Criminal Trial Courts Bench Book — Sexual assault offences

The accused is charged with sexual touching. The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

[Where appropriate: A touching done for genuine medical or hygienic purposes is not a sexual touching. As that is what the accused says was the reason for the touching in this case, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

To repeat what I have said, the third element the Crown must prove concerns the complainant’s state of mind. The Crown must prove the complainant did not consent to the sexual touching at the time it occurred.

[Add, if appropriate: The law is that any intoxication of the accused that was self-induced must be ignored. If you consider that they were intoxicated by voluntarily drinking alcohol [or taking drugs], you must ignore that and decide this element by considering what their state of mind would have been if they had not been intoxicated.]

The law says the Crown will have proved the accused knew the complainant did not consent to sexual touching if: [refer only to those of the following matters that arise from the evidence — see further [5-1120] Notes below]

To repeat what I said at the beginning of these directions, you can only find the accused guilty if the Crown proves each of the four elements beyond reasonable doubt. If the Crown fails to prove any one of them you must find the accused not guilty.

The accused is charged with sexual touching. The Crown case is that [briefly outline the incident/s to which the charge relates].

To prove the accused is guilty, the Crown must prove beyond reasonable doubt each of the following four elements which make up the offence.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of these elements you must find the accused not guilty.

1. The accused intentionally touched the complainant

The slightest contact with the complainant is enough to amount to touching.

The touching does not have to be a hostile or aggressive act or one that caused the complainant fear or pain, but it must be an intentional touching; not an accidental touching.

2. The touching was sexual

Sexual touching means touching another person with any part of the body [add where relevant: “or with anything else, or through anything, including through anything worn by the person doing the touching or by the person being touched”], in circumstances where a reasonable person would consider the touching to be sexual.

In determining whether a reasonable person would consider the touching was sexual, you should consider everything that you regard as relevant, but there are some particular matters you are required to take into account. They are:

The Crown is not required to prove any particular one of these matters. They are matters you are required to take into account, along with anything else you consider to be relevant when you are deciding whether the Crown has proved that the touching was “sexual”.

[Where appropriate: A touching done for genuine medical or hygienic purposes is not a sexual touching. As that is what the accused says was the reason for the touching in this case, it is a matter for the Crown to prove beyond reasonable doubt that it was not done for such a purpose.]

3. Without the complainant’s consent

This element concerns the complainant’s state of mind. The Crown must prove beyond reasonable doubt that the complainant did not consent to the sexual touching.

Everyone has a right to choose whether or not to participate in sexual touching. A person cannot presume that another person is consenting. Consensual sexual touching involves ongoing and mutual communication and decision-making and free and voluntary agreement between the persons participating in the sexual touching. [s 61HF]

[If required (s 292A Criminal Procedure Act 1986 — circumstances in which non-consensual activity occurs): However, you should bear in mind that non-consensual sexual activity can occur in many different circumstances and between different kinds of people including people who know one another, or are married to one another, or who are in an established relationship with one another.] [See [5-200]]

A person consents to sexual touching if, at the time of the touching, they freely and voluntarily agree to the touching: [s 61HI(1)]. Consent can be given verbally or it can be expressed by actions. However, a person who does not offer physical or verbal resistance to a sexual activity is not, by reason only of that fact, to be taken to consent to the sexual activity: [s 61HI(4)].

[If applicable — circumstances in which there is no consent — s 61HJ:

The law provides that circumstances in which a person does not consent to sexual touching include if you are satisfied beyond reasonable doubt that the person [refer only to those that apply]:

Summarise the evidence and relevant arguments of the parties.]

[If applicable — persuasion: Consent that is obtained after persuasion is still consent provided that ultimately it is given freely and voluntarily.]

[If applicable — withdrawal of consent: A person may withdraw consent to sexual touching at any time: [s 61HI(2)]. If the touching occurs, or continues, after consent has been withdrawn then it occurs without consent: [s 61HI(3)]. If the Crown has proved beyond reasonable doubt that the complainant withdrew consent and that the touching occurred or continued after that point in time, then you would find the occurrence or continuation of the sexual touching was without the complainant’s consent. Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to a different act of sexual touching [s 61HI(5)]: A person who consents to a particular sexual activity is not, by reason only of that fact, to be taken to consent to any other sexual activity. There is evidence the complainant may have consented to [describe relevant sexual activity]. If you decide they may have consented to that activity, it does not follow that for that reason only they may have consented to the sexual touching alleged by the Crown. [Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to sexual activity with accused on a different occasion (s 61HI(6)(a)): A person who consents to a sexual activity with a person on one occasion is not, by reason only of that fact, to be taken to consent to a sexual activity with that person on another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with the accused. If you decide the complainant may have consented to that activity, it does not follow that for that reason only they consented to the sexual activity alleged by the Crown.

