Indecent Assault

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What is Indecent Assault ?

Indecent assault is assault in circumstances of indecency. It is characterised as a sex crime and has significant overlap with offences referred to as sexual assault.

Some examples of indecent assault include;

  • An unwanted kiss;
  • The smallest of touches or contact including touching in the course of ordinary everyday life
  • The intentional touching of breasts, anus, vagina or penis; Or
  • Rubbing your groin against a person for example on a busy bus when the other person has not given consent

Case law/Jurisdiction

An offence of Indecent Assault is what is known as a “Table 2” offence which means it is to be dealt with in the Local Court unless an election is it is to be dealt with on indictment by the Director of Public Prosecutions (DPP).

The nature and elements of the offence of affray were considered in Faulkner v Talbot [1981] 1 WLR 1528 which held hostile intent need not be shown to constitute the indecent assault.

The Law

The Law in relation to Indecent Assault is found in section 61L Crimes Act 1900(NSW) which states;

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.

What is an assault?

An assault is any act which intentionally or recklessly causes another person to fear immediate and unlawful violence. It is not necessary that the complainant be physically touched.

What is an “act of indecency”?

An indecent act is one which right minded persons would consider to be contrary to community standards of decency. The assault and the act of indecency do not need to be separate acts.

What must the prosecution prove?

Since Indecent Assault is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Indecent Assault.

To establish Indecent Assault the prosecution must prove each of the following matters beyond reasonable doubt:

  • that the accused assaulted the complainant, and
  • that the assault was indecent, and
  • that the assault was without the consent of the complainant, and

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.

If you are charged with the offence of Indecent Assault what are your options?

National Criminal Lawyers have been successful in defending a number of Indecent Assault charges where the prosecution could not establish each of the elements offence. We have also achieved a number of non-convictions for Indecent Assault.

NCL offer the following options for those who have been charged with Indecent Assault:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Indecent Assault offenders can be punished with a prison sentence of up to 5 years

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers are experts at these hearings and can advise you on what the police must prove beyond reasonable doubt.

Defences

Some of the possible defences available for those charged with Indecent Assault can include:

  • You did not assault the person;
  • You did not commit an indecent act;
  • The act was not indecent;
  • The act was not done towards another person;
  • If you were compelled to act in a certain way due to the circumstances, or the threats of another you may be able to argue “Duress”;
  • If your actions were necessary to prevent a greater harm from occurring, you may have the defence of “Necessity”;
  • If you were defending yourself or another OR yours or another’s property you may have a Defence of “Self-Defence” even in situations where “Pre-Emptive Force” is used. Moreover, at times there be a circumstances where you may argue that there was “No duty or need to retreat”.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Indecent Assault 42% received a good behaviour bond.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an Wounding or grievous bodily harm with intent charge.

  • Prison sentence;
  • Home Detention;
  • Intensive correction order (previously periodic detention);
  • Suspended sentence;
  • Community service order (CSO);
  • Good behaviour bond;
  • Fine; and/or
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Full time Imprisonment;
  • New ICO (ICO) with a home detention condition available;
  • New Community Correction Order (CCO);
  • Fine; or
  • New Conditional release Order (CRO)

Case Studies

The Client was alleged to have touched his daughter inappropriately on her vagina she was asleep. It was alleged that on three separate occasions, he would come back home from work late and would enter her room and would touch her inappropriately. She never complained of these allegations to anyone, including the complainant’s mother. Because of these incidents, it was also alleged that the complainant shouted out the words similar to “stop dad, get out of my room” and scratched him with her long nails, leaving marks around his body. Scratch marks were clearly visible, and photographs were taken at the police station to which our client was arrested immediately after the most recent of complaints. As a result, our client was charged with 3 counts of indecent assault.

Police made extensive inquiries and conducted their investigation very reasonably into the incident, whereby the complainant stated her father (defendant), “comes into my room at night and touches me on my vagina.” The complainant listed three dates she alleged these incidents to have occurred in a span of one year. After further inquiries by police, the defendant was arrested and taken to Riverstone police station where he participated in an electronically recorded interview (ERISP) with police and ultimately denied the allegations.

