen property has been returned to the owner or legal title to any such property has been acquired by any person, it is not an offence to subsequently receive it, even though the receiver may know that the property had previously been stolen or dishonestly obtained.
What was held in R v SANDERS about conspiratorial agreements?
A conspiracy does not end with the making of the agreement. The conspiratorial agreement continues in operation and therefore in existence until it is ended by completion of its performance or abandonment or in any other manner by which agreements are discharged”.
What was held in R v WHITE about unknown conspirators?
Where you can prove that a suspect conspired with other parties whose identities are unknown, that suspect can still be convicted even if the identity of the other parties is never established.
What was held in R v PENE about parties?
A party must intentionally help or encourage - it is insufficient if they were reckless as to whether the principal was assisted or encouraged.
What was held in R v RENATA about group offending?
Three offenders beat the victim to death in the car park of a tavern. The prosecution was unable to establish which blow was the fatal one or which of the three offenders administered it. The Court held that where the principal offender cannot be identified, it is sufficient to prove that each individual accused must have been either the principal or a party in one of the ways contemplated by s66(1)
What was held in LARKINS v Police about proof of assistance?
While it is unnecessary that the principal should be aware that he or she is being assisted, there must be proof of actual assistance. Absence of knowledge by the principal that he is being assisted removes a common foundation for a finding of actual assistance, namely that the principal was able to proceed with his enterprise with the additional confidence gained because his accomplice was on the lookout for unwanted intervention
What was held in ASHTON v Police being in charge of dangerous things?
An example of a secondary party owing a legal duty to a third person or to the general public is a person teaching another person to drive, that person is in NZ under a legal duty to take reasonable precautions, because under s156 CA1961 he is deemed to be in charge of a dangerous thing.
What was held in R v RUSSELL in relation to liability around failing to act?
The accused was charged with murder of his wife and two son’s following an argument between the accused and his wife, the wife in the presence of the accused jumped into a swimming pool with both children drowning them all, failed to render assistance to his wife or children. The court held that the accused was morally bound to take active steps to save his children, but by his deliberate abstention from doing so and by giving the encouragement and authority of his presence and approval to his wife’s act he became an aider, abettor and thus a secondary offender
What was held in R v BETTS and RIDLEY secondary offenders liabilities?
An offence where no violence is contemplated and the principal offender in carrying out the common aim uses violence, a secondary offender taking no physical part in it would not be held liable for the violence used.
What was held in R v KENNEDY about an intention to receive?
The prosecution must prove an intent on the part of the receiver to possess the property
What as held in R v LUCKINSKY about the received property?
The property received must be the property stolen or illegally obtained (or part thereof), and not some other item for which the illegally obtained property had been exchanged or which are the proceeds.
What are four points of CHIS registration
- Examine motivation of potential CHIS as part of the assessment of risks during recruitment.- Consult with CHIS Supervisor or Controller prior to use or tasking of a CHIS whose relationship has been established without an initial cultivation or recruitme
Define handler and co handler
A handler is a Police Constable who has completed training to a level 1 in CHIS handling, who registers a CHIS and/or who primarily deals with that CHIS.A co handler assists the primary Handler or assumes the Handlers role and responsibilities when required.
CHIS rewards
Handlers and Co-Handlers must: - Submit applications for rewards and ancillary expenses - Avoid creating expectations on the part of the CHIS that may prejudice the Controllers or authorising officers objective assessment of the appropriate level of reward - Carefully plan for and manage the potential impact that large sums of money may have on a CHIS to avoid the risk of exposure - Ensure rewards are paid as per policy and the receipt forwarded to OC HSMU
Consult and joint investigation plan - steps 3 and 4
- Referral (information sharing) 2. Consultation (discussion at appropriate level, critical, very urgent, urgent) 3. Agreement (IJIP)
What must occur
An IJIP must be agreed upon
Timeframes required
Critical – in immediate risk or serious harm and the need for immediate protection may be necessary. Very Urgent – At risk of harm but is not in any immediate danger. Urgent – At risk of harm but protected in the short term.Critical and Very Urgent requires initial action within 24 hours. Urgent initial action within two working days.
Define child under CPP
Unless specified, child means any child or young person under the age of 17 years at the time of the report, as defined in the CYP Act 1989
Define serious child abuse
• Sexual abuse • Serious physical abuse • Serious wilful neglect • Serious family violence where the child is a witness • All allegations against CYF approved caregivers that involve serious child abuse • All allegations against employees of CYF and Police that involve serious child abuse
Determining the seriousness of physical abuse
Consider:1. The action of the abuse 2. The injury inflicted 3. The circumstances
Initial action and safety assessment - when to speak to a child.
- Obtain brief details of what the reported concern is about to enable risk assessment to be completed to determine appropriate initial response:- details of informant, complainant and child- brief circumstances of concern or complaint- brief details of timings and about scene- offender’s details2. Do not question the child in depth at this stage. 1. If the child has disclosed sexual or physical assaults to an adult, obtain the information from that adult and do not ask the child again what has happened if a clear disclosure has been made. 3. If it is unclear what the child has said and: a. There are no urgent safety issues, do not question the child any further b. It is absolutely necessary to speak to the child to ascertain their safety as open ended questions, do not continue to question them if it becomes clear that an offence has occurred.
What is the NIA code for Child protection
6C
What is agreed in an IJIP?
• Who is involved in the case • What they will do • When they will do it
What to consider in an IJIP
• The child’s safety and well being • Any joint visits required • Initial interview, (ethnicity needs) • Specialist child witness interview, interviews of the alleged offender and others • Collection of evidence • Referral to a medical practitioner
Options for removing a child
Section 42 CYF Act – Police power, reasonable grounds to believe it is critically necessary to remove a child to prevent injury or death, Section 40 CYF Act – Warrant to remove, Court is satisfied child is in need of care and protection, it may issue warrant for removal of child from any place to be put in CYF care.
What are the objectives of a crime scene examination
- Establish if an offence has been committed 2. Establish the offences key elements and provide facts for the basis of an inquiry 3. Identify the suspect and establish contact with the victim or scene 4. Identify people associated with the offence 5. Exonerate the innocent 6. Corroborate or contest witness and victim accounts 7. Verify confessions and admissions 8. Exclude possible defences 9. Corroborate or exclude other evidence relating to the offence or incident
Responsibilities of the O/C scene
- Controlling, freezing, preserving the scene and ensuring it is safe 2. Briefing all staff of their duties 3. Coordinating and overseeing the crime scene investigation 4. Providing the communication link between the scene and the OC investigation 5. Ensuring scene is photographed, fingerprinted and examined before search 6. Establishing a common approach path between the cordon and focal point 7. Conducting a reconnaissance to gain overall picture of scene and test reconstructions 8. Planning a Strategy for forensic examination 9. Uplifting and ensuring delivery of labelled exhibits to the exhibit recorded 10. Proving relevant exhibits in court
What is a reconnaissance
A reconnaissance is the preliminary inspection or survey made to get an overall picture of the scene without disturbing evidence
Steps for conducting a reconnaissance
- Gather all information 2. Create a common approach pathway 3. Look for: offenders routes in and out, POE, extensions to the scene, obvious evidence 4. Sketch the scene and briefly note anything of significance 5. Note and prepare for changes that could impact evidence 6. Reconsider the scene boundaries 7. Consider the placement of hot, warm, and cold zones
What should a scene strategy cover
1 – Starting Point, POE 2 – Exhibit Deterioration 3 – Specialists Required 4 – Placement of hot, warm and cold zones 5 – Method of Search, systematic and logical 6 – Individual roles and responsibilities 7 – Recording systems to be used, notebook, schedules 8 – Protection methods to prevent contamination of the scene 9 – Exhibit handling
What to do when finding an exhibit
1 - do not touch or move it2 - advise the O/C scene - to view it3 - consider its significance for reconstruction4 - photograph it in situ5 - consider fingerprints6 - mark the position where it was found7 - measure the position from a fixed point8 - plot the position on a sketch map
Exhibit numbering
Exhibit numbering system should be simple, efficient and provide the following attributes:- be consistent- allow delegation of exhibit numbers to the staff who will be using them- cope with multiple scenes- be compatible with technology, allowing searching to be conducted using exhibit numbers- encompass all exhibits, eg MEK, blood samples and photographs sent to ESR
What are the grounds for issuing a warrant to remove child or young person - Section 40 CYP Act 1989
where there are reasonable grounds for believing that the child or young person is—(a)suffering, or is likely to suffer, ill-treatment, serious neglect, abuse, serious deprivation, or serious harm; or(b)so seriously disturbed as to be likely—(i)to act in a manner harmful to the child or young person or any other person; or(ii)to cause serious damage to property,
Who can apply for a warrant to remove under Section 40 CYP Act 1989
An application for a warrant under subsection (1) may be made by a constable or a social worker.
