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ROASTBUSTERS: 80 QUESTIONS FOR POLICE

ROASTBUSTERS: 80 QUESTIONS FOR POLICE

The police announced on 29 October 2014 that no charges would be laid following the conclusion of the Operation Clover investigation into the Roastbusters’ group. On that day, the police issued a two-page media statement and a 28-page “Operation Clover – Investigation Overview” dated 28 October 2014.

The Investigation Overview states at paragraph 7.5 that “The principal ingredient at issue in all Op Clover cases is that of consent..”

I do not agree with the police view. In my opinion the principal issue raised by Operation Clover was that of repeated unlawful sexual conduct and sexual assault. The public only has a fraction of the information available to the police, but it is apparent from some of that information that –

  • a number of the girls involved were under 16
  • a number of the boys involved were over 16
  • the boys would have known that the girls were under 16, and
  • in law, consent could not be given and an offence under section 134 of the Crimes Act 1961 was accordingly committed.

Here are some questions which remain for the police –

 

CRIMES ACT AND SALE OF LIQUOR ACT OFFENCES

The police’s 29 October 2014 media release states that –

“While no offences were excluded, the principal offences investigated were:

1)      Sexual Violation – Rape and Unlawful Sexual Connection (s 128B Crimes Act 1961)

2)      Sexual Conduct with young person under 16 (s 134 Crimes Act 1961).”

 

1 Why did the police decide to lay no charges under section 128B and was the evidential test in the Solicitor-General’s Prosecution Guidelines the paramount consideration in reaching that decision ?

2 Why did the police decide to lay no charges under section 134 and was the evidential test in the Solicitor-General’s Prosecution Guidelines the paramount consideration in reaching that decision ?

3 Did the police consider laying any charges under section 126 and, if so, why did they decide not to ?

4 Did the police consider laying any charges under section 135 and, if so, why did they decide not to ?

5 Did the police consider laying any charges under section 138 and, if so, why did they decide not to ?

6 Did the police consider laying any charges under section 194 and, if so, why did they decide not to ?

7 Did the police consider laying any charges under section 197 and, if so, why did they decide not to ?

8 Did the police consider laying any charges under section 208 and, if so, why did they decide not to ?

9 Did the police consider laying any charges under section 216G and, if so, why did they decide not to ?

10 Did the police consider laying charges under section 160 of the Sale of Liquor Act 1989 and, if so, why did they decide not to ?

11 Were any other charges considered by the police ?

 

SOLICITOR-GENERAL’S PROSECUTION GUIDELINES

The police’s 29 October 2014 media release states that, following a lengthy and complex investigation, charges are not being laid by the police at this time regarding eight incidents involving seven victims and five suspects. The statement said that the decision was a carefully-considered one which took into account a range of factors.

“These include the evidential test under the Solicitor-General’s prosecution guidelines. These state that there must be a reasonable prospect of conviction for police to initiate a prosecution. Other factors include the wishes of individual victims, the admissible evidence available, the nature of the offence and the age of the parties at the time of the offending.”

 

12 Why was the age of the parties relevant to the decision not to lay charges ?

13 Why was the nature of the offences relevant to the decision not to lay charges ?

14 What specifically led the police to conclude that there was not a reasonable prospect of a single conviction ?

15 Did the police conclude this because few of the girls had made formal statements ?

16 Is it the police position that charges relating to sexual assault will not be laid unless a complainant makes a formal statement ?

17 How did the police apply each of the separate elements of the evidential test – identifiable individual; credible evidence; evidence which the prosecution can adduce; could reasonably be expected to be satisfied; beyond reasonable doubt; commission of a criminal offence – and which specific aspects of the test did the police decide were not satisfied ?

18 What did the police conclude as to the credibility of the girls and their evidence ?

19 Did the police conclude that statements by the boys on social media would not be admissible or would lack probative value ?

20  Did the police conclude that there was insufficient evidence to provide a reasonable prospect for conviction and, as a result, did the police not reach the stage of applying the public interest test set out in the Solicitor-General’s Prosecution Guidelines in this case ?

21 If the police did apply the public interest test, how did the police balance the public interest considerations for prosecution against the public interest considerations against prosecution and why did the latter consideration outweigh the former ?

22 How important did the police conclude that the public interest considerations relating to

  • the seriousness of the offences;
  • the use of serious or significant violence ;
  • and belief that the offences were likely to be continued or repeated

were in this particular case ?

