R v Harkin
[2019] WASC 84
•15 MARCH 2019
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 the police team.
As a group photograph was about to be taken, the respondent ran across the front of the group and did a 'star jump', he then ran and joined the group. The respondent stood next to the right hand side of, and slightly behind, the complainant. Whilst posing for the photograph, the respondent reached across his body with his right hand and pinched the complainant on the side of her right buttock, causing the complainant to jump forward in surprise. Whilst reaching across his body, the respondent said to the complainant 'I hope you take this the right way' or 'don't take this the wrong way'.
It was common ground in the trial before the magistrate, and in the appeal, that the respondent's act constituted an unlawful assault. The sole question before the magistrate, and the question in this appeal, is whether the assault was indecent.
It was not the case for the prosecution that the respondent had a sexual motive for the assault. The appellant accepts that the respondent misguidedly intended his conduct to be in some way humorous, in order to provoke a startled reaction from the complainant for the purpose of introducing some levity into the occasion (photograph). The appellant instead argues that the subjective intention of the respondent is irrelevant to the question of whether the act complained of was indecent.
The ground of appeal, whilst in two parts, raises one issue. The appellant claims that the magistrate erred in fact and in law by failing to find that the assault committed by the respondent was indecent, in that her Honour failed to find that the assault:
(a)was upon a part of the body that gave the assault a sexual connotation; and
(b)offended against prevailing contemporary community standards of decency and propriety.
The appellant's case, in part, is that the assault was inherently indecent as that connotation necessarily arises directly from the area of the body to which the assault occurred. The appellant says that buttocks are properly regarded as an intimate and private part of the human anatomy, carrying a sexual connotation if grabbed over clothing in the manner done so by the respondent.
The second part of the appellant's argument is that in reliance on fundamentally flawed analogies (which relied upon a comparative historical analysis of sexuality and trends on the sporting field in connection with the concept of sexuality) her Honour erroneously found the respondent's assault of the complainant to have been inappropriate but not indecent.
General principles
It is common ground in the appeal that the question as to whether an assault is indecent is one for the trier of fact.
'Indecent' is not defined in the Criminal Code. In Spiteri v The Queen, Malcolm CJ quoted, without criticism, the following direction given to the jury on a charge of indecent dealing:[2]
The expression 'indecent' has no definitive or specified legal meaning. It is taken in its ordinary context as meaning anything that is unbecoming or offensive to ordinary standards of propriety. There must be a sexual connotation to the activity. It must be an activity which offends community standards of propriety prevailing at the relevant time …
[2] Spiteri v The Queen [2001] WASCA 82 [8] (Anderson J agreed).
In Drago v The Queen, Nicholson J provided the following basis for distinguishing between a case of assault, and indecent assault:[3]
The act of assault itself involves the human body, bodily actions or bodily functions. In its context, the word 'indecent' confines those matters to ones involving sexual conduct. It is quite apparent that the Code deals elsewhere with assault simpliciter and that s 189 is directed to something more than assault. In that context the word 'indecent' can only be referable to the involvement of the human body, bodily actions or bodily functions in a sexual way.
[3] Drago v The Queen (1992) 8 WAR 488, 497 (Wallwork J agreed & Murray J substantively agreed).
To these observations, Murray J in Drago added:[4]
In my opinion, whether an act may be described as indecent because it offends against community standards of decency, may depend not only upon the nature or quality of the act in itself, but upon the motive or purpose of the actor. That would be so under the Code in my view, just in the same way as at common law.
Court (supra) was such a case. There the alleged indecent act committed by a shop assistant, was to smack a 12‑year‑old customer on the bottom on the outside of her shorts for no apparent reason. When asked by the police why he had done such a thing, he said, 'I don't know ‑ buttock fetish'. As Lord Griffiths said (at 35):
'Whether or not right‑thinking people will consider an action indecent will sometimes depend upon the purpose with which the action is carried out. An obvious example is the examination of an unconscious woman's private parts. If carried out by a doctor for a proper medical purpose no‑one would consider such an examination indecent. If carried out by a stranger for a prurient interest everyone would consider it indecent … The fact is that right‑thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent. If evidence of motive is available that throws light on the intent it should be before the jury to assist them in their decision.'