What does a section 40 warrant authorise
Any person authorised by warrant under this section to search for any child or young person may—(a) enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:(b)either—(i)remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive; or(ii)where the child or young person is in a hospital, direct the medical superintendent of that hospital to keep that child or young person in that hospital.
Search without warrant - Section 42 CYP Act 1989
Any constable who believes on reasonable grounds that it is critically necessary to protect a child or young person from injury or death may, without warrant,—(a)enter and search, by force if necessary, any dwellinghouse, building, aircraft, ship, carriage, vehicle, premises or place:(b)remove or detain, by force if necessary, the child or young person and place the child or young person in the custody of the chief executive.
Grounds for arrest of child or young person without warrant - Section 214 CYP Act
Must only arrest if grounds to believe that it is necessary to arrest that child or young person without warrant for the purpose of:W – Preventing interference with any witnesses relating to the offence E – Ensure the appearance of the child before the court E – Preventing loss or destruction of evidence relating to the offence P – Preventing the child from committing further offences (b) – Proceeding by way of summons will not achieve the purpose 2(a) – Committed category 3 or 4 offence, punishable by at least 14 years, and(b) believes on reasonable grounds the arrest of the CYP is in public interest
What must child or young person be informed of when being questioned/under arrest - Section 215 CYP Act
(a) may be arrested if refuses to give their name and address to the enforcement officer, the CYP cannot be served a summons (b) Not obliged to accompany to any place for the purpose of being questioned, and if they do consent they can withdraw the consent at any time (c) Under no obligation to give any statement (d) If they consent to make or give a statement the CYP may withdraw that consent at any time (e) Any statement given may be used in evidence in any proceedings (f) Entitled to consult with, and make any statement in the presence of, a barrister or solicitor and any person nominated by the CYP.
What does 218 say in regards to language used.
Explanations to be given in manner and language appropriate to the age and level of understanding of the CYP
Who can be a nominated person - Section 222(1) CYP 1989`
(a) A parent or guardian of the CYP (b) An adult family member(c) Any other adult selected by the CYP (d) If the CYP refuses or fails to nominate any person referred to in a-c, any adult (other than enforcement) nominated for the purposes by an enforcement officer,
When may enforcement officer refuse to allow CYP to consult with person nominated - Section 222(2) CYPAAct 1989
(a) If permitted to consult with the CYP would attempt or likely attempt to pervert the course of justice; or (b) Cannot with reasonable diligence be located or will not be available within a period of time that is reasonable in the circumstances, an enforcement officer may refuse to allow the CYP to consult with that person
What happens when CYP not permitted to consult with person? Section 222(3)
(c) Section 222(3) – When CYP is not permitted to consult with a person, they shall be permitted to nominate another person
Dishonestly taking or using a document - Section 228
Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to obtain any property, service, pecuniary advantage, or valuable consideration,— (a) Dishonestly and without claim of right, takes or obtains any document; or (b) Dishonestly and without claim of right, uses or attempts to use any document
Obtain / cause loss by deception - Section 240 Crimes Act 1961
(1) Everyone is guilty of obtaining by deception or causing loss by deception who, by any deception and without claim of right,— (a) obtains ownership or possession of, or control over, any property, or any privilege, service, pecuniary advantage, benefit, or valuable consideration, directly or indirectly (b) in incurring any debt or liability, obtains credit; or(c) induces or causes any other person to deliver over, execute, make, accept, endorse, destroy, or alter any document or thing capable of being used to derive a pecuniary advantage; or(d) causes loss to any other person
Define deception - Section 240 (2) Crimes Act 1961
(2) In this section deception means - (a) a false representation, whether oral, documentary, or by conduct, where the person making the representation intends to deceive any other person and— (i) knows that it is false in a material particular; or (ii) is reckless as to whether it is false in a material particular; or (b) an omission to disclose a material particular, with intent to deceive any person, in circumstances where there is a duty to disclose it; or (c) a fraudulent device, trick, or stratagem used with intent to deceive any person.
Define a document - Section 217 Crimes Act 1961
Includes part of a document in any form and includes:- paper/material containing anything that can be read-photos, negatives and related items- Discs, tapes, cards or other devices/equipment on which information is stored and can be reproduced
Define dishonestly - Section 217 Crimes Act 1961
Dishonestly, in relation to an act or omission, means done or omitted without a belief that there was expressed or implied consent to, or authority for, the act or omission from a person entitled to give such consent or authority.
Define takes - Section 219 Crimes Act 1961
For tangible property, theft is committed by taking when the offender moves the property or causes it to be moved
Define false representation
Under current law, the representation must be false and the defendant must know or believe that it is false in a material particular, or be reckless as to whether it is false. Absolute certainty is not required and wilful blindness as to the falsity of the statement will suffice.
Define Obtains - Section 217 Crimes Act 1961
Obtain in relation to any person means to obtain or retain for himself or herself or any other person
Define Property - Section 2 Crimes Act 1961
Property includes any real or personal property, any estate or interest in any real or personal property, money, electricity, and any debt, and any thing in action and any other right or interest.
Define material particular
Material particular is not defined by the Crimes Act and can be given its usual meaning of an important, essential or relevant detail or item.
What was held in HAYES v R - in relation to pecuniary advantage
A pecuniary advantage is “anything that enhances the accused’s financial position. It is that enhancement which constitutes the element of advantage.
What was held in HAYES v R in relation to valuable consideration
A valuable consideration is “anything capable of being valuable consideration, whether of a monetary kind or of any other kind. In short money or moneys worth.”
What was held in R v MORLEY regards intent
An intention to deceive requires that the deception is practiced in order to deceive the affected party. Purposeful intent is necessary and must exist at the time of the deception
What was held in FISHER v RAVEN in regards to credit
Credit’ refers to the obligation on the debtor to pay or repay, and the time given for them to do so by the creditor. Credit does not extend to an obligation to supply services or goods:
What was held in R v MCKAY
On appeal it was held that the credit had been obtained on booking in but at that time the accused did not possess an intent to deceive.
What was held in R v MISIC in regards to document
Essentially a document is a thing which provides evidence or information or serves as a record
What form may disclosure be disclosed in? Section 10(4) Criminal Disclosure Act 2013
Information required to be disclosed under this Act may be disclosed in whatever form (including electronically) that the person disclosing the information holds it in at the time the obligation to disclose arises and that is readily accessible to the defendant.Consideration must be given to whether defendant has ready access to a computer with which to access electronic disclosure documents, particularly if in prison.
What must be disclosed to defendant - Section 13(3)
(a) statements; and (b) briefs of evidence; and (c)details of people interviewed by the prosecutor; and— (i)written accounts of the interview, whether signed or unsigned, and (ii)any statement made to the prosecutor by the person; and (d)any convictions of a prosecution witness ; and (e) a list of all exhibits; and (f) a list of exhibits that wont be disclosed; and (g) copy of information requesting expert witness or witnesses; and (h) copy of information about expert witnesses Police did not elect to call
When must information be disclosed - Section 13(1) CDA
As soon as is reasonably practicable after a defendant has pleaded not guilty.
Further disclosure - Section 13(5) CDA
(5)If information referred to in subsection (2) comes into the possession or control of the prosecutor, or is prepared in recorded form, after the prosecutor has disclosed information in accordance with subsection (1) and before the hearing or trial is completed, the prosecutor must disclose the information to the defendant as soon as is reasonably practicable.
Dealing with controlled drugs - Section 6 Misuse of Drugs Act 1975
(1) no person shall— (a) import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3; or (b) produce or manufacture any controlled drug; or (c) supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or (d) supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or (e) sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or (f) have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e)
Dealing with Controlled drugs (Conspiracy) - Section 6 (2A) MODA 1975
Every person who conspires with any other person to commit an offence against subsection (1) commits an offence against this Act and is liable on conviction to imprisonment for a term— (a) not exceeding 14 years where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed: (b) not exceeding 10 years where paragraph (a) does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed: (c) not exceeding 7 years in any other case.
Supplies equipment / precursors - Section 12A (1) MODA
(1)Every person commits an offence against this Act who supplies, produces, or manufactures— (a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or (b) any precursor substance— knowing that the equipment, material, or substance is to be used in, or for, the commission of an offence against those provisions.Every person who commits an offence against this section is liable to a term of imprisonment not exceeding 7 years.
Possession of equipment / precursors - Section 12A (2) MODA
(2)Every person commits an offence against this Act who has in his or her possession— (a) any equipment or material that is capable of being used in, or for, the commission of an offence against section 6(1)(b) or section 9; or (b) any precursor substance— with the intention that the equipment, material, or substance is to be used in, or for, the commission of an offence against that provision. (3)Every person who commits an offence against this section is liable on conviction,— (b) in the case of an offence against subsection (2), to imprisonment for a term not exceeding 5 years.
