Short answer and Multi choice

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 by the offender involving sexual connection with the complainant
• The complainant did not consent to the sexual act
• the offender did not believe that 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 S 128B CA

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 imprisonment unless, having regard to the matters stated in Sub (3), the court thinks that a person should not be sentenced to imprisonment.
(3) The matters are -
(a) the particular circumstances of the person convicted and
(b) The particular circumstances of the offence, 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 CA

Answer 4

A person does not consent to sexual activity if:

1) he or she does not protest or offer physical resistance to the activity
2) He or she allows the activity because of force, the threat or fear of force to him or her or some other person
3) If the activity occurs while he or she is asleep or unconscious
4) 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 to consent to the activity
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 to the activity
6) If he or she allows the sexual activity because he or she is mistaken about who the other person is
7) 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 complaints genitalia must be penetrated by a penis, under s128(1)(b) the roles are not specified in term of who does the penetrating and who is penetrated.

Question 6

Under Section 129(1) what must the crown prove?

Answer 6

The crown must prove that at the time of the defendant’s conduct he:

• 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 complaint 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 exceptional and rare circumstances

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

Question 9

What is the best way to prove age?

Answer 9

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

In practice this generally involves producing the complainant’s birth certificate in conjunction with independent 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 Section 134A

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 and
• at the time of the sexual activity they believed on reasonable grounds that the young person was at least 16 and
• the young person consented.

Question 12

What is R v Leeson

Answer 12

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

Question 13

Under Section 135, 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 5(a) (b) and (c) of Section 129A

Answer 14

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

(i) is punishable by imprisonments; but
(ii) Does not involve the actual or threatened application of force to any person; and
(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 accusation or disclosure is made; and
(c) 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-
(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 15

What is the difference between 128A and 129A

Answer 15

128A refers to a person who does not consent to sexual activity if he or she allows the 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 someone to commit sexual connection in response to an implied or explicit threat that does not involve force.

Question 16

What must the Crown prove Under Section 130

Answer 16

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

Question 17

Define a Dependant Family Member

Answer 17

For the purposes of section 131, one person is a dependant family member of another person, -

(a) If the person has power or authority over him or her, and is -
i) His or her parent, step-parent, foster parent, guardian, uncle or aunt; or
ii) a parent, step-parent or foster parent of a person described in (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 (i) or (ii) or (iii); or

(b) If they are members of the same family, whanau, or other culturally recognised family group, and the other person -
i) Is not a person referred to in paragraph (a); but
ii) has a responsibility for, or significant role in, his or her care or upbringing.

(2) In (1)
- Aunt includes half sister of a person’s parent
- Foster parents include former foster parents
- Guardian; guardianship Act 1968 or CYF Act 1989 and incl former
- Step parent incl former
- Uncle incl half brothers of Persons parents

Question 18

What is (1)(a)(i)-(iii) of Section 131B

Answer 18

(1) Every person 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 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

Question 19

What is 3(a) and (b) of Section 138

Answer 19

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

Question 20

What is Section 144

Answer 20

Indecency with an Animal

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

Question 21

What is section 44 of the Evidence Act 08

Answer 21

Evidence of sexual experience of complainants in sexual cases
(1) In a sexual case, no evidence can 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 the Defendant, except with the permission of the judge.

(2) In a sexual case, 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
(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 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 22

What is Section 87 of the Evidence Act 08

Answer 22

Privacy as to the Victim’s precise address

2) The Judge must not grant permission under subsection (1) 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 interests of Justice

Question 23

What is Section 88 of the Evidence Act 08

Answer 23

Restriction on Disclosure of complainant’s occupation in Sexual Cases

(1) In a sexual case, except with the permission of the Judge, -
a) No question may be put to the complainant or any other witness, and no evidence may be given, concerning the complainant’s occupation; and
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 he complainant’s occupation.

(2) Judge must not grant permission (1) unless satisfied .. is sufficient direct relevance to the facts in issue that to exclude it would be contrary to the interests of Justice.
(3) Application to be made in Chambers (where practicable)

Question 24

What is Section 121 of the Evidence Act 08

Answer 24

Corroboration

(1) It is not necessary in a criminal proceeding of the evidence on which that prosecution relies to be corroborated, except with respect to the offences of -
a) Perjury; and
b) False Oaths; and
c) False Statements and Declarations; and
d) Treason

(2) Subject to (1) and Section 122, the Judge does not need to
- Warn the Jury that it’s dangerous to act on uncorroborated evidence or to give a warning to the same or similar effect; or
- Give direction relating to absence of corroboration

Question 25

What is the Previous Consistent Statement rule

Answer 25

Previous Consistent Statement (Section 35)
Previous consistent statements will really only be admissible as rebuttal evidence

