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DDP > Sexual Offences > Flashcards

Sexual Offences Flashcards

1
Q

Sexual Violation by Rape liability

A 
Sexual violation by rape
Section 128(1)(a) Crimes Act 1961
  • a person
  • rapes
  • another person
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2
Q

Sexual violation by unlawful sexual connection liability

A 
Sexual violation by unlawful sexual connection
Section 128(1)(b) Crimes Act 1961
  • a person
  • has unlawful sexual connection
  • another person
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3
Q

Assault with intent to commit sexual violation liability

A 
Assault with intent to commit sexual violation
Section 129(2) Crimes Act 1961
  • a person
  • assaults
  • another person
  • with intent to commit sexual violation of the other person
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4
Q

Sexual conduct with a child under 12 liability

A

Sexual conduct with a child under 12
Section 132, Crimes Act 1961

  • a person
    (1) has sexual connection with a child
    (2) attempts to have sexual connection with a child
    (3) does an indecent act on a child
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5
Q

Sexual conduct with a young person under 16 liability

A

Sexual conduct with a young person under 16
Section 134 Crimes Act 1961

  • a person
    (1) Has sexual connection with a young person
    (2) Attempts to have sexual connection with a young person
    (3) Does an indecent act on a young person
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6
Q

Indecent Assault liability

A

Indecent Assault
Section 135 Crimes Act 1961

  • A person
  • Indecently Assaults
  • Another person
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7
Q

Rapes definition

A

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
(1) Without person B’s consent to the connection
AND
(2) Without believing on reasonable grounds that person B consents to the connection

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8
Q

Penetration definition

A

Introduction to the slightest degree is enough to effect a connection

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9
Q

Genitalia definition

A

Genitalia includes a surgically constructed or reconstructed organ analogous to naturally occurring male or female genitalia (whether the person concerned is male, female, or of indeterminate sex).

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10
Q

Penis definition

A

Penis includes a surgically constructed or reconstructed organ analogous to a naturally occurring penis (whether the person concerned is male, female, or of indeterminate sex).

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11
Q

Unlawful sexual connection definition

A

Person A has unlawful sexual connection with person B if person A has sexual connection with person B
(1) without person B’s consent to the connection
AND
(2) without believing on reasonable grounds that person B consents to the connection.

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12
Q

Sexual connection defined

A

(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 one person and a part of another person’s genitalia or anus
OR
(c) the continuation of the connection described in A or B

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13
Q

What must be proved in all cases of sexual violation

A
  • 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 he did believe she was consenting, the grounds for such a belief were not reasonable
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14
Q

Proving penetration

A
  • The complainant’s evidence
  • Medical examination, including physical injuries and DNA evidence
  • The defendant’s admissions
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15
Q

R v Koroheke

A

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

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16
Q

Mouth or Tongue

A

In the case of oral sexual connection, it is not necessary for there to be penetration; any touching of a person’s genitalia or anus with another person’s mouth or tongue is sufficient.

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17
Q

Continuation defined

A

Continuation captures situations where sexual activity is commenced consensually, but consent is later withdrawn

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18
Q

Subjective and Objective tests

A

The crown must prove that:

  • The complainant did not consent to the sexual act (subjective test)
  • The offender did not believe the complainant was consenting (subjective test)
  • If he did believe she was consenting, the grounds for such a belief were not reasonable (an objective test)
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19
Q

R v Cox

A

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

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20
Q

Subjective test - absence of consent

A

Whether or not the complainant was consenting is a subjective test from the complainant’s point of view - ie, what was the complainant thinking at the time?

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 to prove that she was consenting.

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21
Q

Objective test - reasonable grounds for belief in consent

A

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

If a reasonable person would, in the same circumstances, have believed the complainant was consenting, the jury may well acquit the defendant. If a reasonable person would not have believed she was consenting, the jury is more likely to convict.

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22
Q

R v Gutuama

A

Under the objective test, the Crown must prove that “no reasonable person in the accused’s shoes could have thought she was consenting”.