What was held in R v STRAWBRIDGE
It is not necessary for the crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the accused honestly believed on reasonable grounds that her act was innocent she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.
What was held in Police v EMERALI
In any drug offence the quantity involved must be measurable and useable, The serious offence of possessing a narcotic does not extend to some minute and useless residue of the substance.
What was held in R v RUA
The words produce or manufacture broadly covers the creation of controlled drugs by some process which changes the original substance into a particular controlled drug.
What was held in R v DURING
An offer is an intimation by the person charged to another that he is ready on request to supply to that other, drugs of a kind prohibited by statute.
What was held in R v BROWN in regard to genuine offer
The making of such an intimation, with the intention that it should be understood as a genuine offer, is an offence
What was held in R v BROWN in regards to ways offer could arise
NAME?
What was held in R v MAGINNIS - supply
Supply involves more than a mere transfer of physical control and includes enabling the recipient to apply the thing to purposes for which he desires.
Define imports - Section 2 Customs and Excise Act 1996
In relation to goods, means the arrival of goods into NZ in any manner, whether lawfully or unlawfully from a point outside of NZ.
What three things must be proved to show guilty knowledge
- Knew about the drug offending; and - Knew the substance was a controlled drug; and - Intended to cause the drug offending
Define controlled drug - Section 2 MODA
Any substance, preparation, mixture or article, specified or described in schedules 1, 2, or 3 of this act, and includes any controlled drug analogue.
Define Produce
To produce means to bring something into being or bring something into existence from its raw materials or elements.
Define manufacture
Manufacturing is the process of synthesis, combining components or processing raw materials to create a new substance.
When is the offence of manufacturing/producing complete
The offence is complete once the prohibited substance is created, whether or not it is in a useable form.
Define possession
The physical and mental element must be proved to satisfy possession.Possession may be “actual” or “potential”.Actual possession arises when the thing in question is in a person’s physical custody or control.Potential possession arises when the person has the potential to have the thing in question in their control. For example, storing the thing in question at an associates house or through an agent. The Mental element is a combination of both knowledge that the person possesses the item in question and an intention to possess the item.
Define supply - Section 2 MODA
Includes to distribute give or sell
Define sells
A sale occurs when a quantity or share in a drug is exchanged for some valuable consideration. Will commonly be money, but anything of value will suffice.
Dealing with controlled drugs - Section 6(5) MODA
For the purposes of paragraph (e) of subsection (1), if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person
Presumption for supply - Section 6(6) MODA
Section 6(6) –For the purpose of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in section (1)©(d) or (e ) if he or she is in possession of the controlled drug in an amount, level or quantity at or over which the controlled drug is presumed to be for supply.
Rebuttal of presumption for supply.
The presumption that the drug is for sale or supply may be rebutted if the person is able to prove on the balance of probabilities, that they did not intent to commit a dealing offence, not withstanding the amount. For example the defence may argue that the suspect was heavily addicted and required large amounts for personal use.
Define Class A controlled drug
Means any controlled drug specified or escribed in Schedule 1 to this Act.
Define purpose - drug dealing
in this context can be equated to aim or intention
Define Exports - Section 53 Customs and Excise Act 1996
For the purpose of this Act, the time of exportation is the time when the exporting craft leaves the last Customs place at which that craft calls immediately before proceeding to a point outside New Zealand.
Define Controlled drug analogue - Section 2 MODA
Controlled drug analogue means any substance , such as the substances specified or described in part 7 of Schedule 3 to this Act, that has a structure substantially similar to that of any controlled drug.
Define Administers - Blacks law Dictionary
In the context of drug dealing the appropriate meaning of administer is “to direct and cause a drug to be taken into the system” of another person
What two things need to be proven for an offer to sell/supply
The prosecution must prove two elements• The communication of an offer to sell a controlled drug (the actus reus) and• An intention that the other person believes the offer to be genuine (mens rea)
Define otherwise deals
The term otherwise deals in paragraph ( c) is aimed at dealing in a drug by some means other than by distributing, giving or selling it, administering it or offering to supply or administer it.R v Hooper and another – the example which readily comes to mind is barter or exchange
Define Class B controlled drug - Section 2 MODA
Class B controlled drug means the drugs specified or described in Schedule 2 to this act.
Define Class C controlled drug - Section 2 MODA
Class C controlled drug means the drugs specified or described in Schedule 3 to this act and includes any controlled drug analogue.
Intent to supply - what needs to be proved
Although the Crown must prove the defendant intended the other person to believe the offer, it is not necessary to prove that he had the capacity to supply the drugs.
Admissabilty of relevant evidence - Section 7 Evidence Act 2006
(1) All relevant evidence is admissible in a proceeding except evidence that is— (a )inadmissible under this Act or any other Act; or (b) excluded under this Act or any other Act. (2) Evidence that is not relevant is not admissible in a proceeding. (3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
General exclusions - Section 8 Evidence Act 2006
(1) In any proceeding, the Judge must exclude evidence if its probative value is outweighed by the risk that the evidence will— (a ) have an unfairly prejudicial effect on the proceeding;or (b) needlessly prolong the proceeding. (2) In determining this, the Judge must take into account the right of the defendant to offer an effective defence
Previous consistent statement rule - Section 35 Evidence Act 2006
(1) A previous statement of a witness that is consistent with the witness’s evidence is not admissible unless subsection (2) or subsection (3) applies to the statement. (2) A previous statement of a witness that is consistent with the witness’s evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness’s veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness. (3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if— (a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and (b) the statement provides the court with information that the witness is unable to recall.
Evidence of complainants previous sexual experience - Section 44 Evidence Act 2006
In a sexual case no evidence can be given and no questions can be put to a witness relating directly or indirectly to – (1) The sexual experience of the complainant with any person other than the defendant (2) The reputation of the complainant in sexual matters (3) Unless the judge is satisfied that it is of direct relevance to the facts in issue and to exclude it would be contrary to the interests of justice.
Privacy as to witnesses precise address - Section 87 Evidence Act 2006
(1) In any proceeding the precise particulars of a witnesses address may not without the permission of the judge be – a. The subject of any questions to a witness or included in evidence given; or b. Included in any statement or remark made by a witness, lawyer, officer of the court or any other person (2) Unless the judge is satisfied it is of direct relevance to the facts in issue and to exclude it would be contrary to the interest of justice
Restriction of disclosure of complainants occupation - Section 88 Evidence Act 2006
(1) In a sexual case, except with the permission of the Judge,— (a) no question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and (b) no statement or remark may be made in court by a witness, lawyer, officer of the court, or any other person involved in the proceeding concerning the complainant’s occupation. (2) Unless the judge is satisfied it is of direct relevance to the facts in issue and to exclude it would be contrary to the interest of justice
Corroboration - Section 121 Evidence Act 2006
(1)It is not necessary in a criminal proceeding for the evidence on which the prosecution relies to be corroborated, except with respect to the offences of— (a) perjury (section 108 of the Crimes Act 1961); and (b) false oaths (section 110 of the Crimes Act 1961); and (c) false statements or declarations (section 111 of the Crimes Act 1961); and (d) treason (section 73 of the Crimes Act 1961).
Define hostile witness - Section 4 Evidence Act
in relation to a witness, means that the witness— (a) exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or (b) gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness; or (c) refuses to answer questions or deliberately withholds evidence
Discharging firearm or doing dangerous act with intent to cause GBH - Section 198 (1)(a), (b) and (c) CA 61
(1) Everyone is liable to a term of imprisonment not exceeding 14 years who, with intent to do grievous bodily harm,— (a) discharges any firearm, airgun, or other similar weapon at any person; or(b) sends or delivers to any person, or puts in any place, any explosive or injurious substance or device; or(c) sets fire to any property.
Discharging firearm or doing dangerous act with intent to injure - Section 198 (2) CA 61
(2)Everyone is liable to a term of imprisonment not exceeding 7 years who, with intent to injure, or with reckless disregard for the safety of others, does any of the acts referred to in subsection (1)
Using firearm against law enforcement - Section 198A (1) CA 61
(1) Everyone is liable to a term of imprisonment not exceeding 14 years who uses any firearm in any manner whatever against any constable, or any traffic officer, or any prison officer, acting in the course of his or her duty knowing that, or being reckless whether or not, that person is a constable or a traffic officer or a prison officer so acting.
Using firearm against law enforcement - Section 198A (2) CA 61
(2) Everyone is liable to a term of imprisonment not exceeding 10 years who uses any firearm in any manner whatever with intent to resist the lawful arrest or detention of himself or herself or of any other person.