(1) Previous consistent statements are inadmissible unless (2) or (3) applies
(2) A previous consistent statement of a witness that is consistent with the witnesses evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witnesses veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3) A previous statement of a witness that is consistent with the witness’s evidence is admissible if -
a) Circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
b) the statement provides the court with information that the witness is unable to recall

Question 26

What is Section 103(3) of the Evidence Act 08

Answer 26

A direction under (1) that a witness is to give evidence in an alternative way, may be made on grounds of-

a) Age and maturity of the witness
b) Physical / intellectual, psychological, psychiatric impairment
c) Trauma suffered by the witness
d) Witnesses fear of intimidation
e) Linguistic or cultural background or religious beliefs
f) Nature of the proceeding
g) Nature of the evidence the witness is expected to give
h) Relationship of the witness to any party in the proceeding
i) Absence or likely absence from New Zealand
j) Any other grounds likely to promote the purpose of the Act

Question 27

What is Regulation 28 of the Evidence Regulations

Answer 27

Police must ensure that a typed transcript os 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 28

What is Section 195 (1) and (2)

Answer 28

Wilful Ill-treatment or neglect of a child or vulnerable adult

(1) Everyone is liable to imprisonment for 10 years who, being a person described in (2),
Intentionally engages in conduct that, or omits to discharge or perform any legal duty, the omission of which, is likely to cause suffering, injury, adverse effects to health, or any mental disorder or disability to a child or vulnerable adult if the conduct engaged in, or the omission to perform the legal duty, is a major departure form the standard of care to be expected of a reasonable person

(2) The person are -
a) A person who has actual care or charge of the Victims; or
b) A person who is a staff member of any hospital, institution, or residence where the Victim resides

NB: Under this section a child is a person under 18 years

Question 29

Define Serious Child abuse

Answer 29

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 CYF approved caregivers that involve serious child abuse
• All allegations against employees of CYF and NZ Police that involve series child abuse

Question 30

What are CYFS timeframes

Answer 30

i) Immediately in Critical or Very urgent cases (ASAP and within 24 hrs)
ii) Within 2 full working days for urgent cases

Question 31

What is considered when determining if something is serious child abuse

Answer 31

There are three areas to insider when determining where physical abuse is serious and therefore meets the threshold for referral as a CPP case under the protocol:

• The Action of the abuse i.e. Blow or kick to the head, shaken of an infant, strangulation, use of an object as a weapon, attempted drowning
• The Injury inflicted i.e. Death, Broken bone, burn, loss of Conscious, Would requiring stitches
• The Circumstances i.e. Vulnerability of the child, more than one offender, history of abuse, high degree of violence, offenders history/background, location of the incident

Question 32

What are the three initial steps for a CPP complaint

Answer 32

1) Referral of reports of concern to CYFS
2) Consultation to determine if the case is a CPP case

3) Agreement to a Joint Investigation must her completed:
i) Immediately in Critical or Very urgent cases (ASAP and within 24 hrs)
ii) Within 2 full working days for urgent cases

Question 33

What is apart of an Initial Joint Investigation Plan (IJIP)

Answer 33

After initial consultation between Police and CYFs, all cases that fall into the category of serious child abuse must have an agreed IJIP, so that staff agree and understand:

• Who is involved in the case
• What they will do
• When they will do it

The IJIP must consider:

• The child’s safety and well being
• Any joint visits required
• The management of the child Victims initial interview
• Need for a specialist child witness interview, interviews of the alleged offender and others including protective parent or caregiver
• Collection of evidence
• Referral to a medical practitioner

Question 34

What do you do with the DVD after a child interview?

Answer 34

• Interviewer must complete the certificate for video record of interview
• Police must:
  Review the impact of the information disclosed during the interview
  Update CYFs on any info disclosed and discuss any care and protection concerns

Question 35

What are the adult sexual assault time frames

Answer 35

Acute - Within 7 days
Non-Acute - 7 days up to 6 Months
Historic - 6 Months or more

Question 36

What is the purpose of a preliminary interview?

Answer 36

It is necessary for investigators to gain better understanding of what has occurred and to determine

• What further investigative actions are necessary
• Whether an offence may have occurred
• Whether the Victim wishes to make a formal complaint

Question 37

What are the aims and objectives of a Medical Examination

Answer 37

The ASA victims well being and safety is paramount

Primary Objective - Is the Victim’s physical, sexual and mental health and safety

Secondary Objective - Is he opportunity to collect trace evidence.

Question 38

What do you need to tell the Victim of the medical

Answer 38

Explain to the Victim:

That the examination:

• Will be conducted by a medical forensic practitioner specially trained in examining individuals who have been sexually assaulted
• Has potential health benefits and can help Police obtain evidence to apprehend the offender

The expected duration of the examination (A couple of hours) 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.

