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7.3.19.1 - Charge: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent not in issue

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When to use this charge

This charge can be used for trials commenced on or after 1/1/2008 involving offences alleged to have been committed between 5/8/1991 and 30/11/06 where consent is not in issue. If consent is in issue, use Charge: Indecent act with a 16 year old child (Consent in issue) instead.

For offences alleged to have been committed after 1 December 2006, see:

 

I must now direct you about the crime of [committing/being a party to the commission of] an indecent act with a 16 year old child.

The law says that the age of consent for sexual acts is normally 16. However, for persons aged 16 or 17, the law has created this specific offence to protect such young people from exploitation by persons in positions of care, supervision or authority.

To prove this crime, the prosecution must prove the following 7 elements beyond reasonable doubt:

One - the accused [committed the alleged act/was a party to the commission of the alleged act].

Two - the accused [wilfully committed the alleged indecent act/was wilfully a party to the alleged indecent act].

Three - the act occurred in indecent circumstances.

Four - the act was intentionally done [with/in the presence of] the complainant.

Five - at the time the alleged act took place, the complainant was under the care, supervision or authority of the accused.

Six - the complainant was 16 years old when the act took place.

Seven - the accused was not married to the complainant at the time the alleged act took place.

I will now explain each of these elements in more detail.

Actions of the accused

The first element relates to what the accused did. [S/he] must have [committed the act alleged by the prosecution/been a party in any way to the act alleged by the prosecution].

In this case the prosecution alleged that NOA [insert evidence about the relevant act]. The defence responded [insert relevant evidence and/or arguments].

Wilful

The second element relates to the accused person’s state of mind. The prosecution must prove that the accused [wilfully committed the alleged indecent act/was wilfully a party to the alleged indecent act]. That is, you must be satisfied that the accused’s participation in the act was deliberate not accidental.

Indecent circumstances

The third element that the prosecution must prove is that the alleged act occurred in indecent circumstances.

Indecent is an ordinary, everyday word, and it is for you to determine whether the circumstances were indecent.

However, the law says that indecent circumstances must involve a sexual connotation. This may arise from the area of the complainant’s body NOA touched, what NOA used to touch NOC or from the circumstances of the act. Beyond the requirement of a sexual connotation, the question of whether or not the circumstances were indecent is for you to decide.

In this case, the prosecution alleged that NOA’s act occurred in indecent circumstances because [insert evidence]. [If relevant add: The defence responded [insert evidence]].

For this element to be met, you must be satisfied, beyond reasonable doubt, that NOA’s act occurred in indecent circumstances.

With/In the presence of the complainant

The fourth element that the prosecution must prove is that the alleged act was intentionally done [with/in the presence of] the complainant.

In this case the prosecution submitted that [insert evidence about the way in which the act was committed with or in the presence of the complainant]. The defence responded [insert relevant evidence and/or arguments].

If it is alleged that the act was committed in the presence of the complainant, add the following shaded section

For this element to be satisfied, you do not need to find that there was any physical contact between NOA and NOC. This element will be met if the prosecution can prove, beyond reasonable doubt, that NOC was present at the place where the alleged act was committed, and NOA was aware of that fact.

Care, Supervision and Authority

The fifth element that the prosecution must prove is that, at the time that the alleged indecent act took place, the complainant was under the care, supervision or authority of the accused.

If care, supervision or authority is not in issue, add the following shaded section

In this case it was conceded by the defence that NOA was NOC’s [describe relationship] and that the complainant was thus under the care, supervision or authority of the accused [at the relevant time]. While it is for you to determine whether this was the case, you should have no difficulty finding that this element has been proven.

If care, supervision or authority is in issue add the shaded section

The words “care, supervision or authority” all describe different types of relationships where the accused is in a position to exploit or take advantage of that relationship to influence the child to take part in act in indecent circumstances.[1] You should take this into account when deciding whether the prosecution has proved that the complainant was under the accused’s care, supervision or authority.

The relationship of care, supervision or authority does not have to be a formal one. There does not, for example, have to have been a formal agreement that the accused would take care of the complainant. An informal relationship of care, supervision or authority is sufficient.

[If relevant, add: You do not need to find that the alleged act was actually connected with, or influenced by, the relationship of care, supervision or authority or that NOA was actually exploiting his/her position of advantage. It is sufficient if you are satisfied that an established relationship of care, supervision or authority existed between NOA and NOC that could have been connected with, or influenced the child to engage in, the alleged act, and that the relationship existed on the day on which the act took place.]

In this case the prosecution alleged that NOC was under NOA’s [care/supervision/authority]. [Insert prosecution evidence]. The defence responded [insert relevant evidence and/or arguments].

It is for you to determine, on the basis of all the evidence, whether the prosecution has proven, beyond reasonable doubt, that NOC was under NOA’s care, supervision or authority at the time that the alleged act took place.

16 Year old child

The sixth element relates to the complainant. The prosecution must prove that s/he was 16 years old at the time that the alleged indecent act took place.

In this case, there is no dispute that NOC was 16 at the time the alleged indecent act took place. The main issue in this case is [insert relevant issue]. [2]

Accused not married to the complainant

The seventh element that the prosecution must prove is that the accused was not married to the complainant at the time the alleged indecent act took place.

In this case, the defence has not disputed the prosecution’s claim that s/he was not married to NOC at the time that the alleged act took place. The main issue in this case is [insert relevant issue]. [3]

Consent is not a defence

[This charge is designed for use in cases where consent is not in issue. Use one of the charges listed at the beginning of this document if consent or a precondition for consideration of consent (belief in age or marriage to complainant) is contested.]

To protect children, Parliament has created a number of offences where consent is not relevant. This is one of those offences, so you do not need to consider the issue of whether or not NOC agreed to take part in the alleged indecent act.

Summary

To summarise, before you can find NOA guilty of [committing/being a party to the commission of] an indecent act with a 16 year old child, the prosecution must prove to you beyond reasonable doubt:

One - that NOA [committed [insert relevant act]/was a party to the commission of [insert relevant act]]; and

Two - that NOA [wilfully committed/was wilfully a party to] the alleged indecent act; and

Three - that this act occurred in indecent circumstances; and

Four - that this act was done [with/in the presence of] NOC; and

Five - That NOC was under the care, supervision or authority of NOA at the time that this act took place; and

Six - that NOC was 16 years old when this act took place; and

Seven - that NOA was not married to NOC at the time that this act took place.

 

If you find that any of these elements have not been proved beyond reasonable doubt, then you must find NOA not guilty of [committing/being a party to the commission of] an indecent act with a 16 year old child.

 

Notes

[1] This charge is designed for cases where the accused committed an indecent act with the complainant. In cases the act is committed in the presence of, the charge will need to be modified.

[2] If the complainant’s age is disputed, this section will need to be modified accordingly.

[3] If it is alleged that the accused and complainant were married, this section will need to be modified accordingly.

  Last updated: 27 April 2016

See Also

7.3.19 - Indecent act with a 16 year old child (5/8/91 – 30/11/06)

7.3.19.2 - Checklist: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent not in issue

7.3.19.3 - Charge: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent in issue

7.3.19.4 - Checklist: Indecent act with a 16 year old child (5/8/91 – 30/11/06) - Consent in issue