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23
Q

Lack of protest or resistance

A

A lack of protest or resistance does not mean a person is consenting, even if the lack of consent has not been communicated to the defendant; what is relevant is the complainant’s state of mind.

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24
Q

Force, threat, or fear of force

A

There is no consent if a person submits to sexual connection because of the actual or threatened application of force to any person, or because of an honestly held fear of force, whether or not that fear was reasonable. The issue is whether the complainant allowed the sexual activity because of it.

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25
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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26
Q

Affected by alcohol or drugs

A

The influence of alcohol and drugs may have an impact on a persons ability to give valid consent, however consent is not invalid simply because the person is intoxicated. The question is whether they were affected to such an extent that they were incapable of understanding the situation and giving rational or reasonable consent.

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27
Q

Intellectual, mental or physical impairment

A

Where the validity of a person’s consent is in question due to an impairment, the issue 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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28
Q

Mistake as to identity

A

This provision covers situations where consent is given on the basis of mistaken identity. If a complainant consents to sexual activity with a person, believing they are actually someone else, then such consent is not valid.

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29
Q

Mistake as to nature and quality of act

A

In R v Williams, a church choirmaster had sexual connection with a 16 year old girl on the pretence he was performing a medical procedure to improve her singing voice. The court of appeal upheld his conviction for rape as the girl had only consented to what she had mistakenly believed was a medical procedure.

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30
Q

R v Harpur (conduct)

A

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

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31
Q

R v Forrest and Forrest

A

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

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32
Q

Cox v R (child’s consent)

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. A ten or eleven year old child may know what sexual intercourse is. She may indicate her agreement

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33
Q

Cox v R (reasonable adult)

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.

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34
Q

R v Court

A

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

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35
Q

R v Leeson

A

The definition of “indecent assault”, is an assault accompanied with circumstances of indecency.

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36
Q

Acts that may be sufficiently proximate (attempted sexual violation)

A
  • Lying in wait, searching for or following the contemplated victim.
  • Enticing the victim to go to the scene of the contemplated offence.
  • Recon the scene of the contemplated offence.
  • Unlawful entry of a structure, vehicle or enclosure in which it is contemplated that 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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37
Q

To be guilty of an attempt a person must

A
  • Intend to commit the offence

- Take a real and substantial step towards achieving that aim

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38
Q

Attempted sexual violation - crown must prove what

A

Crown must prove:

  • Intended to have sexual connection with the complainant
  • The complainant did not consent to the intended sexual connection
  • The defendant did not believe on reasonable grounds that the complainant was consenting
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39
Q

Sexual conduct with a child under 12 consent defence

A

Consent is no defence to a charge of sexual conduct with a child under 12

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40
Q

Mistake as to age (child under 12)

A

It is no defence to a charge of sexual conduct with a child under 12 that the offender believed the child was 12 years of age or over

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41
Q

Defence for sex with young person under 16

A

A defence may arise if:

  • They have taken reasonable steps to ascertain that the young person was at least 16
  • They believed on reasonable grounds that the young person was at least 16
  • The young person consented
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42
Q

What must the prosecution prove in a case of indecent assault

A
  • 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
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43
Q

When is consent relevant

A

The material time when consent, and belief in consent, is to be considered is at the time the act actually took place

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44
Q

When is consent invalid

A

(1) They do not consent just because they do not offer physical protest or resistance.
(2) force applied to them or some other person, the threat of force (express or implied), the fear of force.
(3) Asleep or unconscious.
(4) So affected by alcohol or drugs they cannot consent or refuse.
(5) So affected by an intellectual, mental, or physical condition or impairment they cannot consent or refuse.
(6) Mistaken identity.
(7) Mistaken as to the nature and quality of the act.

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45
Q

Attempted Sexual Violation

A

Attempted Sexual Violation
Section 129, Crimes Act 1961

  • Everyone who attempts to commit sexual violation of the other person is liable to imprisonment for a term not exceeding 10 years.
46
Q

Attempted Sexual Violation intent

A

The Crown must prove that the defendant intended to commit the full act of sexual violation, and acted as he did for the purpose of achieving that aim.

