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Sex offences Flashcards

1
Q

Section 128B of the crimes act creates the offence of sexual violation, while S128(1) defines it into two classes, what are these classes?

A

(a) Sexual Violation by Rape
(b) Sexual Violation by Unlawful Sexual Connection

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2
Q

What is the definition of “rape”?

A

Rape is a specific form of sexual violation that involves the non consensual penetration of the complainants genitalia by the offenders penis.

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3
Q

What is the definition of “Unlawful Sexual connection”?

A

Unlawful sexual connection has a wider meaning and includes any form of non-consensual penetration or oral connection with a persons genitalia or anus

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4
Q

What is the penalty for sexual violation (both rape and unlawful sexual connection)?

A

20 years imprisonment

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5
Q

In all cases of sexual violation, what must the crown prove beyond a reasonable doubt?

A

That:
- There was an intentional act by the offender involving sexual connection with the complainant, and
- the complainant did not consent to the sexual act, and
- the offender did not believe the complainant was consenting, or
- If the offender did believe the complainant was consenting, the grounds for such belief were not reasonable

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6
Q

What must an investigation into sexual violation prove? (either…)

A

Either:
- that the defendant knew they did not have the consent of the victim but acted anyway or
- the defendants grounds for believing that the victim consented to the act were unreasonable

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7
Q

Does a spouse have a legal defence to rape or unlawful sexual connection?

A

No, section 128(4) makes it clear that a spouse who sexually violates their spouse has no legal defence due to the fact that they are legally married (a man prior to 1986 may have had such a defence)

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8
Q

What is the legislation that outlines “Rape”?

A

Section 128(1)(a) Crimes Act 1961

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9
Q

What are the elements of “Rape”?

A

Section 128(1)(a) Crimes Act 1961
- A person
- Rapes
- Another person

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10
Q

What must a person convicted of Sexual Violation be sentenced to?

A

A person convicted of Sexual violation must be sentenced to imprisonment UNLESS the court thinks that the person should not be.

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11
Q

What will the court consider when deciding whether someone convicted of Sexual Violation will be sentenced to imprisonment?

A
  • the particular circumstances of the person convicted
  • the particular circumstances of the offence, including the nature of the conduct constituting it
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12
Q

What is the legislation that outlines “Unlawful sexual connection”?

A

Section 128(1)(b) CA 61

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13
Q

What are the elements of “Unlawful sexual connection”?

A

Section 128(1)(b) CA 61

  • a person
  • Has unlawful sexual connection
  • With another person
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14
Q

Under Section 128, sexual violation by rape and unlawful sexual connection is defined under sub (2) and (3) respectively.

Under Sub (2), rape is defined as:

A

Person A rapes Person B if person has sexual connection with person B, effected by the penetration of person B’s genitalia by Person As penis
(a) Without Person B’s consent to the connection AND
(b) Without believing, on reasonable grounds, that person B consents to the connection

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15
Q

Under Section 128, sexual violation by rape and unlawful sexual connection is defined under sub (2) and (3) respectively.

Under Sub (3), Unlawful sexual connection is defined as:

A

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 consents to the connection

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16
Q

Sexual connection is further defined in Section 2 CA 61 - what is this definition?

A

Sexual connection means
Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of
- a part of the body of another person; or
- an object held or manipulated by another person; or
OR
Connection between the mouth and tongue of one person and a part of another persons genitalia or anus;
OR
The continuation of a kind described above

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17
Q

What is the difference between “Introduction into” and “penetration”?

A

In practice there is no difference and therefore there is no need to differentiate between the two terms.

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18
Q

How much penetration is required for either rape or sexual connection to be effeted?

A

For the purposes of the “penetration” definition of sexual connection, introduction to the slightest degree is enough to effect a connection.

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19
Q

Is the extent of penetration relevant in sexual connection?

A

While it is required to prove that penetration occurred, it is not relevant to prove the extent of the penetration; any degree of penetration, no matter how slight or fleeting, is sufficient

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20
Q

How can penetration be proved?

A

It may be established by:
- The complainants evidence
- Medical examination, including physical injuries and DNA evidence
- The defendants admissions

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21
Q

What does “genitalia” include??

A

The genitalia or genitals include the penis and testicles of a male and the vulva and vagina of a female.

The wider statutory definition also includes surgically constructed genitalia to allow for offences involving trans-gender individuals.

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22
Q

R v Koroheke - Genitalia - what does this case law outline?

A

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

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23
Q

Having regard to the female genitalia definition provided in R v Koroheke, what does this mean when proving penetration for sexual connection?

A

It means that if a part of the offenders body or an object held or manipulated by him is between the complainants labia to the slightest degree, it will constitute penetration for the purposes of sexual violation

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24
Q

What was held in R v N in relation to penetration?

A

It was held that the offence is “sufficiently proved by penetration of the vulva by the penis. Proof of penetration of the vagina is not required”

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25
Q

What is the charge when the defendant penetrates the complainants genitalia with his penis?

A

The charge will be rape under S128(1)(a) CA 61.
Given the wider definition of “penis” anybody with a penis (inc. constructed or reconstructed) is therefore capable of rape, irrespective of their biological gender.

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26
Q

If the defendant effects non consensual penetration of the complainants anus with his penis - is this considered rape?

A

No, the anus is not included in the definition of genitalia and therefore it would not be sufficient for a charge of rape. Instead, the appropriate charge would be one of S128(1)(b) being unlawful sexual connection

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27
Q

What is included as “objects held/manipulated” in relation to Unlawful Sexual Connection?

A

This provision allows for anything, other than a part of his body, used to penetrate the complainants genitalia or anus. For example; a deoderant bottle, a vibrator or other hand-held objects

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28
Q

What is meant when it specifies “except for genuine medical purposes”?

A

Some medical proceedures (such as cervical screening and prostate examination) involve penetration of a patients genitalia or anus by a doctor. Provided this is done for genuine medical purposes, this kind of penetration is excluded from the definition of sexual connection.

HOWEVER, if it is done under the guise of being for “genuine medical purposes” but is for sexual gratification, it may amount to sexual violation.

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28
Q

For an offence of Unlawful Sexual Connection effected by oral connection, does penetration need to be proven?

A

No. In the case of oral sexual connection, it is not necesary for there to be any penetration. Any touching of a persons genitalia or anus with another persons mouth or tongue is sufficient.

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29
Q

What is meant by “Continuation” in regards to sexual violation?

A

The definition of sexual connection includes the “continuation” of such acts, capturing situations where sexual activity is started consentually, but consent is later withrawn.

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30
Q

Once a defendant is aware that consent has been withdrawn, when do they have to stop the sexual activity?

A

There is an obligation on a person to stop sexual activity at the point he realises the other person is, or may be, no longer willing - failure to do so may render a previously consensual act unlawful.