That in my opinion is precisely the position achieved by the Code, s 23. In commenting upon the facts of that case, Lord Griffiths (again at 35) said:
'If a juryman is asked to decide whether a man beating a young girl's bottom is acting indecently, the first question he is likely to ask is ‑ why was he doing it?'
It would, of course, as his Lordship observed, be an entirely different thing that the accused was spanking the girl for legitimate disciplinary purposes, or that he was doing so to satisfy a buttock fetish. In expressing the same point of view (at 42‑43), Lord Ackner made the point that there may, of course, be some conduct which the jury regards as so offensive to common standards of decency, that it should be regarded as indecent of itself, regardless of the motivation for the conduct. But where the act in question was capable of being regarded as indecent, but was not necessarily to be so regarded in itself, the motivation of the actor might operate in one of two ways. It might of course confer the quality of indecency upon an act which might, differently explained, be held not to be so. On the other hand, the motive of the actor might render innocent an act which otherwise, without explanation, might be regarded as indecent.
[4] Drago v The Queen (1992) 8 WAR 488, 503.
Consequently, where an element of indecency in assault is found the alleged conduct must have occurred in circumstances incorporating a sexual character or connotation.
In some cases, circumstances of an inherent sexual character or connotation may be found to have existed when an accused is found to have touched a person, without consent, on an intimate part of their body, or touched a person with an intimate part of their own body.[5]
[5] R v Harkin (1989) 38 A Crim R 296, 301 (Lee CJ at CL, Wood & Matthews JJ agreed).
Circumstances of a sexual character or connotation may also be found where an accused is found to have touched a person, without consent, with a motive or purpose of sexual gratification.[6]
[6] R v Harkin (1989) 38 A Crim R 296, 301 (Lee CJ at CL, Wood & Matthews JJ agreed).
The evidence before the magistrate
The magistrate made findings of fact as to the circumstances of the assault by having regard not only to the evidence given by the complainant, the respondent and other prosecution witnesses, but also CCTV film which showed the incident from a distance,[7] and video footage with audio from a mobile telephone. The video footage from the mobile telephone showed at close range and at a side angle the reaction of the complainant to the assault.[8]
[7] Exhibit 2.
[8] Exhibit 3.
The respondent's evidence was that his intention, in taking the action he did, was not to humiliate the complainant. His intention was to disrupt the 'serious' photograph by pinching the complainant, in order to get her to jump in the photograph. The respondent's evidence was that he intended to pinch her 'on the fatty rib area' and clarified this to be 'in the love handles type area', and above the belt line.[9] The evidence of the complainant was that she felt a full‑handed grab of her right butt cheek from behind.[10]
[9] Primary Court proceedings, 28 March 2018, ts 75 ‑ 76.
[10] Primary Court proceedings, 28 March 2018, ts 20.
Whilst her Honour found the complainant to be an honest and reliable witness, she rejected the complainant's evidence on this point. Her Honour found that if the respondent had applied a 'full cupped hand' to the complainant's buttocks from behind, that act would have been indecent.
The magistrate also found that the respondent, amongst the other witnesses, was honest and reliable in his testimony but found that the physical exhibits were a more reliable record than the memories of the witnesses.
The magistrate also had regard to a photograph of the group that was taken at what appears to be a moment before the assault occurred. The photograph shows:[11]
(a)the respondent standing slightly behind the complainant;
(b)both the respondent and the complainant looking directly towards the camera;
(c)the respondent's right hand is across his body and towards the side of the buttocks of the complainant with the thumb of his right hand elevated in what appears to be the commencement of a pincer movement.
Magistrate's findings in respect of the principles going to conduct that is inherently sexual and conduct with a presumptively sexual connotation
[11] Exhibit 1.
