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DDP > Sum Notes 2 > Flashcards

Sum Notes 2 Flashcards

1
Q

Liability for Unlawful Sexual Connection:

A

Sexual Violation by Unlawful Sexual Connection
Crimes Act 1961, Section 128 (1) (b)
20 years imprisonment

  1. A Person
  2. Has unlawful sexual connection
  3. Another Person
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2
Q

Definition of a person

A

Gender neutral. Generally accepted by judicial notice or proved by circumstantial evidence.

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3
Q

Definition of sexual connection

A

(a) Connection effected by the introduction into the genitalia or anus of one person, otherwise than for genuine medical purposes, of -

  • a part of the body of another person; or
  • an object held or manipulated by another person; or

(b) Connection between the mouth and tongue of one person and a part of another person’s genitalia or anus; or

the continuation of connection of a kind described in paragraph (a) or (b)

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4
Q

Definition of genitalia

A

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

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5
Q

Definition of a penis

A

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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6
Q

How much penetration is required and how can you prove penetration?

A

Introduction of the penis to the slightest degree is enough to effect a connection.

1) The complainants evidence.
2) Medical examination including injuries and DNA.
3) The defendants admissions.

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7
Q

How can you prove intent?

A

The offender’s actions and words before, during and after the event.

The surrounding circumstances.

The nature of the act itself.

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8
Q

What is the three step reasonableness test in regards to consent?

A

Subjective 1: What was the complainant thinking at the time, was she consenting?

Subjective 2: If she wasn’t consenting did he believe she was consenting? What did the offender believe at the time?

Objective: What would a reasonable person have believed if placed in the same position as the defendant?

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9
Q

Under Section 134A(1) what is the defence to a charge of sexual conduct with a young person under 16 years?

A

1) Before the time of the act concerned, he or she took reasonable steps to establish the young person was over 16 years, and
2) at the time of the act concerned, he or she believed on reasonable grounds that the young person was aged 16 years or over, and
3) the young person consented.

(before act, at the time of, consent)

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10
Q

Liability for Indecent Assault:

A

Indecent Assault
Crimes Act 1961, Section 135
5 years imprisonment

  1. Everyone who
  2. Indecently assaults
  3. Another Person
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11
Q

Definition of Assault:

A

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 or she has, present ability to effect his or her purpose

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12
Q

Definition of Indecent:

A

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

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13
Q

What is the case law regarding genitalia?

A

R v KOROHEKE.

The genitalia comprise the reproductive 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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14
Q

What is the case law regarding consent?

A

R v COX

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

(FVFI)

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15
Q

What is the case law regarding the objective test?

A

R v GUTUAMA

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”.

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16
Q

What is the case law regarding proving age?

A

R v FORREST and FORREST

In practice proving age generally involves producing the complainant’s birth certificate in conjunction with independent evidence that identifies the complainant as the person named in the certificate.

“The best evidence possible in the circumstances should be adduced bu the prosecution in proof of the victim’s age”.

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17
Q

What is the case law regarding indecent assault?

A

R v LEESON

The definition of ‘indecent assault’ is an assault accompanied with circumstances of indecency.

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18
Q

What is the case law regarding an indecent act?

A

R v COURT

Indecency means conduct that right-thinking people would find an affront to the sexual modesty of the complainant.

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19
Q

What is the case law regarding intent (attempts)

A

R v HARPUR

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. (not as individual acts)

Considering who much remains to be done… is always relevant, though not determinative.

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20
Q

What are some investigative procedures that could be carried out initially for a victim of rape?

A

Ensure victims safety.
Obtain scoping interview.
Preserve clothing, noting marks, tears etc.
Wrap victim in clean sheet.
Ensure no cross-contamination with offender.
Advice on toileting (not wiping etc).
No drinks, food or smokes.
Organise medsac examination.
Identify potential witnesses.
Identify location of rape - CCTV, evidence at scene

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21
Q

With regards to rape, what are matters which do not constitute consent?

A

Not protesting or offering physical resistance to use of force.
Application/threat/fear of force to self or other.
Asleep or unconscious.
So affected by alcohol/drugs they cannot consent.
So affected by mental/physical impairment.
Mistaken ID.
Mistaken as to nature and quality of the act.

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22
Q

For a charge of incest, what must be proven?

