Previous Topic

Next Topic

Book Contents

Book Index

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

Click here to obtain a Word version of this document for adaptation

 

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 between 1/07/2015 and 30/06/2017 where consent is 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

 

Note

  • This charge addresses consent coupled with a belief on reasonable grounds that the child was aged 16 or older (s47(2)(a)). If the issue is s47(2)(b) (accused not more than 2 years older than the complainant) or s47(2)(c) (accused believed on reasonable grounds that s/he was married to the complainant) the charge will need to be adapted accordingly. See Indecent Act with a Child under 16 (1/1/92 – 30/6/17) for guidance.

    Warning

  • It is not clear whether Crimes Act 1958 s322T affects the relevance of intoxication to this defence. Judges should seek submissions from the parties on this issue where relevant.

     

    Belief that complainant was aged 16 or more

Even if you find that the prosecution has proven all five elements of this offence, NOA will not necessarily be guilty of this offence. This is because, in certain circumstances, consent will be a defence.

The law states that consent is available as a defence if the accused believed on reasonable grounds that the complainant was at least 16 years old at the time of the alleged indecent act.

Unlike the elements of the offence – which the prosecution must prove beyond reasonable doubt – this belief is a matter which the accused must prove on the balance of probabilities. That is, the accused must prove that it is more likely than not that s/he believed on reasonable grounds that NOC was aged 16 or over for consent to be available as a defence.

So, by contrast to proof of the elements of the offence(s), where the prosecution must satisfy you beyond reasonable doubt of them, for the defence of reasonable belief to be established to your satisfaction, it is for the accused, not the prosecution to prove the existence of a reasonable belief in age.

And the standard to which the defence must do this is a lesser standard than proof beyond reasonable doubt, it is proof on the balance of probabilities. That is, the accused must satisfy you that it is more likely than not that he believed, on reasonable grounds, that the complainant was 16 or over.

In this case [insert relevant evidence and competing arguments].

[If the prosecution has conceded either consent or belief in consent, add the shaded section]

As it is not in issue in this case that the indecent act was consensual, if the accused satisfied you, on the balance of probabilities that s/he believed, on reasonable grounds, that at the time of the alleged indecent act, that the complainant was 16 or over, then your verdict in respect of that charge will be not guilty. If however, the accused does not satisfy you on the balance of probabilities that at the time he believed the complainant was 16 or over, and that his belief was based on reasonable grounds, then despite the fact that the act was consensual, this defence will fail.

[If either consent or belief in consent is in issue, add the shaded section]

Warning: It is an unresolved question whether the prosecution must prove that the accused was aware that the complainant was not consenting or might not be consenting. This Charge Book requires proof of awareness of non-consent as a matter of prudence. See Consent and Awareness of Non-Consent for more information.

If, however, you find that the NOA has proven that s/he believed on reasonable grounds that NOC was at least 16 years old at the time of the alleged indecent act, then you will need to determine whether the prosecution have proved two additional elements: first, that NOC did not consent to the alleged indecent act and second, that NOA was aware that NOC was not or might not be consenting.

Definition of consent

Dealing with the first of these additional elements, consent is a state of mind. The law says that consent means free agreement. So NOC will not have consented to the indecent act if s/he did not freely agree to take part in that act.

It is for the prosecution to prove, beyond reasonable doubt, that the complainant did not freely agree to the indecent act. So if consent is relevant to your determination, and the prosecution cannot prove beyond reasonable doubt that NOC did not freely agree to the alleged indecent act, then you must find NOA not guilty of this offence.

[Where a party requests a direction about the meaning of consent, add one or more of the following shaded paragraphs]

The law says that a person can consent to an act only if they are capable of consenting, and free to choose whether or not to engage in or to allow the act.

The law says that where a person has given their consent to an act, they may withdraw that consent before the act happens or at any time while it is happening.

[Where a party requests a direction about the circumstances in which a person is taken not to have consented, add the following darker shaded section]

In some circumstances the law says that the complainant did not freely agree, or consent, to an act. These circumstances include [insert relevant section(s) from the following and apply to the evidence:

  1. the person submits because of force or the fear of force to that person or someone else;
  2. the person submits because of the fear of harm of any type to that person or someone else;
  3. the person submits because s/he is unlawfully detained;
  4. the person is asleep or unconscious;
  5. the person is so affected by alcohol or another drug as to be incapable of consenting to the act;
  6. the person is incapable of understanding the sexual nature of the act;
  7. the person is mistaken about the sexual nature of the act;
  8. the person is mistaken about the identity of any other person involved in the act;
  9. the person mistakenly believes that the act is for medical or hygienic purposes;
  10. if the act involves an animal, the person mistakenly believes that the act is for veterinary, agricultural or scientific research purposes;
  11. the person does not say or do anything to indicate consent to the act;
  12. having initially given consent to the act, the person later withdraws consent to the act taking place or continuing].

