Warning: This topic only relates to offences alleged to have been committed between 5 August 1991 and 1 December 2006.
The offence of indecent act with a child aged 16 contrary to s49 of the Crimes Act 1958 came into force on 5 August 1991. This offence applies to any acts committed between that date and 1 December 2006 (Crimes Act 1958 s585A(2)).
If an offence is alleged to have been committed between two dates, one before and one on or after 5 August 1991, the offence is alleged to have been committed before 5 August 1991 (Crimes Act 1958 s585A(4)).
A new s49 was substituted by the Crimes (Sexual Offences) Act 2006. It creates the offence of indecent act with a child aged 16 or 17 and applies to all offences committed on or after 1 December 2006 (See Indecent Act with a 16 or 17 year old child).
Elements and defences
The offence of committing an indecent act with a 16 year old child is the same as that of committing an indecent act with a child under the age of 16 (s47), with four exceptions:
The child must be 16 years of age;
The child must be under the care, supervision or authority of the accused;
Consent is a defence if the accused believed on reasonable grounds that the child was aged 17 or older; and
An age gap of 2 years or less does not permit a defence of consent.
There have been no reported cases specifically examining the operation of s49. However the elements and defence of the s49 offence mirror components of the offences contrary to s47 and s48 of the Crimes Act 1958.
Indecent Act elements
Guidance in the interpretation of the terms "indecent act", "wilfully" and "with or in the presence of" in s49 can thus be taken from the case law in relation to s47. See Indecent Act with a Child under 16 (1/1/92 - 30/6/17) for a summary of the relevant law in this area.
"Care, supervision or authority"
Similarly, the consideration of the terms "care, supervision or authority" in the s47A and s48 cases will offer guidance for their interpretation in the s49 context. However, care should be taken in considering cases decided on the basis of the new s48(4) and s49(4) inserted on 1 December 2006. See Sexual Penetration of a Child under 16 (1/1/92 - 30/6/17).
Consent will not be a defence to a charge of committing an indecent act with a child aged 16 unless, at the time of the alleged offence, the accused believed on reasonable grounds that:
The complainant was aged 17 or older; or
S/he was married to the complainant (Crimes Act 1958 s49(2)).
Where consent is in issue, the onus is on the prosecution to disprove the defence beyond reasonable doubt (R v Mark & Elmazovski  VSCA 251; R v Deblasis (2007) 19 VR 128. Cf R v Douglas  VR 721).
Thus, if consent is in issue, the prosecution must prove either:
That at the time of the alleged offence, the accused did not believe, on reasonable grounds, that the child was aged 17 or older, nor that s/he was married to the child; or
That the complainant did not consent.
Accused’s awareness of the absence of consent
If consent is in issue, it is likely, but not absolutely certain, that the prosecution will also need to prove mens rea in respect of consent. The charge book charge is drafted on the basis that proof of mens rea is a requirement, and it is the same mens rea as was traditionally applied to the consent element of rape and indecent assault. If this is wrong, the charge will need to be adapted. See Sexual Penetration of a Child under 16 for a more detailed discussion of this issue.
Directions about consent and awareness of non-consent
The definition and mandatory directions in respect of consent in s36 and s37, and s37AAA of the Crimes Act 1958 apply to this offence. If mens rea in respect of consent is an implied requirement for this offence, then the directions in s37AA may also need to be given. See Consent and Awareness of Non-Consent for more information in relation to these matters.