47
Q

Two types of intent in criminal law context

A

Firstly, there must be an intention to commit the act, and secondly, an intention to get a specific result.

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: An intent to produce a specific result, in this context means “aim, object, or purpose”.

48
Q

The difference between sexual violation and attempted sexual violation

A

The only difference between the two is that in the attempt, the offender was unsuccessful in effecting the intended sexual connection.

49
Q

R v Harpur (attempts)

A

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

50
Q

Attempts (sufficiently proximate)

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.

51
Q

Assault with Intent to Commit Sexual Violation

A 
Assault with Intent to Commit Sexual Violation
Section 129(2) Crimes Act 1961

Every one 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.

52
Q

Assault with Intent to Commit Sexual Violation intent

A

This type of situation can arise out of two different intentions. 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.
53
Q

Assault definition

A

Assault means the act of intentionally applying or attempting to apply force to the person of another, directly or indirectly, or threatening by any act or gesture to apply such force to the person of another, if the person making the threat has, or causes the other to believe on reasonable grounds that he has, present ability to effect his purpose.

54
Q

Cox v R (ten or eleven year olds)

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.

55
Q

Child definition

A

A child is a person under the age of 12 (11 and under)

56
Q

Sexual conduct with a child under 12 defence

A

Mistake as to age is not a defence under this section, it is no defence to the charge of sexual conduct with a child that the offender believed the complainant was 12 years of age or over.

57
Q

Indecent act on a child

A

An indecent act is generally accepted to be an act accompanied by circumstances of indecency.

If such an act is done with the consent of the child, it is immaterial whether:

  • The offender does the act on the child.
  • The child does the act on the offender.
  • The act is mutual.
58
Q

Consenting of a young person (12-16)

A

The courts have recognised that in some cases young people may be capable of giving legal consent to sexual activity, sufficient to provide a defence to sexual violation.

59
Q

When the precise age of the complainant is in doubt (sexual connection with a young person)

A

To avoid the risk of acquittal in cases where the precise age of the complainant is in doubt, charges may be filed under both ss132 and 134.

60
Q

Defence to charge under section 134

A

It may provide a defence to a charge under section 134 if the person charged proves that -

  • They had taken reasonable steps to ascertain that the young person was of or over the age of 16, and
  • 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.
61
Q

What must be proved in indecent assault cases

A
  • 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.
62
Q

Sexual conduct by coercion

A 
Sexual conduct with consent induced by certain threats
Section 129(A) Crimes Act 1961
  • a threat that the person making the threat or some other person will commit an offence that is punishable by imprisonment but does not involve the actual or threatened application of force to any person; and
  • 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 (whether living or dead) that is likely to damage seriously the reputation of the person against or about whom the accusation or disclosure is made; and
  • a threat that the person making the threat 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 existing between the person making the threat and the person consenting.
63
Q

Incest

A

Incest
Section 130, Crimes Act 1961

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

64
Q

Key factors of incest

A

The key factors are the relationship and the knowledge of the relationship, but the offender must be of or over the age of 16.

65
Q

Incest consent

A

Consent is no defence under this section. The sexual connection in incest is carried out WITH the consent of both parties. If it is not, then a charge of sexual violation is appropriate.

66
Q

Incest - relationships between parents and children

A

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

67
Q

Sexual conduct with a dependant family member

A

Sexual conduct with a dependant family member
Section 131, Crimes Act 1961

The offence covers a broad range of offending. If someone has a sexual connection, attempted sexual connection, or does an indecent act with a dependant family member who is aged under 18 years, and who is under the offenders care or protection, the offender may be charged under s131.

68
Q

Dependant family member defined

A

(a) If the person has power or authority over him or her and is -

(i) Their 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 any of the subparagraphs.