Summarise the evidence and relevant arguments of the parties.]

[If applicable — consent to sexual activity with another person on same or another occasion (s 61HI(6)(b)):

A person who consents to a sexual activity with a person is not, by reason only of that fact, taken to consent to a sexual activity with another person on that or another occasion. There is evidence the complainant may have consented to [describe sexual activity and occasion] with [name of person]. If you decide they may have consented to that activity, it does not follow that for that reason only they consented to the sexual touching with the accused alleged by the Crown. Summarise the evidence and relevant arguments of the parties.]

4. The accused knew the complainant did not consent

This element concerns the accused’s state of mind. The Crown must prove beyond reasonable doubt that the accused knew the complainant did not consent to the sexual touching alleged.

The Crown has no direct evidence about what the accused’s state of mind was at that time. The Crown asks you to infer or conclude that the accused knew the complainant was not consenting on the basis of the facts and circumstances which it has sought to prove occurred.

[Give direction as to Inferences [see [3-150]] or remind jury if already given.]

For the purpose of deciding whether the Crown has proved this element, you must consider all the circumstances of the case, including what, if anything, the accused said or did: [s 61HK(5)(a)]. [Add, if appropriate — self-induced intoxication: However, intoxication of the accused that was self-induced must be ignored. If you consider they were intoxicated by voluntarily drinking alcohol [or taking drugs], you must decide if the Crown has proved this element by considering what their state of mind would have been if they had not been intoxicated: [s 61HK(5)(b)]].

The Crown will have proved the accused knew the complainant did not consent if it proves that [refer only to those of the following that arise from the evidence]:

It is important to bear in mind that it is for the Crown to prove this. As you are well aware, there is no obligation upon the accused to prove anything.

[Actual knowledge — s 61HK(1)(a): Summarise the evidence and relevant arguments of the parties.]

[Recklessness — s 61HK(1)(b)]

To establish that the accused was reckless as to whether the complainant consented to the sexual touching, the Crown must prove, beyond reasonable doubt, either:

[Summarise the evidence and relevant arguments of the parties.]

[Belief in consent that was not reasonable in the circumstances — s 61HK(1)(c):

If, on the basis of the evidence led in the trial, you decide there is a possibility the accused had, or may have had, a belief that the complainant consented, the Crown must prove beyond reasonable doubt that the belief was not reasonable in the circumstances. The Crown case is that you would find that any such belief was not reasonable in the circumstances because [state Crown’s contention].

[If appropriate — s 61HK(2): A belief that the complainant consented to the sexual touching is not reasonable if the Crown satisfies you beyond reasonable doubt the accused did not, within a reasonable time before, or at the time of, the sexual touching, say or do anything to find out if the complainant consented.

Whether it was reasonable in the circumstances for the accused to believe the complainant was consenting to the sexual touching is judged according to community standards. You ask yourself what would an ordinary person in the accused’s position have believed at the relevant time having regard to all the circumstances of the case [If appropriate: other than the accused’s self-induced intoxication]?

[Summarise the evidence and relevant arguments of the parties.]

[If applicable — cognitive or mental health impairment as a substantial cause of the accused not saying or doing anything (s 61HK(3)–(4)):

If the Crown has proved beyond reasonable doubt that the accused did not say or do anything to ascertain whether the complainant consented to the sexual touching, then that would establish that the belief of the accused that the complainant was not consenting was not reasonable. However, this would not be the case if the accused was suffering from a [cognitive/mental health] impairment at the time of the sexual touching and that the impairment was a substantial cause of them not saying or doing anything to ascertain whether the complainant consented to that sexual touching.

[Adopt so much of the definitions of mental health impairment and cognitive impairment from ss 4C and 23A(8) and (9) Crimes Act as appropriate — see further [4-304].]

This is a matter where the accused must prove on the balance of probabilities both that:

[Summarise the evidence and relevant arguments of the parties.]

If the accused has not proved both these matters on the balance of probabilities, then the Crown will have established beyond reasonable doubt that their failure to say or do anything to ascertain whether the complainant consented to the sexual touching was such that their belief the complainant was not consenting was not reasonable in the circumstances.

