Case Study- Indecent Assault - Section 39 of the Crimes Act 1958

by Dribbin & Brown Criminal Lawyers

Criminal Defence Lawyer Nancy Grunwald 


  1. Indecent Assault- s. 39(1) Crimes Act 1958

The client was charged under the old Crimes Act 1958, in relation to the offence of Indecent Assault.

The new (and current) version of the Crimes Act replaces the offence of Indecent Assault with an offence of ‘Sexual Assault’.

In relation to the elements of Indecent Assault, the Prosecution must prove beyond reasonable doubt the following elements;

  1. That the accused assaulted another person;
  1. That the assault was intentional;
  2. That the Accused did so without lawful justification;
  3. That the assault was in indecent (ie sexual) circumstances;
  4. That the Accused was aware that the person was not consenting OR
    • That they might not be consenting OR
    • They did not give any thought to whether the person was not consenting or might not be consenting.

The maximum penalty is 10 years imprisonment and/or a fine of 1,200 penalty units.

Facts of the case:

Our client was a University student.

On the night in question, he was at a friend’s house where a group of his fellow students had gathered for some drinks.

The group continued to drink and slowly the guests made their way to various rooms to go to sleep.  Our client has gone to one of the bedrooms and positioned himself in bed with 2 other friends.

At some point during the night, the client was positioned so that he had his right arm over the Complainant’s right side. He has then placed his hand down her underwear. The Complainant woke up and yelled for the client to get out of the bed. He did so and went to sleep in the lounge room. The next day the Complainant revealed to her friends what had occurred the night before.

Police interview:

When confronted by his friends, the client could not recall the events of the night before. He remembered going to sleep next to the Complainant and then being woken up by the Complainant yelling but that was the extent of his memory.

He did however believe what the Complainant had said and was appalled and deeply ashamed of his actions.

When interviewed by Police he reiterated his shame and he told them that he could not specifically remember the allegations.

What happened next:

Our client came in for his first appointment with his parents.

The Police brief was obtained and the various witness statements were carefully analyzed.

The difficulty in this case was the offending occurred while everyone was asleep so there were no witnesses to the alleged offending. The victim had made a statement and her friends had also made a statement in relation to what the victim told them about the incident. This is called ‘recent complaint’ evidence and is an exception to the hearsay rule.

After looking at the brief and having lengthy discussions with the client, his parents, a tactical decision was made that we would pursue the Diversion Program.

The Diversion Program is a Program introduced by Victoria Police and the Courts whereby first time offenders are given an opportunity to avoid a criminal record.

In order for a person to be placed on the Diversion Program, they must pass through 3 stages. These stages are;

  1. A recommendation must be made by the Police, in the form of a Diversion Notice that is filed with the Court.
  2. The Accused (with their legal representative) has a meeting with the Diversion Coordinator on the day of Court
  3. The Diversion Coordinator presents the file to the Magistrate, who makes a final determination. This is usually done in chambers, rather than open Court.

In between stages 1 and 2, the Complainant is notified and invited to share their views on the case. It is important to note that just because the Victim is not in favor of Diversion, Diversion is not automatically refused. It is just one factor that the Magistrate takes in to account.

In this case, because of the client’s presentation at the interview, and because of his age and lack of prior offending, the Police were wiling to make a recommendation for Diversion. This notice was then booked in with the Court.

The Victim was then notified. Fortunately for our client, the victim understood that the client was genuinely remorseful and that the offending occurred in the context of the Accused being under the influence of alcohol.

In preparation for the day of court and the meeting with the Diversion Coordinator, this office obtained supporting documentation including;

  • Personal references
  • Academic transcripts
  • Certificates re: volunteer work/extracurricular activities
  • A letter of apology to the Victim

A psychological report was also obtained, addressing and exploring the underlying issues surrounding the offending. A risk assessment was also conducted by the psychologist, to assess the client’s risk of further offending.

A further conference was then held with the client and his parents, to discuss the process of Diversion again, and to prepare for the meeting with the Diversion Coordinator.

At Court, the supporting materials were presented to the Diversion Coordinator and our lawyer presented a strong case for Diversion.

The Police brief, along with the supporting materials and the notes from the Diversion Coordinator were then presented to the Magistrate in chambers. In this case, notwithstanding the serious nature of the allegations, the Magistrate granted Diversion.

The charges were then adjourned for the client to complete a Diversion Plan. Once these conditions were complete, the charge against our client was struck out. This is a non disclosable court outcome, which means it does not appear on a Police record check.

This was an excellent result as the client avoided not just a criminal record, but a criminal record for a sex offence. A finding of guilty for a sex offence would have had huge ramifications for our client, particularly as he was very young and in the early stages of his University degree.


If you have been charged or are due to be interviewed in relation to a sex offence and need advice or representation, please contact our Indecent Assault Lawyers  immediately.


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