(b) If they are members of the same family, whanau, or another culturally recognised family group, and the other person has a responsibility or a significant role in their 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 referred to in paragraph (a) but has power or authority over him or her; and responsibility for, or significant role in, their care or upbringing.

69
Q

Meeting young person following sexual grooming

A

Meeting young person following sexual grooming
Section 131B, Crimes Act 1961

  • Having met or communicated with a person under the age of 16 years on an earlier occasion, he or she takes one of the following actions:

(i) intentionally meets the young person.
(ii) travels with the intention of meeting the young person.
(iii) arranges for, or persuades the young person to travel with the intention of meeting him or her; and at the time of taking the action, he or she intends to commit an offence against this part.

70
Q

Constable pretending to be a young person

A

The offence covers situations where the offender believes he or she is sexually grooming a young person but has in fact been in communication with a Constable acting covertly.

The prosecution must prove that the offender believed the fictitious young person was a young person under the age of 16.

71
Q

Sexual exploitation of a person with significant impairment

A

Sexual exploitation of a person with significant impairment
Section 138, Crimes Act 1961

Has exploitative sexual connection with a person knowing that the impaired person is a person with a significant impairment and has obtained their participation by taking advantage of their impairment.

For the purposes of this section, a significant impairment is an intellectual, mental, or physical condition or impairment that affects a person to such an extent that it significantly impairs the persons capacity -

(a) to understand the nature of sexual conduct; or
(b) to understand the nature of decisions about sexual conduct; or
(c) to foresee the consequences of decisions about sexual conduct; or
(d) to communicate decisions about sexual conduct.

72
Q

Compelling indecent act with animal

A

Compelling indecent act with animal
Section 142A, Crimes Act 1961

Compels any other person, by the actual or threatened application of force to that other person or some other person, to perform, or to submit to or acquiesce in, any act of indecency with an animal, whether or not involving penetration.

73
Q

Bestiality

A

Bestiality
Section 143, Crimes Act 1961

Beastiality is complete upon penetration.

74
Q

Indecency with animal

A

Indecency with animal
Section 144, Crimes Act 1961

Commits any act of indecency with an animal

75
Q

Sexual conduct with children outside New Zealand

A

Sexual conduct with children outside New Zealand
Section 144A, Crimes Act 1961

Every one commits an offence who, being a New Zealand citizen or ordinarily resident in New Zealand commits an offence against sections 132 or 134 outside of New Zealand.

76
Q

Sexual conduct with children outside New Zealand authority to charge

A

Authority to charge is provided by the Attorney-General.

77
Q

Prohibition on making an intimate visual recording

A

Prohibition on making an intimate visual recording
Section 216H, Crimes Act 1961

An offence to intentionally or recklessly makes an intimate visual recording of another person.

78
Q

Organising child sex tours

A

Organising child sex tours
Section 144C, Crimes Act 1961

  • Makes or organises any travel arrangements for or on behalf of any other person with the intention of facilitating the commission by that other person of an offence against section 144A of this act, whether or not the offence is actually committed by that other person.
  • Transports any other person to a place outside New Zealand with the intention of facilitating the commission by that other person of an offence against section 144A of this act, whether or not the offence is actually committed by that other person.
  • Prints or publishes any information that is intended to promote conduct that would constitute an offence against section 144A of this act, or to assist any other person to engage in such conduct.

For the purpose of this section:
- The making or organising of travel arrangements includes but is not limited to purchasing or reserving tickets for travel or accommodation in a country outside of New Zealand.

79
Q

Complainants character - Evidence section 44

A

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

Evidence of the complainant’s propensity to act in a certain way with the defendant, including sexually, may be offered as evidence but only if the judge grants permission.

80
Q

Complainant’s address - Evidence section 87

A

Section 87 of the Evidence Act 2006 protects a witness from having to state their address and having questions put to them about that information. This includes not only the name and number of the street but also the name of the town or community the witness lived in.

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

81
Q

Complainant’s occupation - Evidence section 88

A

Section 88 of the Evidence Act 2006, protects a complainant from having questions put to them or to a witness about the complainant’s occupation, or having evidence given, or statements/remarks made about the complainant’s occupation.

