Citation: Police v Adel Benjamin Abraham [2011] NSWLC 6
Court: Local Court of New South Wales
Date: 31 March 2011
Judge(s): Magistrate Lerve
Background
The accused, a dentist practising in Wagga Wagga, was charged with indecent assault arising from an incident on 23 December 2009. The complainant attended his premises that afternoon for a job interview for a dental assistant position.
During the interview, which lasted at least two hours, the accused engaged in a series of physical contacts with the complainant: placing his hand on her back on multiple occasions, touching and rubbing her hands, pressing his arm against her, and placing his hand on her thigh. At one point the complainant observed that the accused had an obvious erection. The complainant gave evidence that she felt scared and froze throughout, but did not leave because she was frightened.
The charge was specifically grounded in a final act: the accused picked up the complainant's left hand, stroked the centre of her palm with his index finger for approximately 20 to 30 seconds, and then said words to the effect of "do you know what this means? It means I want to have sex with you." The prosecutor raised, at the close of the prosecution case, whether that conduct could amount to indecent assault when taken at its highest.
Legal Issues
- Whether the prosecution had established a prima facie case of indecent assault sufficient to require the accused to answer the charge
- Whether the act of rubbing a person's palm, accompanied by an explicit verbal statement of sexual intent, was objectively indecent
- Whether, if the act was not unequivocally sexual in nature, there was sufficient evidence of an intention by the accused to obtain sexual gratification
- Whether the complainant's apparent acquiescence in the accused taking her hand amounted to consent to the palm-rubbing
Decision
Magistrate Lerve identified the central difficulty: whether palm-rubbing is, on its own, objectively indecent. An act is objectively indecent if right-minded persons would consider it contrary to community standards of decency. The Magistrate acknowledged genuine uncertainty about whether the physical act alone crossed that threshold, describing himself as having "vacillated" on the question.
The Magistrate resolved the question by reference to the accompanying words. Although a person's palm being stroked might not, in isolation, be an act that unequivocally carries a sexual connotation, the accused's own statement that the gesture meant he wished to have sex with the complainant supplied that sexual character. The totality of the encounter, including the accused's visible erection at an earlier point and the repeated physical contacts, was also relevant context.
On the question of intention to obtain sexual gratification, the Magistrate applied the principle from Harkin v R (1989) 38 A Crim R 296: where a physical act does not unequivocally carry a sexual connotation, the prosecution must also show the accused intended to obtain sexual gratification. The Magistrate found that such intention could be inferred from the accused's conduct across the entire encounter and, in particular, from the words he used at the moment of the palm-rubbing.
On consent, the Magistrate noted that even if the complainant had acquiesced in the accused taking her hand, she could not be taken to have consented to the rubbing of her palm in the circumstances in which it occurred, particularly given the words spoken. The Magistrate accordingly found a prima facie case established. It should be noted, however, that the judgment records a postscript: after the hearing concluded, a verdict of acquittal was entered and the accused was discharged.
Orders Made
• A prima facie case was found against the accused
Key Takeaways
- A physical act that does not unequivocally carry a sexual connotation may still form the basis of an indecent assault charge where it is accompanied by words that supply the sexual character of the conduct.
- Under the principle confirmed in Harkin v R, where an alleged assault is not objectively and unambiguously sexual in nature, the prosecution must establish that the accused intended to obtain sexual gratification; however, once the conduct is found to be indecent, intention to obtain gratification need not be separately proved.
- The surrounding circumstances of an encounter, including conduct that preceded the specific act charged, are relevant to assessing both the indecency of the act and any inference of sexual intent.
- Acquiescence by a complainant in an initial physical contact does not necessarily constitute consent to all subsequent physical contact arising from the same interaction.
- This decision concerned only the prima facie threshold at the close of the prosecution case, a finding that the evidence, taken at its highest, was capable of supporting conviction, not a verdict of guilt. The accused was ultimately acquitted.
Legislation and Cases Referenced
Legislation:
- Criminal Procedure Act 1986 (NSW), s 294A (restriction on self-represented accused cross-examining complainants)
- Evidence Act 1995 (NSW), ss 60, 66, 108
Cases:
- Harkin v R (1989) 38 A Crim R 296
- Crowe v Graham (1968) 121 CLR 375
- Fitzgerald v Kennard (1995) 84 A Crim R 333
- Graham v The Queen (1998) 195 CLR 606
- May v O'Sullivan (1955) 92 CLR 654
- Papakosmas v The Queen (1999) 196 CLR 297