The magistrate made findings about whether the touching of a person's buttocks could be found to be contrary to community standards of decency, and thus inherently an act that has a sexual connotation. Her Honour's findings in this regard can be relevantly articulated as follows:
(a)it is not an established principle that the grabbing of a person's bottom is always indecent;
(b)a review of the authorities in relation to offences of this type and community standards indicates that there has been little change to the view that touching some parts of the body is inherently indecent;
(c)the touching of breasts, vagina, penis, testicles or anus without further explanation would cause an ordinary right‑thinking member of the community to conclude that such an act is inherently sexual;
(d)the manner of touching a person on their bottom is determinative as to whether a conclusion of sexual connotation is reached. It is the manner of touching that is crucial in this case;
(e)the prosecution's submission that the prevailing standards of the community today are that any touching by a man of the buttocks of a woman is inherently indecent when in the past it may not have been, is rejected;
(f)social standards are generally reflected in popular media. In the 70s and 80s women were regularly oversexualised, breast groping and a pinch on the bottom was naughty and seen as overtly sexual and inappropriate for that time;
(g)when regard is had to the fact that in 2017, in an era of 'twerking' (dancing whilst squatting and shaking one's bottom provocatively) and grinding, simulated sex and easy access to pornography, the thought of a pinch on the bottom is almost a reference to a more genteel time;
(h)in 2017, a pinch on the bottom is not appropriate but (is an act that seems to have lost its overtly sexual connotation and to be conduct that is low enough on the level of seriousness not to warrant a mention;
(i)the use of a slap or a tap on the bottom on the sporting field is seen regularly in the Australian Football League, cricket, netball, rugby and mixed netball. A slap on the bottom can carry with it a connotation of congratulations, commiseration or encouragement. It transcends the male and female divide;
(j)there is more touching between the sexes than there ever has been before;
(k)the prevailing (community) standard is that men should not touch women at all unless they actively consent, but this principle says nothing as to the decency or indecency of those actions. Considered in a certain social context, if a person had their back to another person and the first person tapped the second person on their backside to gain their attention, such an act is unlikely in 2017 to be met with howls of immodesty or indecency.
The magistrate formed the view that the grabbing of the complainant's bottom was an act that was capable of being indecent, but was not inherently so. Further, she found that the manner of touching was the crucial issue in determining whether the act of the respondent was indecent.
After referring to these matters, the magistrate in effect found that whether touching of a person's bottom can be judged as indecent is a finding that can only be made by a consideration of the surrounding circumstances of that particular case, including the nature of the touching itself.
In particular, her Honour found that all that can be concluded from the decided cases and from the assessment of prevailing standards, is that the touching of a person's bottom is capable of being an act that is indecent, but it is not inherently so. One aspect of the assessment of the circumstances in this matter that the magistrate regarded as material was the location of where the respondent touched the complainant on her bottom.
The magistrate's factual findings of the circumstances of the assault
The magistrate made findings regarding the nature and the circumstances of the assault. Her Honour did not, however, confine her analysis to whether the act of the respondent of pinching the complainant on the bottom was capable of constituting an indecent assault, but also considered whether the circumstances were such that the act could be found to be an inherently sexual act. Her Honour found:
(a)stating to the complainant 'I hope you take this the right way' or 'please don't take this the wrong way' showed that the respondent gave consideration to the fact that the act was not appropriate, but did not imply the touching was sexual;
(b)the fact that the respondent is a police officer was not relevant to the determination of the element of indecency;
(c)if the prosecution had proved the respondent touched the complainant's bottom by a fully cupped hand on the butt cheek of the complainant's bottom, such an act could be considered inherently sexual, but this is not what occurred. From the photograph, the CCTV footage and the mobile phone footage it can be found that:
(i)the position of the respondent's hand appears to show that the respondent pinched the complainant on the right‑hand side of the butt cheek; and
(ii)the action of the respondent reaching across his body and from the side is not inherently sexual and must be considered in the overall context. Having viewed the CCTV footage and the mobile phone footage, the only conclusion regarding the action of the respondent that was open (with or without regard to the respondent's explanation) is that the respondent touched the complainant for the purpose of getting a reaction to the photograph. Such an act was inappropriate but not indecent.