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31
Q

What was held in R v Kaitamaki in relation to consent withdrawal?

A

R v Kaitamaki held that after he penetrated the woman and then realises that she is not consenting (or has never consented) but continues, then that act of intercourse becomes rape.

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32
Q

Under Section 127 of the Crimes Act 1961, it states that there is no presumption because of age. What does this mean?

A

This provision means that any person is capable, in a legal sense, of being involved in sexual connection. Therefore it is not a defence to a sex-related charge to say that either of the parties were too old or too young to have sexual connection.

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33
Q

What must the crown prove for a charge of unlawful sexual connection in relation to consent?

A

The crown must prove that:
- the complainant did not consent to the sexual act (subjective test) AND
- the defendant did not believe the complainant was consenting (subjective test) OR
- If the defendant did believe the complainant was consenting, the grounds for such belief were unreasonable (An objective test)

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34
Q

Consent definition

A

Consent is a persons conscious and voluntary agreement to something desired or proposed by another.

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35
Q

R v Cox - Consent

A

Consent must be “full, free, voluntary and informed. Freely and voluntarily given by a person in a position to form a rational judgement”

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36
Q

In what case law was reluctant consent discussed and what did the court hold?

A

Reluctant consent was discussed in R v Herbert.

The court held that true consent may be given reluctantly or hesitantly and may be regretted afterwards but if consent is given in such a manner then the act of sexual connection would not be rape.

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37
Q

Who is the onus on to prove that the complainant was not consenting?

A

The crown must prove that the complainant was not consenting to the sexual act at the time it occurred. It is not for the defendant do prove that he/she WAS consenting.

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38
Q

What is the objective test for proving there was no reasonable grounds for the defendant to believe in consent?

A

The objective test is: what would a reasonable person have believed if placed in the same circumstances as the defendant?

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39
Q

What is the case law relating to the objective test for proving consent? What was held?

A

R v Gutuama

Under the objective test, the crown must prove that “no reasonable person in the accuseds shoes could have thought the complainant was consenting”

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40
Q

What was refuted in R v Clarke in relation to the objective test for consent?

A

The court ruled out the defendants personal characteristics as relevant factors in a purely objective test. The term “reasonable” should not be interpreted as “reasonable in the circumstances as the accused believed them to be”.

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41
Q

Can someone be “reckless” as to consent?

A

No, recklessness is not consistent with having a reasonable belief in consent.

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42
Q

When is consent relevant?

A

It was discussed and found in R v Adams that “the material time when consent, and belief in consent, is to be considered is at the time the act actually took place”.

The real point is whether there was true consent, or a reasonably based belief in consent, at the time the act took place.

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43
Q

Is the complainants behaviour and attitude before or after an incident to be considered?

A

The complainants behaviour or attitude before or after the act may be relevant to that issue, but it is not decisive.

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44
Q

What section outlines “allowing sexual activity does not amount to consent in some circumstances”?

A

Section 128A CA 61

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45
Q

What are the 7 circumstances outlined in Section 128A CA 61 relating to “allowing sexual activity does not amount to consent in some circumstances”

A

A person does not consent to an act of sexual activity if he or she -
1. does not protest or offer physical resistance
2. allows the activity because of (a) force applied or (b) the threat of the application of force or (c) the fear of application of force
3. If the activity occurs while they are unconscious
4. If the activity occurs while they are affected by alcohol or some other drug
5. If the activity occurs while he or she is affected by an intellectual, mental or physical condition or impairment of such a nature and degree that he or she cannot consent or refuse to consent
6. if he or she allows it because they are mistaken about who the other person is.
7. if he or she allows the act because he or she is mistaken about the nature or quality.

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46
Q

Are circumstances that do not constitute consent limited to Section 128A ?

A

No. As per S128A(8), this section does not limit the circumstances in which a person does not consent to sexual activity.

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47
Q

For the purposes of S128A CA 61, what is meant by “allows”?

A

Includes acquiesces in, submits to and participates in

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48
Q

For the purposes of S128A CA 61, what is meant by “sexual activity “?

A

in relation to a person this means
(a) Sexual connection with the person; or
(b) The doing on the person of an indecent act that, without the persons consent, would be an indecent assault on the person

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49
Q

Is a lack of protest or resistance relevant when considering consent?

A

While lack of resistance does not mean the complainant is consenting, if it has not been communicated to the defendant then this may be relevant to whether her believed she was consenting, and whether that belief was reasonable.

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50
Q

What degree of force is required to negate consent?

A

The act does not specify the degree of force necessary. Force that is intended or sufficient to cause bodily harm would normally negate a claim that consent had been given.

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51
Q

Would a lesser degree of force negate consent?

A

A lesser degree of force would be accepted if it caused the victim to submit or acquiesce to the act.

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52
Q

What circumstances would be sufficient for a threat to negate consent?

A

The threat must be a threat to use force against the victim or some other person. The circumstances of the case will establish whether the threat was sufficient to negate a claim of genuine consent.

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53
Q

R v Koroheke - consent

A

It is important to distinguish between consent that is freely given and submission by a woman to what she may regard as unwanted but unavoidable. For example, submission by a woman because she is frightened of what might happen if she does not give in or co-operate, is not true consent.

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54
Q

Are prior agreements to sexual activity that is to occur once the complainant is asleep or unconscious relevant to consent?

A

The time for consent is the time of the sexual activity and is without reference to things done or said before or afterwards. Therefore, even prior agreement to this occurring would not constitute consent.

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55
Q

Is consent invalid simply because a person is intoxicated?

A

No, the question is whether they were affected to such a degree that they were incapable of understanding the situation and giving rational or reasoned consent.

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56
Q

R v Isherwood discusses consent when affected by drugs or alcohol - what was held ?

A

R v Isherwood

The court held that “proof that the influence of liquor or drugs has had a disinhibiting effect on the mind of a complainant is not necessarily incompatible with consent. It is all a question of degree”

They also reaffirmed that “if consent is to be valid, the complainant has to be able to understand their situation and be capable of making up their mind when agreeing to sexual acts”

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57
Q

What was held in R v Kim in relation to consent by a person who was asleep, unconscious, or affected by drugs or alcohol?

A

The court held that S128A(3) and (4) were designed for cases where the complainant is asleep, unconscious, or so affected by alcohol or drugs that they could not give valid consent. And such they will have no recollection of the events and will not be able to say whether they consented or not.

THEREFORE, it is not essential that there be evidence the complainant did not consent.

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58
Q

What is the issue when considering the validity of a persons consent based on impairment ?

A

Te question is whether the impairment was sufficiently severe so as to deprive the complainant of the capacity to give or withhold consent

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59
Q

What is the appropriate charge if sexual violation has not been met but the defendant has taken advantage of the complainants vulnerability?

