Questions

Question 1

List the two main forms of sexual violation s128(1)

Answer 1

• Rape
• Unlawful Sexual Connection

Question 2

Discuss the penalty provisions for sexual violation as set out in s128B CA61

Answer 2

s128B outlines that the punishment for sexual violation is imprisonment for a term not exceeding 20 years, and imprisonment should always be imposed on conviction, unless there are special circumstances that justify a departure from the rule.

Question 3

Define the term Genitalia

Answer 3

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

Question 4

What is the definition of consent

Answer 4

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

Question 5

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

Answer 5

In proving that consent wasn’t present in a case of sexual violation, the Crown must prove that:

• the victim didn’t consent
• the victim’s consent wasn’t valid
• the defendant didn’t believe on reasonable grounds that the victim was consenting.

Question 6

What 2 elements need to be proved in a charge of Assault with Intent to Commit Sexual Violation s129

Answer 6

The 2 elements to prove in a charge of assault with intent to commit sexual violation are that the offender:
• assaulted the victim, and
• intended to commit sexual violation.

Question 7

Define sexual conduct with a child under 12

Answer 7

Sexual conduct with a child under 12 is:
• Sexual connection with a child
• Attempted sexual connection with a child
• Does an indecent act on a child.

Question 8

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

Answer 8

This statutory defence applies only when:
• The person charged can show they took reasonable steps to establish the Y/P was 16 or over, &
• The person charged believed on reasonable grounds that the Y/P was 16 or over, &
• The young person consented.

Question 9

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

Answer 9

Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16yrs (s134 CA61).

Question 10

Explain s44 of the Evidence Act 2006 - Evidence of sexual experience of complainants in sexual cases

Answer 10

Generally, no evidence or questions can be put to the complainant about their sexual experience with any person other than the defendant, except with the permission of the Judge.

However, this is subject to the propensity rule - Evidence of the victim’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.

Question 11

Explain s87 of the Evidence Act 2006 in relation to the victim’s address

Answer 11

• Protects a witness from having to state their address and having questions put to them about it
• It Includes the street name and number, and the name of the town or community they live in.
• These details may be disclosed if the judge determines they’re directly relevant to the facts in issue and to exclude them would be contrary to the interest of justice.

Question 12

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

Answer 12

A direction for a witness to give evidence in an alternative way, may be made on the grounds of:
• The age or maturity of the witness
• The witness’s fear of intimidation
• The trauma suffered by the witness
• The nature of the proceeding
• The nature of the evidence the witness is expected to give
• The physical, intellectual, psychological, or psychiatric impairment of the witness
• The linguistic or cultural background or religious beliefs of the witness
• The absence or likely absence of the witness from New Zealand
• Any other ground likely to promote the purpose of the Act.

Question 13

Discuss the requirement under reg 28 of the Evidence Regulations 2007

Answer 13

Prosecutor to give transcript to defence after defendant pleads not guilty
• The prosecutor must ensure a typed transcript of a working copy is given to the defendant or their lawyer asap after the defendant has pleaded not guilty
• The typed transcript is to be prepared by the police
• The Court may adjourn the hearing to allow further time for the defendant to consider the transcript if subclause (1) has not been complied with.

Question 14

List 3 ways under s105 that a witness may give evidence

Answer 14

The witness may give evidence:
• While in the courtroom but unable to see the defendant or some other specified person – (Screens)
• From an appropriate place outside the courtroom, either in NZ or elsewhere – (CCTV)
• By a video record made before the hearing of the proceeding. – (Video recording)

Question 15

Who does ASA policy and procedures apply to?

Answer 15

All cases where the victim of the alleged offending is 18 or older at the time the complaint is made.

Question 16

ASA - What are the 3 types of complaints

Answer 16

• Acute: 1 - 7 days
• Non-acute: 7 days - 6 months
• Historic: 6 months +

Question 17

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

Answer 17

Remind the victim:
• No smoking
• No eating or drinking
• No going to the toilet (if necessary, use a tox kit to capture urine and ask them not to wipe)
• No washing or showering
• No changing clothes

Question 18

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

Answer 18

Explain to the victim:
• That the examination will be conducted by a medical forensic practitioner specially trained in examining victims of sexual assault
• That the examination has potential health benefits and can help Police obtain evidence
• The expected time for the examination and, if appropriate, possible outcomes
• Ask if they have any concerns about the Dr’s gender and advise that you’ll do your best to accommodate their wishes.

Question 19

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

Answer 19

• Conduct your dealings in a sensitive manner
• Accept they’re telling the truth unless there’s evidence to prove otherwise
• Listen to what they tell you, giving them an opportunity to tell their account in their own words, even to just vent their feelings
• Establish if they need Medical attention
• Treat them courteously
• Explain the process you’re following and why you need to follow it and ask certain questions
• Advise them of the local counselling services available.

Question 20

List four Police responsibilities to victims and their rights

Answer 20

• All obligations under the Victims’ Rights Act 2002 must be met and all victim contact recorded
• Victims must be informed about the progress of the investigation within 21 days
• Victims must be informed of their right to register on the Victim Notification System - if s29 offence
• Victims must be informed of the outcome and the case closure. Ensure any property belonging to the victim is returned promptly.

