The Law on Indecent Assault

A charge of indecent assault can cover a variety of different types of behaviours. The charge is generally heard in the Magistrates Court. However, depending on the seriousness of the allegations, the charge can be determined in the District Court before a judge and a jury. The maximum penalty for the offence of indecent assault if dealt with in the District Court is five years imprisonment. If the matter is determined in the Magistrates Court the maximum penalty is two years imprisonment.

What Does the Prosecution Have to Prove?

To be found guilty of indecent assault, the prosecution must prove beyond reasonable doubt the following:

• That an assault was committed. Under the Criminal Code in WA you are guilty of assault if you touch, move or apply force of any kind to another person without the consent of that person.
• The assault must have been carried out in “indecent” circumstances. The term “indecent” is determined through the standards of a reasonable person. The word “indecent” has no definite legal meaning, and the term must be taken in its commonly understood meaning. Essentially, “indecent” is defined to be anything that is unbecoming or offensive to common propriety.  Whether an indecent assault has occurred can depend on a range of factors. It can depend on the act itself, the circumstances of the conduct, or the relationship between the parties involved. But, there must be some sort of sexual element to the act. Whether or not an act is indecent may depend on why it was done. That is, the motivation of the person doing the act.
• The act must have been done without the consent of the other person. That means that the other person didn’t agree to the act or give conscious and voluntary permission for the act to be done. Consent can be determined by a range of factors such as words spoken, actions, or the relationship between the parties.
• The accused must have known that there was no consent given by the other person. If the accused honestly, reasonably and mistakenly believed that there was consent given by the other person then an indecent assault cannot be said to have been committed. A defence to the charge of indecent assault is often based on the accused’s mistaken belief that the complainant consented to the behaviour.

Case Study: ZOBAIR -v- MILLER [2017] WASC 241

The appellant was convicted after pleading guilty to the offence of indecent assault under s 323 of the Criminal Code. A fine was imposed and a spent conviction order was made.

The appellant had represented himself and had pleaded guilty in the Magistrates Court. He argued, at his appeal, that the guilty plea that he had entered was induced by advice that the prosecutor had given him.

The appellant argued at his appeal that his conduct was not, as a matter of law, “indecent”.

The facts upon which the appellant was convicted were stated by the prosecutor as follows:

It was about midnight that the accused was having a conversation with a victim and her friends outside the accommodation unit. He was there speaking with the victim and her friends until about 1.30 in the morning. He then offered to come back and wake her at 4 am when she had to get ready for her shift.

At 4 o'clock that morning, he has knocked on the victim's door. She was already awake. She was preparing to get ready for work. She was in her pyjamas at the time. The victim thanked the accused and it was at this point that he walked into the unit, sat down on a chair. The accused has then stood up and said that he wanted to ask the victim one question. The victim said, 'Just ask the question and leave.' The accused took hold of both victim's hands and held them and he told her that he had feelings for her.

She felt uncomfortable with his behaviour. She pulled her hands away and she asked him to leave. He refused to leave and asked her for an answer to his question. She then told the accused that she had a partner and she was not interested in any relationship. The accused then asked for a cuddle and, before the victim could reply, he has placed both hands around her and he has given her a hug. He then went to kiss her and kissed her on the neck once. She pushed him away with both hands, telling the accused to leave and that her work colleague would be coming to collect her soon. He left after that and then the victim made a complaint to her supervisor about the matter.

... in a video record of an interview with the Kensington detectives and, in explanation, he said, 'I may have gone too far on that date.'

The appellant argued that by telling the complainant he had feelings for her and, after she told him she had a partner and was not interested, that hugging her and kissing her on the neck could not as a matter of law, establish indecency.

The DPP argued that, in the circumstances, it would be open to a court to conclude that the act of kissing the victim on the neck was an assault of a sexual character in the sense that it was unbecoming or offensive to common propriety.

The court concluded that the acts of the appellant in hugging and kissing the complainant could be said to constitute an assault, as it appeared there was no consent to the hugging and kissing.

However, the issue for the court was whether the conduct complained of was capable of constituting an “indecent assault”. The court said that if the act of kissing the complainant on the neck was not done for sexual gratification, it could not as a matter of law, be indecent.

At paragraph 32 the court said the following:

To determine whether the conduct of the appellant in all the circumstances constituted an unlawful indecent assault, regard should be had to the evidence of what was said by the appellant to the complainant and the complainant herself, together with any explanation of how the kiss on the neck occurred. In particular, it is not clear on the facts read to the Magistrates Court whether the complainant moved her body when the appellant went to kiss her. When regard is had to all of these matters, the conduct of the appellant may constitute indecent conduct or it may not.

For the above reasons the court allowed the appeal and the appellant’s conviction was set aside.

We Can Help  

Andrew Williams has over 19 years of experience defending people who are charged with indecent assault. There have been numerous occasions where the client has strenuously denied the allegations and the primary issues involved factual disputes as to what had actually occurred. In these circumstances, Andrew Williams is apt at identifying the inconsistencies and difficulties in the prosecution case. Often this has led to the client’s acquittal and costs being awarded to the defendant.

There are many cases where a conviction for a charge of indecent assault will inevitably result in the defendant losing their career and their livelihood.

So, as with any sexual offence if you are charged with indecent assault talk to a Criminal Lawyer as soon as you can. Indecent assault is a serious charge. The penalties are serious and there is often complexity relating to the factual issues and law surrounding the decision to plead guilty or not guilty.

If you are facing an indecent assault charge, contact the Law Office of Andrew Williams for advice and representation on 08 9278 2575 or enquire online today. 

For detailed information on how Andrew Williams can assist with your matter, read our article: If You Are Charged With Assault You Need A Criminal Lawyer.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.