Commission of an imprisonable offence with a firearm - Section 198B(1) (a) and (b) CA 61
(1) Everyone is liable to a term of imprisonment not exceeding 10 years who,— (a) in committing any imprisonable offence, uses any firearm; or (b) while committing any imprisonable offence, has any firearm with him or her in circumstances that prima facie show an intention to use it in connection with that imprisonable offence.
What was held in R v PEKEPO about being reckless with firearms?
A reckless discharge of a firearm in the general direction of a passerby who happens to be hit is not sufficient proof. An intention to shoot that person must be established.
What was held in Police v PARKER about using a firearm?
Uses in any manner whatever is to contemplate a situation short of actually firing the weapon and to present a rifle is equivalent or means the same thing.
What was held in R v KELT closeness to the firearm?
Having a firearm with him requires a very close physical link and a degree of immediate control over the weapon by the man alleged to have the firearm with him.
What was held in TULI v Police about prima facie?
Prima facie circumstances are those which are sufficient to show or establish intent in the absence of evidence to the contrary.
What was held in DPP v SMITH about GBH?
Bodily harm needs no explanation and “grievous” means no more and no less than “really serious”
What was held in R v DONOVAN as to injuries?
Bodily harm includes any hurt or injury calculated to interfere with the health or comfort of the victim, it need not be permanent but must no doubt be more than merely transitory and trifling
What was held in R v HARNEY
R v Harney [1987] 2 NZLR 576 (CA)“Recklessness means the conscious and deliberate taking of an unjustified risk. In New Zealand it involves proof that the consequence complained of could well happen, together with an intention to continue the course of conduct regardless of risk.”
Define committing
Must be in the commission of an imprisonable offence
Define imprisonable offence - Section 5 Criminal Procedure Act
in the case of an individual, an offence punishable by imprisonment for life or by a term of imprisonment
Define Firearm - Section 2 Arms Act 1983
Anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive, and includes: anything capable of doing so by adaption, completion, replacement of parts or repair of defect, any dismantled firearm and any specifically dangerous air gun.
Define Constable - Section 4 Policing Act 2008
Constable means a police employee who: (a) Holds the office of constable (whether appointed as a constable under the police act 1958 or this act); and (b) Includes a constable who holds any level of position within the NZ police
Define acting in execution of duty
The term includes every lawful act which a constable does while on duty and may include acts done where the circumstances create a professional obligation for a constable to exercise policing duties while off duty.
Define uses in any manner
The primary meaning of the word use in relation to a firearm is to fire it, however the words in any manner whatever widen the definition to include a range of acts that stop short of actually shooting at an officer.
Define has with him
Must knowingly have the firearm with him
Define Knowing/knowledge - Simester and Brookbanks
Knowing means correctly believing. Defendant may believe something wrongly, but cannot know something that is false.
Define Homicide - Section 158 Crimes Act 1961
Homicide is the killing of a human being by another, directly or indirectly, by any means whatsoever.
When does a child become human - Section 159 Crimes Act 1961
(1) A child becomes a human being within the meaning of this Act when it has completely proceeded in a living state from the body of its mother, whether it has breathed or not, whether it has an independent circulation or not, and whether the navel string is severed or not. (2) The killing of such child is homicide if it dies in consequence of injuries received before, during, or after birth.
Definition of culpable homicide - Section 160 Crimes Act 1961
(1) Homicide may be either culpable or not culpable. (2) Homicide is culpable when it consists in the killing of any person— (a) By an unlawful act; or (b) By an omission without lawful excuse to perform or observe any legal duty; or (c) By both combined; or(d) by causing that person by threats or fear of violence, or by deception, to do an act which causes his death; or (e) By wilfully frightening a child under the age of 16 years or a sick person (3) Except as provided in section 178, culpable homicide is either murder or manslaughter(4) Homicide that is not culpable is not an offence
Death must be within one year and one day - Section 162 CA 61
(1) No one is criminally responsible for the killing of another unless the death takes place within a year and a day after the cause of death.(2) The period of a year and a day shall be reckoned inclusive of the day on which the last unlawful act contributing to the cause of death took place.(3) Where the cause of death is an omission to fulfil a legal duty, the period shall be reckoned inclusive of the day on which such omission ceased.(4) Where death is in part caused by an unlawful act and in part by an omission, the period shall be reckoned inclusive of the day on which the last unlawful act took place or the omission ceased, whichever happened last
Killing by influence of the mind - Section 163 CA 61
No one is criminally responsible for the killing of another by any influence on the mind alone, except by wilfully frightening a child under the age of 16 years or a sick person, nor for the killing of another by any disorder or disease arising from such influence, except by wilfully frightening any such child as aforesaid or a sick person.
Acceleration of death - Section 164 CA 61
Every one who by any act or omission causes the death of another person kills that person, although the effect of the bodily injury caused to that person was merely to hasten his or her death while labouring under some disorder or disease arising from some other cause.
Murder defined - Section 167 CA 61
Culpable Homicide is murder in each of the following cases.(a) If the offender means to cause the death of the person killed: (b) If the offender means to cause to the person killed any bodily injury that is known to the offender to be likely to cause death, and is reckless whether death ensues or not: (c) If the offender means to cause death, or, being so reckless as aforesaid, means to cause such bodily injury as aforesaid to one person, and by accident or mistake kills another person, though he does not mean to hurt the person killed: (d) If the offender for any unlawful object does an act that he knows to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.
Further definition of murder - Section 168 CA 61
(1) Culpable homicide is also murder in each of the following cases, whether the offender means or does not mean death to ensue, or knows or does not know that death is likely to ensue:(a) if he or she means to cause grievous bodily injury for the purpose of facilitating the commission of any of the offences mentioned in subsection (2), or facilitating the flight or avoiding the detection of the offender upon the commission or attempted commission thereof, or for the purpose of resisting lawful apprehension in respect of any offence whatsoever, and death ensues from such injury:(b) if he or she administers any stupefying or overpowering thing for any of the purposes aforesaid, and death ensues from the effects thereof:(c) if he or she by any means wilfully stops the breath of any person for any of the purposes aforesaid, and death ensues from such stopping of breath.
Manslaughter - Section 171 CA 61
Except as provided in section 178, culpable homicide not amounting to murder is manslaughter.
Infanticide - Section 178 CA 61
1) Where a woman causes the death of any child of hers under the age of 10 years in a manner that amounts to culpable homicide, and where at the time of the offence the balance of her mind was disturbed, by reason of her not having fully recovered from the effect of giving birth to that or any other child, or by reason of the effect of lactation, or by reason of any disorder consequent upon childbirth or lactation, to such an extent that she should not be held fully responsible, she is guilty of infanticide, and not of murder or manslaughter, and is liable to imprisonment for a term not exceeding 3 years.
Suicide pact liability - Section 180 (1)
(1) Everyone who in pursuance of a suicide pact kills any other person is guilty of manslaughter and not of murder, and is liable accordingly.
Survivor of suicide pact - Section 180(2) CA 61
(2) Where 2 or more persons enter into a suicide pact, and in pursuance of it one or more of them kills himself, any survivor is guilty of being a party to a death under a suicide pact contrary to this subsection and is liable to imprisonment for a term not exceeding 5 years; but he shall not be convicted of an offence against section 179 of this Act.
Suicide pact defined - Section 180(3)
(3) For the purposes of this section the term suicide pact means a common agreement between 2 or more persons having for its object the death of all of them, whether or not each is to take his own life; but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact.
Concealing body of a child - Section 181 CA 61
Every one is liable to imprisonment for a term not exceeding 2 years who disposes of the dead body of any child in any manner with intent to conceal the fact of its birth, whether the child died before, or during, or after birth.
Define voluntary manslaughter
Mitigating circumstances, such as a suicide pact, reduce what would otherwise be murder to manslaughter, even though the defendant may have intended to kill or cause grievous bodily harm.
Define involuntary manslaughter
Covers those types of unlawful killing in which death is caused by criminal negligence. In such cases there has been no intention to kill or cause grievous bodily harm.
What was held in Murray Wright Ltd
Because the killing must be done by a human being, an organisation (such as a hospital or food company) cannot be convicted as a principal offender
What was held in R v TOMARS formulating the issue?
Formulates the issues in the following way: 1. Was the deceased threatened by, in fear of or deceived by the defendant? 2. If they were, did such threats, fear or deception cause the deceased to do the act that caused their death? 3. Was the act a natural consequence of the actions of the defendant, in the sense that reasonable and responsible people in the defendant’s position at the time could reasonably have foreseen the consequences? 4. Did these foreseeable actions of the victim contribute in a [significant] way to his death?
What was held in R v MYATT breaching acts?
[Before a breach of any Act, regulation or bylaw would be an unlawful act under s 160 for the purposes of culpable homicide] it must be an act likely to do harm to the deceased or to some class of persons of whom he was one.
What was held in R v HORRY proving death?
Death should be provable by such circumstances as render it morally certain and leave no ground for reasonable doubt – that the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for.