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

82
Q

Corroborative evidence - Evidence section 121

A

In any criminal proceeding, the complainant’s evidence does not have to be corroborated. This is especially important in cases of a sexual nature, where the offence is often committed with no independent evidence to corroborate the complainant’s account.

83
Q

Standard committal procedure

A

The standard committal procedure allows under special circumstances on application for the court to agree to hear oral evidence. If this is granted then the complainant of sexual offences will have protection surrounding who can be present and what can be asked.

84
Q

Advantages of visually recording interviews

A
  • Greater quality and quantity of information obtained
  • Minimising trauma to the witness by simplifying the process and having their interview played as their evidence in chief.
  • Reducing contamination by the interviewer through the process of transposing the interview into a statement.
  • Providing a valuable means for the witness to refresh their memory before judicial proceedings.
85
Q

Ways the witness may give evidence - Section 105

A

The witness may give evidence:

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

86
Q

Alternative means of evidence - Section 103

A

A direction that a witness is to give evidence in an alternative way, may be given on the grounds of -

  • 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 or 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.
87
Q

Ill-treatment or neglect of a child or vulnerable adult

A

Ill-treatment or neglect of a child or vulnerable adult
Section 195, Crimes Act 1961

This offence applies to both those who have actual care or charge of the complainant and to those who are staff members of any hospital, institution or residence where the child (or vulnerable adult) resides.

Any of those specified caregivers who intentionally engages in conduct, or omits to discharge or perform any legal duty which is likely to result in suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult, renders them is liable to imprisonment not exceeding 10 years.

88
Q

Failure to protect child or vulnerable adult

A

Failure to protect child or vulnerable adult
Section 195A, Crimes Act 1961

This imposes criminal liability in some situations where it is known a child (or vulnerable adult) is at risk of harm but where no action is taken.

The offence applies to:

  • Members of the same household as the victim.
  • People who are staff members of any hospital, institution or residence where the victim resides.

Criminal liability will arise if such a person has frequent contact with a child (or vulnerable adult) and:

  • Knows (men’s rea) the victim is at risk of death, grievous bodily harm or sexual assault as a result of the acts or omissions of another person; and
  • Fails (actus rea) to take reasonable steps to protect the victim from that risk.
89
Q

Criteria for CPP

A
  • Sexual abuse
  • Physical abuse
  • Neglect
90
Q

Physical abuse criteria for CPP

A
  • The action of the abuse
  • The injury inflicted
  • The circumstances
91
Q

Actions of physical abuse that meet CPP criteria

A
  • Blow or kick to the head
  • Shaking of an infant
  • Strangulation
  • Use of an object as a weapon
  • Attempted drowning
92
Q

Injuries from physical abuse that meet CPP criteria

A
  • A bone fracture
  • Burn
  • Concussion or loss of consciousness
  • Any injury that requires medical attention
  • Any bruising or abrasion when the child is very young.
93
Q

Other circumstances or factors that could meet CPP criteria

A
  • The vulnerability of the child
  • More than one offender
  • History of abuse
  • High degree of violence
  • The offender’s history and background
  • Location of the incident
  • Nature and level of concern of the notifier
94
Q

Examples of CPP neglect

A
  • Not providing adequate food, shelter, or clothing.
  • Not protecting a child from physical harm or danger.
  • Not accessing appropriate medical treatment or care.
  • Allowing a child to be exposed to an environment where volatile, toxic, or flammable chemicals have been used or stored.
  • Allowing a child to be exposed to the illicit drug manufacturing process.
95
Q

3 initial steps OT and Police must follow with CPP cases

A
  1. Referral.
  2. Consultation.
  3. Agreement.
96
Q

Topics to be considered when completing the IJIP.