A

A charge should be considered under S138 CA 61 - sexual exploitation of a person with significant impairment.

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60
Q

Is consent valid if there is a mistake as to identity?

A

No, the complainants consent is nullified if it is based on the mistaken identity of the other person

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61
Q

What are mistakes as to the “nature” and quality of the act limited to? and what does that mean?

A

Such mistakes are limited to the physical character of the sexual connection.

This means that if a person is aware that what is taking place is sexual intercourse or connection, they cannot be mistaken about the “nature and quality”

HOWEVER if the complainant is agreeing to an act OTHER than intercourse but intercourse takes place, they cannot be said to have given true consent.

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62
Q

Example of being mistaken to the nature and quality?

A

Agreeing to intercourse under the guise of it being a medical treatment / procedure

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63
Q

Will fraud negate consent?

A

Only fraud relating to the offenders identity or the nature and quality of the act, anything else will not affect the fact that consent was given.

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64
Q

Is “rape” gender neutral?

A

While the wording is gender neutral, the requirement is that penetration of a vagina is effected by a penis. This means that in practice, rape offenders will almost invariably be male and the complainant will be female.

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65
Q

What does Section 128(1)(b) capture?

A

It captures all forms of non-consensual sexual connection, other than those that amount to rape.

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66
Q

What forms of non-consensual connection does unlawful sexual connection include?

A
  • Penetration of a persons genitalia or anus by a part of another persons body
  • Penetration of a persons genitalia or anus by an object held or manipulated by another person
  • Touching of a persons genitalia or anus by another persons mouth or tongue
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67
Q

With regard to “penetration” in Unlawful sexual connection, what is specified?

A

There are no specifications in terms of who is penetrated and who does the penetrating.
Therefore, for example, it may be the offender who is penetrated by the complainant.

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68
Q

What must be specified when charging with sexual violation?

A

Whether it is a charge against
S128(1)(a) and 128B - Sexual violation by rape, or
S128(1)(b) and 128B - Sexual violation by Unlawful sexual connection

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69
Q

Section 129 of the Crimes Act 1961 covers two distinct offences, what are they?

A

Section 129(1) CA 61 - Attempted Sexual Violation
Section 129(2) CA 61 - Assault with intent to commit sexual violation

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70
Q

What do both subsections 129 (1) and (2) CA 61 cover?

A

They both cover circumstances where the offender intends to sexually violate the complainant and takes steps towards doing so, but the full ofence is not committed.

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71
Q

How are the offences of Attempted sexual violation and assault with intent to commit sexual violation distinguished from each other?

A
  • An attempt to commit sexual violation does not necessarily involve an assault and
  • An assault with intent to commit sexual violation may not be sufficiently proximate to the full offence to constitute an offence
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72
Q

Section 129(1) CA 61? Elements

A

Attempted sexual violation

  • A person
  • Attempts
  • To commit sexual violation
  • Of another person
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73
Q

Section 129(2) CA 61? Elements

A

Assault with intent to commit sexual violation

  • A person
  • Assaults
  • Another person
  • With intent to commit sexual violation
  • Of that person
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74
Q

What must a person do to be guilty of an attempt?

A
  • INTEND to commit the offence and
  • take a REAL and SUBSTANTIAL step towards achieving that aim
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75
Q

Section 72(1) CA 61? Elements

A

Attempts legislation

  • A person
  • Having intent to commit an offence
  • Does or omits an act for the purpose of accomplishing his object
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76
Q

The question whether an act done or omitted with intent to commit an offence is…..

A

or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law (S72(2) CA 61)

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77
Q

An act done or omitted with intent to commit an offence may constitute an offence if….

A

It is done immediately or proximately connected with the intended offence, whether or not there was any act showing the intent to commit that offence.

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78
Q

Intent definition

A

“A deliberate act done or omitted with the intent to produce a specific result”

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79
Q

Who is the onus on to prove intent?

A

The onus is generally on the prosecution to prove an offenders intent beyond reasonable doubt.

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80
Q

Are offenders admissions sufficient to prove intent?

A

While an offenders admissions as to their intent are potentially good evidence, it is good practice to support these with circumstantial evidence from which their intent can be inferred.

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81
Q

What was discussed in R v Collister ?

A

R v Collister held that circumstantial evidence from which an offenders intent may be inferred can include:
- the offenders actions and words before, during and after the event
- the surrounding circumstances
- the nature of the act itself

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82
Q

What are the differences and similarities between sexual violation and attempted sexual violation? What case law was this held under?

A

The only difference is that in -the attempt, the offender was unsuccessful in effecting the intended sexual connection. The mental elements of the two offences, in terms of intent and reasonable belief in consent are the same.

This idea was held in R v L

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83
Q

With attempted sexual violation, the crown must prove that at the time of the defendants conduct they:

A
  • INTENDED to have sexual connection with the complainant, and
  • the complainant did not consent to the intended sexual connection; and
  • the defendant did not believe on reasonable grounds that the complainant was consenting
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84
Q

What does establishing that the defendant was “reckless” as to whether or not the complainant was consenting satisfy?

A

This satisfies the requirement that any BELIEF in consent was not held on reasonable grounds

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85
Q

What must a defendant have done to be found guilty of an attempt?

A

To be guilty of an attempt, the defendant must have progressed past the stage of preparation and started a process intended to lead to the commission of the full offence.

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86
Q

In case law, R v Harpur, an attempt was discussed - what was held?

A

In R v Harpur, it was held that the actions of the defendant need not be considered in isolation. Sufficient evidence of his intent can be considered from the events leading up to this point.

“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”

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87
Q

When assessing proximity (attempt), what will the court analyse?

A

The court will analyse the defendants conduct at the relevant time, in conjunction with evidence of his intent based on the circumstances and any steps taken leading up to that point.

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88
Q

What can a cumulative assessment allow the court to infer (attempt)?

A

The cumulative assessment may allow the court to infer that the defendant had intended to commit the full offence and had started to do so, even though he may be several steps away from the ultimate act.

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89
Q

What did the court of appeal state in relation to an attempt and Police v Wylie?

A

“It must be left to common sense to determine in each case whether the defendant has gone beyond mere preparation. The conduct of the defendants in this case had definitely reached a stage where it amounted to a real and practical step towards the actual commission of the crime rather than mere preparation”

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90
Q

R v Harpur - The court may have …

A

Regard to the conduct viewed cumulatively up to the point when the conduct in question stops. The defendants conduct may be considered in its entirety. Considering how much remains to be done is always relevant though not determinative

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91
Q

Is there criteria for determining an attempt?

A

No, there is no criteria for determining an attempt because of the infinite variety of factual situations where it could be applied.

Whether the actions of the defendant did or did not amount to an attempt will be considered on a case by case basis.

