Short Answer

Question 1

What three things must the crown prove with respect to consent?

Answer 1

In all cases of sexual violation the crown must prove beyond reasonable doubt that:

• There was an intentional act done by of the offender involving sexual connection with the complainant
• The complainant did not consent to the sexual act
• The offender did not believe the complainant was consenting
• If the offender believed the complainant was consenting, the grounds for such a belief were not reasonable

Question 2

What is S128B CA61

Answer 2

1. Everyone who commits sexual violation is liable to imprisonment for a term not exceeding 20 years
2. A person convicted of sexual violation must be sentenced to a term of imprisonment unless, having regard to matters stated in (3) the court thinks a person should not be sentences to imprisonment
3. These matters are:
   a. The particular circumstances of the person convicted
   b. The particular circumstances of the offences, including the nature of the conduct constituting it

Question 3

What is R v Cox

Answer 3

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

Question 4

What is S128A CA61

Answer 4

A person does not consent to sexual activity if:

a. He or she does not protest or offer physical resistance to the activity
b. He or she allows the activity because of force, the threat of fear of application of force to him or her or some other person
c. If the activity occurs while he or she is asleep or unconscious
d. If the activity occurs while he or she is so affected by alcohol or some other drug that he or she cannot consent or refuse consent to the sexual activity
e. If the activity occurs while he or she is so affected by some intellectual, mental or physical disability of such a nature or degree that he or she cannot consent or refuse consent to the sexual activity
f. If he or she allows the sexual activity because he or she is mistaken about who the other person is
g. If he or she is mistaken about the nature or quality of the act

Question 5

What are the principal differences between rape and unlawful sexual connection

Answer 5

Unlawful sexual connection is a gender neutral offence and the complainant may be male or female

Whereas with rape the complainants genitalia must be penetrated by a penis. Under S128(1)(b) the roles are not specified in terms of who does the penetrating and who is penetrated

Question 6

Under S129(1) CA61, what must the crown prove

Answer 6

The crown must prove that at the time of the defendants conduct he:

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

Question 7

What is R v Harper

Answer 7

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

Question 8

When can a child consent to sexual connection

Answer 8

Only in rare and exceptional circumstances.

In most situations because of a childs age and stage of sexual development he or she will not understand the significance of the act. In that sense therefore, any consent she may purport to give will will not be legal consent because it will not be either rational or informed

Question 9

What is the best way to prove the victims age

Answer 9

The crown must prove the victims age using the best evidence available to do so.

In practise this generally involves producing the complainants birth certificate in conjunction with independant evidence that identifies the complainant as the person named in the certificate

R v Forest and Forest
The best evidence possible in the circumstances should be adduced by the prosecution as to the victims age

Question 10

Define indecent act

Answer 10

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

Indecency
An act that is indecent has sexual connotations and involves conduct directed at a person that is offensive to public moral values

Question 11

What is S134A CA61

Answer 11

It may provide a defence to a charge under S134 if the Defendant proves that before the time of the sexual activity:

• they had taken reasonable steps to ascertain that the young person was at least 16
• at the time of the sexual activity they believed on reasonable grounds the young person was at least 16
• the young person consented

Question 12

What is R v Leeson

Answer 12

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

Question 13

Under S135 CA61 what must the crown prove

Answer 13

For an offence under S135 the crown must prove 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

Question 14

What is the difference between S128A and S129A CA61

Answer 14

128A refers to a person who does not consent to sexual activity if he or she allows the sexual activity because of force applied, the threat or fear of the application of force to him or her or some other person

129A creates an offence of inducing a person to commit sexual connection in response to an implied or explicit threat that does not involve force

Question 15

What must the crown prove under S130 CA61

Answer 15

It is essential that each person charged knew of their relationship before or at the time of the sexual connetion

Question 16

What is (1)(a)(i)-(ii) of S131B CA61

Answer 16

(1) everyone is liable to imprisonment for a term not exceeding 7 years if-
(a) having met or communicated with a person under the age of 16 years (the young person) on an earlier occassion, 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 pursuades the young person to travel with the intention of meeting him or her

Question 17

What is 3(a) and (b) of S138 CA61

Answer 17

(3) for the purposes of subsections (1) and (2) a person has exploitative sexual connection with a person with a significant impairment if he or she:
(a) has sexual connection with the impaired person knowing that the person is a person with a significant impairment; and
(b) has obtained the impaired persons acquiesence in, submission to, participation in or undertaking of the connection by taking advantage of the impairment

