Indecent assault

[5-600] Introduction

The basic offence is created by s 61L of the Crimes Act 1900, which provides:

Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.

Section 61M is an aggravated form of the offence under s 61L.

[5-610] Suggested direction — s 61L (no aggravating circumstances alleged)

The accused is charged that [he/she] assaulted [the complainant] and at the time of (or immediately before or immediately after) the assault committed an act of indecency [on/or in the presence] of [the complainant].

The essential ingredients or facts that the Crown has to prove are:

1.

that [the accused] assaulted [the complainant],

2.

that the assault was indecent,

[if applicable or that immediately before or immediately after that assault [the accused] committed an act of indecency on/in the presence of [the complainant]]

3.

that the assault was without the consent of [the complainant],

4.

that [the accused] knew that [the complainant] was not consenting,

[if recklessness as to consent is an issue omit 4 above and substitute with:

that [the accused] knew that [the complainant] was not consenting, or [he/she] realised that there was a possibility that [the complainant] was not consenting but [he/she] went ahead anyway, or [he/she] did not even think about whether [the complainant] was consenting or not — in other words, [he/she] did not care whether [the complainant] was consenting].

Unless the Crown proves every one of these essential ingredients it is your duty to find [the accused] not guilty. You can only find [the accused] guilty if the Crown proves each of these matters beyond reasonable doubt.

1.

The accused assaulted the complainant

To establish this offence, the Crown must first prove beyond reasonable doubt that [the accused] by [his/her] act assaulted [the complainant]. An assault is the deliberate and unlawful touching of another person. The slightest touch is sufficient to amount to an assault and it does not have to be a hostile or aggressive act or one that caused [the complainant] fear or pain.

[Where appropriate There is no suggestion in the present case that, if [the accused] touched [the complainant] as the Crown alleged [he/she] did, the touching was lawful.]

[Where there is no touching, substitute

An assault is an unlawful threat made to [the complainant] causing [him/her] to fear immediate and unlawful personal violence at the hands of [the accused] and where [the accused] intended that [the complainant] would have such a fear as a result of [his/her] threats.]

2.

The assault was indecent

The Crown must prove beyond reasonable doubt that the assault was indecent. The word “indecent” means contrary to the ordinary standards of respectable people in this community. It is for you to determine the standards prevailing in our community when deciding whether the Crown has satisfied you beyond reasonable doubt that the act alleged in this case was indecent.

For an assault to be indecent it must have a sexual connotation or overtone. If [the accused] touches [the complainant’s] body or uses [his/her] body to touch [the complainant] in a way which clearly gives rise to a sexual connotation that is sufficient to establish that the assault was indecent. For example, touching the genitals or anus of a male or the genitals or breast of a female.

[Where the assault is sexually equivocal: R v Harkin (1989) 38 A Crim R 296 at 301.

If you find the assault does not carry a clear sexual connotation or overtone, the Crown must prove beyond reasonable doubt that [the accused’s] conduct was accompanied by or went hand in hand with [his/her] intention to obtain sexual gratification.]

In deciding whether the Crown has proved this essential ingredient of the charge, you should take into consideration all the surrounding circumstances including [the accused’] words and/or actions, the respective ages of [the accused] and [the complainant], any relationship which may have existed between them and the nature of the act relied upon.

[If in issue, deal with evidence relied on by the Crown and by [the accused] and opposing submissions.]

Act of indecency alleged “at the time” of the assault

The Crown must also prove beyond reasonable doubt that at the time of the assault, [the accused] committed an act of indecency on [the complainant]. Although a reading of the charge in the indictment might suggest that the Crown must establish two separate acts, that is, an act that amounts to an assault and a separate act which it alleges was indecent, this is not necessarily so. The Crown can rely upon the same act as amounting to both the assault and the act of indecency. That is what the Crown alleges in this case.

[Where the act of indecency is charged “immediately before” or “immediately after” the alleged assault, omit the previous paragraph and substitute with

The Crown must also prove beyond reasonable doubt that the act of indecency relied upon was done [immediately before/immediately after] the alleged assault. The word “immediately” generally means “without delay” but where two distinct and separate acts are alleged, one being an assault and the other an act of indecency, clearly some lapse of time must occur between the two acts.

Provided that, after considering all of the circumstances surrounding the acts of [the accused], you are satisfied that the act of indecency occurred within a very brief period of time [before/after] the assault, so that it would be appropriate to use the word “immediately” as indicating that there was no significant delay between the two acts, the Crown will have made out this element of the offence.]