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92
Q

What are examples of acts provided by the American Penal Code that may constitute an attempt to commit an offence?

A
  • Lying in wait, searching for or following the contemplated victim
  • Enticing the victim to go to the scene of the contemplated crime
  • reconnoitring the scene of the contemplated offence
  • Unlawful entry of a structure, vehicle or enclosure in which it is contemplated the offence will be committed
  • Possession, collection or fabrication of materials to be employed in the commission of the offence
  • Soliciting an innocent agent to engage in conduct constituting an element of the offence
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93
Q

Assault definition

A
  • A person
  • Intentionally applies or attempts to apply force
  • Directly or indirectly
  • To another person

OR

  • A person
  • Threatens by any act or gesture
  • To apply such force
  • To another person
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94
Q

The situation of an assault with intent to commit sexual violation can arise out of two different intentions. What are they?

A

The offender may assault the victim:
- In the hope that the complainant will then change their mind and consent to the act, or
- Intending to commit rape or sexual connection, regardless of whether the complainant changes their mind

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95
Q

If the defendant assaults the victim hoping they will change their mind to the sexual connection, what will they be liable for?

A

They will be liable for assault or indecent assault if applicable.

96
Q

If the defendant is determined to commit the sexual violation and the assault is merely a preliminary, what are they liable for?

A

They are liable for attempted sexual violation or assault with intent to commit sexual violation, depending on the proximity between the act and the intended offence.

97
Q

What must you cover in an interview with a suspect, in relation to assault with intent to commit sexual violation?

A

It is important to cover what their purpose was and what was their thinking around their actions.

98
Q

What must you prove for a charge of “assault with intent to commit sexual violation”?

A

It must be proved that at the time the defendant assaulted the complainant, he;
- Intended to have sexual connection with the complainant, and
- The complainant did not consent to the sexual connection, and
- The defendant did not believe on reasonable grounds that the complainant was consenting

99
Q

When might you file a charge of Assault with intent to commit sexual violation?

A
  • Where an offender assaults the complainant because they are so intent on having intercourse with the complainant and obtaining the complainants consent for that or
  • As an alternative to a charge of attempted sexual violation (particularly where the proximity between the assault and the completion of the intended sexual violation is an issue)
100
Q

Section 132 CA 61 - what is the title of this section

A

Sexual conduct with a child under the age of 12

101
Q

Section 132 CA 61 - elements

A

Sexual conduct with a child under the age of 12
- A person
- (1) Has sexual connection with
- (2) Attempts to have sexual connection with
- (3) Does an indecent act on
- A child

102
Q

Is it a defence to any of the circumstances outlined in S132(1)(2) or (3) that the person charged believed the child to be of or over the age of 12?

A

No, under S132(4) it is stipulated that it is not a defence that they believed that the child was of or over the age of 12 years.

103
Q

Is it a defence to any of the circumstances outlined in S132(1)(2) or (3) that the child consented to the activity?

A

No, under S132(5) it is stipulated that it is not a defence that the child consented

104
Q

Under Section 132 CA 61 - what does ‘child’ mean?

A

A person under the age of 12

105
Q

Under Section 132 CA 61 - what does an indecent act on a child include?

A

Includes indecently assaulting the child.

106
Q

What distinction must be drawn when considering a child who is “consenting” to an act described in S132?

A

The distinction must be drawn between a child who is simply compliant and one who is truely consenting based on a full understanding of the act.

107
Q

Is there a statutory “cut off” below which a child is deemed incapable of consenting?

A

No, therefore, whether a child is truly consenting or not will depend on the circumstances of the case.

108
Q

Cox v R - Consent of a child

A

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

They continued that “a ten or eleven year old girl may know what sexual intercourse is. She may indicate her agreement but save in such exceptional and rare circumstances, she will not, simply because of her age and stage of sexual development, understand the significance of the act and therefore, any consent will not be a legal consent”

109
Q

Cox v R - Reasonable belief in consent of a child

A

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

110
Q

If consent is proven, is it a defence to a charge of 132 CA 61?

A

No, under S132(5) even if consent is proven, it is not a defence to this charge of sexual conduct with a child under 12.

111
Q

Under Section 132 and 134, what is significant?

A

In these offences, the age of the complainant is significant.

112
Q

What must the crown prove for a charge of S132 and 134?

A

The crown must prove the complainants age at the time of the alleged offence, using the best evidence available to do so.

In practice, this generally involves producing the complainants birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate. (Ideally a person)

113
Q

R v Forrest and Forrest - case law

A

The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victims age.

114
Q

Section 2 (1B) outlines an indecent act on another person and applies for sexual conduct with a child, what does this state?

A

For the purposes of this act, one person does an indecent act on another person whether he or she
- Does an indecent act with or on the other person or
- Induces or permits the other person to do an indecent act with or on him or her

115
Q

Under S132(3), an indecent act is normally accepted as…

A

An act accompanied by circumstances of indecency

116
Q

If an indecent act is done with the consent of the child, it is immaterial whether .

A
  • the offender does the act on the child
  • the child does the act on the offender
  • the act is mutual
117
Q

R v Court - Indecency

A

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

118
Q

What was held in R v Dunn relating to indecency?

A

It was held in R v Dunn that indecency must be judged in light of the time, place and circumstances. It must be more than trifling and be sufficient to “warrant the sanction of law”

119
Q

What is the objective test for indecency?

A

The test for indecency is whether the conduct “offends against a reasonable and recognised standard of decency which ordinary and reasonable members of the community ought to impose and observe”

120
Q

Section 134 CA 61 - elements

A

Sexual conduct with a young person under 16

  • A person
    (1) has sexual connection with
    (2) Attempts to have sexual connection with
    (3) Does an indecent act on
    A young person
121
Q

Can a person who was married to a yp at the time of the incident be charged under S134 CA 61 ?

A

No, under S134(4) a person cannot be convicted of a charged against this section if he / she was married to the young person concerned at the time of sexual connection

122
Q

Can the young person be charged as a party to the offence of S134 CA 61?

A

No, under S134(5) the young person in respect of whom an offence against this section was committed cannot be charged as a party to the offence if the person who committed the offence was of or over the age of 16.

123
Q

For a charge against Section 134 CA 61 - what does a young person mean?

A

Under S134(6), a young person is defined as a person under the age of 16

124
Q

For a charge against Section 134 CA 61 - what does “doing an indecent act” include?

A

It includes indecently assaulting the young person

125
Q

What options are open when precise age of the complainant is in doubt?

A

To avoid risk of acquittal in cases where the precise age of the complainant at the time is in doubt, charges may be filed under both ss132 and 134, or if necessary under s134 only.

126
Q

How do sections 132 and 134 overlap?