Question 39

What to take to a medical

Answer 39

• Toxicology Kit
• Change of Clothing
• Medical Examination Kit
• All relevant information to fully brief the practitioner
• Specialist Crisis Support

Question 40

What three things need to be proven in Attempted Sexual Violation

Answer 40

At the time of the Defendants conduct he
1 - Intended to have Sexual connection with the complainant, and
2 - The complainant did not consent to the intended sexual connection, and
3 - the Defendant did not believe on reasonable grounds that the complainant was consenting

Question 41

What is the difference between force of application in Section 128 and 129

Answer 41

128A refers to a person who does not consent to sexual activity if he or she allows the 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 someone to commit sexual connection in response to an implied or explicit threat that does not involve force.

Question 42

What is the premise about imprisonment with respect to an offence against 128

Answer 42

Section 128B

(2) A person convicted of sexual violation must be sentenced to imprisonment unless, having regard to the matters stated in subsection (3), the court thinks that the person should not be sentenced to imprisonment.
(3) The matters are -
(a) the particular circumstances of the person convicted; and
(b) the particular circumstances of the offence, including th nature of the conduct constituting it.

Question 43

What is Section 131B

Answer 43

(1) Every person 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 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

Question 44

When is the offence of Sexual Grooming complete

Answer 44

The offence is complete when the parties meet or the Defendant travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be purposely arranged. Gender neutral

Question 45

What is a defence to a charge against Section 134

Answer 45

Section 134(A)
It is a defence to a charge under sec 134 if the person charged proves that, -
a) before the time of the act concerned, he or she had taken reasonable steps to find out whether the young person concerned was of or over the age of 16 years, and
b) At the time of the act concerned, he or she believed on reasonable grounds that the young person was of or over the age of 16 years, and
c) the young person consented

Question 46

What are the ingredients of Indecent Assault

Answer 46

.1 Everyone - Person
.2 Indecently Assaults - R v Leeson, Indecent Act, Rv Court, Assault
.3 Another Person - Person

Question 47

What is the principle difference between Rape and Unlawful Sexual Connection

Answer 47

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

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

Question 48

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

Answer 48

• 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 a belief were not reasonable

Question 49

What is Section 128(4)

Answer 49

A husband who sexually violates his wife has no legal defence due to the fact they are married. (Pre 1986 there was such a defence)

Question 50

What is R v Gutuama

Answer 50

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

Question 51

What is Section 127 CA ‘61

Answer 51

There is no presumption of law that a person is incapable of sexual connection because of his or her age

Question 52

What are the ingredients for Attempted Sexual Violation Section 129(1) CA ‘61?

Answer 52

1. 1 A Person
2. 2 Attempts to commit
3. 3 Sexual Violation With
4. 4 Another person

Question 53

What are the ingredients for Assault with Intent to Commit Sexual Violation (Section 129(2))

Answer 53

1. 1 A Person
2. 2 Assaults another person
3. 3 With Intent to
4. 4 Commit Sexual Violation
5. 5 of another person

The offender may assault the victim

• In the hope that the victim will change their mind and consent to the act, or
• Intending to commit rape or unlawful sexual connection regardless of whether the victim changes their mind

Question 54

What is Section 132 (4) and 132 (5)

Answer 54

(4) It is not a defence to a charge under this section that the person charged, believed that the child was of or over the age of 12 years
(5) It is not a defence to a charge under this section that the child consented

Question 55

What is R v Court

Answer 55

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

Question 56

What is the objective test for indecency?

Answer 56

In R v Dunn the Court of Appeal held that indecency must be judged in light of the time, place and circumstances

R v Dunn
The test for indecency is whether the conduct, “Offends against a reasonable and recognised standard of indecency which … ordinary and reasonable members of the community ought to impose and observe in the day and age.

Question 57

When is the offence of Meeting with a young person following sexual grooming complete

Answer 57

The offence is complete when the parties meet or the Defendant travels or makes arrangements to meet the complainant with the relevant intent. To be intentional the meeting need only be purposely arranged. Gender neutral

Question 58

What are three ways to give evidence by an alternative way.

Answer 58

1) While in a courtroom but unable to see the defendant or other person (Screen)
2) From appropriate place outside the courtroom in New Zealand or elsewhere (CCTV)
3) By video record made before the hearing

Question 59

What is Section 195A (1) and (2)

Answer 59

Failure to Protect a child or Vulnerable Adult 10years

(1) … has frequent contact with a child or vulnerable adult and -
a) knows that the Victim is at risk of death, GBH, or sexual assault as a result of the acts or omissions of another person; and
b) fails to take reasonable steps to protect the Victim from that risk

(2) Applies to-
a) Members of the same household as the Victim
b) People who are staff members of any hospital, Institution, or Residence where the Victim resides