INDECENT ASSAULT04-Aug-2010 Law Article by: Geoff Harrison | Sydney Criminal Barrister | Sydney Criminal Lawyer | Published 4/8/2010
The offence of indecent assault is a Table 2 offence ie. summary offence unless the prosecution elect to prosecute upon indictment. The maximum penalty for indecent assault is 5 years imprisonment (see below for the offence provision). The law as it relates to indecent assault is as follows: In Fitzgerald v Kennard (1995) 38 NSWLR 184 the court applied the decision of R v Sorlie (1925) 25 SR (NSW) 532 where his Honour, Street CJ stated at 535:
I…think that any assault, which of itself amounts to the commission of an act of indecency upon the female assaulted or which is of such a character as to involve an act of indecency upon her, comes within the terms of the section, and is a punishable offence (emphasis is mine).
It has also been put, that where the assault in itself does not unequivocally suggest a sexual connotation then it must be accompanied by an intention on the part of the defendant to obtain sexual gratification. In Douglas James Harkin v DPP (1989) 38 A Crim R 296 Lee J stated:
It is my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation, That sexual connotation may derive directly from the areas of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of the both male and female and the breast of the female are the relevant areas. Thus, if the appellant intentionally touched the breast of the girl…it is my view that if there is nothing more…. that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case…that should or should not be regarded as conduct offending against the standards of decency in our community. The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification (emphasis is mine).
CRIMES ACT 1900 - SECT 61L
61L Indecent assault
Any person who assaults another person and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 5 years.