What was held in R v MURPHY
When proving an attempt to commit an offence it must be shown that the accused’s intention was to commit the substantive offence. For example, in a case of attempted murder it is necessary for the Crown to establish an actual intent to kill.
What was held in R v MANE about being an accessory?
For a person to be an accessory the offence must be complete at the time of the criminal involvement. ..One cannot be convicted of being an accessory after the fact of murder when the actus reus of the alleged criminal conduct was wholly completed before the offence of homicide was completed.
What was held in R v BLAUE about violence?
Those who use violence must take their victims as they find them.
What was held in R v COTTLE regarding automatism
Doing something without knowledge of it and without memory afterwards of having done it -a temporary eclipse of consciousness that nevertheless leaves the person so affected able to exercise bodily movements.
What was held in R v COTTLE regarding burden of proof
As to degree of proof, it is sufficient if the plea is established to the satisfaction of the jury on a preponderance of probabilities without necessarily excluding all reasonable doubt
Robbery - Section 234 CA 61
(1) Robbery is theft accompanied by violence or threats of violence, to any person or property, used to extort the property stolen or to prevent or overcome resistance to its being stolen. (2) Everyone who commits robbery is liable to imprisonment for a term not exceeding 10 years
Aggravated Robbery - Section 235 (a) -
GBH:Everyone is liable to imprisonment for a term not exceeding 14 years who— (a) robs any person and, at the time of, or immediately before or immediately after, the robbery, causes grievous bodily harm to any person
Aggravated Robbery - Section 235 (b) -
Together with:Everyone is liable to imprisonment for a term not exceeding 14 years who—(b) being together with any other person or persons, robs any person
Aggravated Robbery - Section 235 (c)
Weapon:Everyone is liable to imprisonment for a term not exceeding 14 years who- (c) being armed with any offensive weapon or instrument, or anything appearing to be such a weapon or instrument, robs any other person.
Assault with intent to rob - Section 236 (1) (a)
GBH:(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person,— (a) causes grievous bodily harm to that person or any other person
Assault with intent to rob - Section 236 (1)(b)
Weapon:(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person(b) being armed with any offensive weapon or instrument, or anything appearing to be such a weapon or instrument, assaults that person or any other person
Assault with intent to rob - Section 236 (1)(c)
Together with:(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to rob any person,(c) being together with any other person or persons, assaults that person or any other person
Blackmail - Section 237 CA 61
(1)Every one commits blackmail who threatens, expressly or by implication, to make any accusation against any person (whether living or dead), to disclose something about any person (whether living or dead), or to cause serious damage to property or endanger the safety of any person with intent—(a) to cause the person to whom the threat is made to act in accordance with the will of the person making the threat; and(b) to obtain any benefit or to cause loss to any other person.(2)Every one who acts in the manner described in subsection (1) is guilty of blackmail, even though that person believes that he or she is entitled to the benefit or to cause the loss, unless the making of the threat is, in the circumstances, a reasonable and proper means for effecting his or her purpose
Punishment of blackmail Section 238 CA 61
Everyone who commits blackmail is liable to imprisonment for a term not exceeding 14 years
Demands with intent to steal - Section 239 CA 61
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who, without claim of right, by force or with any threat, compels any person to execute, make, accept, endorse, alter, or destroy any document capable of conferring a pecuniary advantage with intent to obtain any benefit. (2) Everyone is liable to imprisonment for a term not exceeding 7 years who, with menaces or by any threat, demands any property from any persons with intent to steal it.
What was held in R v SKIVINGTON about theft?
Theft is an ingredient in Robbery and if the honest belief that a man has a claim of right is a defence to theft then it negatives one of the ingredients in the offence of robbery. Without proof of which the full offence is not made out.
What was held in R v LAPIER when offence is complete?
Robbery is complete the instant the property is taken, even if possession by the thief is only momentary.
What was held in R v MAIHI about a nexus?
It is implicit in accompany that there must be a nexus between the act of stealing and the threat of violence, both must be present, however the term does not require that the act of stealing and the threat of violence be contemporaneous.
What was held in PENEHA v Police what the actions must cause?
It is sufficient that the actions of the defendant forcibly interfere with personal freedom or amount to forcible powerful or violent action or motion producing a very marked or powerful effect tending to cause bodily injury or discomfort
What was held in R v BROUGHTON about threats of violence?
A threat of violence is the manifestation of an intention to inflict violence unless the money or property be handed over. Threats may be direct or veiled. It may be conveyed by words or conduct or a combination of both.
What was held in R v JOYCE two people present?
The Crown must establish that at least two persons were physically present at the time the robbery was committed or the assault occurred
What was held in R v GALEY about combining forces?
Being together involves two or more persons having a common intention to use combined force in the perpetration of the crime, directly or indirectly and as circumstances might require.
Define theft - Section 219 CA 61
Dishonestly without claim of right, takes, any property, with intent to deprive any owner permanently of that property, or any interest in that property.
Define violence
In the context of robbery, violence must involve more than a minimal degree of force and more than a technical assault, but need not involve the infliction of bodily injury.
Define threats of violence
A threat is generally a direct or veiled warning that violence will be used if the victim does not submit to the robber’s demands. Threats may also be conveyed by inference through the defendants conduct, demeanour or even appearance depending on the circumstances.
Define extort
To extort means to obtain by coercion or intimidation. Extortion implies an overbearing of the will of the victim, and the prosecution must show that the threats induced the victim to part with his or her property
Define prevent
To keep from happening
Define overcome
To defeat, to prevail over, to get the better of in a conflict.
Define at the time of
During the commission of the theft at the time of the taking with the required intent.
Define being together with (joint enterprise)
There must be proof that, in committing the robbery the defendant was part of a joint enterprise by two or more persons who were physically present at the robbery.
Define being armed with
Means the defendant is carrying the item or has it available for immediate use as a weapon.
Define offensive weapon - Section 202A CA 61
Any article made or altered for use for causing bodily injury, or intended by the person carrying it for such use.
Define instrument
Not defined by statute, will include any item intended to be used as a weapon or to intimidate and overbear the victim’s will to resist.
Define anything appearing to be
It must be proved that the object appeared to be an offensive weapon or instrument to the victim, and that the defendant intended or was at least reckless as to the possibility that it would be perceived as a weapon.
Define property - Section 2 CA 61
property includes real and personal Property , and any estate or interest in any real or personal property , money, electricity, and any debt, and any thing in action, and any other right or interest
Define causes GBH
A person causes GBH if his actions make him or her criminally responsible for it.
Entry without warrant to find and avoid loss of evidence - Section 15
A constable may enter and search a place without a warrant if he or she has reasonable grounds—(a) to suspect that an offence punishable by imprisonment for a term of 14 years or more has, is or will be committed; and(b) to believe—(i) that evidential material relating to the offence is in that place; and(ii) that, if entry is delayed in order to obtain a search warrant, the evidence will be CAD’D.
Searching people in public place - Section 16
A constable may search a person without a warrant in a public place if they have reasonable grounds to believe that the person is in possession of evidential material relating to an offence punishable by imprisonment for a term of 14 years or more.
Warrantless entry and search of vehicle for evidential material - Section 17
A constable may, without a warrant, enter and search a vehicle that is in a public place if he or she has reasonable grounds to believe that evidential material relating to an offence punishable by imprisonment for a term of 14 years or more is in or on the vehicle.
Trespass surveillance and use of interception device - Section 45
The use of an interception device or trespass surveillance is permitted when obtaining evidence in relation to an offence:- Punishable by 7 years or more; or - Specified Arms Act offences - specified offences against Psychoactive Substances Act
Activities that require a surveillance device warrant - Section 46
(a) use of an interception device to intercept a private communication:(b) use of a tracking device, except where a tracking device is installed solely for the purpose of ascertaining whether a thing has been opened, tampered with, or in some other way dealt with, and the installation of the device does not involve trespass to land or trespass to goods:(c) observation of private activity in private premises, and any recording of that observation, by means of a visual surveillance device:(d) use of a surveillance device that involves trespass to land or trespass to goods:(e) observation of private activity in the curtilage of private premises, and any recording of that observation if it is for the purpose of a single or connected investigation and exceeds:(i) 3 hours in any 24-hour period; or(ii) 8 hours in total.