In these circumstances, her Honour found that she was not satisfied that the touching of the complainant's butt cheek, in the overall context of the matter, was indecent. In particular, when regard was had to the contemporary standards of propriety her Honour was not satisfied that the act had a sexual character and therefore would not invoke the sanction of the criminal law.
Is error established
A. Conduct with a presumptively sexual connotation
There may be cases in which an accused has touched a complainant in such an intimate manner that it is found that the touching amounted to inherent indecency. In these circumstances, the element of indecency will be made out by the mere application of the touch to that intimate body part, without consideration of motive or purpose.[12]
[12] R v Harkin (1989) 38 A Crim R 296, 301.
In R v Harkin, the accused was charged with indecently assaulting two young girls by fondling their breasts while they sat on his lap. This intentional touching of a girl's breast was held by the New South Wales Court of Criminal Appeal to be sufficient to constitute indecency. Chief Justice Lee identified that there are some areas of the body upon which conduct constituting an assault would give rise to a sexual connotation. His Honour observed:[13]
It is in my view clear that if there be an indecent assault it is necessary that the assault have a sexual connotation. That sexual connotation may derive directly from the area of the body of the girl to which the assault is directed, or it may arise because the assailant uses the area of his body which would give rise to a sexual connotation in the carrying out of the assault. The genitals and anus of both male and female and the breast of the female are the relevant areas … The purpose or motive of the appellant in behaving in that way is irrelevant. The very intentional doing of the indecent act is sufficient to put the matter before the jury. But if the assault alleged is one which objectively does not unequivocally offer a sexual connotation, then in order to be an indecent assault it must be accompanied by some intention on the part of the assailant to obtain sexual gratification.
[13] R v Harkin (1989) 38 A Crim R 296, 301.
Chief Justice Lee in R v Harkin then went on to adopt the observations made by Lord Ackner in the decision of R v Court,[14] that were adopted by Murray J in Drago.[15] The respondent points out that Lee CJ specifically referred to 'the anus' and not the buttocks, and that the anus is to be clearly distinguished from the buttocks. The anus sits in the cleft between the buttocks and is a far more intimate part of the body than the buttocks, and in particular, the side of the buttocks. Clearly the magistrate agreed.
[14] R v Court [1989] AC 28, 42 ‑ 43; (1988) 87 Cr App R 144, 155.
[15] Drago v The Queen (1992) 8 WAR 488, 503.
It is accepted by the respondent that there may be times that the touching of the buttocks, in the particular circumstances in which it occurred, may be deemed to be indecent. This, the respondent says, may be dependent upon the motive or the purpose of the accused, or the surrounding circumstances. But this, the respondent says, when regard is had to the circumstances of this matter, is far from being such a case.
The appellant also points out that there are cases in which conduct that would otherwise self‑evidently bear a sexual connotation, may not be indecent because of factors including the motivation of the accused. The factual circumstances considered in R v Jones illustrate this point.[16] That case was an appeal from the conviction of a paramedic for an indecent assault constituted by his attending the female complainant's home of his own accord to perform a follow up electrocardiogram, involving placing sticky pads and electrodes on her breast. The Queensland Court of Appeal, while not doubting that a woman's breasts are an area of the body giving the paramedic's acts a presumptively sexual connotation, held that the jury ought to have been directed to consider evidence that might have undermined that presumption, such as the paramedic's clinical interest in electrocardiograms, and that the electrodes seemed to have been properly placed.
[16] R v Jones [2011] QCA 19; (2011) 209 A Crim R 379.
Importantly, the decision in R v Jones illustrates that where an assault could be said to be inherently sexual it may still be relevant to consider the intention and purpose of the accused in considering the context of the particular act. This point was considered by the Court of Appeal of the Australian Capital Territory in R v Gillespie.[17]
[17] R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327.
In R v Gillespie, Burns J distinguished the decision in Harkin as reasoning applicable to an assault if, absent some explanation, the assault involves the genitalia, anus or breast of the victim or the accused. Burns J observed:[18]
[18] R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327 [19] ‑ [26].