[Where the Crown alleges that the act of indecency was done “in the presence of ” the complainant, add

The Crown alleges that the act of indecency was done “in the presence of” [the complainant]. An act will be done in the presence of another person if it is done within the sight of that other person … [see also Note 5 at [5-620]. If in issue, deal with relevant evidence for the Crown and [the accused] and opposing submissions].]

3.

The assault was committed without [the complainant’s] consent

[Note: The common law definition of consent applies to indecent assault. The statutory definition of consent in s 61HA does not extend to s 61L: see s 61HA(1). Consent is not a defence when the complainant is a child under 16 years: s 77.]

[Where consent is in issue, add

In order to establish that the touching was unlawful and therefore an assault, the Crown must prove beyond reasonable doubt that [the accused] touched [the complainant] without [his/her] consent knowing that [he/she] was not consenting. Consent involves the conscious and voluntary permission by [the complainant] to [the accused] to touch [the complainant’s] body in the manner that [he/she] did. Consent or the absence of consent can be communicated by the words or acts of [the complainant].

The Crown must prove beyond reasonable doubt that [the complainant] was not consenting to [the accused’s] act.]

4.

The accused knew that the complainant was not consenting

The Crown must also prove beyond reasonable doubt that [the accused] knew [the complainant] was not consenting. This is the fourth ingredient. You are concerned with the actual state of mind of [the accused] at the time of the act amounting to the assault. It is [the accused’s] mind you should consider. It’s not a question of what you would have realised, or thought, or believed. It’s not a question of what a reasonable person would have thought or believed. This ingredient of the offence requires that you look at what was going on in the mind of [the accused]. And in deciding this issue you can have regard to all the surrounding circumstances.

[Note: It is unnecessary and unhelpful to direct the jury about elements of knowledge not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].]

[If recklessness as to consent is an issue omit 4 above and substitute with

Now that brings us to the fourth ingredient which focuses on what was in [the accused’s] mind at the time of the act amounting to the assault. Remember that you have not been given an impossible task when you are required to consider what was going on in [the accused’s] mind.

You must examine what [the accused’s] state of mind was. Now, the Crown succeeds in proving the fourth ingredient if it proves that [the accused] knew that [the complainant] was not consenting. The fourth ingredient is also satisfied if the Crown proves to you that [the accused] realised that there was a possibility that [the complainant] was not consenting to the act amounting to the assault, but [he/she] went ahead anyway. The Crown can also prove this fourth ingredient if it proves beyond reasonable doubt that [the accused] didn’t even think about whether [he/she] was consenting to the act amounting to the assault or not, treating the question of whether [he/she] was not consenting as irrelevant. It is enough that the Crown proves beyond reasonable doubt any one of those three aspects of the fourth ingredient.

In deciding this issue you are concerned with the actual state of mind of [the accused] at the time of the act amounting to the assault. It is [the accused’s] mind you should consider. It’s not a question of what you would have realised, or thought, or believed. It’s not a question of what a reasonable person would have thought or believed. This ingredient of the offence requires that you look at what was going on in the mind of [the accused]. And in deciding this issue you can have regard to all the surrounding circumstances.

I want to make it clear to you that if [the accused] honestly, though wrongly, believed [the complainant] was consenting to the act amounting to the assault, then [he/she] is not guilty. Let me repeat that because it is important, if [the accused] honestly, though wrongly believed that [the complainant] was consenting to the act amounting to the assault [he/she] would not be guilty, because if that was the position, the Crown could not prove the fourth ingredient. And as I have told you, all ingredients have to be satisfied beyond reasonable doubt before you can find [the accused] guilty. The failure to prove the fourth ingredient would mean that [the accused] is not guilty of that offence.

[Deal with evidence relied upon by the Crown and by [the accused] on this issue, and with opposing submissions.]]

[If applicable — relevance of accused’s intoxication

There was evidence that [the accused] was intoxicated. For this offence, the law requires that you have to ignore any effects of intoxication. If you think that [his/her] ability to think or understand what was going on was affected by alcohol, then you have to put that to one side. You have to look at [the accused] and ask what would have been going on in [his/her] mind if [he/she] had not ingested alcohol and/or drugs.]

Short summary

If the Crown has failed to prove beyond reasonable doubt any one of these essential ingredients of the charge, namely:

that [the accused] assaulted [the complainant]; that the assault was indecent,

[if applicable or that immediately before or immediately after that assault [the accused] committed an act of indecency on/in the presence of [the complainant]]
that the assault was without the consent of [the complainant]; and
that [the accused] knew that [the complainant] was not consenting,

[if recklessness as to consent is an issue omit last line above and substitute with:

that [the accused] knew that [the complainant] was not consenting, or [he/she] realised that there was a possibility that [the complainant] was not consenting but [he/she] went ahead anyway, or [he/she] did not even think about whether [the complainant] was consenting or not — in other words, [he/she] did not care whether [the complainant] was consenting].

then the Crown will have failed to prove its case and it will be your duty to acquit [the accused].