A

134 is primarily aimed at young people aged 12 -13 years, it overlaps with s132 in that it covers any person under the age of 16 years. This therefore extends the section to also cover children under 12

127
Q

Under section 134A CA 61 what is the defence to a charge under S134 CA 61?

A

It is a defence to a charge under section 134 if the defendant proves that before the time of the sexual activity:
- they had taken reasonable steps to ascertain that the young person was of or over the age of 16, AND
- At the time of the sexual activity they believed on reasonable grounds that the young person was of or over the age of 16 AND
- The young person consented

128
Q

Can both parties be charged with an offence against S134 CA 61

A

Where both parties are aged under 16, they both commit the offence. However, if one party is 15 and the other is 16, only the 16 year old can be charged

129
Q

In relation to the defence against Section 134 CA 61, what must the defendant show?

A

The defendant must show what steps they took to ascertain the young persons age and satisfy the court that these steps were all that could be reasonably required of them in the circumstances

The wider the age and maturity gap between the defendant and the young person, the harder it will be to establish his defence.

130
Q

Section 135 CA 61 - Elements

A

Indecent assault

  • A person
  • Indecently assaults
  • Another person
131
Q

What must the prosecution prove in cases of indecent assault?

A

that
- 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

132
Q

What further two elements must the prosecution prove beyond reasonable doubt if the issue of consent is raised in relation to indecent assault?

A
  • the complainant did not consent to the assault and
  • the defendant did not honestly believe that the complainant was consenting
133
Q

R v Leeson - case law

A

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

134
Q

What is meant by “indecent intent”

A

Indecent assault cannot be committed accidentally; it must be proved that the defendant intended to act indecently.

135
Q

Are indecent assaults always sexually motivated?

A

Indecent assaults will generally be sexually motivated, but not always.

For example, a man may strip a womans clothes off in public for sexual gratification or to humiliate her. Either way, he intentionally does an act that is an affront to the womans sexual modesty and is therefore indecent.

136
Q

What does the “assault” in indecent assault need to satisfy?

A

While the prosecution needs to prove an assault, it does not need to be forceful or violent; a gentle caress may suffice

137
Q

Does an indecent assault include an attempt?

A

Given the wide definition of assault, indecent assaults may include attempts to apply force and threats by act or gesture to apply force in circumstances of indecency.

138
Q

Is consent a defence to indecent assault?

A

Consent is a defence to indecent assault involving an adult complainant, however not if the person is under 16 years.

As with sexual violation, the presence or absence of consent is an objective test from the complainants point of view.

139
Q

Is a belief in consent sufficient in indecent assault?

A

This is where sexual violation and indecent assault differ, although consent is a common factor to both, the issue of belief in consent differs.

Where in sexual violation, a belief in consent is not sufficient unless there are reasonable grounds; with indecent assault, an honest belief is sufficient.

140
Q

What was held in R v Norris in relation to consent in indecent assault ?

A

It held that if a person who is charged with indecent assault is able to establish that they honestly believed that the complainant was consenting, they are entitled to be acquitted even though the grounds of his belief were unreasonable.

141
Q

Section 129A CA 61 - what is the title of this offence?

A

Sexual conduct with consent induced by certain threats

142
Q

Section 129A(1) and (2) CA 61 - what are the elements of the two offences outlined here?

A

Sexual conduct with consent induced by certain threats

  • A person
  • (1) Has sexual connection with
  • (2) Does an indecent act on
  • Another person
  • Knowing that the other person has been induced to consent to the connection by threat
143
Q

Under Section 129A CA 61 “Sexual conduct with consent induced by certain threats” when does the person “know the other has been induced to consent to the act by threat”

A

If (and only if) he or she knows that the other person has been indcued to consent to the sexual connection (3) or indecent act (4) by an express or implied threat of a kind described in paragraph (5).

144
Q

What kind of threats are relevant for a charge against Section 129A CA 61 “Sexual conduct with consent induced by certain threats”?

A

Threats included in S129A(5) CA 61 include:
- A threat what is punishable by imprisonment but does not involve the actual or threatened application of force to any person.

  • A threat that the person making the threat (or some other person) will make an accusation or disclosure (whether true or false): about misconduct by any person (living or dead) that is likely to seriously damage the reputation of the person against who the accusation or disclosure is made
  • A threat that the person will make improper use, to the detriment of the person consenting, of a power or authority arising out of an occupational or vocational position held by the person making the threat or a commercial relationship that exists between the two parties.
145
Q

Section 130 CA 61 - what is the title and elements of this offence?

A

Incest

  • A person
  • Has sexual connection with a parent, child, sibling, half sibling, grandparent or grandchild and
  • Has knowledge of the relationship
146
Q

How old must an offender be for a charge of incest?

A

Over the age of 16 years old.

147
Q

Is consent a defence to incest?

A

No, consent is not a defence to a charge of incest. The sexual connection is carried out with the consent of both parties; if it is not, then a charge of sexual violation is appropriate.

148
Q

Can adoptive parents be charged with incest?

A

Where a child has been adopted, the birth parents remain ‘parent’s for the purpose of the offence of incest and the adoptive parents are also considered ‘parents’.

Normally a child is adopted by both of the spouses however, if only one of the spouses adopts the child, and the other merely consents to the adoption. The consenting spouse is not an adoptive parent and therefore cannot be charged with incest (instead a charge against S131 may be appropriate)

149
Q

Can a step-parent be charged with “incest” ?

A

No, a step-parent and step-child are not “parent and child” for the purposes of section 130. However, sexual intercourse may instead come under S131 or S128 dependant on the circumstances.

150
Q

For a charge of incest, do the parties charged have to have knowledge of the relationship?

A

Yes, it is essential that each person charged knew of their relationship before or at the time of the sexual connection. The onus is on the crown to prove this knowledge.

151
Q

Section 131 CA 61 - what is the title and elements of this offence?

A

Sexual conduct with a dependant family member

  • A person
  • (1) Has sexual connection with
  • (2) Attempts to have sexual connection with
  • (3) Does an indecent act on
  • A dependant family member under the age of 18
152
Q

Is it a defence to a charge under S131 that the dependant family member consented?

A

No, as per S131(5), it is not a defence to a charge against this section that they consented

153
Q

Can the dependant family member be charged as a party to section 131?

A

No, as per S131(4), the dependant family member cannot be charged as a party to the section.

154
Q

What is the definition of a Dependant family member?

A

This definition is provided under S131A CA 61 and includes

(a) If the person has power/authority over them and is
- a parent, step-parent, foster parent, guardian, uncle or aunt OR
- a parent, step-parent, or foster parent of the above OR
- A child of their parent or step parent OR
- the spouse or defacto partner of a person described above

OR

(b) If they are members of the same family, whanau or culturally recognised family group and
- is not a person referred to in para (a)
- Has a responsibility for, or significant role in their care or upbringing

OR

(c) If they are living with the other person as a mamber of their family, and that person is not a person in para (a) but has
- Power/authority over them and
- a responsibility for or significant role in his or her care or upbringing

155
Q

What does an “aunt” include?