Question 18

What is S144 CA61

Answer 18

Indecency with an animal

Everyone is liable to imprisonment for a term not exceeding 3 years who does any act of indecency with an animal

Question 19

What is regulation 28 of the evidence regulations

Answer 19

Police must ensure that a typed transcript of a video record to be used in proceedings is given to the Defendant or the Defendant’s lawyer as soon as practicable after the Defendant has pleaded not guilty

Question 20

Define serious child abuse

Answer 20

Includes but is not limited to:

• Sexual abuse
• Serious child abuse
• Serious willful neglect
• Serious family violence where the child is a witness
• All allegations against CYFs approved caregivers that involves serious child abuse
• All allegations against employes of CYFs of NZ Police that involves serious child abuse

Question 21

What are CYFs timeframes

Answer 21

1. immediately in critical or very urgent cases (ASAP or within 24 hours)
2. Within 2 full working days for urgent cases

Question 22

What is S5(a)(b)(c) of 129A CA61

Answer 22

5(a) A threat that the person making the threat or some other person will commit an offence that:

(i) is punishable by imprisonment and
(ii) does not involve the actual or threatened application of force to any person
(b) 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 whom the application or disclosure is made
(c) a threat that the person making the threat will make improper use, to the detriment of the person consenting, of a power or authorizing out of -
(i) an occupational or vocational position held by the person making the threat or
(ii) a commercial relationship existing between the person making the threat and the person consenting

Question 23

Define dependant family member

Answer 23

For the purposes of S131, a person is a dependant family member of another person

(a) if the person has power or authority over him or her as is
(i) a parent, step parent, foster parent, guardian, uncle or aunt
(ii) a parent, step parent, foster parent of a person described in (i)
(iii) a child of his or her parent or step parent
(iv) a spouse or de facto of a person described in (i-iii)
(b) if they are a member of the same family, whanau or other culturally recognised family group and the other person
(i) is not a person described in paragraph a
(ii) but has a responsibility for or a significant role in his or her care or upbringing.

uncle includes step brother of his or her parents
aunt includes step sister of his or her parents
foster parents include former
step parents include former
guardian; guardians act or cyf act includes former

Question 24

What is S44 Evidence Act 2006

Answer 24

Evidence of sexual experience of the complainant in sexual cases

1. In sexual cases, no evidence may be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than defendant, expect with permission of the judge.
2. in sexual cases, no evidence may 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.
3. In an application for permission under (1) the judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to the 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.

Question 25

What is S87 Evidence Act 2006

Answer 25

Privacy as to the victims precise address

(1) In any proceeding, the precise particulars of a witnesses address may not, without permission of the judge be,
(a) subject of any question put to a witness, or included in any evidence given
(b) included in any statement or remark made by a witness, lawyer, officer or the court, or any other person
(2) the judge must not grant permission unless 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 it would be contrary to the interest of justice

Question 26

What is S88 Evidence Act 2006

Answer 26

Restriction on disclosure of the complainants occupation in sexual cases

(1) In a sexual case, except with permission of the judge-
(a) no question may be put to the complainant or any other witness and no evidence can be given concerning the complainants occupation
(b) no statement or remark may be made in court by a witness, lawyer, officer of the court or any other person involved in the proceeding concerning the complainants occupation
(2) the judge must not grant permission unless 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 it would be contrary to the interest of justice

Question 27

What is S121 Evidence Act 2006

Answer 27

Corroboration

(1) 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
(2) Subject to (1) and S122, if in a criminal proceeding there is a jury it is not necessary for the judge to
a. warn the jury that it is dangerous to act on uncorroborated evidence to to give a warning to the same or similar effect or
b. give a direction relating to the absence of corroboration

Question 28

What is 103(3) Evidence Act 2006

Answer 28

A direction under (1) that a witness is to give evidence in an alternative way, may be made on the grounds of:
a. age and maturity of the witness
b. physical / intellectual, psychological or physchiatric impairment
c. trauma suffered by the witness
d. witness fear of intimiation
e. nature of the evidence the witness is expected to give
f. nature of the proceeding
g. relationship of the witness to any party in the proceeding
h, absence or likely absence from NZ
i. linguistic or cultural background or religious belief
j. any other grounds likely to promote the act