If, on the other hand, at the end of your deliberations, after having taken into consideration all the relevant evidence and the submissions of both Counsel, you are of the view that the Crown has established beyond reasonable doubt each one of those essential ingredients of the charge, then it will be open to you, and you should, convict [the accused] of the charge of indecent assault.

[5-620] Notes — basic offence of indecent assault — essential ingredients

1.: To prove the offence of indecent assault the Crown must first prove that there was an assault. The “assault” element may be satisfied by proof of either physical contact (battery), however minimal, or a threat to the victim involving a reasonable apprehension of immediate and unlawful physical violence: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 200. Only in the latter case is it necessary to prove that the conduct was “angry, revengeful, rude, insolent or hostile”: Fitzgerald at 201. In either case, the act relied upon by the Crown must be deliberate, that is, a non-accidental voluntary act of the accused. The conduct constituting the assault must be unlawful. This excludes touching, whether deliberate or otherwise, in the course of the ordinary exigencies of everyday life: Fitzgerald at 201. As to assault where the Crown relies upon recklessness: see [5-5010]ff.
2.: Consent is not a defence when the complainant is a child under 16 years: s 77 Crimes Act. When consent is an issue, the common law definition of consent applies. The statutory definition of consent in s 61HA did not extend to ss 61L or 61M offences: see s 61HA(1), as in force before 1 December 2018. The Crown must prove that the complainant did not consent to the act alleged: NWL v R [2006] NSWCCA 67 at [93]. The Crown must also prove that the accused knew that the complainant was not consenting or was reckless in that regard: R v Bonora (1994) 35 NSWLR 74 at 75, 80; Fitzgerald v Kennard (1995) 38 NSWLR 184; R v Burt (2003) 140 A Crim R 555 at [76], [80]; R v Kukailis [2001] NSWCCA 333 at [18]. The same principles relating to recklessness in cases of sexual intercourse without consent apply to offences of indecent assault and failure to advert to the issue of consent can amount to recklessness: Fitzgerald v Kennard (1995) 38 NSWLR 184 at 204–206. Similarly, directions for recklessness should only be given if the issue arises on the evidence. It is erroneous to direct the jury about elements of knowledge not relevant to the issues in the case: R v Mueller (2005) 62 NSWLR 476 at [3]–[4] and [42].
3.: For an assault to be “indecent” it must have a sexual connotation. It will have that connotation where the touching or threat is of a portion of the complainant’s body, or by use of part of the assailant’s body, which gives rise to that connotation: R v Harkin (1989) 38 A Crim R 296 at 301. However, if the assault does not unequivocally offer a sexual connotation, the Crown must show that the accused’s conduct was accompanied by an intention to obtain sexual gratification: Harkin at 301; R v Stevens (unrep, 26/9/94, NSWCCA).
4.: The Crown must establish that the accused “at the time of, or immediately before or after the assault ” committed an act of indecency “on or in the presence of ” the complainant. The same act may (and frequently will) constitute both the assault and the act of indecency: R v O’Donoghue (2005) 151 A Crim R 597 at [21]; Fitzgerald v Kennard (1995) 38 NSWLR 184 at 187, 202. The words “immediately before or after ” add something to the words “at the time of ”, but if there are two distinct acts involved, they need not occur within seconds or minutes of each other: R v Hitchins [1983] 3 NSWLR 318 at 324; R v Attard (unrep, 20/4/93, NSWCCA). In Attard, (a constructive murder case) it was held that the shooting and the foundational offence “were so closely linked in point of time, place and circumstance that it could scarcely be doubted that the one occurred immediately after the other ”. The whole of the circumstances must be looked at in order to determine whether this aspect of the charge has been made out: Hitchins at 324.
5.: The act of indecency must be committed either “on” or “in the presence of ” the complainant. In the context of the offence of committing an act of gross indecency in the presence of a child (without the need to prove an accompanying assault), the South Australian Court of Criminal Appeal interpreted the phrase “in the presence of ” to include cases where the complainant was asleep, did not see the act and was unaware of it: R v AWL [2003] SASC 416 at [11]–[12]. It was sufficient that the child was present when the act occurred. The accused in AWL took a photograph of his erect penis on a pillow, close to the head of the child whilst the latter was sleeping.
6.: Evidence that the accused was intoxicated at the time of the relevant conduct cannot be taken into account if the intoxication was self-induced. This is because indecent assault is not an offence of specific intent for the purposes of s 428D of the Crimes Act: Attorney General v Curran [2004] NSWCCA 234 at [15]; and R v Petersen [2008] NSWDC 9. See further Note 3 at [5-810].