An assault, therefore, may be found to be an indecent assault by the tribunal of fact if, absent some explanation, it is inherently or unequivocally sexual, in the sense that it involves the genitalia, anus or breast of the victim or the accused: see Harkin at 301. In such a case it is unnecessary for the Crown to prove that the accused’s purpose in committing the assault was sexual. In that limited sense the intention or purpose of the accused is irrelevant. To say that in such cases the intention or purpose of the accused need not be established by the Crown before the matter may go before the tribunal of fact is very different to saying that the tribunal of fact cannot have regard to the purpose of the accused in committing the assault in determining whether the assault was, in fact, indecent.
Since the passage of the Crimes (Amendment) Ordinance (No 5) 1985 (ACT), the ACT no longer has an offence of indecent assault. The offence introduced by that Ordinance, now s 61, punishes acts of indecency, thus removing the requirement that the Crown prove the commission of an assault, a requirement that has led to odd results: see Director of Public Prosecutions v Rogers [1953] 1 WLR 1017 where it was held (at 1019) that the accused, who used no force or compulsion to persuade his 11 year old daughter to perform indecent acts on him, although she did not want to, was properly acquitted of indecent assault.
As Crispin J observed in R v Morton (1998) 143 FLR 268 at 276, when considering a charge alleging an act of indecency 'one must begin by asking whether the conduct in question is capable of amounting to an indecent act.' His Honour went on to say:
'If it is not so capable then an improper motive will be incapable of converting it into one. On the other hand, if it is capable of amounting to an indecent act then the motive and/or intention of the accused may be determinative of whether it was in fact indecent. There may also be some acts which are so intrinsically indecent that no motive or intention, however benign, could have the effect of depriving them of their indecent character.'
This last proposition by Crispin J echoes the words of Gleeson CJ in R v Manson; R v Stamenkovic (NSWCCA, 17 February 1993, unreported), where in the context of a charge of committing an act of indecency with an 11 year old girl by taking certain photographs of her, his Honour said:
'The fact that conduct is engaged in for political or artistic purposes does not throw around such conduct a kind of cordon sanitaire, producing the result that it cannot be found to be illegal. It is entirely possible that a person might, for political or artistic purposes, take a photograph of an act that a jury regards as an act of indecency.'
Later, his Honour said:
'If, as in the present case, the act in question has an unequivocally sexual connotation the Crown does not have to prove that the act was done for the purposes of providing sexual gratification. On the other hand, the purpose for which the act is done may well be regarded by right-minded people as relevant to the question whether it is decent or indecent, depending on the circumstances of the particular case. The fact that an act was done for artistic or political purposes may lead a jury to conclude that it was not indecent. On the other hand, it would certainly not require such a conclusion.'
The distinction apparently alluded to by the primary judge between unequivocally sexual acts and those lacking that character is only useful in considering what evidence must be adduced by the Crown before the question of guilt or innocence may be left to the tribunal of fact. To prove that an act is indecent, the Crown must prove that it had sexual connotations. Some acts, of their very nature, will possess this quality, and they may be referred to as unequivocally sexual. On the other hand, where the act lacks such obvious sexual connotation, but is nevertheless capable of amounting to an indecent act, the Crown must prove that it had the quality of indecency by proving that it had a sexual connotation. So, for example, in R v Coombes (1960) 45 Crim App R 36, Coombes was convicted of indecent assault consisting of touching a woman on the back and suggesting to her that they engage in sexual intercourse. The conviction was set aside on other grounds, but Parker LCJ did not suggest that the act of Coombes placing his hand on the back of the complainant, accompanied by the sexual suggestion directed towards her, could not constitute an indecent assault.
The distinction between unambiguously sexual acts and those that are only capable of having a sexual connotation has no role to play in determining whether evidence of the purpose of the accused in committing the acts in question is to be admitted. In my opinion, such evidence is clearly admissible whether the act in question may be characterised as unequivocally sexual, or only capable of having a sexual connotation.