A

Includes a half-sister of one of the persons parents

156
Q

What does a “foster parent” include

A

Includes former foster parents

157
Q

What does a guardian include?

A
  • a guardian under the Guardianship act or the CYFs Act and
  • includes a former guardian
158
Q

What does a step parent include?

A

Includes former step=parents

159
Q

What does an “uncle” include?

A

Includes a half-brother of one of their parents

160
Q

Section 131B CA 61 - what is the title and what are the elements?

A

Meeting a young person following sexual grooming
(1)
- A person
- (a) Having met or communicated with a person under the age of 16 on an earlier occasion
- (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 intent of meeting him / her and

(b) at the time of taking the action he/she intends
(i) to take, in respect of the young person, an act that if taken in New Zealand would be an offence against part 7 or against any paragraphs of section 98AA(1) OR
(ii) that the young person should do on him 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

161
Q

Under S131B(1A), what can a young person include?

A

A young person includes a reference to a constable who pretends to bge a young person under the age of 16 years if the offender, when taking any of the actions described in sub (1) believed that the fictitious young person was a young person under the age of 16

162
Q

Is there a defence to a charge under S131B CA 61 - being meeting young person following sexual grooming?

A

Yes, under S131B(2) it is a defence to a charge under S131B(1) if the person proves that
- before the time they took the action concerned, they had taken reasonable steps to find out whether thye young person was of or over the age of 16 AND
- At the time they took the action he or she believed on reasonable grounds that the young person was of or over the age of 16.

163
Q

What is an offence against S131B CA 61 (meeting following sexual grooming) directed at?

A

It is directed primarily at “grooming” via the internet and includes text messaging and other forms of electronic communication.

164
Q

What does the offence S131B CA 61 (meeting following sexual grooming) identify and criminalise?

A

It identifies and criminalises predatory behaviour at the point where steps are being taken to implement the grooming, but before the offender has had a real opportunity to sexually abuse the complainant.

165
Q

When is the offence of “Meeting following sexual grooming” complete?

A

It is complete when the parties meet, or the defendant travels or make arrangements to meet the complainant with the relevant intent.

166
Q

What does it mean that a meeting has to be “intentional” in relation to”Meeting following sexual grooming”?

A

The meeting need only be “purposely arranged”

167
Q

Section 138 CA 61 - what is the title and elements of the offences?

A

Sexual exploitation of person with a significant impairment

  • A person
  • (1) Has exploitative sexual connection with
  • (2) Attempts to have exploitative sexual connection with
  • (4) Exploitatively does an indecent act on
  • A person with a significant impairment
168
Q

When is a person liable for a charge against S138 (1) and (2) CA 61 “Exploitative sexual connection with a person with a significant impairment?

A

(3) If he or she
- has sexual connection with the impaired person knowing that the impaired person is a person with a significant impairment AND
- Has obtained the impaired persons acquiescence in, submission to, participation in or undertaking of the connection by taking advantage of the impairment.

169
Q

When is a person liable for a charge against S138(4) CA 61 - Exploitatively does indecent act on person with significant impairment?

A

(5) If he or she
- Does an indecent act on the impaired person, knowing that the impaired person is a person with a significant impairment AND
- Has obtained the impaired persons acquiescence in, submission to, participation in or undertaking of the doing of the act by taking advantage of the impairment.

170
Q

What is a “significant impairment” for the purposes of S138 CA 61 ?

A

(6)
A significant impairment is an intellectual, mental or physical condition (or a combination of two or more) that affects a person to such an extent that it impairs the persons capacity;
- to understand the nature of sexual conduct or
- To understand the nature of decisions around sexual conduct OR
- to foresee the consequences of decisions about sexual conduct OR
- to communicate decisions about sexual conduct.

171
Q

Section 142A CA 61 - what is the title and elements of this offence?

A

Compelling indecent act with animal
- A person
- Who compels any other person
- By actual or threatened application of force
- To that person or some other person
- To perform, or submit to or acquiesce in
- Any act of indecency with an animal
- Whether or not involving penetration

172
Q

Section 143 CA 61 - what is the title?

A

Beastiality

173
Q

Section 144 CA 61 - What is the title?

A

Indecency with an animal

174
Q

Section 144A(1) CA 61 - what is the title and what does the subsection outline?

A

144A(1) Sexual conduct with child or young person outside nz
- A person who
- Being a New Zealand Citizen or ordinary resident in NZ
(a) Does outside NZ, with or on a child, an act which sub (2) applies (sexual connection, attempted sexual connection and an indecent act)
(b) Does outside NZ, with or on a child under the age of 16 which sub (3) applies (Sexual connection, attempted sexual connection and an indecent act)
(c) Does outside NZ, with or on a person under 18, an act to which sub (4) applies (breach of prohibitions on use in prostitution of persons under 18 years)

175
Q

What penalty is a person charged under S144A(1) liable for?

A

Under S144A(5) a person who commits an offence against this provision is liable to the penalty to which they would be liable if convicted of an offence against the relevant provision.

176
Q

What are charges against S144A(1) limited by?

A

As per (6)
- the commencement of proceedings for the offence
- a charge under this section

AND
As per (7)
- Circumstances that constitute a defence
- Circumstances that do not constitute a defence
- Circumstances in which the person on or with whom an offence is committed may not be charged with an offence against that provision

177
Q

For a charge of S144A(1), who must provide consent prior to charging?

A

No charging document may be filed for an offence against S144A except with consent of the attorney general.

178
Q

What can be done for a charge of S144A CA 61 prior to attorney general permission?

A

A person who is alleged to have committed the offence can be arrested, or a warrant for their arrest may be issued and executed, and any such person may be remanded in custody or on bail
BUT no further actions can be taken until that consent is obtained

179
Q

What can the Attorney general do before deciding whether to give his or her consent under sub (1) ?

A

Make inquiries as he or she sees fit

180
Q

Section 144C CA 61 - what is the title and what are the elements?

A

Organising or promoting child sex tours

(1)
- A person
- (a) Makes or organises any travel arrangements for / on behalf of any other person
- (b) Transports any other person to a place outside NZ
- With the intention of facilitating the commission by that other person
- an offence against S144A

OR
(1)(c)
- A person
- Prints or publishes
- Any information intended to promote conduct that -
- would constitute an offence against Section 144A or to assist any other person to engage in such conduct

181
Q

What does “making and organising of travel arrangements” include for S144C CA 61 (Organising or promoting child sex tours)?

A

Not limited to
- the purchase or reservation of tickets for travel to a country outside of NZ and
- the purchase or reservation of accomodation in a country outside NZ

182
Q

What does “publication of information” include for a charge against S144C CA 61 (Organising or promoting child sex tours)?