[5-630] Suggested direction — s 61M (aggravating circumstances alleged)

In addition to these essential ingredients for indecent assault, the Crown also alleges the following additional circumstance(s) of aggravation namely … [specify circumstance(s) of aggravation] which it must also establish beyond reasonable doubt before you would be entitled to convict [the accused] of the charge in the indictment. You need only consider [this/these] additional circumstance(s) of aggravation, if you are first satisfied beyond reasonable doubt that the Crown has established each of the essential ingredients of indecent assault.

If, in your view, the Crown has not established each of those essential ingredients, then it is your duty to bring in a verdict of “not guilty”. If you are satisfied that the Crown has established the essential ingredients then you would need to turn to consider the further circumstance(s) of aggravation alleged.

[If “in company”, add

The Crown must prove beyond reasonable doubt that the offence was committed in the company of another person. If two or more persons are present, and share the same purpose to indecently assault the alleged victim they will be “in company”, even if the alleged victim is unaware of the other person[s].

[If it is in dispute as to whether [the accused] was in company, add:

The Crown must prove that the coercive effect of the group operated, either to embolden or reassure [the accused] in committing the crime alleged, or to intimidate [the alleged victim] into submission. The perspective of [the alleged victim] (being confronted by the combined force or strength of two or more persons) is relevant, but does not solely decide the issue.

Participation in the common purpose without being physically present (for example, as being a look-out or previously encouraging [the accused] to commit the offence) is not enough.]

[Describe the evidence relied upon by the Crown to prove the offence committed in the company of another person.]]

[Where the Crown alleges “under the authority”, add

The Crown alleges the aggravating circumstance that the offence was committed when [the complainant] was under the authority of [the accused]. To establish this circumstance, the Crown must prove beyond reasonable doubt that [the complainant] was under [his/her] care, supervision or authority [generally/at the time of the commission of the offence]. It is a matter for you to determine whether [the complainant] was under the care, supervision or authority of [the accused] having regard to the relevant evidence and taking into consideration the submission of counsel … [deal with evidence for the Crown and for [the accused] and the opposing submissions].]

[Where the Crown relies on “serious intellectual disability”, add

The Crown alleges the aggravating circumstance that at the time of the indecent assault [the complainant] suffered a serious intellectual disability. To establish this circumstance, the Crown must prove beyond reasonable doubt that [the complainant] at the time of the alleged indecent assault suffered a serious intellectual disability, that is to say, that [he/she] then had an appreciably below average general intellectual function such that [he/she] required supervision in connection with daily life activities or required assistance in a social context. The Crown must prove that [the complainant] had such a disability to a serious degree … [if in issue, deal with the evidence for the Crown and [the accused] and the opposing submissions].]

[5-640] Notes — aggravated indecent assault under s 61M

1.

The “circumstances of aggravation” for the purpose of a charge under s 61M are exclusively defined in s 61M(3) as meaning circumstances in which:

(a): the offence was committed in company
(b): the victim is under the age of 16 years
(c): the victim is under the offender’s authority
(d): the victim has a serious physical disability, or
(e): the victim has a serious intellectual disability.

2.

To establish that the offence was committed in company, the Crown must show that another person was physically present and shared a common purpose with the accused: R v Button (2002) 54 NSWLR 455 at [120]. Physical presence is an elastic concept: Button at [123]. Whether or not another person is physically present depends on what the court described in Button at [125] as:

… the coercive effect of the group. There must be such proximity as would enable the inference that the coercive effect of the group operated, either to embolden or reassure the offender in committing the crime, or to intimidate the victim into submission.

See also R v ITA (2003) 139 A Crim R 340 at [137]–[140].

Mere presence of another person is not sufficient: R v Crozier (unrep, 8/3/96, NSWCCA); Kelly vThe Queen (1989) 90 ALR 481 at 483. The complainant’s perspective (of being confronted with more than one person) is relevant but not determinative. “If two or more persons are present, and share the same purpose, they will be ‘in company’, even if the victim was unaware of the other person”: Button at [120]. It is sufficient if the complainant is confronted by the “combined force of two or more persons”, even if the other person(s) did not intend to physically participate if required: R v Leoni [1999] NSWCCA 14 at [20] (referring to the judgment of King CJ in R v Broughman (1986) 43 SASR 187 at 191); applied in R v Villar [2004] NSWCCA 302 at [68]. Proof of this aggravating circumstance does not depend upon the other person being convicted of the same offence: Villar at [69].