Recently, this Court had occasion to consider the elements of the offence created by s 61 of the Crimes Act 1900 (ACT) in Director of Public Prosecutions (ACT) v AW (2013) 8 ACTLR 86, where Higgins CJ repeated at [12] his comments in his Honour's earlier decision in R v Taylor [2010] ACTSC 121 at [11] referring to the formulation advanced by Lord Griffith in R v Court:
'Whether or not right thinking people will consider an action indecent will sometimes depend upon the purpose with which the act is carried out. An obvious example is the examination of an unconscious woman's private parts. If carried out by a doctor for a proper medical purpose no one would consider such an examination indecent, if carried out by a stranger for prurient interest everyone would consider it indecent…
The fact is that right-thinking people do take into account the purpose or intent with which an act is performed in judging whether or not it is indecent.'
In Eades v Director of Public Prosecutions(NSW) (2010) 77 NSWLR 173, in the context of a charge of inciting to commit an act of indecency under s 61N of the Crimes Act 1900 (NSW), Campbell JA said at [61] ‑ [63]:
'There is justification in principle for it being permissible to take matters of context into account in deciding whether an act that is incited is one of indecency. It arises from the test, stated in [R v Manson; R v Stamenkovic (NSWCCA, 17 February 1993, unreported)] for what is an indecent act. The law does not proceed on the basis that right-minded persons make a decision about whether an act is contrary to the community standards of decency by an artificial exercise of abstracting an action performed from the context in which it is performed. That is so whether the act in question is one actually performed, or one that one person is urging another to perform. Any of the surrounding circumstances that right-minded persons would take into account in deciding whether a particular action was contrary to community standards of decency can be taken into account in deciding whether the offence under s 61N(1) has been committed.
For any action, it is likely that there will be many aspects of the context in which it occurs that right-minded persons would find are of no help in deciding whether the action is contrary to community standards of decency. In a charge under s 61N(1) it is the task of the trier of fact to identify in the evidence those matters of the context of the particular action that is incited that right‑minded persons would take into account in deciding whether the action is one that right-minded persons would consider to be contrary to community standards of decency, and then himself take those matters into account.
In particular, without trying to identify all the matters of context that could be relevant where the act is performed in response to a request, the terms of the request can sometimes properly be taken into account in deciding whether right-minded persons would consider the act to be contrary to community standards of decency. Likewise, facts about the identity of the person making the request and the person to whom the request is addressed, such as their respective ages, or the social roles they occupy (such as doctor-patient, or teacher-student) can sometimes be relevant to whether right-minded persons would consider the act incited to be contrary to community standards of decency. The variety of contextual matters that can assist in deciding whether some particular act being considered is indecent, makes it difficult to give any general guidance as to the type of contextual matter that can properly be taken into account.'
One of the questions before the Court of Appeal in R v Gillespie on a stated special case was as follows:[19]
Where an accused performs an act that by ordinary community standards has an unequivocal sexual connotation, when the Court is determining whether the act is an act of indecency pursuant to section 61 of the Crimes Act 1900 (ACT), is it relevant to consider the intention of the accused, in particular whether the act was performed as a joke rather than for his own sexual gratification or for sexual humiliation of the victim.
[19] R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327 [4].
The Court of Appeal in R v Gillespie unanimously found that the answer to the question was 'yes'. Their Honours were united in the opinion that the accused's intention, as being part of an attempt at humour by him, would only have some marginal relevance to proving the appellant's purpose of motive in doing what he did.[20]
[20] R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327 [4].
However, it is notable that Penfold J remarked that she would not wish the positive answer to the question to be read as any kind of indorsement for the proposition that an act is not indecent, or is presumptively not indecent if performed as a joke rather than for sexual gratification or for the sexual humiliation of the victim.[21] These observations cannot however be taken as authority for the point that an accused's motive, or subjective intention, in carrying out an unlawful assault is not a relevant consideration when determining whether the act (forming the assault) was indecent. As the Court of Appeal has very recently observed, motive may be factually relevant in deciding whether alleged indecent (dealing) was in fact indecent.[22]
B. Does touching a woman's buttocks raise an inherent assumption that the touch has a sexual connotation?
[21] R v Gillespie [2014] ACTCA 25; (2014) 283 FLR 327 [4].
