THE STORY
Anyone who uses public transport will tell you of a time they saw or heard something particularly unpleasant. Today, reports have come in of a “serial masturbator” on inner Sydney buses. The first known complaint filed with NSW Police comes from 5 February 2021 after a passenger travelling to Redfern witnessed the man touching his crotch. Another incident was reported to police on 11 February 2021 where the same CCTV footage shows another man of similar age, build and appearance can be seen performing the same lewd acts. On this occasion, the man was travelling to Liverpool Street in the Sydney Central Business District. Finally, another reported incident occurred on 15 March 2021 on a bus to Buckland Street, Broadway.
THE LAW: WHAT COULD HE BE CHARGED WITH?
There is no doubt that should police apprehend the man, he is likely to be charged with three counts of ‘Acts of Indecency’. Pursuant to section 61N of the Crimes Act 1900 (NSW), an act of indecency is as follows:
(1) Any person who commits an act of indecency towards a person under the age of 16 years, or incites a person under that age to an act of indecency is liable to imprisonment for 2 years.
(2) Any person who commits an act of indecency with or towards a person of the age of 16 years or above, or incites a person of the age of 16 years or above to an act of indecency with or towards that or another person, is liable to imprisonment for 18 months.
In order for an accused person to be found guilty of the offence, the prosecution must prove beyond reasonable doubt the following factual elements:
- That you did an act which was indecent or that you incited another person to do the act;
- That the act was done towards another person;
- That the person did not consent; and
- That the person was over 16 years of age.
IS A CONVICTION LIKLEY?
An opinion on whether a conviction is likely or not cannot be made without a thorough and extensive review of all the evidence which will be used in Court. However, from a preliminary perspective, there are two obvious factors which ought to be explored:
- It is important for the prosecution to prove that the man depicted in the CCTV footage is the same person charged beyond reasonable doubt. Given that the man can be seen wearing a face mask in all still images, a positive identification of the accused will be a contentious factual issue.
- In a similar way, the prosecution must prove beyond reasonable doubt that the man was preforming an act of indecency whilst in a public place (namely, public transport). To that effect, the current images available show that the man is touching his crotch over his pants. Whether this image shows any masturbation will could another contentious factual issue.
WHAT ARE THE DEFENCES TO AN ACT OF INDECENCY?
There are several possible defences which might be available for anyone charged with Acts of Indecency. These include:
- 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”.
THE TAKE HOME MESSAGE
An Act of Indecency is a criminal offence which centres on the idea that a right-minded person ought to consider that their actions are contrary to the standards of decency in the community. If you or someone you know has been charged with an Act of Indecency or similar offence, get in touch with one of our specialist criminal defence lawyers in order to ensure your case is heard according to the law.
If you enjoyed reading this article, please click the following link to learn more.