Powers when warrant pending - Section 117
Powers – Warrant Pending Section 1171) If a SW is about to be granted, an officer preset at the place in question may:a) enter & search the place or vehicle in question for which authorisation is sought and secure any items in that vehicle or place b) direct any person to assist2) The powers conferred by (1) may be exercised if the enforcement officer has reasonable grounds that the evidence will be CAD’D before the search warrant is granted3) Powers conferred by (1) may be exercised until the following occurs:a) 6 hours elapses from the time the power is first executedb) the warrant is available for execution at place in questionc) the application is refused
Items in plain view - Section 123
(1) This section applies to an enforcement officer who, as part of his or her duties,—(a) exercises a search power; or(b) is lawfully in any place or in or on a vehicle; or(c) is conducting a lawful search of a person.(2) An enforcement officer may seize any items that they find in the course of carrying out the search or as a result of observations at the place or vehicle, if they have reasonable grounds to believe that they could have seized the items under—(a) any search warrant that could have been obtained by them under this Act or any other enactment; or(b) any other search power exercisable by them under this Act or any other enactment.
Define a Visual Surveillance Device
a) means any electronic, mechanical, electromagnetic, optical, or electro-optical instrument, apparatus, equipment, or other device that is used or is capable of being used to observe, or to observe and record, a private activity; but (b) does not include spectacles, contact lenses, or a similar device used to correct subnormal vision user.
Define Curtilage
Is a legal term used to define land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘ópen fields beyond’. It defines the boundary within which a home owner can have a reasonable expectation of privacy and where common home activities take place.
Wounding with intent to cause GBH - Section 188(1) CA 1961
Everyone is liable to imprisonment for a term not exceeding 14 years who, with intent to cause grievous bodily harm to any one, wounds, maims, disfigures, or causes grievous bodily harm to any person
Wounding with intent to injure or with reckless disregard - Section 188(2) CA 61
Everyone is liable to imprisonment for a term not exceeding 7 years who, with intent to injure anyone, or with reckless disregard for the safety of others, wounds, maims, disfigures, or causes grievous bodily harm to any person.
Injures with intent to cause GBH - Section 189(1) CA 61
Everyone is liable to imprisonment for a term not exceeding 10 years who, with intent to cause grievous bodily harm to any one, injures any person.
Injures with intent to injure or with reckless disregard - Section 189(2) CA 61
(2) Everyone is liable to imprisonment for a term not exceeding 5 years who, with intent to injure any one, or with reckless disregard for the safety of others, injures any person
Injures by an unlawful Act - Section 190 CA 61
Everyone is liable to imprisonment for a term not exceeding 3 years who injures any other person in such circumstances that if death had been caused he or she would have been guilty of manslaughter.
Aggravated wounding - Section 191(1) CA61
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who with intent— (a) to commit or facilitate the commission of any imprisonable offence; or (b) to avoid the detection of himself or herself or of any other person in the commission of any imprisonable offence; or (c) to avoid the arrest or facilitate the flight of himself or herself or of any other person upon the commission or attempted commission of any imprisonable offence— wounds, maims, disfigures, or causes grievous bodily harm to any person, or stupefies or renders unconscious any person, or by any violent means renders any person incapable of resistance
Assault on a child or by male on female - Section 194 CA 61
Every one is liable to imprisonment for a term not exceeding 2 years who—(a) assaults any child under the age of 14 years; or(b) being a male, assaults any female.
Section 195 Ill-treatment or neglect of child or vulnerable adult
Every one is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), intentionally engages in conduct that, or omits to discharge or perform any legal duty the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult (the victim) if the conduct engaged in, or the omission to perform the legal duty, is a major departure from the standard of care to be expected of a reasonable person.(2) The persons are—(a) a person who has actual care or charge of the victim; or(b) a person who is a staff member of any hospital, institution, or residence where the victim resides.(3) For the purposes of this section and section 195A, a child is a person under the age of 18 years
Ill treatment or neglect of a child or vulnerable adult - Section 195A CA 61
(1) Everyone is liable to imprisonment for a term not exceeding 10 years who, being a person described in subsection (2), has frequent contact with a child or vulnerable adult (the victim) and— (a) knows that the victim is at risk of death, grievous bodily harm, or sexual assault as the result of— (i) an unlawful act by another person; or (ii) an omission by another person to discharge or perform a legal duty if, in the circumstances, that omission is a major departure from the standard of care expected of a reasonable person to whom that legal duty applies; and (b) Fails to take reasonable steps to protect the victim from that risk.(2) The persons are—(a) a member of the same household as the victim; or(b) a person who is a staff member of any hospital, institution, or residence where the victim resides
Aggravated Burglary - Section 232
(1) Everyone is liable to imprisonment for a term not exceeding 14 years who,— (a) while committing burglary, has a weapon with him or her or uses anything as a weapon; or (b) having committed burglary, has a weapon with him or her, or uses anything as a weapon, while still in the building or ship.
Define intent
IntentIntent means the act or omission is done deliberately, the acts or omission must be more than accidental or involuntary.Intent to Produce ResultThe second type of intent is an intention to produce a specific result. In this context result means ‘aim, purpose or object’ - Simester and Brookbanks.
Define GBH
GBH can be defined simply as harm that is really serious
Define maims
Will include mutilating, crippling or disabling part of the body so the victim is deprived of the use of a limb or one of the senses.
Define disfigures
To deform, or deface, mar or alter the figure or appearance of a person.
Define facilitate
To make possible, make easy or easier
Define an imprisonable offence
An offence punishable by imprisonment for life or by a term of imprisonment
Define avoid detection
The offender causes the specified harm to prevent himself or another person from being caught in the act
Define renders unconcious
To render a person unconscious, the offender’s actions must cause the victim to lose consciousness.
Define wound
Any rupture of the tissues of the body, internal or external can amount to a wound and whether or not it does is a matter of fact for determination in each case.
Define reckless disregard for safety of others
While it is necessary to prove that the defendant foresaw the risk of injury to the others, it is not necessary that he recognised the extent of the injury that would result
What was held in R v TAISALIKA point to intent?
The nature of the blow and the gash which it produced on the complainant’s head would point strongly to the presence of the necessary intent
What was held in DPP v SMITH about GBH?
Bodily harm needs to explanation and grievous means no more and no less than really serious
What was held in R v WATERS about wounds?
A breaking of the skin would be commonly regarded as a characteristic of a wound. The breaking of the skin will be normally evidenced by a flow of blood and in its occurrence at the site of a blow or impact, the wound will more often than not be external. But there are those cases where the bleeding which evidences the separation of tissues may be internal.
What was held in R v DONOVAN about injuries?
Bodily harm includes and hurt or injury calculated to interfere with the health or comfort of the victim, it need not be permanent but must be more than merely trifling and transitory
What was held in R v TIHI exposing others to risk?
In addition to one of the specific intents outlined in paragraphs a) b) or c), it must be shown that the offender either meant to cause the specified harm or foresaw that the actions undertaken by him were likely to expose others to risk of suffering it.
What was held in R v WATI about proof of commission?
There must be proof of the commission of attempted commission of a crime either by the person committing the assault or by the persons whose arrest of flight he intends to avoid or facilitate.
What was held in R v STURM - intent
Under section 191(1)(a) it is not necessary for the prosecution to prove the intended crime was actually subsequently committed.
What was held in R v STURM in regards to stupefy?
To stupefy means to cause an effect on the mind or nervous system of a person, which really seriously interferes with that person’s mental or physical ability to act in any way which might hinder the intended crime.
What was held in R v CROSSAN - incapable of resistance
Incapable of resistance includes a powerlessness of the will as well as a physical incapacity.
Define assault - Section 2 CA 61
The act of intentionally applying or attempting to apply force to the person of another, directly or indirectly of threatening by any act or gesture to apply such force to the person of another, if the person making the threats has or causes the other to believe on reasonable grounds that he or she has the present ability to effect his or her purpose.
Define person
Gender neutral, proven by judicial notice or circumstantial evidence
What are the benefits of an appreciation
Applying an appreciation technique can provide the following key benefits: 1. Informs all Police what they are expected to achieve2. Increases chances of success3. Establishes a sequence of activities to be carried out4. Manages risk5. Reduces uncertainty6. Eliminates duplication7. Ensures nothing is overlooked8. Effective use of resources
Responsibilities of the O/C exhibits
Receives exhibits and secure all exhibits Ensures labelled correctly and accompanied by an exhibit schedule Record exhibits in register Record all exhibit movements Deliver for examination and analysis Discuss relevance and further action required with 2IC Ensure continuity of the exhibits is maintained Prepare and produce exhibits in Court
What topics are covered during forensic strategy meeting?
NAME?
Submission of exhibits for examination
- Ensure exhibit examination decisions are confirmed through the Forensic Strategy meeting process. 2. Record in the Exhibits Register all decisions taken about the types of examinations to be conducted and the priority allocated to each examination. 3. Ensure the OC Investigation has authorised the proposed examination. 4. Prepare the necessary papers for the ESR or other expert, for example the Police 143 forms. 5. Ensure any exhibits identified for forensic examination are prepared before being delivered, specifically: - all items are separately wrapped - all parcels are sealed - all items or their packages are labelled and numbered - a list of all items is attached to the Police Form 143 - the Police Form 143 is consistent with the labels on the items - items are in an appropriate condition, for example, clothing is dry and blood samples are refrigerated. The OC Exhibits must ensure the Police Form 143 contains sufficient information, including: - time, date, place, circumstances, location, specialist requirements of exhibit- purpose(s) of the examination 6. Deliver exhibits for scientific examination promptly to avoid deterioration and loss of evidence. 7. Inform the expert undertaking a scientific examination if it is no longer required
What matters that the family liason plan should consider?
