Indecent Act with Child Under 16 – Not Guilty on Appeal

This is a case study on a child sex offence resulting in the accused being found not guilty at the end of the trial.

What is alleged to have occured?
The client was charged with touching the breasts of an underage relative while they were sharing a bed. The client and his wife and their young children shared a house with the complainant. There was a double bed set up in the master bedroom, with a mattress alongside the bed. Often the client and his wife, along with the children, would all sleep in the master bedroom.

The complainant alleged that while she was asleep on the mattress, the client climbed onto it and proceeded to place his hand up her pyjama top and touch first her right breast and then her left as she rolled over. She went back to sleep immediately afterwards. Our client was charged with Indecent act with child under 16. He had no prior convictions or Court appearances and pleaded not guilty in the Magistrates’ Court.

What happened at court?
Following a contested hearing, he was found guilty by the Magistrate. He appealed the conviction and the appeal was heard in the Melbourne County Court where we acted on his behalf.

On the appeal, the complainant again gave evidence. The Judge hearing the appeal believed that the complainant had been touched by the accused man, but that there was a reasonable doubt as to the consciousness of his actions. The Judge considered that it was very likely, given the evidence of the complainant about the way in which her breasts were touched and the accused’s position on the mattress, that he was asleep at the time and was unable to form the intent required to be found guilty of the charge.

What was the result?
The Judge found the client not guilty of the charge of indecent act with a child under 16.
DISCLAIMER: This is a real case study of an actual case from our files. Details pertaining to the client have been changed to protect their privacy. The sentence imposed and the charge have not been altered. These case studies are published to demonstrate real outcomes and give an indication of possible tariffs in Court. We do not guarantee a similar case on these charges will get the same result. Please note that we post results at our discretion, therefore while many case studies are average results, others are notable for their exceptional outcomes. PUBLISHED 25/02/2013