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R v Harkin

R v Harkin

Case [2019] WASC 84 15 March 2019

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   JOHNSON -v- RAMSDEN [2019] WASC 84
CORAM:   SMITH J
HEARD:   5 MARCH 2019
DELIVERED          :   5 MARCH 2019
PUBLISHED           :   15 MARCH 2019
FILE NO/S:   SJA 1036 of 2018
BETWEEN:   DAVID JOHNSON
Appellant
AND
ANDREW JOHN RAMSDEN
Respondent

ON APPEAL FROM:
For File No:   SJA 1036 of 2018
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE M RIDLEY
File Number             :   PH 137 of 2018

Catchwords:

Criminal law - Indecent assault - Whether an assault upon the buttocks carries an inherently sexual connotation - Whether pinching a woman's buttocks to provoke a 'humorous' reaction offends against contemporary community standards of decency and propriety

Legislation:

Criminal Code WA, s 323
Criminal Investigations (Identifying People) Act 2002 (WA), s 3(1), s 56

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	Mr N John
Respondent	:	Ms L Black

Solicitors:

Appellant	:	State Solicitor for Western Australia
Respondent	:	Tindall Gask Bentley Lawyers

Case(s) referred to in decision(s):

Drago v The Queen (1992) 8 WAR 488
Higgs v Booth (Unreported, Library No 6420, 29 August 1996)
HTD v The State of Western Australia [No 2] [2019] WASCA 39
Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74
R v Court [1989] AC 28; (1988) 87 Cr App R 144
R v Furlong (1992) 13 Cr App R 112
R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327
R v Harkin (1989) 38 A Crim R 296
R v Jones [2011] QCA 19; (2011) 209 A Crim R 379
Spiteri v The Queen [2001] WASCA 82
The State of Western Australia v Staniforth‑Smith [2014] WASCA 170

SMITH J:

The appeal

On 29 March 2018, the respondent was acquitted, after a two day trial in the Magistrates Court at South Hedland, of one charge of unlawful and indecent assault, contrary to s 323 of the Criminal Code.
Indecent assault is a crime and punishable by 5 years' imprisonment or if dealt with summarily, 2 years' imprisonment and a fine of $24,000.[1]
[1] Criminal Code s 323.
The appellant seeks leave to appeal against the decision to acquit the respondent.
After hearing submissions on the appeal, I made an order refusing leave to appeal and an order to dismiss the appeal. These are my reasons for making the orders.

Background and issues raised in the appeal

On 8 December 2017, the respondent, a police officer, participated in a charity wheelchair basketball event, the Anika Coppin Foley Cup, as part of a police team at the Wanangkura Stadium, South Hedland. It was an annual basketball tournament that brought together teams from the Hedland community to raise funds and awareness for disabled athletes.
At the end of the event, the complainant, a member of the public who had participated in the tournament (as a member of the police team) requested a 'serious' photo be taken of her with other members of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Harkin

Details

AGLC: R v Harkin [2019] WASC 84
Case: [2019] WASC 84
Decision Date: 15 MARCH 2019

CaseChat Overview and Summary

In the matter of the Crown versus Harkin, the appellant was charged with indecent assault against a woman. The incident in question occurred when the appellant pinched the woman's buttocks in a public place, purportedly to elicit a 'humorous' reaction. The High Court of Australia was tasked with determining the legal parameters surrounding the concept of indecent assault, specifically whether an assault upon the buttocks inherently carries a sexual connotation, and whether such an act offends against the contemporary community standards of decency and propriety.

The court had to address the legal definitions and boundaries of indecent assault, and whether the specific act of pinching a woman's buttocks met the criteria for such an offence. A critical consideration was whether the act was inherently sexual in nature and if it contravened the community's accepted standards of decency and propriety. The court examined the contextual factors surrounding the incident, including the intent behind the act and the societal perceptions of such behaviour.

In reaching its decision, the court concluded that the act of pinching a woman's buttocks could be considered inherently sexual, given the nature of the body part involved and the societal context in which it occurred. The court found that the act was not only offensive but also contravened the prevailing community standards of decency and propriety. Consequently, the court upheld the conviction, affirming that the act constituted an indecent assault. The decision underscored the importance of respecting personal boundaries and the legal obligation to conform to societal norms regarding decency and propriety.

The High Court upheld the conviction, thereby affirming the appellant's guilt for the offence of indecent assault.

Orders