 

AUCKLAND CROWN SOLICITOR’S REVIEW

The 29 October 2014 police media release states that a substantial review of the cases was undertaken by the Auckland Crown Solicitor.

 

23 What did the review of the case by the Auckland Crown Solicitor specifically conclude ?

24 In what specific way was it “taken into account” by the police in reaching the decision not to prosecute ?

25 Did the Auckland Crown Solicitor’s review include specific recommendations as to the decision to prosecute or not to prosecute and, if so, did the police follow those recommendations ?

 

CONSENT

The Investigation Overview states that –

“7.5 The principal ingredient at issue in all Op Clover cases is that of consent, including the ability of the girl involved to give consent due to the effects of alcohol consumption and/or the male party’s reasonable belief as to whether there was consent.”

 

Section 134 of the Crimes Act provides that it is an offence to

  • have sexual connection with a young person under 16;
  • to attempt to have sexual connection with a young person under 16; or
  •  to do an indecent act on a young person under 16.

Section 134A sets out the only defence to charges under section 134, in the form of a three-stage test. Section 134A provides that the person charged must prove that

  • he or she took reasonable steps to find out whether the young person was of or over the age of 16; and
  • he or she believed on reasonable grounds that the young person was of or over the age of 16; and
  • the young person consented.

For the defence to apply, all three parts of the test must be satisfied.

 

26 What specifically led the police to conclude that the principal ingredient at issue in Operation Clover cases was consent rather than unlawful sexual conduct and sexual assault ?

27 How did the police reach the conclusion that no charges could be laid under section 134 when, from the information available to the public, it appears likely that the girls and boys knew each other’s ages and a number (if not all) of the girls involved were under 16 and a number (if not all) of the boys involved were over 16 ?

28 In those circumstances, why did the police conclude that consent was the principal ingredient at issue ?

29 What conclusions did the police reach as to the admissibility and evidential value of the boys’ comments on social media about the girls’ ages ?

30 Did the police give consideration to the application of section 129A to any of the Operation Clover cases ?

31 How did the police apply section 128A to the Operation Clover cases ?

32 Specifically, what did police conclude as to the application of section 128A(1) ?

33 Specifically, what did the police conclude as to the application of section 128A(3), particularly when the boys commented on social media about giving alcohol to the girls ?

34 Specifically, what did the police conclude as to the application of section 128A(7) ?

35 Specifically, what did the police conclude as to the application of section 128A(8) ?

36 What definition of “consent” do the police use in relation to potential sexual assault charges ?

37 Paragraph 4.3 of the Investigation Overview states that “A girl made the canvassing list only if there were concerns as to whether sexual interactions had not been consensual; whether there was evidence of unlawful sexual activity; and/ or whether they may be in need of victim support, or associated services.” Why is the issue of consent again listed first, when many of the girls were under 16 and the boys were aware of that and, in law, the girls could not consent ?

38 What elements do the police need to establish in relation to consent to secure a conviction in a sexual conduct or sexual assault trial ?

 

EVIDENCE

Section 7 of the Evidence Act 2006 provides that the fundamental principle of the act is that all relevant evidence is admissible.

 

39 Did the police apply section 8 of the Evidence Act in determining whether or not to lay charges ?
40 How did the police apply section 12A and the common law rules relating to persons involved in joint criminal enterprises ?

41 What hearsay evidence did the police obtain and what assessment was made as to its admissibility under section 18 ?

42 How did the police apply section 27 to the statements made by the boys on social media ?

43 How did the police apply section 28 to the statements made by the boys on social media ?

44 What weight did the police place on the complaints made by girls and why did the police conclude that these were insufficient to lay charges ?

45 Do the police in sexual assault cases have a policy of not laying charges unless a complaint has been made by a complainant ?

46 What is the police’s policy as to the evidence required to lay charges in sexual assault cases ?

47 Do the police believe that a complaint is a better type of evidence in a sexual assault case than other types of evidence ?

48 What weight did the police place on the screenshot of Beraiah Hales’ remark “Man I cant even count how many I have rapped – 8 maybe” in response to a comment by a third party that Hales was “going for the younger girls” and why did the police conclude that it was insufficient in combination with other evidence to lay any charges ?

49 Why did the police conclude that none of the other social media comments by the boys was a sufficient basis for charges ?

50 Why did the police on 4 November 2013 state that “A Facebook site used by the suspects, although offensive and inappropriate, did not provide evidence which would allow the case to be put before the court,”  and why did the police conclude that the site was “offensive and inappropriate” rather than criminal ?