A

The accused had knowledge of the relationship

sibling, half-sibling, parent-child, grandparent-grandchild

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23
Q

What three elements are required for an attempt offence?

A

1) Intent (means rea) - to commit offence.
2) act (actus reus) - that they did, or omitted to do,
something to achieve that end.
3) proximity - that their act or omission was sufficiently
close.

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24
Q

What is the definition of ‘Actus Reus’?

A

The commission of a guilty act.

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25
Q

What is the definition of ‘Mens Rea’?

A

Presence of a guilty mind.

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26
Q

What are the two types of intent in an offence?

A
  • Intention to commit an unlawful act.

- Intention to get a specific result.

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27
Q

Search and Surviellence Act 2012.

Define Section 14 (2):

A

Emergency warrantless power to enter a place or vehicle:

RTGS there is risk to the life or safety of any person that requires an emergency response.

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28
Q

Search and Surviellence Act 2012.

Define Section 16:

A

Searching people in public place without warrant for evidential material relating to 14yr offences.

RGTB: Person is in possession of EM relating to a 14yr offence.

Power: Search a person without warrant in public place

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29
Q

Search and Surviellence Act 2012.

What does Section 110 allow?

A

Seize anything that is the subject of the search or may be lawfully seized.

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30
Q

Search and Surviellence Act 2012.

Define Section 46:

A

Activities for which a surveillance device (SD) warrant is required.

a: Use of interception device to intercept private communication
b: Use of tracking device…
c: Observation of private activity in private premises and any recording of that by visual SD.
d: Use of SD that involves trespass…
e: Observation of private activity in the curtilage of private property and any recording of that ob…

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31
Q

Search and Surviellence Act 2012.

Define Section 48 (2) (b):

A

Surveillance device warrant need not be obtained for use of SD in some situations of emergency or urgency.

(2) (b)
(i) : Suspect that one or more of the circumstances set out in S14(2) exist, and

(ii): RGTB that the use of the SD is necessary to prevent the offending from being committed or continuing or avert the emergency.

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32
Q

Search and Surviellence Act 2012.

Define Section 15:

A

Entry without warrant to find and avoid loss of evidential material relating to 14yr offences.

RGTS: 14yr offence has been, is being or is about to be committed.

RGTB:
EM relating to the offence is at that place, AND
If entry is delayed in order to obtain SW, the EM will be CADD.

Power:
Enter place without warrant.
Search the place.

Can also search any vehicles at the place.

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33
Q

Liability for Arson (Danger to life)?

A

Arson
Crimes Act 1961, Section 267 (1) (a)
14 years imprisonment

1) Intentionally OR
Recklessly

2) Damages by fire OR
Damages by means of explosive

3) Any property

4) If he or she knows OR
Ought to know

That danger to life is likely to ensue.

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34
Q

What is the definition of intent?

A

The must be an intention to commit the act and secondly an intention to get a specific result.

35
Q

What is the definition of a deliberate act?

A

The act or omission is done deliberately. It must be more than involuntary or accidental.

36
Q

What is the definition of recklessness?

A

Acting recklessly involves consciously and deliberately taking an unjustifiable risk.

37
Q

What is the definition of ‘Damages by Fire’?

A

Fire often involves burning and charring but also includes melting, blistering of paint and significant smoke damage.

38
Q

What is the definition of property?

A

Includes and real or personal property and any estate or interest in any real or personal property, money, electricity and any debt, anything in action, and any other right or interest.

39
Q

What is the case law regarding intent (implied)?

A

R V COLLISTER

Intent can implied from conduct and circumstances.

40
Q

What is the case law regarding recklessness?

A

R V HARNEY

Involves actual foresight by the accused of dangerous consequences that could well happen together with an intention to continue the course of conduct regardless of the risk.

41
Q

What is the case law regarding Damages by fire?

A

R v ARCHER

Property may be damaged if it suffers permanent or temporary physical harm or permanent or temporary impairment of value or usefulness.

42
Q

What is the definition of knowledge?

A

SIMESTER and BROOKBANKS

Knowing or correctly believing. The belief must be a correct one, where the belief is wrong a person cannot know something.

43
Q

What is the definition of Danger to Life?

A

Human life, and the danger must be to the life of someone other than the defendant.

