Our client, a university student was charged with three counts of indecent assault. The complainant in this matter was a fellow university student. It was alleged that our client kissed the complainant on three separate occasions. The background of this matter was that both the accused and complainant attended the same university and both frequented university events. On three separate occasions, and at three separate university events, it is alleged that the accused kissed the complainant against her will.
While our client admitted that he did kiss the complainant, he stated that this only occurred on two occasions. Furthermore, he stated that he thought that the complainant was romantically interested in him and she said and did nothing to persuade him otherwise. If anything, her actions convinced him that she did, in fact consent to being kissed. The accused and complainant frequently text messaged each other and kept in touch.
In this case, the prosecution elected to have the case heard by the District Court of New South Wales and so the matter was heard in that court.
The offence of indecent assault is outlined in section 61L of the Crimes Act 1900 (NSW).
There are four essential elements that the prosecution must prove in order to convict an accused person of indecent assault. These are:
Indecent assault is a criminal offence and this means that every single one the four above elements must be proven beyond reasonable doubt in order to prove that the accused is guilty. If a defendant can raise doubt over just one of these elements, then the court cannot convict the accused of the offence.
If, however, the court is able to prove all elements beyond reasonable doubt, then the defendant will be liable for up to 5 years imprisonment per offence. In the above case study, our client was accused of three counts of indecent assault under section 61L, meaning that if he was found guilty, he would be liable for up to fifteen years imprisonment.
A section 10 dismissal may be handed down if the court finds you guilty of an indecent assault charge, but decides not to record the conviction on your criminal record. A court will usually only impose a section 10 if you plead guilty to the offence. It is at the court’s discretion to convict you or provide you with a section 10.
Our client instructed us that he was sure that the complainant consented as she did not take any actions or say any words to the effect that she did not consent to being kissed.
We used this as the basis of our arguments at the District Court. We argued that the Court would not be able to prove the fourth element of indecent assault, being that the accused knew that the complainant was not consenting or realised that there was a possibility that the complainant was not consenting but he kissed her anyway. In our argument, we stated that our client was of the impression that the complainant was interested in forming a romantic relationship with him and hence consented to being kissed. To support this argument, we presented evidence in the form of text message conversations, which occurred between the accused and the complainant over the preceding months.
This argument was enough to cast doubt in the mind of the Crown, who was not able to prove, beyond reasonable doubt that the accused was aware of the complainant’s lack of consent.
The court found our client to be not guilty. This meant that our client was able to move on with his university degree and life without serving a penalty or having a conviction recorded on his criminal record.
If you have been accused or charged with the offence of indecent assault, then you should contact one of the experienced indecent assault defence lawyers at George Sten & Co now. With over 50 years experience in criminal law, our lawyers are some of the best criminal lawyers in their field. It is important to choose legal representation that will provide you with legal advice, you will understand and who will keep you up to date on the progress of your case. George Sten & Co Criminal Lawyers are passionate about advocating for their clients and will work tirelessly to defend your case. To speak to one of our friendly lawyers, call us on (02) 9261 8640 or email us at [email protected]. If you case is urgent or occurs after regular business hours, call us on our 24 hour phone line: 0412 423 569.