Sexual Offences Case Law Flashcards
R v Koroheke - What was it about?
In R v Koroheke a 15-year-old girl was abducted and brutally violated by five Mongrel Mob members who barked like dogs and spat on her as they violated her orally and digitally and inserted objects into her over the course of two and a half hours. Their defence was that the girl consented.
Although she had not protested and had done as she was told, the girl’s evidence was that she had only done so because she was frightened.
R v Koroheke (1)- Genitalia
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.
R v Koroheke (2) - Consent
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.
R v Cox - What was is about?
In Cox v R the defendant was convicted of sexual violation for having sexual intercourse and oral sex with a young girl over the course of three years, commencing when she was aged 10 or 11. His defence was that the girl had consented or that there were reasonable grounds for him to believe she had consented.
The Court of Appeal held that it would only be in “exceptional and rare circumstances” that a child under 12 could give legal consent.
R v Cox (1)- Consent
Consent must be “full, voluntary, free and informed … freely and voluntarily given by a person in a position to form a rational judgment.”
R v Cox (2)- Consent by a 10 or 11 year old
“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.”
R v Cox (3)- Reasonable belief in consent of a child
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.”
R v Gutuama - What was it about?
In R v Gutuama a 27-year-old man was charged with raping a 14-year-old girl following a period of consensual sexual activity. He claimed he had reasonable grounds for believing she was still consenting, prompting the Court of Appeal to clarify the objective test for reasonableness.
R v Gutuama - Objective test
Under the objective test the Crown must prove that “no reasonable person in the accused’s shoes could have thought that [the complainant] was consenting”.
R v Harpur - What was it about?
In a sex case, R v Harpur , the defendant was involved in a series of text messages with a woman in which he described, in explicit detail, sexual acts that he wanted to perform on the woman’s 4-year-old niece. He arranged for the girl to be brought to him for that purpose, however when he turned up at the agreed time and place he found that the girl did not in fact exist, and the arrangements were part of a ‘sting’ operation by Police. Harpur was charged with attempted sexual violation of the mythical girl, as well as numerous sexual offences relating to other children.
In concluding that Harpur’s conduct was sufficiently proximate to the full offence, the Court of Appeal held that his actions need not be considered in isolation; sufficient evidence of his intent was available from the events leading up to that point.
R v Harpur (1)- Conduct viewed
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.
R v Harpur - Acts that may be sec 72 (Attempts)
The Court of Appeal in Harpur observed that section 72 of the Crimes Act applies to “hundreds of offences and an infinite variety of factual situations, the metes and bounds of which it was impossible for Parliament to predict”.
For this reason there are no criteria set down in legislation or case law to assist in determining whether a defendant’s actions did or did not amount to an attempt; each scenario must be analysed on a case-by-case basis.
R v Forrest and Forrest - What was it about?
In R v Forrest & Forrest two men were charged with having sexual intercourse with a 14-year-old girl who had run away from Child Welfare custody. At trial the girl produced her birth certificate and gave evidence herself that she was the person named in the certificate. The men successfully appealed their convictions on the grounds that the Crown had not adequately proved the girl’s age.
R v Forrest and Forrest (1)- Best evidence possible
The best evidence possible in the circumstances should be adduced by the prosecution in proof of the victim’s age.
R v Forrest and Forrest - supporting evidence
The Court of Appeal suggested that in that case it might have been sufficient if, along with producing her birth certificate, the girl had given additional testimony, for instance as to the day on which she habitually celebrated her birthday, the age at which she first went to school, and in what year, and so on.
In a similar case, R v Clancy , the complainant’s birth certificate was not produced, however it was held that in that case evidence of the complainant’s date of birth given by her mother was sufficient to prove the girl’s age.
So, there is no hard and fast rule and every case must be dealt with on its own facts, but generally the best evidence available as to proof of age should be adduced.