51 What specific pieces of evidence were lacking after the police had reviewed that Facebook site, which appeared to disclose boys over 16 admitting to sexual conduct with girls they were aware were under 16 ?

52 Why did the police in Operation Clover consider that formal complaints from the girls were so vital to laying charges when, for example, the police are able to lay homicide charges even though a victim is never available to make a complaint ?

53 If the boys’ statements has been used in evidence and the boys had wished to provide an alternative explanation – such as that they were boasting or exaggerating – wouldn’t the laws of evidence have required them to give evidence and, as a result, they would have also been available for cross-examination ?

54 What assessment did the police make as to how credible the boys’ oral evidence would have been if it had been contrary to earlier statements made by them on social media and elsewhere over a considerable period of time ?

55 Paragraph 10.9 in the section of the overview dealing with the person of interest phase states that “{NAME REDACTED} provided information sufficient to constitute admissible eye witness and hearsay evidence in regard to formal complaints made against individual suspects.” Why did the police decide that this evidence was insufficient to lay charges ?

56 Did the police obtain a surveillance device warrant under the Search and Surveillance Act 2012 (or its predecessors) and, if so, what material was obtained and, if not, what was the reason for not doing so ?

57 Did the police discuss with the girls and their parents sections 103 and 105 to ascertain whether this might increase their confidence in becoming involved in court processes ?

58 What specific evidence did the police conclude was lacking to lay charges and what options were explored for obtaining that evidence ? For example, it is not necessary to have specific dates to lay charges, as Informations sometimes state that the alleged offence occurred on or between specified dates.

 

REFERENCE TO CHARGING THE GIRLS

 Paragraph 7.3 of the Investigation Overview states that –

“ In regard to the offence of Sexual Conduct with young person under 16 (S 134(5) Crimes Act 1961), while the girl could be charged as a party to this offence if the sexual act was consensual and the male is also under 16 years of age, the girl cannot be charged if the male was over 16 years of age.”

 

59 Why is the fact that a girl could be charged as a party mentioned in the Investigation Overview ?

60 Did the police give serious consideration to charging any of the girls and, if not, why is the fact that the girls could be subject to prosecution mentioned in the overview ?

61 Was the possibility of charging any girls raised by any of the lawyers who acted for the male persons of interest or suspects ?

62 If so, was that part of the reason that the police decided to lay no charges following the Operation Clover investigation ?

63 How would charging any of the girls comply with the Solicitor-General’s Prosecution Guidelines, and in particular the public interest test set out on page 8 of the guidelines ?

64 Did the police tell any girls or any parents that girls could be charged ?

65 If so, what reaction did the police think this would produce from the girls and their parents, and did the police think this would make it less likely that the girls would be willing to speak to the police and provide evidence to assist with the laying of charges ?

66 If the police concluded that there was insufficient evidence to lay charges against the boys – including under section 134 – what evidence did the police consider might be available as a basis for charging the girls ?

67 How many of the males considered persons of interest or suspects were under the age of 16 ?

68 If none was, why is the issue of charging the girls mentioned in paragraph 7.3 ?

69 Did the police give consideration to the fact that mentioning that girls could be prosecuted might make it less likely that girls would make complaints in future cases ? 

70 Would it not be speedily concluded that the girls would, in any case, have a defence to a charge under section 134 as it could be expected that they knew the ages of the boys. Were not most -  if not all - of the boys over the age of 16 and was it not readily apparent that the boys consented to the sexual conduct ?

 

VICTIMS

Paragraph 29 of the Solicitor-General’s Prosecution Guidelines states that  -

“29.1 Victims of crime in the criminal justice system are to be :

  29.1.1 Treated with courtesy and compassion; and with

  29.1.2 Respect for their dignity and privacy.

 29.2 The key means of observing these principles is through the provision of information to ensure that victims understand the process and know what is happening at each stage. So far as is possible, the victim should have explained to them the court processes and procedures, and should be kept informed of what is happening during the course of the proceedings.”

 

71 Do the police accept that they failed to comply with these requirements in the Operation Clover case, given that one of the victims wrote in an article published in the Sunday Star-Times on 19 October 2014 that “When I talked to the police I felt like they didn’t believe a thing.” And “I wasn’t assured by the police anything was happening or going to happen. I felt like I was wasting my time.” ?

72 What steps will the police take to ensure that they comply with these requirements in all future cases ?

73 The 20 October 2014 police media release states that the wishes of individual victims were taken into account in the decision not to lay charges. The mother of a girl who was 13 years old at the time has subsequently told the media that she would be consulting a lawyer following that decision and was considering making a complaint of her own to the police. How were the wishes of those who wished for prosecutions balanced against the wishes of those who did not ?