44
Q

What must be present for attempted arson (S268)?

A

Intend to commit the offence

Take a real and substantial step towards achieving that aim (act sufficiently proximate to full offence)

45
Q

Liability for Produce or Manufacture Any Controlled Drug:

A

Misuse of Drugs Act 1975
Section 6(1)(b)
Life Imp / 14 Years / 8 Years

  1. Produce, OR
    Manufacture
  2. Any controlled drug
46
Q

Liability for Supply / Administer /

Offer to Supply or Administer Class A or B Controlled Drug:

A

Misuse of Drugs Act 1975
Section 6(1)(c)
Life Imp / 14 Years

1. Supplies, OR
   Administers, OR
   Offers to supply, OR
   Offers to administer, OR
   Otherwise deals in
2. Class A or B controlled drug
3. To any person
47
Q

What is the definition of Supplying?

A

To furnish or provide something that is needed or desired.

In the context of MODA it includes distributing, giving and selling.

48
Q

What is the definition of Offers?

A

Arousing another person’s interest in controlled drugs, or of tempting others to use them.

49
Q

What is the definition of Administers?

A

Involves introducing a drug directly into another person’s system.

50
Q

What is the definition of ‘Otherwise deals in’?

A

dealing in a drug my means other than distributing, giving, selling, administering or offering.

HOOPER and ANOTHER:
An example is to barter or exchange.

51
Q

What are the Schedule Classes?

A

1 - Very High Harm
2 - High Harm
3 - Moderate Harm

52
Q

What is the definition of schedules?

A

Schedules represent the varying degrees of risk of harm to individuals and society that each drug has.

53
Q

What is the definition of a Class A drug?

A

Their misuse poses a VERY HIGH risk of harm to individuals and society.

54
Q

What is the definition of a Class B drug?

A

Their misuse poses a HIGH risk of harm to individuals and society.

55
Q

What is the definition of a Class C drug?

A

Their misuse poses a MODERATE risk of harm to individuals and society.

56
Q

What is the definition of a Controlled Drug?

A

Any substance, preparation, mixture, or article specified or described in Schedule 1,2,3 of MODA; and includes any controlled drug analogue.

57
Q

What is the definition of a Controlled Drug Analogue?

A

Any substance, such as the substances specified or described in Part 7 of Schedule 3 of MODA, that has a structure substantially similar to that of any controlled drug;

but does not include:

a: Anything defined in schedules 1,2 or 3 of MODA.
b: Pharmacy-only medicine, prescription or restricted medicine within the meaning of Medicines Act 1981
c: An approved product with the meaning of the Psychoactive Substances Act 2013

58
Q

What is the definition of a ‘Passive custodian’?

A

A passive custodian relinquishes custody of a drug to meet the needs of another, has the necessary intent for supply.

59
Q

What is the definition of Producing?

A

To bring something into being, or to bring something into existence from its raw materials or elements.

(eg: Cannabis oil from plant)

60
Q

What is the definition of Manufacturing?

A

The process of synthesis; combining components or processing raw materials to create a new substance.

(eg: methamphetamine from pseudoephedrine, herion from morphine)

61
Q

What is an example of a Class A drug?

A

Cocaine
Herion
LSD
Methamphetamine

62
Q

What is an example of a Class B drug?

A 
Cannabis Oil
GHB (fantasy)
MDMA (ecstacy)
Morphine
Opium
63
Q

What is an example of a Class C drug?

A

Cannabis plant
Cannabis seeds
Benzylpiperazine (BZP)

64
Q

What is the case law for Producing or Manufacturing?

A

R v RUA

The words “produce” or “manufacture” in s 6(1)(b) broadly cover the creation of controlled drugs by some form of process which changes the original substances into a particular controlled drug.

65
Q

What is the case law for Guilty knowledge (drugs)?

A

R v STRAWBRIDGE

It is not necessary for the Crown to establish knowledge on the part of the accused. In the absence of evidence to the contrary knowledge on her part will be presumed, but if there is some evidence that the
accused honestly believed on reasonable grounds that her act was innocent, then she is entitled to be acquitted unless the jury is satisfied beyond reasonable doubt that this was not so.

66
Q

What is the case law for Useable amount?

