Citation: R v JH [2016] NSWDC 351
Court: District Court of New South Wales
Date: 13 December 2016
Judge(s): Berman SC DCJ
Background
The accused, JH, faced a single count of indecent assault alleged to have occurred on 16 December 2014. The complainant, TS, had met the accused only the day before through a mutual friend, in the context of recruiting him into a product distribution business. The two met again the following morning at the accused's home.
The complainant alleged that when she arrived, the accused embraced her, continued to hold her after she stopped hugging him, pressed his erect penis against her leg, and kissed her on the neck and shoulder with an open mouth. She pushed him away, stating she was married, and the accused released her. She contacted her husband shortly afterwards and made a formal statement to police that evening.
The accused elected for a judge-alone trial, consented to by the prosecution. He gave no evidence and called no witnesses. The Crown relied on evidence from the complainant, her friend who had made the introduction, the complainant's husband, and the detective in charge of the investigation.
Legal Issues
- Whether the Crown had proved beyond reasonable doubt that the accused deliberately touched the complainant by kissing her with an open mouth on her neck and shoulders while pressing his erect penis against her
- Whether the complainant did not consent to that touching
- Whether the touching was indecent by the ordinary standards of respectable members of the community
- Whether the accused knew the complainant was not consenting to being touched in that way
Decision
Berman SC DCJ accepted the complainant's account of events as reliable and credible. Her evidence was consistent with that of three other Crown witnesses, each of whom gave contemporaneous accounts of what she had told them shortly after the incident. The presence of the complainant's makeup on the accused's T-shirt also corroborated that close physical contact had occurred. His Honour was satisfied beyond reasonable doubt that the accused kissed the complainant on her neck and shoulder with an open mouth while pressing his erect penis against her.
The court addressed each of the four elements of indecent assault in turn. The complainant gave direct evidence of her non-consent and was not cross-examined on that point. His Honour accepted her evidence on consent without difficulty. On the question of indecency, the court found it contrary to ordinary community standards for a person to kiss a virtual stranger with an open mouth on the neck and shoulders while pressing an erect penis against her. The element of knowledge of non-consent was established by the circumstances, including that the two had met only once before.
His Honour noted that the kissing alone, without the additional conduct of pressing an erect penis against the complainant, would not have been sufficient to establish indecency beyond reasonable doubt. The combined conduct, however, satisfied all elements.
Orders Made
• The accused is found guilty of the single count on the indictment
• Non-publication order limited to the name of the complainant and any material which may tend to identify the complainant
Key Takeaways
- The District Court confirmed that all four elements of indecent assault must be proved by the Crown beyond reasonable doubt: deliberate touching, absence of consent, indecency by community standards, and the accused's knowledge of non-consent.
- Contemporaneous accounts given by a complainant to family and friends shortly after an alleged assault can corroborate the complainant's own evidence at trial.
- A conviction for indecent assault requires conduct that is contrary to the ordinary standards of respectable members of the community; in this case, the kissing alone was held insufficient to establish indecency, but the combination of open-mouth kissing and pressing an erect penis against a near-stranger satisfied that standard.
- The court applied the established principle that an accused person's silence at trial carries no evidentiary weight against them and cannot be used to fill gaps in the Crown's case.
- Absence of evidence of a motive for a complainant to lie is not proof that no such motive exists, and the court declined to ask "why would the complainant lie?" as part of its assessment of credibility.
Legislation and Cases Referenced
No legislation or cases were cited in the judgment text or metadata.
Note: A non-publication order applies to the name of the complainant and any material tending to identify the complainant. A further suppression order regarding the accused's name was in place at the time of the original decision, with the order subsequently amended in March 2018.