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7.3.21.1 - Charge: Sexual Activity in presence of a child aged 16 or 17 under care, supervision or authority (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 aged 16 or 17. To prove this crime, the prosecution must prove the following 7 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 a child aged 16 or 17 years.

Six - NOC was under NOA’s care, supervision or authority.

Seven – 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 aged 16 or 17

The fifth element relates to the age of the complainant, NOC. The prosecution must prove that s/he was aged 16 or 17 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]

Care, supervision or authority

The sixth element that the prosecution must prove is that, at the time that the [identify relevant activity] 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 and the prosecution relies on a prescribed relationship, add the following shaded section.]

Parliament has defined a number of relationships where a child is deemed to be under the care, supervision and authority of another person. This includes [name relevant relationships from s37 list].

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

If you find beyond reasonable doubt that NOA was NOC’s [identify relationship] at the time of the alleged offence(s), then you will find this element has been proven.

[If care, supervision or authority is in issue and the prosecution does not rely on a standing relationship, add the following 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 engage in a sexual act. 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 of touching 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, [identify relevant activity], and that the relationship existed on the day on which the [identify relevant activity] 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 sexual touching took place.

[If the accused may be unaware of the facts giving rise to a relationship of care, supervision or authority, add the following shaded section]

The law states that NOA must know and be aware of the facts that give rise to a relationship of care, supervision or authority. For example, if a teacher with a large number of students did not recognise the complainant was a member of one of his/her classes, then you could not find this element proved.

[Insert relevant prosecution and defence evidence and arguments].

[If the accused raises the defence in Crimes Act 1958 s49ZA of a reasonable belief as to no care, supervision or authority, add the following shaded section]

This element requires you to look at the facts and decide whether NOC was under NOA’s care, supervision or authority. The prosecution does not need to prove that NOA thought NOC was under his/her care, supervision or authority.

However, the law provides that NOA has a defence to this charge if s/he can show that s/he reasonably believed that NOC was not under his/her care, supervision or authority.

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 not under his/her care, supervision or authority on the balance of probabilities. In other words, s/he must show that it is more likely than not that s/he believed NOC was not under his/her care, supervision or authority and that this belief was reasonable. Unlike the prosecution, s/he does not need to prove this matter beyond reasonable doubt.

[Refer to relevant evidence and arguments].

Contrary to community standards of acceptable conduct

The seventh 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

Reasonable belief as to age

[If the accused relies on the belief in age defence in Crimes Act 1958 s49X, add the following shaded section]

For this offence, the law recognises a defence which may be termed "reasonable belief in age".

This defence is available if the accused had a reasonable belief that at the time of the activity, the complainant was 18 years of age or more.

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 18 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 18 or more and that this belief was reasonable. Unlike the prosecution, s/he does not need to prove this matter beyond reasonable doubt.

Marriage or domestic partnership

[If the accused relies on the domestic partnership defence in Crimes Act 1958 s49Y, add the following shaded section]

For this offence, the law recognises a defence which may be termed "domestic partnership".

There are three parts to the defence.

First, NOA must be no more than 5 years older than NOC. This applies here.

Second, NOA must be NOC’s domestic partner. The law recognises that two people are in a domestic partnership if they are not married but are living as a couple on a genuine domestic basis.

To decide whether two people are domestic partners, you must consider all the circumstances of the relationship, including [add the following factors from Relationships Act 2008 s35(2), as relevant:

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.

[Refer to relevant evidence and arguments].

Third, the domestic partnership must have started before NOC came under NOA’s care, supervision or authority.

[Refer to relevant evidence and arguments].

Remember, while I called this a defence, it is the prosecution’s role to prove guilt. This means that the prosecution must show that this defence of domestic partnership does not apply. In other words, you cannot find NOA guilty unless the prosecution can prove beyond reasonable doubt either that NOA was not NOC’s domestic partner, or that the domestic partnership started after NOC came under NOA’s care, supervision or authority.

Reasonable belief as to marriage or domestic partnership

[If the accused relies on the reasonable belief in domestic partnership defence in Crimes Act 1958 s49Z, add the following shaded section]

For this offence, the law recognises a defence which may be termed "reasonable belief in domestic partnership".[3]

There are three parts to this defence.

First, NOA must be no more than 5 years older than NOC. This applies here.

Second, NOA must have reasonably believed that s/he was in a domestic partnership with NOC.

The law recognises that two people are in a domestic partnership if they are not married but are living as a couple on a genuine domestic basis.[4]

To decide whether two people are domestic partners, you must consider all the circumstances of the relationship, including [add the following factors from Relationships Act 2008 s35(2), as relevant:

(a) the degree of mutual commitment to a shared life;

(b) the duration of the relationship;

(c) the nature and extent of common residence;

(d) whether or not a sexual relationship exists;

(e) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties;

(f) the ownership, use and acquisition of property;

(g) the care and support of children;

(h) the reputation and public aspects of the relationship.

Third, NOA must have reasonably believed that this domestic partnership started before NOC came under his/her care, supervision or authority.

[Refer to relevant evidence and arguments].

Unlike the elements of the offence, the accused must prove these matters. 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 s/he was in a domestic partnership with NOC which started before NOC came under his/her care, supervision or authority on the balance of probabilities. In other words, s/he must show that it is more likely than not that s/he believed that s/he was in a domestic partnership with NOC which started before NOC came under his/her care, supervision or authority and that this belief was reasonable. Unlike the prosecution, s/he does not need to prove this matter beyond reasonable doubt.

Summary

To summarise, before you can find NOA guilty of sexual activity in the presence of a child aged 16 or 17, 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 aged 16 or 17.

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] - Section 49Z also creates a reasonable belief in marriage defence. If the accused relies on this defence the directions must be modified accordingly.

[4] - Section 35 defines a domestic partner also as a person who is in a registered domestic relationship with the person. If the accused relies on this limb of the definition the directions must be modified accordingly.

See Also

7.3.21 - Sexual Activity in the presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)

7.3.21.2 – Checklist: Sexual Activity in presence of a child aged 16 or 17 under care, supervision or authority (From 1/7/17)