A

POLICE v EMERALI

“…the serious offence of … possessing a narcotic does not extend to some minute and useless residue of the substance”.

67
Q

What is the case laws for Supply?

A

R v MAGINNIS
Supply involves “more than the mere transfer of physical control … [it includes] enabling the recipient to apply the thing … to purposes for which he desires …”

R v DONALD
Includes the distribution of jointly owned property amongst co-owners.

R v KNOX
Giving also includes giving back.

68
Q

What is the case law for Administers?

A

BLACK’S LAW DICTIONARY

In the context of drug dealing, the appropriate meaning of “administer” is “to direct and cause a … drug to be taken into the system” of another person.

69
Q

What is the case law for offers?

A

OXFORD DICTIONARY
Express readiness to do something for or on behalf of someone.

R v DURING
“[An offer is] an intimation by the person charged to another that he is ready on request to supply to that other, drugs of a kind prohibited by the statute”.

R v BROWN

  1. offers to supply a drug that he has on hand
  2. offers to supply a drug that will be procured at some future date
  3. offers to supply a drug that he mistakenly believes he can supply
  4. offers to supply a drug deceitfully, knowing he will not supply that drug
70
Q

What is the case law for Passive Custodian?

A

R v WILDBORE

…It is unnecessary that the accused be shown to perform some positive act of transmission…

It is sufficient if there is a transfer of physical custody for the purpose of meeting the wants or requirements of the other person.

71
Q

What is the definition of curtilage?

A

The land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated ‘open fields beyond’.

It defines the boundary within which a home owner can have a reasonable expectation of privacy and where ‘common home activities’ take place.

72
Q

What is the definition of Distribution?

A

The supply of drugs to multiple people.

73
Q

With offering, what two elements must the prosecution prove?

A
  1. the communicating of an offer to supply or administer a controlled drug (actus reus)
  2. An intention that the other person believes the offer to be genuine (mens rea)
74
Q

What are the three types of surveillance devices?

A
  1. Interception Device
  2. Tracking Device
  3. Visual Surveillance Device
75
Q

What steps should take if a suspect is identified at a scene?

A 
Isolate them from other people
Note their Description, demeanor
Note anything they say including admissions
Ask them to remain calm and co-operate
Caution them if required
Conduct a preliminary interview.
76
Q

What are some prevention steps you could take for the victim of a fire?

A

Victim Support referral.
Referral to local agencies - temporary accommodation or household items.
Bail conditions on offender not to enter…
Patrols in the area
CCTV

77
Q

What does ADVOKATE stand for?

A 
Amount of time under observation
Distance
Visibility
Obstruction
Known or seen before
Any reason to remember
Time lapse
Error or material discrepancy
Salience
78
Q

What is the role of a Monitor?

A

Ensure recording equipment is functioning correctly.
Have a good understanding of the file.
Take accurate and legible notes
Record timings of breaks and significant moments.
Ensure topics are covered (Witness and Police)
Ensure legislative requirements are met.
Interrupt interview only if required.

79
Q

What constitutes a S29 specified offence?

A

An offence of a sexual nature (excludes S143 & 144 CA)

An offence of serious assault

Offence resulting in serious injury, death or person becoming incapable

An offence that has led to the victim having ongoing fears for his safety of that of 1 or more immediate family members

80
Q

What is the definition of a victim?

A

Anyone who:

Has an offence committed against them.
Suffered physical injury, loss or damage to property as a result of the offence.
Member of immediate family of someone who has died or cannot make decisions about their welfare.
Parent or Legal Guardian of a C/YP who is a victim (so long as they aren’t the offender.

81
Q

What are some specialist support services available?

A 
Victim Support
ARCS (Abuse & Rape Crisis Support)
Women's Refuge
Shine (domestic abuse)
Well Stop (harmful & concerning sexual behaviour)
YOSS (Youth One Stop Shop)
Manline (Violence help)
MAIN (Manawatu Abuse Intervention Network)
82
Q

What are some initial LOE’s?

A

CCTV (footage of victim/offender)
ID witnesses
Photo Boards - ID offender
Forensics at scene

83
Q

What are the ways a CPP referral can be made?

A

Phone call to Oranga Tamariki, followed by POL350
POL350 emailed to OT and CPT
POL350 emailed to OT and CRL

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