A

means publication of information by any means, whether written, electronic or other form of communication; and includes the distribution of information

183
Q

Section 216H CA 61 - what is the title?

A

Prohibition on making intimate visual recording

184
Q

What is required to be proved for a charge of 216H CA 61 being a prohibition on making an intimate visual recording?

A
  • Must have made a recording that comes within the definition of S216G and
  • Intended to make such a recording or was reckless as to every element of the definition
185
Q

What does Section 44(1) of the Evidence Act 2006 state in regard to the sexual experience of the complainant?

A

It states that no evidence can be given and no question can be put to the complainant relating to the sexual experience of the complainant with a person other than the defendant (unless approved by a judge)

186
Q

What does Section 44(2) of the Evidence Act 2006 state in regard to the reputation of the complainant ?

A

It states that no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters

187
Q

In an application for permission for information to be disclosed as per 44(1) Evidence Act 2006 being the sexual experience of the complainant, when must the judge not grant permission?

A

Section 44(3) CA 61
The judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it

188
Q

When is permission of the judge not required in relation to 44(1) Evidence Act 2006?

A

As per sub (4)
To rebut or contradict evidence given under sub (1)

189
Q

When does the rule under S44(1) Evidence Act 2006 (Being no question / evidence as to the sexual experience with any person other than the defendant) not apply?

A

When the defendant is charged as a party and cannot be convicted unless it is shown that the other person committed a sexual offence against the complainant. Subsection (1) therefore does that apply to any evidence given, or question put that relates directly or indirectly to the sexual experience of the complainant with that other person

190
Q

What section of the Evidence Act 2006 protects against the disclosure of a witnesses address?

A

Section 87 of the Evidence Act 2006

191
Q

Under Section 87(1) of the Evidence Act 2006, the precise particulars of a witnesses address (street name and number) may not, without the permission of the judge, be- (outline the two ways in which these cannot be disclosed)

A
  • the subject of any question to a witness or included in any evidence given or
  • included in any statement or remark made by a witness, lawyer, officer of the court, or any other person
192
Q

Under S87(2) of the Evidence Act 2006, when must the judge not grant permission to address details being disclosed?

A

This information must not be disclosed unless they are satisfied that the question to be put, the evidence to be given, or the statement or remark to.be made, is of sufficient direct relevance to the facts in issue that to exclude themj would be contrary to the interests of justice

193
Q

When may an application be made for address details to be heard under S87(1) Evidence Act 2006?

A

As per (3)
An application may be made before or after the commencement of any hearing and is (where practicable) to be made and dealt with in chambers.

194
Q

What is the exception to Section 87(1) Evidence Act 2006 (disclosure of address details)

A

Nothing in Subsection 87(1) applies in a criminal proceeding if it necessary to disclose the particulars in the charge in order to ensure that the defendant is fully and fairly informed of the charge.

195
Q

What does Section 88 of the Evidence Act 2006 protect?

A

It protects a complainant from having to answer questions put to them or to a witness about the complainants occupation, or having evidence given, or statements/remarks made about the complainants occupation.

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

196
Q

Does a complainants evidence have to be corroborated?

A

Section 121 Evidence Act 2006 provides that, in any criminal proceeding, the complainants evidence does not have to be corroborated.

This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainants account.

197
Q

While a complainants evidence does not have to be corroborated, what is the exception to this rule?

A

in respect to the offences of
- perjury and
- False oaths and
- False statements or declarations and
- Treason

198
Q

What does Section 35 of the Evidence Act 2006 outline?

A

This section governs the exception to the previous consistent statements rule. Therefore, previous exceptions under the common law, including evidence of a recent complaint, no longer apply.

199
Q

Under Section 35(1) previous consistent statements are inadmissible unless they come within the exceptions ion s35(2) or (3) which are:

A

(2) applies to statements that would have come under the common law rule of a recent complaint

(3) if it is necessary to respond to a challenge of the witnesses veracity or accuracy. This challenge must be based on
- A previous inconsistent statement of the witness or
- A claim that the witness recently invented evidence

200
Q

Once admitted, a previous consistent statement is admissible to prove “anything that is of consequence” and therefore…

A

Will be admissible as evidence of its truth as well of the fact that it was made.

201
Q

Given the previous consistent statement rule, when conducting an investigation into a sexual complaint or any other complaint, what is important?

A

It is important to record all information that a witness can provide about an incident, including what the complainant said to them about the incident. The witnesses information may then be used in court as rebuttal evidence if the complainants veracity is challenged.

202
Q

What does “veracity” mean?

A

It means “the disposition of a person to refrain from lying, whether generally or in the proceeding”

203
Q

When must a video recorded interview with a victim of sexual assault be taken?

A

As close to the of the offence as practicable

204
Q

Who should be used to interview victims of sexual assault?

A

Where possible Level 3 specialist interviewers should be used whenever possible when interviewing witnesses to, or complainants of, major offences e.g. homicides, sexual and serious assaults, aggravated robberies with firearms, kidnapping, abduction and so on.

205
Q

What are the advantages of visually recording interviews?

A
  • Greater quality and quantity of information
  • Minimises trauma to the witness by simplifying the process and having their interview played as their evidence in chief
  • Reduces contamination by the interviewer
  • Provides a valuable means for the witness to refresh their memory
206
Q

What happens if a L3 specialist interviewer is not available?

A

An NCO can authorise a suitably competent investigator to conduct and visually record the interview.
Preference to those that are trained in Level 2 or if not, level 1

207
Q

If a child interview is conducted in accordance with the Evidence Regulations Act, will it be admissible? What case law supports this?

A

Yes. It would ‘normally’ be admissible in criminal proceedings.

This is supported in R v M where the court said “with a child complainant, evidence will normally be given by way of video record if there is one, unless there are exceptional circumstances

208
Q

Why does a DVD recording of a child interview meet the needs of the child?

A
  • the interview process is focused on the child
  • it allows them to state clearly and freely what has happened (according to rules of evidence)
  • the recorded interview can be used for the basis of investigation, criminal prosecution and care and protection purposes
  • It avoids the need to re-interview
209
Q

What sections of the evidence act allow for the video to be played as evidence in chief in court?

A

Sections 103, 104 and 105 of the Evidence Act 2006

210
Q

What must you advise the complainant if you are looking to use the video as evidence in chief?

A

that we have to apply to the court to have this accepted and it is not always guaranteed that it will be authorised.

211
Q

How can you prepare a witness for court? Four ways.

A
  • give them the opportunity to view the video record
  • Get them to meet the prosecutor
  • show them the court room
  • give them the “being a witness - going to court”
212
Q

How must Police apply to have the video played as evidence in chief ?