- Selection of the FLO and criteria employed for the selection2. Exit plan for the FLO3. Objectives of the family liaison4. Assessing the most appropriate methods of conducting interviews with family members, including the use of specialist interviewers, where appropriate5. information to be released to and withheld from the family6. complaints made by the family and the O/C investigations actions to progress and resolve issues raised7. any member of family who could be considered a suspect, to enable O/C investigation to determine whether o not this is the case8. liaison with Victim Support and other support services
What does VAWSEIPO stand for in the general investigation model?
Victim - Identify and locate the victim(s)Appreciation - Make an initial appreciation of the incident. Assess personal risk and then preserve the live of othersWitnesses - Locate and contain witnessesScene - Preserve the scene (e.g. Set boundaries)Exhibits - Note evidence and preserve any that would otherwise be lost or destroyedIngredients - Consider whether the ingredients of the alleged offence have been establishedPowers - Identify what powers are available and consider whether to execute themOffenders - Identify and apprehend suspect(s)
What activities should Police arriving at serious crime take to preserve the scene?
1 - Consider best path into the scene2- Record any movements/action taken in the scene3 - Preserve what is there and leave it in situ. Ensure nothing is touched or moved. The scene must be kept in its original state3 - If no immediate life is at risk, consider using stepping plates4 - Be prepared to take immediate action to preserve and or record evidence that may change if nothing is done. For example rain may damage a footprint or bloodstain
Police responsibilities to witnesses:
- Ensuring Court Attendance – maintain contact with witnesses ensuring they are summonses and available to appear in court as required 2. Court Proceedings – ensure witnesses are fully briefed as to their responsibilities, and that they are updated throughout the investigation and court process 3. Witness Intimidation – by maintaining contact with witnesses police will be more likely to become aware of any threats, intimidation, or interference, and can arrange for appropriate action to be taken ,including initiating witness protection program 4. Witness Order – for the sake of simplicity it is advisable that the oc exhibits give evidence first and produces all of the exhibits including the photographs and exhibits schedule. This enables the witnesses to refer to the appropriate exhibits 5. Witness media interest letters - If media interest is anticipated consider discussing possible consequences of witnesses discussing evidence with journalists etc6. Interpreter issues - ensure interpreting service is suitably qualified and meets the required standard7. Welfare issues - ensure witnesses are provided with contact details of 2IC and welfare needs of the witnesses are to be considered throughout8. Witness control - Ensure that witnesses do not: - have any contact or communication with jurors - discuss the case in public area while waiting to give evidence - discuss the case with witnesses waiting after they have given evidence9. Refreshing memory - At Court request witness to refresh their memory with previously signed statements or interview transcripts10. Arranging name suppression - Advise 2IC of any witnesses seeking name suppression. 2IC will liaise with the Crown. The victims views must be ascertained and conveyed to the Judge11. Expenses - provide guidance and assist witnesses in completing claim forms at the Court. In High Court expenses are at the cost of MOJ. In certain situations Police will meet costs in relation to witnesses
Responsibilities of the O/C Body
1 – Ensure death has been certified by doctor or qualified paramedic using a deceased person certificate 2 – Maintain security and continuity of the body, samples and exhibits from the scene to the commencement of the PM 3 – Secure and guard the body, body samples ad any exhibits relating to the body with dignity and respect 4 – Note and record any observations relating to the body 5 – Note details of medical staff or others who have attended to the victim 6 – Record what actions have been taken by any party in respect of the body 7 – Establish if the body has been moved, disturbed 8 – Ensure the body is photographed in situ and consider using video recording 9 – On authority of the OC investigation, arrange transport of the body to the mortuary 10 – Complete sudden death procedures 11 – On authority of the OC investigation arrange a formal ID of the body 12 – Obtain historic medical records of the victim for information of the pathologist 13 – Attend the post mortem with the OC investigation, or deputy appointed by them 14 – Attend the briefing of the pathologist, contribute as required 15 – Ensure the police photographer takes appropriate and sufficient photographs.16 – Preserve evidence from the body, record, label and secure all samples and exhibits associated with the body 17 – Arrange fingerprints and palm prints to be taken if required 18 – Attend the debrief of the pathologist and record findings, on direction of OC investigation or pathologist 19 – Ensure all cultural responsibilities have been addressed.
Role of O/C body - exhibits
The OC Body is responsible for recording, labeling, packaging, sealing and securing all physical exhibits relating to the body, including samples taken during the post-mortem. All exhibits must be packaged and sealed before leaving the mortuary, without exception and will be recorded in a Scene exhibit schedule.
Stripping the body at the mortuary
- The body must only be stripped in the presence of the pathologist 2. Remove the body from the secure mortuary fridge and assist mortuary staff to take the body into the post-mortem examination room 3. Remove the body from the body bag, causing minimal disturbance to the body 4. Take possession of the body bag and any sheets or wrappings used to transport the body, as exhibits. 5. If necessary direct the police photographer, photographs before clothing removed and again after disrobed, the pathologist will lead direction of the photographer 6. Remove items of clothing from the body, mortuary technicians may assist to remove clothing, but only under the supervision and direction of the O/C Body 7. Make an inventory of clothing and possessions, as each item is removed8. Label and seal each item in a separate paper bag or container and avoid cross contamination9. Maintain security and continuity of the body and exhibits taken from the body, until the post-mortem examination commences 10765` . In cases involving obvious head trauma, before blood and debris is washed from the body, particularly the head hair, consider placing a fine sieve in the mortuary table drain hole to collect trace evidence that may have been transferred from a weapon, for later comparison with exhibits the suspect had access to.
Role and function of the FLO
The primary function of an FLO is that of an investigator and not a support person. However, in performing this role, the FLO must also offer, facilitate and co-ordinate support that addresses the needs of the family. As an investigator, the FLO will normally be responsible for profiling the victim, preparing a family tree and gathering all relevant information from the family. This may include, in conjunction with the OC Body, taking statements to identify the victim.
Responsibilities of the file manager
- Managing the electronic and physical files relating to the investigation 2. Ensuring a flow of information throughout the investigation 3. Assisting in the preparation of the prosecution file 4. Assisting in the management of the trial
Key points for briefing - O/C area canvass
- Summarise the situation and detail the duties and areas of responsibility of each canvass team member. 2. Emphasise the need for thoroughness and that every person in every household must be seen personally 3. Stress that the questionnaire is only a guide to ensure the questions are asked, but should be regarded as flexible in that information supplied could lead to other questions 4. Advise that evidence of possible probative value must be obtained in a formal written statement rather than a notebook form. 5. Consider visiting the canvass area to record every address including flats and vacant sections and then reconcile these premises with the map 6. Ensure all forms are completed, and actioned as outlined 7. Reconcile completed locations with the master copy to avoid duplication 8. Advise staff on” - What action to take if they believe they have identified the suspect - What action to take if they located items of evidential value - What action to take if individuals refuse to assist - How to complete the correspondence flow - What information can be disclosed during the area canvass - What information must not be disclosed
Responsibilites of the O/C area canvass - final report
At the conclusion of the area canvass, the phase O/C must submit a report to the O/C investigation outlining the circumstances of this particular aspect of the investigation. The report should include:• A summary of all action taken• Any significant findings highlighted• Attention drawn to any action undertaken that was outside the original phase strategy
Incapable of sexual connection - Section 127 CA 61
There is no presumption of law that a person is incapable of sexual connection because of his or her age.
Sexual Violation - Section 128 CA 61
(1) Sexual violation is the act of a person who— (a) rapes another person; or (b) has unlawful sexual connection with another person.
Attempted sexual violation - Section 129 (1) CA 61and Assault with intent to commit sexual violation - Section 129 (2) CA 61
(1) Everyone who attempts to commit sexual violation is liable to imprisonment for a term not exceeding 10 years. (2) Everyone who assaults another person with intent to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
Incest - Section 130 CA 61
(1) 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.(2) Every one of or over the age of 16 years who commits incest is liable to imprisonment for a term not exceeding 10 years
Sexual conduct with dependent family member - Section 131 CA 61
(1) Every one is liable to imprisonment for a term not exceeding 7 years who has sexual connection with a dependent family member under the age of 18 years.(2) Every one is liable to imprisonment for a term not exceeding 7 years who attempts to have sexual connection with a dependent family member under the age of 18 years.(3) Every one is liable to imprisonment for a term not exceeding 3 years who does an indecent act on a dependent family member under the age of 18 years.(4) The dependent family member cannot be charged as a party to the offence.(5) It is not a defence to a charge under this section that the dependent family member consented.
