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7.3.20.1 - Charge: Sexual Activity in Presence of Child under 16 (From 1/7/17)

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I must now direct you about the crime of sexual activity in the presence of a child under 16. To prove this crime, the prosecution must prove the following 6 elements beyond reasonable doubt:

One - The accused intentionally engaged in an activity.

Two – The activity was sexual.

Three – NOC was present during that activity.

Four – NOA knew that NOC was or probably was present during that activity.

Five – NOC was under the age of 16 years.

Six – Engaging in the activity in the presence of NOC was contrary to community standards of acceptable conduct.

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

Engaging in activity

The first element relates to what the accused is alleged to have done. The prosecution must prove beyond reasonable doubt that NOA [identify relevant activity].

[If the evidence or arguments have placed the intentional or voluntary nature of the acts in issue, add the following shaded section.][1]

For this element to be met, the act of [describe relevant activity] must have been done intentionally.

This means that you must find NOA not guilty unless the prosecution can satisfy you that [describe the finding that proves intention in the circumstance of the case, e.g. "NOA touched the outside of NO3P’s vagina deliberately, and not accidentally" or "NOA was conscious and not asleep and dreaming at the time of the touching"].

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

Sexual activity

The second element that the prosecution must prove is that [identify relevant activity] is a sexual activity.

The law says that an activity can be sexual because of the area of the body involved, including the genital or anal region, the buttocks or, in the case of a woman, the breasts.

Or the activity can be sexual because the person engaging in the activity seeks or gets sexual arousal or gratification from the activity.

Finally, any other aspect of the activity, including the circumstances in which it happened, can also make the activity sexual.

The question of whether or not the activity was sexual is for you to decide.

In this case, the prosecution alleged that the activity was sexual because [insert evidence and arguments]. [If relevant add: The defence responded [insert evidence and arguments]].

For this element to be met, you must be satisfied, beyond reasonable doubt, that [identify relevant activity] is a sexual activity.

Presence of complainant

The third element that the prosecution must prove is that NOC was present when NOA [identify relevant activity].

The law states that a person can be present during an activity by either being present in person, or by means of an electronic communication that is received in real time. In other words, a person can be present by phone or by web cam, for example.

In this case, the prosecution argues that NOC was present when NOA [identify relevant activity] because [identify evidence and arguments]. [If relevant, add: The defence responded [insert evidence and arguments].

Knowledge of Accused

The fourth element requires that you reach a conclusion about NOA’s state of mind. The prosecution must prove that NOA knew that NOC was present, or knew that NOC was probably present, when s/he [identify relevant activity].

[Identify relevant prosecution and defence evidence and arguments].

Child under the age of 16

The fifth element relates to the age of the complainant, NOC. The prosecution must prove that s/he was under the age of 16 when the activity occurred.

In this case, there is no dispute that NOC was under 16 at that time. The main issue in this case is [insert relevant issue].[2]

Contrary to community standards of acceptable conduct

The sixth element that the prosecution must prove is that [identify relevant activity] in NOC’s presence was contrary to community standards of acceptable conduct.

The law says that whether engaging in an activity in the presence of NOC is contrary to community standards depends on the circumstances, and that this includes the purpose of the activity and whether NOA seeks or gets sexual arousal or sexual gratification from engaging in the activity or from NOC’s presence.

The law also says that whether NOC consented to NOA [identify relevant activity] or whether NOC consented to being present when NOA [identify relevant activity] are not relevant to whether [identify relevant activity] in NOC’s presence was contrary to community standards. Similarly, whether NOA believed that NOC consented to NOA [identify relevant activity] or whether NOA believed that NOC consented to being present when NOA [identify relevant activity] are not relevant to this element.

[Refer to relevant prosecution and defence evidence and arguments].

Defences

Similarity in Age

[If the accused relies on the similarity in age defence in Crimes Act 1958 s49U, add the following shaded section]

For this offence, the law recognises a defence which may be termed "similarity in age". There are two parts to this defence.

First, the accused must be no more than 2 years older than the complainant. In this case, that requirement is met.[3]

Second, the complainant must have been 12 years old or more at the time of the alleged conduct. It is this part of the defence which is in dispute.

As I told you at the start of the trial, the prosecution must prove the accused’s guilt. This means the prosecution must prove that at the time of the alleged conduct, NOC was not aged 12 years or older. In other words, the prosecution must prove that at the time of the activity, NOC was aged 11 years or younger.

[Refer to relevant prosecution and defence evidence and arguments].

Reasonable belief in Age

[If the accused relies on the belief in age defence in Crimes Act 1958 s49W, add the following shaded section]

The law states that the accused does not commit this offence if, at the time s/he [describe relevant activity], the accused reasonably believed that the accused was aged 16 years or more. There are two parts to this defence.

First, at the time of the activity, NOC was aged 12 or more. There is no issue in this case that NOC was aged 12 or more at the time of the conduct.[4]

Second, NOA reasonably believed that NOC was aged 16 or more. It is a matter for you to decide whether NOA held this belief, and whether it was reasonable. As part of deciding this issue, you should consider what steps NOA took to find out NOC’s age.

Unlike the elements of the offence, this is a matter which the accused must prove. It is an exception to the general rule that the prosecution must prove all matters. However, the accused only need to prove that s/he reasonably believed that NOC was aged 16 or more on the balance of probabilities. In other words, s/he must show that it is more likely than not that s/he believed that NOC was aged 16 or more and that this belief was reasonable. Unlike the prosecution, s/he does not need to prove this matter beyond reasonable doubt.

[Identify relevant evidence and arguments]

Summary

To summarise, before you can find NOA guilty of sexual activity in the presence of a child under the age of 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 sexual activity in the presence of a child under the age of 16.

Last updated: 1 July 2017

Notes

[1] - Because of how the offence is defined, the issue of intention is likely inseparable from the question of voluntariness. Where the issue is raised, the judge should direct the jury on the specific matters the jury must consider to find that the accused’s conduct was voluntary and intentional (e.g. disproof of accident or proof that the accused was conscious).

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

[3] - If the prosecution contests this matter, then the charge will need to be modified accordingly.

[4] - If the age of the child is in dispute, then this direction must be modified. The prosecution bears the onus of rebutting this threshold requirement, once the accused has satisfied the evidential burden.

See Also

7.3.20 - Sexual Activity in the presence of a child under 16 (From 1/7/17)

7.3.20.2 – Checklist: Sexual Activity in Presence of Child under 16 (From 1/7/17)