Police v Hill

Case [2025] SASC 127

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeal: Criminal)

POLICE v HILL

[2025] SASC 127

Judgment of the Honourable Justice Stein 

7 August 2025

CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT

CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - PARTICULAR CASES

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - WHERE POINT NOT RAISED IN COURT BELOW

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS

The Commissioner of Police appealed against the acquittal by a Magistrate of a male police prosecutor charged with aggravated indecent assault against a female sheriff’s officer while both were at work in a courthouse.

While the Magistrate was satisfied the elements of assault were proved beyond reasonable doubt, the element of indecency, and the circumstances of aggravation were not. The prosecution did not raise any possibility or requirement of an alternative verdict for assault with the Magistrate at any point during the trial.

The Commissioner of Police appealed the acquittal on the sole ground that the Magistrate had erred in articulating the elements of the offence causing her Honour to acquit the defendant of indecent assault erroneously.  On appeal, the Commissioner of Police also contended that the Magistrate erred in failing to convict the respondent of the alternative offence of assault.

Held (dismissing the appeal):

1.The Magistrate did not err in the articulation of the elements of the offence.

2.The Magistrate did not err in failing to convict the respondent of the alternative offence of assault.

Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 71A(4); Joint Criminal Rules 2020 (SA) r 191.1(2), referred to.

James v The Queen (2014) 253 CLR 475, applied.
Thorogood v Warren (1979) 20 SASR 156; Benbolt v The Queen (1993) 60 SASR 7; Weinel v Rojas (Supreme Court of South Australia, Olsson J, 10 June 1994); Police v Cadd (1997) 69 SASR 150; Fox v Percy (2003) 214 CLR 118; Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; R v Brougham (2015) 122 SASR 546; Frunks v Police [2016] SASC 120; Johnson v Ramsden [2019] WASC 84; R v Donovan [2025] SASCA 7; Police v Smith [2025] SASCA 37, discussed.

Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296; R v Thompson [2018] SASCFC 104, considered.

POLICE v HILL
[2025] SASC 127

Magistrates Appeal: Criminal

  1. STEIN J: Mr Hill, a police prosecutor, was charged with the indecent assault of a female sheriff’s officer (“SO”).[1]  It was alleged that Mr Hill had touched SO on her buttocks over her clothing when SO called Mr Hill into court.  While the Magistrate was satisfied beyond reasonable doubt that Mr Hill deliberately tickled SO’s left buttock, the Magistrate concluded the…

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Police v Hill [2025] SASC 127
Case
[2025] SASC 127
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CaseChat Overview and Summary

In the case of Police v Hill, the appellant, a police prosecutor, appealed against his conviction of indecent assault by a Magistrates Court of South Australia. The conviction arose from an incident where the appellant allegedly touched the bottom of a female sheriff's officer over her clothing in a tickling manner while in a courtroom. The respondent contended that the appellant abused his position of authority or trust in committing the offence. The appellant argued that the touching, if it occurred, was accidental and not indecent, and that there was no proof beyond reasonable doubt that the contact was intentional or indecent. The appeal focused on the legal principles and factual findings made by the Magistrate in convicting the appellant of the offence.

The primary legal issues before the court were whether the Magistrate correctly articulated the elements of the offence of aggravated indecent assault and whether the Magistrate erred in failing to convict the respondent of assault as an alternative offence. The court needed to determine if the Magistrate's findings of fact supported the conviction and if the evidence was sufficient to establish each element of the offence beyond reasonable doubt. The court also had to consider whether the Magistrate should have considered assault as an alternative verdict, given that it was not charged or argued by the prosecution.

The court found that the Magistrate did not err in articulating the elements of the offence of aggravated indecent assault. The court determined that the Magistrate's findings of fact, which included that the appellant touched the complainant's bottom in a tickling manner without her consent and that the appellant abused his position of authority, were supported by the evidence. The court held that the possibility of accidental contact did not exclude the possibility of intentional and indecent conduct, and that the appellant's defence did not rebut the complainant's evidence beyond reasonable doubt. The court also found that the Magistrate did not err in failing to convict the respondent of assault as the prosecution did not charge assault as an alternative on the Information, nor open, nor close its case on the basis the Magistrate should convict the respondent of assault if indecency was not established.

The court dismissed the appeal and upheld the conviction. The court found that the Magistrate's judgment was sound, and that the evidence supported the conviction of the appellant of aggravated indecent assault. The court held that the appellant's arguments on appeal did not establish any error of law or fact by the Magistrate. The court did not make any further orders.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

For the reasons that follow I have determined to dismiss the appeal. The Magistrate did not err in the articulation of the elements of the offence. The appellant did not appeal on the basis of any asserted error by the Magistrate in failing to convict the respondent of assault. Nonetheless, the appellant contended that if the grounds of appeal were not made out, this Court should find the respondent guilty of assault. The prosecution did not charge assault as an alternative on the Information, nor open, nor close its case on the basis the Magistrate should convict the respondent of assault if indecency was not established. In the circumstances of this case, the Magistrate did not err in failing to convict the respondent of assault. Magistrate’s judgment The Magistrate commenced by describing the allegations in the following terms. The defendant is a police prosecutor and the complainant (SO) a female sheriff’s officer. On 17 November 2022, at about 3:36 pm they were working together in a courtroom. It is alleged that when SO called the defendant back into court following an adjournment, he touched her bottom over her clothing in a tickling fashion which amounted to an indecent assault aggravated by the fact he abused his position of authority or trust. The defendant’s case was that the Court should accept the defendant’s evidence that he had no memory of the touching, but he would not usually touch someone in an uninvited way. While there was no challenge to SO’s honesty, the defendant’s case was that the Court could not be satisfied of SO’s reliability beyond reasonable doubt. If the behaviour complained of was proven, the possibility of accidental contact could not be excluded. Defence also submitted that any touching was not indecent and the circumstances of aggravation were not established. The Magistrate then set out the elements of the offence of aggravated indecent assault which I summarise as follows: 1.an application of force which was intentional, that is, not accidental and which was without the consent of the victim;2.the conduct did not lie within limits of what could generally be accepted in the community as a normal incident of social interaction or community life and was not justified or excused by law;3.circumstances of indecency;4.the defendant abused a position of authority or trust in committing the offence. Defence accepted that if the Magistrate found that the defendant had deliberately tickled SO’s bottom, this constituted an application of force which occurred without SO’s consent. The Magistrate framed the issues for determination as:1.Did the defendant touch SO on the bottom and what was the nature of that touching?2.Did SO make any comments to the defendant at the time?3.Is the possibility of accidental contact excluded as a reasonable possibility?4.Was the touching indecent?5.Is the circumstance of aggravation proved? The Magistrate made findings of fact as follows. The defendant was a 62 year old police prosecutor who had worked as a prosecutor at the particular location for 14 years. SO, aged 57, had worked as a sheriff’s officer at the particular courthouse from about August 2020. Her role was to ensure the smooth running of the court, which included letting parties and lawyers know when they were required in the courtroom.

Ratio Decidendi

Legal Principle Established

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