3.

A further circumstance of aggravation is where the complainant is, whether generally or at the time of the commission of the offence, under the authority of the alleged offender: s 61M(3)(c). Section 61H(2) provides that for the purposes of Div 10 of the Crimes Act “a person is under the authority of another person if the person is in the care, or under the supervision or authority, of the other person”. The Victorian Court of Appeal has interpreted the words “care, supervision or authority” to apply to those exercising temporary care, such as baby-sitters and child-carers, as well as “those who, by virtue of an established and on-going relationship involving care, supervision or authority, are in a position to exploit or take advantage of the influence which grows out of that relationship”: R v Howes (2000) 116 A Crim R 249 at [4]; see also R v MacFie [2000] VSCA 173 at [18], [21]. It is not confined to relationships based on a legal right or power: Howes at [50]; MacFie at [20]–[21]. In R v DH (unrep, 14/7/97, NSWCCA) (a case involving sexual intercourse with a child under authority) it was held that an employer-employee relationship could be sufficient to establish the aggravating factor of the complainant being under the accused’s authority and that there need not be a causal relationship between the authority and the sexual act performed.

4.

“Serious physical disability” (s 61M(3)(d)) is not defined for the purposes of s 61M. The following definitions from s 3(1) of the Community Welfare Act 1987 may be of assistance:

“physical impairment”, in relation to a person, means any defect or disturbance in the normal structure and functioning of the person’s body, whether arising from a condition subsisting at birth or from illness or injury, but does not include intellectual impairment”.

“physically disabled person” includes a person who, as a result of having a physical impairment to his or her body, and having regard to any community attitudes relating to persons having the same physical impairment as that person and to the physical environment, is limited in his or her opportunities to enjoy a full and active life.

5.

“Serious intellectual disability” in the now repealed (s 61M(3)(e)) was not defined for the purpose of s 61M. There was, however, in the previous form of s 66F a definition of “intellectual disability” for the purposes of that section as “an appreciably below average general intellectual function that results in the person requiring supervision or social habilitation in connection with daily life activities”. The definition in s 66F may be appropriate for the purposes of instructing a jury pursuant to the previous form of s 61M(3)(e), subject to appropriate emphasis being placed on the word “serious”, which appeared in s 61M(3)(e), but not s 66F.

6.

The Crimes Amendment (Cognitive Impairment — Sexual Offences) Act 2008 commenced on 1 December 2008. It replaced the term “serious intellectual disability” with “cognitive impairment”. The following new definition found in s 61H(1A) applies to an offence under s 61M(3)(e) allegedly committed on and after 1 December 2008:

For the purposes of this Division, a person has a cognitive impairment if the person has:

(a)

an intellectual disability, or

(b)

a developmental disorder (including an autistic spectrum disorder), or

(c)

a neurological disorder, or

(d)

dementia, or

(e)

a severe mental illness, or

(f)

a brain injury,

that results in the person requiring supervision or social habilitation in connection with daily life activities.

[5-650] Proceedings in respect of prescribed sexual offences

Offences against ss 61L and 61M are “prescribed sexual offences” as defined in s 3 of the Criminal Procedure Act 1986. Particular provisions of the Criminal Procedure Act and the Crimes Act apply to proceedings for such offences: see further Evidence given by alternative means at [1-360]ff, and Closed court, suppression and non-publication orders at [1-349].

[5-660] Suggested direction — where the jury is not satisfied that the accused is guilty of the s 61M offence charged, but is satisfied on the evidence that the accused is guilty of an offence under s 61L

An alternative verdict under s 61L is available on a charge under s 61M: s 80AB.

As I have said, whether the Crown has established beyond reasonable doubt the additional aggravating circumstance(s) only becomes a question if you are first satisfied beyond reasonable doubt that the Crown has proved all of the essential ingredients of indecent assault.

The question then arises — what is the position if, at the end of your deliberations, the Crown has proved each of the essential ingredients of indecent assault but you have a reasonable doubt as to whether it has proved the additional circumstance(s) of aggravation? In that event, you may find [the accused] “not guilty” of the offence charged in the indictment but “guilty” of the indecent assault, that is to say, not including the additional circumstance(s) of aggravation.

Therefore there are three available verdicts which you may bring in this case. Firstly, a verdict of “not guilty”; secondly, a verdict of “guilty”; or thirdly, a verdict of “not guilty” but “guilty” of indecent assault.