A
  • The immediate safety of the child involved and other children who may be identified as being at risk.
  • If a joint visit is required due to the risk of further offending, loss of evidence, the alleged offender is likely to be hostile, any concerns for staff safety.
  • The management of the initial interview of the child.
  • Referral to a medical practitioner and authority to do so.
  • Collection of physical evidence such as photographs.
  • Any further actions agreed for Police and/or OT including consideration as to whether a multi-agency approach is required.
97
Q

OT time frames

A
  • Critical - 24hrs.
  • Very urgent - 48 hrs.
  • Urgent - 7 days.
98
Q

12 key process points for ASA

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. preventative opportunities and responsibilities.
99
Q

What the victim should refrain from doing to preserve trace evidence

A
  • no eating or drinking.
  • no going to the toilet (if necessary, use a toxicology kit to capture urine and ask the female victim not to wipe.
  • no washing or showering.
  • no washing of hands or biting fingernails.
100
Q

What must you explain to the victim about the medical examination procedure

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

Ask the victim if they have concerns about the gender of the practitioner conducting the examination.

101
Q

What actions should you take when interacting with victims of sexual offences to provide a safe a secure environment

A

C - Conduct your dealings in a sensitive and concerned manner
A - Accept they are telling the truth until/unless there is evidence to prove the contrary.
L - Listen to what they tell you, giving them an opportunity to tell their account in their words, even to just vent their feelings.
M - Establish whether they need medical attention
T - Treat them courteously
E - Explain the process and why you are following it.
A - Advise them of the local counseling services available

102
Q

Police responsibilities to victims and their rights

A
  • All obligations under the Victims Rights Act 2002 must be met and the victim contact must be recorded.
  • Victims must be given information about the progress of their investigation within 21 days.
  • Victims must be kept updated and informed of the outcome of the investigation, including no further avenues of enquiry or the reason for charges not being filed.
  • As soon as the offender is arrested and charged, Police must determine whether it is a s29 offence. If so, the victim must be informed of their right to register on the VNR.
  • Informed of the outcome of the case and case closure. Property returned.
103
Q

Child abuse definition

A

Child abuse is defined in the OT act 1989 as the harming (whether physically, emotionally, or sexually), ill-treatment, abuse, neglect, or deprivation of any child or young person.

104
Q

Child-centered time frames

A

Child-centered time frames are time frames that are relevant to the child’s age and cognitive development. The younger the child, the more vulnerable they are and the quicker the response they require.

105
Q

Reluctant consent

A

In R v Herbert the concept of reluctant consent was discussed. The court held that a true consent may be given reluctantly or hesitantly and may be regretted afterwards, but if the consent is given even in such a manner, provided it is without fear of the application of force or the result of actual or threatened force, then the act of sexual connection would not be rape.

106
Q

Evidence Act Section 121 - When must the evidence be corroborated

A

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.
B) false oaths.
C) false statements or declarations
D) treason

107
Q

Previous consistent statements rule - challenges must be based on two points

A
  • A previous inconsistent statement of the witness, or

- A claim that the witness recently invented evidence

108
Q

Transcript of interview is the responsibility of who

A

O/C case. The SCW interviewer must check the transcript against the tape for accuracy and acknowledge in their brief of evidence that this has occurred.

109
Q

Frequent contact in cases of failing to protect

A

The requirement of frequent contact is one without which the prosecution can not succeed. Judge or jury to decided if the contact was frequent enough.

110
Q

Liability of extended family in cases of failing to protect

A

A person may be regarded as a member of a household even if they do not live in the same household but are so closely connected with the household that it’s reasonable in the circumstances to regard them as a member of the household. In determining this, frequency and duration of visits, whether a familial relationship exists and any other relevant matters should be taken into account.

111
Q

What is required to be proven in cases of failing to protect

A

Where the person at risk is a child it must be shown:

  • They were under the age of 18.
  • The defendant was over the age of 18.
  • The defendant, by virtue of being a member of the same household as the victim or a staff member in a hospital or institution or residence where the victim resides had “frequent contact” with them, and
  • The defendant had knowledge of the risk of harm to the child.

DDP (11 decks)

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