74 What impact do the police consider their early mishandling of Roastbusters’ complaints had on making girls and parents reluctant to make formal complaints ?

 

POTENTIAL FUTURE COMPLAINTS

75 Were the contents of the Investigation Overveiw discussed with any of the lawyers of the boys prior to the public release of the document and was there any agreement as to statements to be included in the publicly-released document ?

Specifically, were any or all of the three following paragraphs included in the publicly-released report following submissions from any of the boys’ lawyers -

  • “10.13 Police acknowledge that the basis for the interviews of the majority was hearsay and rumour and wish to make it clear at the time of this report that there is little evidence in existence to accuse the majority of persons of interest of being engaged in criminal sexual offending.”
  • “It must be acknowledged that while the principal suspects have not been interviewed with regard to the above suspected incidents, in general terms the suspects concerned are adamant in their position that consent was given for all sexual acts.”
  • “Police acknowledge that there is insufficient admissible evidence in existence at this time to determine criminal liability in regard to the activity informally disclosed and until such time as further evidence is obtained no further action will be taken in regard to these suspected incidents.”

76 Why was the second of the above statements included in the Investigation Overview when many, if not most, of the boys involved were over 16 and knew that the girls were under 16 and accordingly, in law, consent could not be given and prima facie an offence had been committed ?

77 Why was the third statement, which begins “Police acknowledge..,” included in a memorandum which was an internal police memorandum from Detective Inspector Malthus to Detective Superintendent Andy Lovelock ?

 

INDEPENDENT LEGAL ADVICE

Paragraph 9.1 of the Investigation Overview states that all seven victims were offered independent legal advice. Paragraph 9.2 states that -

“The Auckland Law society was contacted by Police and provided a selection of lawyers who had experience in youth advocacy as well as sexual assault trials.”

78 Were the lawyers with experience in sexual assault trials experienced in working with victims or was their advocacy experience in representing those charged with sexual assault ?

 

RESEARCHING SUSPECT / OFFENDER MOTIVATION

Paragraph 15.1 of the Investigation Overview states that research provided by the Police Criminal Profiling Unit was of interest in understanding the mindset of group sexual offending by young males, including “overcoming and coercing consent; the prevalence and misuse of alcohol in youth sexual offending.”

 

79 Why was this research of interest in relation to “overcoming and coercing consent,” given that such “consent” does not in law amount to consent as, under section 128A of the Crimes Act a person does not consent to sexual activity if the person is asleep, unconscious or so affected by alcohol or another drug as to to be unable to consent or to refuse consent ?

80 Paragraph 23.1 of the Investigation Overview discusses the prevalence of alcohol and refers to young people “becoming comatose.”  The paragraph states that “The prevalence of alcohol in the lives of the teenagers interviewed, male and female, was a concern to the Op Clover team.” Rather than being a “concern,” was not the evidence of alcohol use prima facie evidence of an offence under the Sale of Liquor Act and potentially significant evidence in relation to possible charges under the Crimes Act ?  

 

There are other questions remaining for the police about the Operation Clover investigation but at least some of these are currently being dealt with by the IPCA investigation.

 

ACTION FOR CHANGE

If you want to take action to help create change, please email/ Facebook your MP, Prime Minister John Key, Justice Minister Amy Adams, the leaders of other political parties and as many other MPs as you have time to contact and ask them to –

  • make it a priority to complete the Law Commission’s work on Alternative Processes for Sexual Offences
  • provide funding for courses in every school in New Zealand to teach boys respect for girls and to teach boys and girls about respectful relationships and how to get help if they need it
  • speak to your sons and other boys about respect for girls and women and speak up when you witness men assaulting, bullying and harassing women.

Even better than emailing/ FBing politicians is to ask to meet with them. It’s a lot harder for them to dodge questions when you are physically with them.

Email addresses – j.key@ministers.govt.nz; a.adams@ministers.govt.nz; MPs firstname.lastname@parliament.govt.nz. Please ask 10 people you know to do this as well.

 

LINKS TO SECTIONS OF STATUTES

You can read the sections of the Crimes Act mentioned in this article by clicking on this link and then clicking on the number of the section you want to read http://www.legislation.govt.nz/act/public/1961/0043/latest/DLM327382.html. You can also find the Evidence Act and the Sale of Liquor Act at www.legislation.govt.nz.

 



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