R v Gillespie

In *R v Gillespie*, the Court of Appeal of the Supreme Court of the Australian Capital Territory considered questions of law referred by a single judge concerning an alleged act of indecency against a person under 10 years of age, contrary to section 61 of the *Crimes Act 1900* (ACT). The central dispute revolved around whether the accused's purpose in performing the act, specifically whether it was done as a joke, was relevant to determining if the act constituted indecency under the statute.

The court was required to determine two legal issues. Firstly, whether the intention of the accused, particularly if the act was performed as a joke rather than for sexual gratification or humiliation, is relevant when assessing whether an act with an unequivocal sexual connotation constitutes an act of indecency under section 61 of the *Crimes Act 1900* (ACT). Secondly, the court was asked whether an offence under section 61 could be made out solely on the facts of sexual words being spoken in the presence of a child who did not comprehend them or where there was no evidence of comprehension.

The court reasoned that the purpose of the accused in performing the act is indeed relevant to determining whether it constitutes an act of indecency, even if the act itself has an unequivocally sexual connotation. The judges clarified that "intention" in this context refers to the "purpose" of the accused. They held that the context in which an act is performed, including the accused's purpose, may be considered when assessing whether the act is indecent according to ordinary community standards. The court answered the first question in the affirmative, confirming the relevance of the accused's purpose. The second question was deemed unnecessary to answer in light of the determination of the first.