Astonishingly, and without adequate explanation, the Complainant indicated her wishes to have the charges withdrawn within 24 hours of making the complaint and attempted to return back to the police station, however, the police told her it is too late and the matter must proceed. Three days after the incident (19th September 2516), the Complainant gave an electronically recorded interview where she confirms the allegations.

Some of the family members were also asked to provide a statement which they agreed to do so which means they would, most likely, have to give evidence in Court. None of the family members corroborated any information similar to those alleged by the Complainant in their statements. However, the mother said that she “suspected” something but couldn’t be sure.

At hearing our senior lawyer cross-examined the complainant and the other prosecution witnesses who consisted of the complainant’s mother, sister, and brother. When starting to cross-examine the mother it was established that the younger sister suffers from a medical condition which causes her to have “night terrors“. This came to light when our expert layer asked her “Does your daughter have any medical conditions that you are aware of“? The Mother replied, “yes regularly she wakes up in the middle of the night screaming and going through unexplained tantrums“. This alluded the defence to immediately request the Court to grant a short service subpoena of all her medical records where it was astonishingly revealed that she was diagnosed with a medical condition which causes her to have significant night terrors. This was further exasperated by the fact that the complainant was studying for her HSC.

It now was time to cross-examine the complainant. Our senior lawyer, softly, but firmly asked questions about the time the allegation was said to have occurred, the location, the circumstances and other very important factors the Court would need to know. It came to light that in her evidence she said the defendant was “standing up” when it happened, whereas in her interview to police she said, “he was sleeping beside me on the couch“. Another question that had the Court alarmed was when Mr Moussa asked “Have you had these night terrors after your father has left and felt someone touching you“, the complainant replied “Yes“.

The Complainants medical condition was further explored and in one of the medical record, propensity to exaggerate things, making her feel a high level of anxiety and couldn’t explain to the practitioners what it was that was making her feel like that.

The Defence  called in a specialist forensic psychologist who treated these types of behaviour and he concluded, on oath, that “It is highly likely that individuals who suffer from night terrors, also known as intermittent delusions or psychosis, have their symptoms agitated by extenuating stress factors“. The stress referred to here was in reference to the complainant studying for her HSC exams.

The icing on the cake for the defence was when cross-examining the complainant, it was asked “When you wake up, do you feel your father touching you or is it only when you are asleep?“, The complainant replied, “No I am always asleep“. There were further significant inconsistencies between the version the complainant gave to police and the version she gave in Court, while on oath.

Our senior lawyer argued that the prosecution has not proven one of the elements of the charge. That is, there is an inherently significant doubt to prove an assault took place given the significant inconsistencies. The prosecution argued that she was making it all up to support her father.

This was resolved in the cross-examination of the siblings who corroborated that an incident occurred several days prior to the Accused arrest which supported that the scratches were not related to the alleged sexual indecent assault.

The sticking point, however, for the defence was the scratches witnessed by the police because it corroborated that an event took place which may support the complainant’s version of the evidence. It was recognized that the Complainant gives evidence to the effect that the scratches occurred on a Friday, but the incident occurred on a Saturday. The accused said the scratches he got from her was from a week prior because he told her to study for her HSC  and she got mad. The prosecution could not prove with certainty as they did not call a specialist to assess the scratches at the time. Mr Moussa argued that in the absence of further evidence “The Court is left with a case of choosing who is telling the truth and who is not. The Court cannot convict the defendant on the charges before the Court as by doing so will lead this Court into error”.

The Court held that “Whilst the prosecution case is strong, the inconsistencies, mixed with the Court not confident in the complainant’s inability to specifically tell the court the time in which the allegations have said to occur, leads me to conclude that the prosecution has not proven its case beyond reasonable doubt”.

Our client was extremely happy and said: “now I can get on with my life and help my daughter“. He also comically added, “Thank you for not breaking my bank account”.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Indecent Assault offence our Team and National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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