Sexual offences evidence and practical - Lesson Notes

Question 1

Section 44 Evidence Act

Answer 1

No evidence can be given and question put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the judge
No evidence can be given and question put to a witness relating directly or indirectly to the reputation of the complainant in sexual matters

Question 2

Section 87 Evidence Act

Answer 2

In any proceedings - Privacy as to witness’s precise adress

Question 3

Section 88 Evidence Act

Answer 3

In a sexual case - no question may be put to the complainant or any other witness concerning the complainants occupation

Question 4

Section 121 Evidence Act

Answer 4

Corroboration -

In any criminal proceeding the complainants evidence does not have to be corroborated.

Question 5

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

Answer 5

In proving that consent was not present in a case of sexual violation, the Crown must prove that:
− the victim did not consent, or
− the victim’s consent was not valid, or
− the defendant did not believe on reasonable grounds that the victim was consenting.

Question 6

Discuss the two elements that need to be proved in a charge of Assault with Intent to commit Sexual Violation, section 129 Crimes Act 1961

Answer 6

The two elements to be proved in the charge of Assault with intent to commit sexual violation are that the offender:
− assaulted the victim, and
− intended to commit sexual violation.

Question 7

What is the definition of ‘consent’.

Answer 7

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

Question 8

Define ‘sexual connection’.

Answer 8

Sexual connection means–

(a) connection effected by the introduction into the genitalia or anus of one person, otherwise 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 connection of a kind described in paragraph (a) or paragraph (b)

Question 9

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

Answer 9

There is a statutory defence for sexual conduct with a young person (s134A). This statutory defence applies only when:
− the person charged can show they took reasonable steps to establish the young person was aged 16 or over, and
− the person charged believed on reasonable grounds that the young person was aged 16 or over, and
− the young person consented to that sexual connection.

Question 10

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

Answer 10

Yes, the girl can be charged as it is the offence of sexual conduct with a young person under 16 years (s134 Crimes Act 1961).

Question 11

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

Answer 11

Under s103(3):

(3) A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of—
(a) the age or maturity of the witness
(b) the physical, intellectual, psychological, or psychiatric impairment of the witness
(c) the trauma suffered by the witness
(d) the witness’s fear of intimidation
(e) the linguistic or cultural background or religious beliefs of the witness
(f) the nature of the proceeding
(g) the nature of the evidence that the witness is expected to give
(h) the relationship of the witness to any party to the proceeding
(i) the absence or likely absence of the witness from New Zealand
(j) any other ground likely to promote the purpose of the Act.

Question 12

List three ways under s105 that a witness may give evidence.

Answer 12

The witness may give evidence:

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

Question 13

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

Answer 13

Remind the victim:
− 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.

Question 14

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

Answer 14

Explain to the victim:
− 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:
• the potential benefit to their physical, sexual and mental health
• 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 any concerns about the gender of the practitioner conducting the examination and advise that you will do your best to accommodate their wishes. (Research indicates that most ASA victims identify gender as an issue and indicate a preference for examination by a female.)

Question 15

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

Answer 15

The mnemonic CALM TEA stands for:
− Conduct your dealings in a sensitive and concerned 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.

Question 16

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

Answer 16

There are three areas to consider in determining whether physical abuse is serious and therefore meets the threshold for referral as a CPP case under this protocol:
− the action of the abuse
− the injury inflicted, and
− the circumstances (factors of the case).

Question 17

List four Police responsibilities to victims and their rights.

Answer 17

Victim rights:
− all obligations under the Victims’ Rights Act 2002 must be met and all 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 Victim Notification System (if the victim wishes to do so)
− victims must be informed of the outcome of the case and the case closure. Ensure any property belonging to the victim is returned promptly.

Question 18

Define “serious child abuse”.

Answer 18

Serious child abuse includes but is not limited to:
− sexual abuse
− serious physical abuse
− serious wilful neglect
− serious family violence where the child is a witness
− all allegations against Child, Youth and Family approved caregivers that involve serious child abuse
− all allegations against employees of Child, Youth and Family and the Police that involve serious child abuse

Question 19

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

Answer 19

Child-centred timeframes are timeframes that are relevant to the child’s age and cognitive development. The younger the child the more vulnerable they are and therefore they require a quicker response. As an example, for a 5-year-old, a week is a very long time for an event to be recounted with reliability. However, a 16-year-old would have less difficulty recalling the same event several weeks later.

Question 20

What is the definition of an adult in a sexual assault matter

Answer 20

A person aged 17 years or older at the time of the reporting of a sexual assault

Question 21

What is the definition of an child in a sexual assault matter

Answer 21

Any child or young person under the age of 17 years at the time of the reporting

Question 22

What is the definition of sexual assault in a sexual assault matter

Answer 22

Sexual assault includes but is not limited to
Sexual violation by rape or ul sexual connection
indecent assault
any form of unwanted or coercive touching or action ot a sexual nature or in circumstances of indeceny
any sexual abuse or exploitation by way of coercion deceit power of authority or mistaken belief
incest

Question 23

What is the definition of an victim in a sexual assault matter

Answer 23

The person who the sexual assault has been committed against