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7.3.16.1 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent not in issue

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When to use this charge

This charge can be used for offences of indecent act with a child under 16 alleged to have been committed on or after 22/10/2014 where consent is not in issue.

 

I must now direct you about the crime of [committing/being a party to the commission of] an indecent act with a child under the age of 16. To prove this crime, the prosecution must prove the following 5 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 done [with/in the presence of] the complainant.

Five - the complainant was under the age of 16 when the 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 text: 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.]

Child under the Age of 16

The fifth element relates to the complainant. The prosecution must prove that s/he was under the age of 16 at the time that the alleged indecent act took place.

In this case, there is no dispute that NOC was under 16 at the time the alleged indecent act took place. The main issue in this case is [insert relevant issue]. [1]

Consent

To protect children under the age of 16, 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 child under 16, the prosecution must prove to you beyond reasonable doubt:

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 child under 16.

 

 

Note

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

Last updated: 27 April 2016

See Also

7.3.16 - Indecent Act with a Child under 16 (1/1/92 – 30/6/17)

7.3.16.2 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent Not in Issue

7.3.16.3 - Charge: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.4 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent not in issue

7.3.16.5 - Charge: Indecent Act with a Child Under 16 (1/7/15 – 30/6/17) - Consent in issue

7.3.16.6 - Charge: Indecent Act with a Child Under 16 (22/10/14 – 30/6/15) - Consent in issue

7.3.16.7 - Checklist: Indecent Act with a Child Under 16 (22/10/14 – 30/6/17) - Consent in Issue

7.3.16.8 - Charge: Indecent Act with a child under 16 (1/12/06 – 21/10/14) - Consent in issue

7.3.16.9 - Charge: Indecent Act with a child under 16 (1/1/92 – 1/12/06) - Consent in issue

7.3.16.10 - Checklist: Indecent Act with a child under 16 (1/1/92 – 21/10/14) - Consent in Issue