A

An application must be made under S107 of the Evidence Act, this application is normally prepared by the crown solicitor.

213
Q

How soon must a 107 application be made to have the video interview played as evidence in chief?

A

The application must be made as early as possible before the trial.

214
Q

Does every video interview to be played in court require a transcript?

A

Yes, it is the responsibility of the OC case to ensure a transcript is prepared, this must include all noticeable non-verbal communication and be accurate.

215
Q

When must a transcript be provided to the defendant and the defendants lawyer?

A

Under regulation 28 of the Evidence regulations 2007, a copy of the transcript must be provided as soon as practicable after the defendant has pleaded not guilty

216
Q

Under S103 of the Evidence Act 2006 what are the grounds for an application to be made for the complainant to give evidence by another means?

A
  • The age or maturity of the witness:
  • The physical, intellectual, psychological, or psychiatric impairment of the witness
  • The trauma suffered by the witness
  • The witness’s fear of intimidation
  • The linguistic or cultural background or religious beliefs of the witness
  • The nature of the proceeding:
  • The nature of the evidence that the witness is expected to give:
  • The relationship of the witness to any party to the proceeding
  • The absence or likely absence of the witness from New Zealand
  • Any other ground likely to promote the purpose of the Act.
217
Q

What are three alternative ways of giving evidence as per S105 of the Evidence Act 2006 ?

A
  • While in the court room but unable to see the defendant or some other specified person
  • From a place outside the court room, either somewhere else in New Zealand or elsewhere (Video Link)
  • By a video record made before the hearing of the proceeding
218
Q

What is the legislation that covers “Assault on child or by a male on a female” and what are the elements?

A

Section 194 Crimes Act 1961

A person
(a) Assaults any child under the age of 14 or
(b) Being a male assaults any female

219
Q

What is the section that covers “Parental control” or “anti smacking” legislation and under sub(4) what do police have?

A

Section 59 CA 61 - Parental control

Under sub (4) police have the discretion not to prosecute complaints against a parent of a child in relation to an offence involving the use of force where the offence is considered to be so inconsequential that there is no public interest

220
Q

Who can be criminally liable against Section 195 CA 61 ?

A

It applies to both
- those who have actual care or charge of the complainant AND
- those who are staff members of any hospital, institution or residence where the child resides

221
Q

What does Section 195 CA 61 Criminalise?

A

Any of the caregivers (person who has care or staff at the hospital/institution etc) who INTENTIONALLY engages in conduct or omits to discharge or perform any legal duty which is likely to result in the suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult

222
Q

What does Section 195A CA 61 impose criminal liability for?

A

This section imposes criminal liability in circumstances where it is KNOWN that a child or vulnerable adult is at risk of harm but where no action is taken

223
Q

Who does Section 195A CA 61 apply to?

A

It applies to
- members of the same household as the victim
- People who are staff members of any hospital, institution or residence where the victim resides

224
Q

When will criminal liability arise for Section 195A CA 61?

A
  • If a person has frequent contact with a child and
  • KNOWS (mens rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of acts or omissions of another person
  • FAILS (actus reas) to take reasonable steps to protect the victim from that risk
225
Q

What is required to be proven for a charge of Section 195A CA 61 being “Failure to protect child or vulnerable adult”?

A
  • that the child was under the age of 18 at the time AND
  • that the defendant was over the age of 18 at the time AND
  • The defendant, by being a member of the same household or a staff member at the hospital where they reside had “frequent” contact with them AND
  • The defendant had knowledge of the risk of the harm to the child
226
Q

What is regarded as “frequent contact” for a charge of “Failure to protect child or vulnerable adult” and how detrimental is it to the case?

A

The requirement of frequent contact is one, without which the prosecution cannot succeed. Whether the contact between the defendant and the complainant can be regarded as sufficiently “frequent” is a matter of fact for the jury.

227
Q

Can an extended family member be charged with “Failure to protect child or vulnerable adult”?

A

A person can be considered a member of a household even if they do not live there but are so closely connected that it’s reasonable to regard them as a member.

Regard must be had to the frequency and duration of visits to the household and whether the person has a familial relationship with the complainant

228
Q

If the complainant lives in two different households, who will be liable for a charge of “Failure to protect child or vulnerable adult”?

A

The “same household” will refer to the household in which the complainant was living at the time of the act or omission giving rise to the risk of death, GBH or sexual assault

229
Q

What are the 10 steps in child abuse investigations

A
  1. Record event, incident or occurence
  2. Initial attendance
  3. Gather and process forensics
  4. Assess and link case
  5. prioritise case
  6. Investigate case
  7. Resolution decision
  8. Prepare case
  9. Court process
  10. Case filing
230
Q

What is the purpose of a joint investigation plan?

A

To ensure that police and OT work together

231
Q

What are the options for resolving child abuse investigations?

A
  • Restorative justice
  • Issue of formal warning for a minor assault
  • Prosecution
  • No further action
232
Q

Evidence preservation prior to a medical, what are the eight things that the complainant should refrain from doing?

A

Eating or drinking
Smoking
Brushing teeth or rinsing mouth
Brushing or combing hair
Changing clothing
Going to the toilet - if necessary capture urine and ask them not to wipe
Washing hands or biting nails
Washing and showering

233
Q

How to provide a safe and secure environment for victims of sexual offences (CALMTEA)

A
  • Conduct your dealings in a sensitive manner.
  • Accept they are telling the truth until/unless there is evidence to prove the contrary.
  • Listen to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
  • Establish whether they require Medical attention.
  • Treat them courteously.
  • Explain the process you are following and why you need to follow that process and ask certain questions.
  • Advise them of the local counselling services available.
234
Q

ASA timing categories

A

Acute - within 7 days of the sexual assault
Non-acute - at 7 or more days after the sexual assault, but before 6 months
Historic - after 6 months of the sexual assault

235
Q

ASA 12 key process points

A
  1. Initial actions on contact
  2. Case referral
  3. Providing specialist support
  4. Preliminary interview
  5. Information feedback
  6. Medical examination
  7. Formal interview
  8. Investigation and evidence assessment
  9. Resolution options
  10. Prosecution
  11. Final actions and record keeping
  12. Prevention opportunities and responsibilities
236
Q

What to explain to a victim before a medical exam? Five points

A

Explain to the victim:

That the Exam:
- Will be conducted by a Doctor specially trained in Examining ASA victims
- Has health Benefits
- It can help Police obtain evidence to arrest Offender
- That it will take a couple of Hours
- They have a choice as to gender of doctor and you will do your best to Accommodate their wishes

237
Q

What is the definition of child abuse?

A

The harming, ill-treatment, abuse, neglect, or deprivation of any child or young person.

238
Q

What are ‘child centred timeframes’?

A

Timeframes that are relevant to the child’s age and cognitive development.

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