An allegation may arise from an incident involving unwanted sexualised conduct, exposure or other conduct alleged to be indecent. These matters are often highly fact-specific and can involve disputed accounts, identification issues and questions concerning the circumstances in which the alleged conduct occurred.

At Chidiac & Associates, we provide experienced criminal defence representation to clients facing act of indecency charges throughout Sydney and New South Wales. We understand the sensitive nature of these allegations and approach every matter with discretion, careful preparation and rigorous analysis of the evidence.

What is an Act of Indecency?

An act of indecency is an offence under section 61N of the Crimes Act 1900 (NSW).

The legislation makes it an offence for a person to wilfully and obscenely expose his or her person in or within the view of a public place or school, or in the view of a person in a public place or school.

Section 61N also contains offences concerning wilfully committing an act of indecency with or towards another person.

The precise offence and applicable penalty depend upon the particular subsection charged and the circumstances alleged.

An act of indecency may involve conduct that is sexual or obscene in nature without necessarily involving sexual intercourse or other forms of sexual penetration.

What Conduct May Amount to an Act of Indecency?

Whether particular conduct amounts to an act of indecency depends upon the circumstances and the applicable statutory provision.

Allegations may involve conduct such as:

• intentionally exposing one's genitals in circumstances prohibited by the legislation;
• engaging in obscene or indecent conduct in a public place;
• engaging in alleged indecent conduct towards another person;
• making unwanted sexualised physical contact; or
• engaging in other conduct alleged to be indecent or obscene.

The Prosecution must establish the particular elements of the offence charged. Not every act that another person considers offensive, embarrassing or inappropriate will necessarily constitute an act of indecency.

Elements of an Act of Indecency

The elements that the Prosecution must establish depend upon the particular subsection of section 61N relied upon.

1. The Alleged Act Occurred

The Prosecution must establish that the accused engaged in the conduct alleged.

Where the allegation concerns an act directed towards another person, the precise nature of the alleged conduct may be central to the Prosecution case.

Where the allegation concerns exposure, the Prosecution must establish the relevant circumstances in which the exposure is alleged to have occurred.

2. The Act Was Indecent or Obscene

The Prosecution must establish that the conduct was of an indecent or obscene character as required by the particular offence.

Whether conduct is indecent is assessed in the context of the circumstances in which it occurred.

Relevant considerations may include:

• the nature of the conduct;
• where the conduct occurred;
• who was present;
• the relationship between the people involved;
• the circumstances surrounding the alleged incident; and
• the accused person's purpose or intention where relevant to the particular offence.

3. The Required Mental Element

The Prosecution must establish the relevant mental element required by the particular offence.

For example, section 61N contains offences involving conduct that is wilful.

The question of whether the conduct was intentional or wilful may therefore be important where the accused disputes the circumstances alleged.

What are the Penalties for an Act of Indecency?

The maximum penalty depends upon the particular offence charged under section 61N.

For an offence under section 61N(1) involving wilfully and obscenely exposing a person's body in or within the view of a public place or school, the maximum penalty is:

• 10 penalty units ($1,100); or
• 6 months' imprisonment; or
• both.

For an offence under section 61N(2) involving wilfully committing an act of indecency with or towards another person, the maximum penalty is:

• 10 penalty units ($1,100); or
• 2 years' imprisonment; or
• both.

The maximum penalty is not necessarily the sentence that will be imposed following a conviction. The outcome of an individual matter depends upon the circumstances of the offence and the offender.

Factors that may be relevant to sentencing include:

• the nature of the alleged conduct;
• where the incident occurred;
• whether the conduct was directed towards another person;
• whether there was any physical contact;
• whether there was any use or threat of force;
• the accused person's criminal history;
• whether the accused pleaded guilty;
• the accused person's personal circumstances; and
• prospects of rehabilitation.

Defending an Act of Indecency Charge

Being charged with an act of indecency does not mean that you are guilty.

The Prosecution bears the burden of proving every element of the particular offence beyond reasonable doubt.

Depending upon the circumstances, possible issues in defending an act of indecency allegation may include:

• the alleged conduct did not occur;
• the accused was incorrectly identified;
• the conduct has been incorrectly characterised as indecent;
• the accused did not intentionally or wilfully engage in the alleged conduct;
• the circumstances were different from those alleged;
• the Prosecution evidence is inconsistent or unreliable;
• CCTV or other footage does not support the allegation;
• witness evidence is unreliable;
• there are inconsistencies between accounts of the incident; or
• the Prosecution cannot establish every element of the offence beyond reasonable doubt.

The particular circumstances of the alleged incident are critical. A careful assessment of the Prosecution evidence may reveal significant differences between what is alleged and what can actually be established.

Evidence in Act of Indecency Cases

Act of indecency Prosecutions may depend heavily upon witness evidence.

Depending upon the circumstances, the evidence may include:

• statements from the complainant or witnesses;
• police body-worn camera footage;
• CCTV footage;
• mobile phone footage;
• photographs;
• text messages or other communications;
• social media material;
• forensic evidence; and
• evidence concerning the circumstances before and after the alleged incident.

At Chidiac & Associates, we carefully examine the available evidence and consider whether it supports the allegations made.

Where the Prosecution case depends upon identification or an individual's recollection of a brief incident, issues concerning visibility, lighting, distance, duration and the circumstances in which the observation was made may be particularly important.

Act of Indecency Investigations

An act of indecency matter may begin with a police investigation before any charge is laid.

Police may seek to interview a person, obtain a statement or gather other evidence concerning the alleged incident.

Being investigated does not mean that a person will necessarily be charged.

If you become aware that you are the subject of an investigation, obtaining legal advice at an early stage can assist you in understanding your position and making informed decisions about any proposed police interview.

Bail and Act of Indecency Charges

Whether bail is an issue will depend upon the circumstances of the particular allegation and the applicable offence.

Where bail is required, the court may consider matters including:

• the seriousness of the allegation;
• the strength of the Prosecution case;
• the accused person's criminal history;
• the risk of failing to appear;
• the risk of committing a serious offence while on bail;
• the risk of interfering with witnesses or evidence; and
• the accused person's personal circumstances.

We provide representation in relation to bail applications and can advise clients about potential bail conditions.

How We Can Help

An act of indecency allegation requires careful analysis of the statutory offence and the evidence relied upon by the Prosecution.

At Chidiac & Associates, we provide:

• confidential advice about the allegations;
• advice during police investigations;
• advice concerning police interviews;
• representation at bail applications;
• detailed analysis of Prosecution evidence;
• review of CCTV, body-worn camera and other footage;
• assessment of witness and identification evidence;
• representation at court appearances;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

Our approach is built on discretion, thorough preparation, careful analysis and strong courtroom advocacy.