If you are satisfied beyond reasonable doubt that one of these circumstances existed in relation to NOC, you must find that s/he was not consenting.

However, you do not need to consider this question only by reference to these particular circumstances. If you are satisfied beyond reasonable doubt on any basis arising from the evidence that the complainant was not consenting, then this element will be proven.

[If there is evidence that the complainant did not say or do anything to indicate agreement, add the following darker shaded section]

The law also says that the fact that a person did not say or do anything to indicate free agreement to an indecent act at the time at which the act took place is enough to show that the act took place without that person’s free agreement.

This means that if you accept that NOC did not say or do anything to indicate free agreement to the alleged indecent act at the time of that act, you may find on that basis that s/he did not consent to that act.

[Where a party requests a direction about the absence of physical resistance or protest, lack of physical injury or past consensual sexual conduct, add the following shaded section as relevant to the facts in issue.]

The law also says the complainant is not to be regarded as having freely agreed just because:

However, these are relevant factors for you to consider. You must consider the action or lack of action of NOC, together with all the surrounding circumstances, in order to decide whether the prosecution has proven beyond reasonable doubt that NOC did not consent.

In determining whether NOC did not freely agree to the alleged indecent act, you must consider all of the relevant evidence, including what s/he is alleged to have said and done at the time of that act, or not said and done at the time of the alleged act, as well as the evidence s/he gave in court about [his/her] state of mind at that time.

In this case, the prosecution alleged that NOC did not consent. [Insert relevant evidence and competing arguments].

If the prosecution fails to prove to you beyond reasonable doubt this first additional element that NOC did not consent, then you must find NOA not guilty.

Awareness of Lack of Consent

Turning now to the second additional element, if consent is available as a defence, the prosecution must also prove beyond reasonable doubt that at the time of the alleged indecent act the accused was aware either:

If the prosecution fails to prove to you beyond reasonable doubt that NOA had one of these state(s) of mind about the complainant’s consent, then you must find NOA not guilty of this offence.

[Warning! If this element is in issue, the judge should invite submissions on how to direct the jury about this issue. With the repeal of Crimes Act 1958 s37AA, it may not be prudent to use Charge: Belief in consent (Pre-1/07/2015).]

Onus and standard of proof

Remember, you may not need to consider the issue of consent. The process that you must follow is this. First, you must decide if the prosecution has proven the five elements of the offence beyond reasonable doubt. That is, the prosecution must prove that NOA [wilfully committed / was wilfully a party to] an indecent act [with / in the presence of] the complainant, that NOC was under the age of 16 at the relevant time.

Next, if you find that the prosecution has proven each of these elements beyond reasonable doubt, and the accused has raised the issue as to belief in age, you must then decide if NOA has proven, on the balance of probabilities, that s/he believed that NOC was at least 16 years old, and that that belief was based on reasonable grounds. If the accused cannot prove both of these matters, then NOA will be guilty of this offence, as long as the prosecution have proven each of the first five elements of the offence beyond reasonable doubt.

If, however, you find that the accused has proven these matters as to belief in age on the balance of probabilities, you must then decide whether the prosecution has proven, beyond reasonable doubt, the two additional elements that NOC did not consent, and that NOA was aware that s/he was not or might not be consenting. If the prosecution cannot prove both of these things, then you must find NOA not guilty of this offence. It is only if you are satisfied that they have been proven beyond reasonable doubt, together with each of the first five elements of the offence, that you can convict NOA of indecent act with a child under 16.

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.

If you decide that each of these elements have been proven beyond reasonable doubt, you must decide if the accused has proven, on the balance of probabilities:

If the accused has not proven both of these matters on the balance of probabilities, and you find that all of the elements have been proven by the prosecution beyond reasonable doubt, then NOA will be guilty of the offence. However, if you find that both of these matters have been proven by the accused on the balance of probabilities, you must then decide if the prosecution has proven, beyond reasonable doubt, that NOC did not consent to the indecent act and that NOA was aware that NOC was not or might not be consenting.

[If the prosecution conceded either consent or belief in consent, add the shaded section]

Since the prosecution does not dispute the accused’s claim that [insert basis of concession about consent, e.g. “NOC was consenting” or “s/he believed that NOC was consenting”], you must, if you reach this point, find NOA not guilty of this offence.

[If either consent or belief in consent is in issue, add the shaded section]

If the prosecution cannot prove these matters, 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: 30 November 2017

See Also

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

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

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

7.3.16.6 - 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