For conduct occurring from 1 December 2018 onwards, allegations that may previously have been described as indecent assault are generally dealt with under the modern sexual offence provisions, including sexual touching under s 61KC and aggravated sexual touching under s 61KD, depending upon the circumstances.

At Chidiac & Associates, we provide experienced criminal defence representation in relation to historical indecent assault allegations and contemporary sexual touching offences throughout Sydney and New South Wales.

What is Indecent Assault?

Under the former section 61L of the Crimes Act 1900 (NSW), a person committed indecent assault where they:

• assaulted another person; and
• at the time of, or immediately before or after, the assault, committed an act of indecency on or in the presence of that person.

The former offence carried a maximum penalty of 5 years' imprisonment.

The precise law applicable to an allegation will depend upon when the alleged conduct occurred. This is particularly important in historical sexual offence matters.

What Could Amount to Indecent Assault?

Historical allegations of indecent assault could arise from conduct involving:

• unwanted sexual touching;
• inappropriate physical contact;
• touching of intimate areas;
• kissing or other physical conduct alleged to be sexual; or
• other conduct alleged to constitute an act of indecency accompanying an assault.

Whether conduct constituted an indecent assault depended upon the circumstances and the applicable law at the time of the alleged offending.

Elements of Indecent Assault

For an allegation under the former s 61L, the Prosecution was required to establish the relevant elements beyond reasonable doubt.

1. An Assault Occurred

The Prosecution was required to establish that the accused assaulted the complainant.

The meaning of assault depended upon the law applicable at the time of the alleged conduct.

2. An Act of Indecency Occurred

The Prosecution was required to establish that the accused committed an act of indecency on or in the presence of the complainant.

The nature and circumstances of the alleged conduct were therefore critical.

3. The Timing Requirement Was Satisfied

The act of indecency had to occur:

• at the time of the assault;
• immediately before the assault; or
• immediately after the assault.

The Prosecution therefore had to establish the necessary connection between the assault and the alleged act of indecency.

What Was the Maximum Penalty?

For historical offences committed when s 61L was in force:

Maximum penalty: 5 years' imprisonment

The former offence did not carry a mandatory sentence of imprisonment. The maximum penalty represents the highest penalty available and does not mean that a person convicted will necessarily receive a custodial sentence.

Penalty at a Glance

Indecent Assault and Modern Sexual Touching Offences

Because s 61L was repealed in 2018, it is important to distinguish historical indecent assault allegations from current NSW offences.

For conduct occurring from 1 December 2018, s 61KC provides for the offence of Sexual Touching. A person commits the offence where, without the complainant's consent and knowing that the complainant does not consent, they intentionally sexually touch the complainant or engage in certain forms of incitement involving sexual touching.

The maximum penalty for sexual touching under s 61KC is 5 years' imprisonment.

Where circumstances of aggravation apply, s 61KD provides for Aggravated Sexual Touching, carrying a maximum penalty of 7 years' imprisonment.

Accordingly, if a client has been charged with an offence described as “indecent assault”, it is important to identify the date of the alleged conduct and the precise section of legislation charged.

Can I Defend an Indecent Assault Charge?

Being charged with an offence does not mean that you are guilty. The Prosecution bears the burden of proving the relevant elements beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the alleged assault did not occur;
• the alleged act of indecency did not occur;
• the accused was not responsible for the conduct;
• the conduct has been incorrectly characterised;
• the Prosecution evidence is inconsistent or unreliable;
• there are inconsistencies between accounts given by witnesses;
• the alleged conduct occurred differently from the Prosecution's account; or
• the Prosecution cannot establish the necessary elements of the applicable offence.

The appropriate defence will depend upon the precise allegations, the date of the alleged conduct and the evidence available.

Evidence in Indecent Assault Matters

The Prosecution may rely upon:

• complainant evidence;
• witness statements;
• previous statements;
• police interviews;
• text messages and other communications;
• CCTV footage;
• photographs or recordings;
• forensic evidence; and
• other documentary or digital evidence.

In historical matters, the passage of time can also present particular evidentiary issues. The circumstances in which accounts were first provided, subsequent statements and the availability of independent evidence may all require careful examination.

Sentencing for Indecent Assault

Where a person is convicted of a historical indecent assault offence, the Court may consider matters including:

• the nature of the offending;
• the circumstances in which it occurred;
• the duration and extent of the conduct;
• the relationship between the offender and complainant;
• the offender's criminal history;
• the offender's personal circumstances;
• remorse and prospects of rehabilitation;
• the impact of the offending; and
• whether an early guilty plea was entered.

The sentencing law applicable to a historical offence may also require careful consideration of the law in force at the time the offending occurred.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about historical indecent assault allegations;
• advice concerning the legislation applicable to the alleged conduct;
• detailed analysis of the Prosecution evidence;
• examination of witness statements and inconsistencies;
• assessment of documentary and digital evidence;
• advice concerning potential defences;
• representation at court;
• preparation for defended hearings and trials; and
• sentencing advice and representation.

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