Question 21

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

Answer 21

Child abuse is defined as the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.

Question 22

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

Answer 22

The 3 areas to consider when determining if physical abuse is serious and meets the threshold for a CPP referral:
* The Circumstances
* The Injury inflicted
* The Action of the abuse

Question 23

3 circumstances where Police would remove a child from a household

Answer 23

• Sexual assault
• Serious physical abuse
• Serious wilful neglect

Question 24

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

Answer 24

• Child-centred time frames are time frames relevant to the child’s age and cognitive development.
• The younger the child the more vulnerable they are and therefore require a quicker response.

E.g. for a 5 y/o a week is a long time for an event to be recounted reliably. However, a 16 y/o would have less difficulty recalling the same event weeks later.

Question 25

Explain s195A CA61 in relation to what is necessary to prove criminal liability for failing to protect a child

Answer 25

Imposes criminal liability where it’s known a child is at risk of harm and no action is taken.

The offence applies to:
* Members of the same household as the victim
* Staff members at a hospital, institution or residence where the victim resides.

Criminal liability will arise if such a person has frequent contact with a child and:
* Knows the victims at risk of death, GBH or sexual assault as a result of the acts or omissions of another person; and fails to take reasonable steps to protect the victim from that risk.

Question 26

What three things must the Crown prove in relation to an Indecent Assault

Answer 26

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

Question 27

R v LEESON (Indecent Assault)

Answer 27

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

Question 28

Explain s129A (5) of the Crimes Act in relation to Sexual conduct with consent induced by certain threats

Answer 28

The kind of threats referred to in ss (3) and (4) are -
* A threat that the person or someone else will commit an imprisonable offence; but doesn’t involve actual or threats of force to anyone
* A threat of an accusation or disclosure about misconduct likely to damage the reputation of the person
* A threat that the person will make improper use of a power arising out of a job position held by them, to the detriment of the person consenting.

Question 29

Under s131A of the Crimes Act, what is the definition of a dependent family member

Answer 29

(a) If the other person has power or authority over him or her, and is:
* His or her parent, step-parent, foster parent, guardian, uncle, or aunt
* A child of his or her parent or step-parent
* The spouse or de facto partner of a person described above.

(b) Members of the same family, whanau, or other culturally recognised family group, not referred to in paragraph (a); but has responsibility for his or her care or upbringing.

(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 in paragraph (a); but has power or authority over him or her; and a responsibility for his or her care or upbringing.

Question 30

When is the offence of sexual grooming complete – s131B

Answer 30

• When the parties meet, or the defendant travels or makes arrangements to meet the complainant with the relevant intent
• To be intentional the meeting need only be “purposely arranged.”

Question 31

131B(2) is a defence to a charge under 131B, if the person charged proves that

Answer 31

• Before the time of the action, they took reasonable steps to establish the Y/P was 16 or over
• At the time of the action, they believed on RG that the Y/P was 16 or over.

Question 32

When is the offence of sexual exploitation of a person with a significant impairment complete – s138(3)

Answer 32

A person has exploitative sexual connection with a person with a significant impairment if he or she -
• Has sexual connection with the impaired person knowing that the impaired person has a significant impairment; &
• Has obtained the impaired persons acquiescence in, submission to, or participation in, the connection by taking advantage of the impairment.

Question 33

R v HARPUR (Attempts)

Answer 33

An attempt includes “an act or omission constituting a substantial step in a course of conduct planned to culminate in his commission of the crime”.

Question 34

Sexual Connection - s2 CA61

Answer 34

Sexual connection means -
(a) connection effected by the introduction into the genitalia or anus of one person, other than for genuine medical purposes, of -
(i) a part of the body of another person; or
(ii) an object held or manipulated by another person; or

(b) connection between the mouth or tongue of 1 person and a part of another person’s genitalia or anus; or

(c) the continuation of connection of a kind described above.

Question 35

No presumption because of age - s127 CA 1961

Answer 35

There’s no presumption of law that a person is incapable of sexual connection because of their age.

Question 36

No legal spouse defence - s128(4) CA 1961

Answer 36

A spouse who sexually violates their spouse has no legal defence due to the fact that they are legally married

Question 37

Reluctant Consent

Answer 37

True consent may be given reluctantly and may be regretted afterwards, but if it’s given in such manner, provided it’s without fear of force, then the sexual connection would not be rape.

Question 38

Sexual conduct with children and young people outside of NZ - s144A Crimes Act 1961

Answer 38

Allows for the prosecution of a NZ citizen who commits an offence under s132 or s134 if the act
was committed outside of NZ.

Question 39

Consent of Attorney-General required - s144B CA 1961

Answer 39

No charges may be filed without consent of attorney general.

Question 40

Reasonable grounds

Answer 40

The establishing of reasonable grounds is a 3-step process

1 - Subjective test (Absence of consent)
What was the complainant thinking at the time?

2 - Subjective test (Belief in consent)
What was the defendant thinking at the time?

3 - Objective test (Reasonable grounds for belief in consent)
What would a reasonable person have believed in the same position?