Dependent family member defined - Section 131A CA 61
(1) For the purposes of section 131, one person is a dependent family member of another person—(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.
Meeting young person under 16 following sexual grooming - Section 131B CA 61
(1)Every person is liable to imprisonment for a term not exceeding 7 years if,—(a) having met or communicated with a person under the age of 16 years (the young person) 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; and(b)at the time of taking the action, he or she intends—(i)to take in respect of the young person an action that, if taken in New Zealand, would be an offence against this Part, or(ii)that the young person should do on him or her an act the doing of which would, if he or she permitted it to be done in New Zealand, be an offence against this Part on his or her part.
Defence to charge under Section 131B
(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.
Sexual conduct with a child - Section 132 CA 61
(1) Everyone who has sexual connection with a child is liable to imprisonment for a term not exceeding 14 years. (2) Everyone who attempts to have sexual connection with a child is liable to imprisonment for a term not exceeding 10 years. (3) Everyone who does an indecent act on a child is liable to imprisonment for a term not exceeding 10 years(4) It is not a defence to a charge under this section that the person charged believed that the child was of or over the age of 12 years.(5) It is not a defence to a charge under this section that the child consented.(6) In this section,—(a) child means a person under the age of 12 years; and(b) doing an indecent act on a child includes indecently assaulting the child
Sexual conduct with a young person - Section 134 CA 61
(1) Everyone who has sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years. (2) Everyone who attempts to have sexual connection with a young person is liable to imprisonment for a term not exceeding 10 years. (3) Everyone who does an indecent act on a young person is liable to imprisonment for a term not exceeding 7 years.
Section 134A - defence to charge under section 134
(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.
Indecent assault - Section 135 CA 61
Everyone is liable to imprisonment for a term not exceeding 7 years who indecently assaults another person
Define consent
Consent is a person’s conscious and voluntary agreement to do something desired or proposed by another.
Define rape - Section 128(2) CA 61
Person A rapes person B if person A has sexual connection with person B effected by the penetration of person B’s genitalia, by person A’s penis. (a) Without person B’s consent to the connection; and (b) Without believing on reasonable grounds that person B consented to the connection.
Define genitalia - Section 2 CA 61
Genitalia includes a surgically constructed or reconstructed organ analogous to the naturally occurring male or female genitalia. (Whether the person concerned is male, female or indeterminate sex)
Define Penis - Section 2 CA 61
Penis includes a surgically constructed or reconstructed organ analogous to the naturally occurring penis (whether the person is male, female or indeterminate sex).
Matters not constituting consent - Section 128A CA 61
1) Not protesting or offering physical resistance to the activity 2) Allows because of the use of force to themselves or another, the threat of force to themselves or another, the fear of the application of force to themselves or another 3) Asleep or unconscious 4) So affected by alcohol or drugs as to be unable to consent or refuse consent5) So affected by mental or physical impairment as to be unable to consent or refuse consent6) Mistaken to identity of the other person 7) Mistaken as to the nature or quality
Subjective and objective test - reasonable grounds to believe in consent
- Subjective test – absence of consent: What was the complainant thinking at the time, was she consenting? 2. Subjective test – belief in consent: If she wasn’t consenting, did the offender believe she was, what was the offender thinking at the time. 3. Objective test – reasonable grounds for belief in consent: If the offender believed the complainant was consenting was that belief reasonable in the circumstances. What would a reasonable person have believed if placed in the same position as the defendant?
Proving a complainants age
In practice this generally involves producing the victim’s birth certificate in conjunction with independent evidence that identifies the victim as the person named in the certificate.
Define unlawful sexual connection - Section 128(3) CA 61
Person A has unlawful sexual connection with person B if person A has sexual connection with person B: a) Without person B’s consent to the connection; and b) Without believing on reasonable grounds that person B consented to the connection
Define Sexual Connection - Section 2 CA 61
(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medial 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 paragraphs a) or b)
Introduction/penetration
Introduction to the slightest degree is enough to effect a connection
Define young person - Section 134(6)(a) CA 61
(a) young person means a person under the age of 16 years; and (b) doing an indecent act on a young person includes indecently assaulting the young person
Define child - Section 132(6)(a) CA 61
(a) child means a person under the age of 12 years; and (b) doing an indecent act on a child includes indecently assaulting the child
Define an indecent act
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values.
Define indecent assault - R v LEESON
The definition of indecent assault is an assault accompanied by circumstances of indecency
What was held in R v COX
Consent must be full, voluntary, free and informed, freely and voluntarily given by a person in a position to form a rational judgement.
What was held in R v KOROHEKE
The genitalia comprise of the reproduction organs, interior and exterior. They include the vulva and the labia, both interior and exterior at the opening of the vagina.
What was held in R v GUTUAMA
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.
What was held in R v HARPUR
[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
What was held in R v FORREST and FORREST
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
What was held in R v COURT
Indecency means conduct that right thinking people will consider an affront to the sexual modesty of the complainant.
Victims views on bail - Section 30 Victims RightsAct
(1) This section applies if— (a) the victim is the victim of a specified offence; and (b) the person accused of the offence or 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 the offender being released on bail; and (b)inform the court of any views ascertained under paragraph (a).
Police to give victims of specified offences information - Section 31 VRA
(1)This section applies in respect of a victim of a specified offence. (2) The Commissioner of Police must, as soon as practicable,— (a)inform the victim of the matters required by subsections (3) to (5); and (b) inform a support person of the victim of the matters required by subsection (6). Address(3) The Commissioner of Police must inform the victim that the victim has the right to ask to be given any notice under sections 34 to 38 and that if they request that notice they must supply their address to NZ Police.(4) The Commissioner of Police must inform the victim that if the victim asks to be given any notice under sections 34 to 38 and gives their address then the victim may also be given notice under Section 39 or Section 20 of the Prisoners and Victims Claim Act 2005.(5) The Commissioner of Police must inform the victim that— (a)the victim may appoint a representative to request and receive on their behalf any notice given under sections 34 to 38; and (b)if the victim appoints a representative, the victim or their representative must give NZ Police the name and address of the representative. (6) If the Commissioner of Police knows, or ought reasonably to know, that the victim is not, or may not be, capable alone of doing any of the following, the Commissioner must inform a support person of the victim that a representative of the victim may be appointed for:(a)receiving notice under section 34 to 38; and (b)appointing a representative
Police to give secretary information about victims - Section 32 VRA
As soon as practicable after its determined the offence is a specified offence, the Commissioner of Police must give to the Secretary the following information: (a)the name of— (i)the victim; and (ii)the victim’s representative (if any); and (b)the address of— (i)the victim; or (ii)the victim’s representative
Section 8 (1) Bail Act - just cause for continued detention
(1) In considering whether there is just cause for continued detention, the court must take into account(a) whether there is a risk that— (i) the defendant may fail to appear in court on the date to which the defendant has been remanded; or (ii) the defendant may interfere with witnesses or evidence; or(iii) the defendant may offend while on bail; and (b) any matter that would make it unjust to detain the defendant.
Section 8 (2) Bail Act
In considering whether there is just cause for continued detention under subsection (1), the court may take into account the following:(a) the nature of the offence with which the defendant is charged, and whether it is a grave or less serious one of its kind:(b) the strength of the evidence and the probability of conviction or otherwise:(c) the seriousness of the punishment and the severity of the punishment that is likely to be imposed:(d) the character and past conduct or behaviour, in particular proven criminal behaviour, of the defendant:(e) whether the defendant has a history of offending while on bail or breaching court orders.(f) the likely length of time before the matter comes to hearing or trial:(g) the possibility of prejudice to the defence in the preparation of the defence if the defendant is remanded in custody:(h) any other special matter that is relevant in the particular circumstances.
What is the NCLRT ‘90 Second Rule’?
This rule assumes that if offender(s) are present and moving inside the Laboratory then the atmosphere will sustain life. It assumes that officers may safely enter and extract suspects for a period of up to ninety seconds.
Outline the “Prevention First, Graduated Victim Response Model”.
BRONZE Bronze responseIs the basic level of response that every victim should receive as a minimum. A key component of bronze response is to discuss crime prevention. This applies whether the victim reports at a public counter, through personal attendance in the field, or via phone to CRL.SILVERSilver responseIs the next stage of response, where it is appropriate to give an additional response. The key component of silver response is a face to face visit with the victim, focussing on crime prevention, which is separate to the initial reporting of the offence.GOLDResponse is the highest level of response to a victim, when there is the greatest risk of repeat victimisation. Key to gold response is the development and implementation of a Victim Intervention Plan.