If the accused has proved both these matters on the balance of probabilities, then you cannot use the fact they did not do or say anything to ascertain whether the complainant consented to the sexual touching in considering whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable. You must put that fact to one side and consider whether the Crown has proved beyond reasonable doubt that the accused’s belief in consent was not reasonable because of other facts and circumstances.

[For aggravated forms of the offence add from [5-1130] as appropriate.]

The final element the Crown must prove beyond reasonable doubt is that the offence was aggravated because [specify circumstance of aggravation]. You only need to consider this element if you are satisfied the Crown has proved the first four elements of the offence beyond reasonable doubt.

In company — s 61KD(2)(a)

[This direction is based upon the sexual touching being carried out by the accused in the presence of an alleged co-offender in their company. Modification will be required if the roles are different.]

It is an aggravating circumstance if the offence was committed in the company of another person or persons. The Crown alleges the accused committed the offence when they were in the company of [alleged co-offender]. The Crown case is that when the accused sexually touched the complainant, [alleged co-offender] was [specify nature of presence].

The Crown will prove the offence was committed “in company” if it proves beyond reasonable doubt:

For [alleged co-offender] to be “physically present”, the Crown must prove they were sufficiently close [refer only to those of the following the Crown relies on]:

It is not enough for the Crown to prove either the accused shared a common purpose with [alleged co-offender] that the complainant would be sexually touched, or that [alleged co-offender] was physically present. The Crown must prove both of these beyond reasonable doubt before you can conclude the offence was committed in company.

[If appropriate, add: It is not enough [alleged co-offender] shared a common purpose with the accused that the complainant would be sexually touched, but was not physically present in the way in which I have defined that concept. For example, it would not be enough if [alleged co-offender] was somewhere else acting as a look-out, or had provided encouragement to the accused at some time before the sexual touching occurred.]

[Summarise the evidence relied on by the Crown and the defence case.]

Under authority — s 61KD(2)(b)

The Crown alleges the aggravating circumstance that the offence was committed when the complainant was under the authority of the accused. To establish this, the Crown must prove the complainant was under their care, supervision or authority [whether generally or at the time of the offence]. It is a matter for you to determine whether the evidence establishes the complainant was under the care, supervision or authority of the accused.

[Summarise the evidence relied on by the Crown and the defence case].]

Complainant has serious physical disability or cognitive impairment — s 61KD(2)(c), (d)

It is an aggravating circumstance if the offence was committed while the complainant had a [serious physical disability OR cognitive impairment].

The law recognises a variety of forms of “cognitive impairment”, including where a person has a [nominate the form of cognitive impairment according to the list in s 61HD and in accordance with the evidence relied on in the particular case].

OR

The law does not define what a “serious physical disability” is. That is a matter for you to decide. However, it is an ordinary English phrase, and you should give it its ordinary English meaning. It obviously focuses on disability of the body, as opposed to the mind and requires you to evaluate whether there was a disability that was a serious one.

To prove this element, the Crown relies upon the evidence of [summarise relevant evidence].

That evidence [has/has not] been disputed. [Summarise defence case as necessary.]

Conclusion

If you are satisfied the Crown has proved all five elements of the aggravated offence of sexual touching in the indictment beyond reasonable doubt you would find the accused guilty. When asked for the verdict [for this count], your foreperson would simply announce, “guilty”.

If you are satisfied the Crown has only proved the first four elements of the basic offence of sexual touching, but has not proved the element of aggravation, then you would acquit the accused of the aggravated offence and return a verdict of guilty for the basic offence. When asked for the verdict [for this count], your foreperson would announce, “not guilty of aggravated sexual touching but guilty of sexual touching”.

If you are not satisfied the Crown has proved any one of the four elements of the basic offence of sexual touching, then you would acquit the accused completely. When asked for the verdict [for this count], your foreperson would simply announce, “not guilty”.

The accused is charged with sexually touching the complainant. The Crown case is that [briefly outline the incident/s to which the charge relates].

Before you can find the accused is guilty, the Crown must prove beyond reasonable doubt each of the following elements of the offence.

You can only find the accused guilty if the Crown proves each element beyond reasonable doubt. If the Crown fails to prove any one of them then you must find the accused not guilty.

[If the circumstances of the particular case require it: Some sexual offences require the Crown to prove the complainant did not consent. But where the alleged offence involves a child, consent is irrelevant. The law says that children cannot consent to sexual activity.]

If you find that the Crown has proved all three elements of the offence beyond reasonable doubt, then your verdict should be “guilty”. However, if you are not satisfied the Crown has proved any one element of the offence, then your verdict should be “not guilty”.