[22] HTD v The State of Western Australia [No 2] [2019] WASCA 39 [24] (Buss P) [84] (Mazza & Beech JJA).
Although the prosecution contends to the contrary, there is no authority that establishes that the buttocks of a person are considered an intimate and private part of the human anatomy, to which any touch of any kind carries a sexual connotation.
In support of his submission, the appellant firstly argued that the proposition that the buttocks should be properly regarded as a private part of the body is supported by the definition of a person's 'private parts' in s 3(1) of the Criminal Investigation (Identifying People) Act 2002 (WA). Section 3(1) defines the term 'Private Parts' to mean a person's genital area, anal area, breasts (where relevant) and, significantly, buttocks. Pursuant to s 56 of the Criminal Investigation (Identifying People) Act a doctor, nurse or a qualified person is authorised to photograph an identifying feature of a person on his or her private parts.
I did not find reference to this legislation to be of assistance in this matter.
The Criminal Investigation (Identifying People) Act authorises 'intimate identifying procedures' to be undertaken to allow investigating authorities to photograph or otherwise record parts of a person's anatomy and then to potentially disclose these images to prosecutors, defence lawyers, members of a jury or even members of the public gallery in an open court in proceedings. It appears such procedures contemplate unclothed photographs to be taken of parts of a person's anatomy. This matter is not such a case.
Secondly, the appellant relied upon the findings of fact and law in R v Furlong,[23] Murphy v Spencer,[24] and The State of Western Australia v Staniforth‑Smith,[25] in support of its argument.
[23] R v Furlong (1992) 13 Cr App R 112.
[24] Murphy v Spencer [2013] WASC 256; (2013) 232 A Crim R 74.
[25] The State of Western Australia v Staniforth‑Smith [2014] WASCA 170.
Whilst in each of these cases the court found that the touching of a person's buttocks was indecent, in each of the matters there existed at the time relevant circumstances which made the act indecent, or the point was not challenged.
In R v Furlong, the English Court of Appeal was called upon (in an appeal against sentence and not against conviction) to consider whether a sentence of 9 months' imprisonment was manifestly excessive for an offence of indecent assault. The facts before the court were that the appellant, who had been drinking, was standing a few feet behind the complainant, who was a 15‑year‑old schoolgirl, waiting for a bus. Whilst standing a few feet behind the complainant the appellant wolf whistled twice and made a ticking sound whilst obviously looking her up and down and concentrating, she said, on her bottom. When the complainant moved away, the appellant also moved so that he could still look at her. When a bus arrived he stood behind her in the queue. As the complainant was getting on the bus, he grabbed her on the bottom a single time with one hand. The girl herself described the grab as being sudden and quick. It seemed that the appellant's hand had gone beneath the long blazer she was wearing, but over her skirt. When regard is had to all of these circumstances, it is clear that an inference could be drawn (and was so drawn, and not challenged in the appeal) that the assault was an act that was accompanied by a sexual connotation.
In the decision of Corboy J, in Murphy v Spencer,[26] the issue before his Honour was whether the appellant deliberately walked behind the complainant and touched her buttock in an indecent manner, or whether he accidently touched her buttock as he walked behind her. The question in the appeal was not whether touching the complainant on the buttocks would constitute an indecent act if it had been done intentionally. This finding was accepted by the appellant in the appeal.
[26] Murphy v Spencer [2013] WASC 256.
In the decision of The State of Western Australia v Staniforth‑Smith,[27] the State appealed against the sentence imposed on an offender who had been found guilty of indecent dealing for applying hair removal cream to the buttocks, anal and genital areas of a male child.
[27] The State of Western Australia v Staniforth-Smith [2014] WASCA 170.
As the respondent points out, the fact that the complainant's buttocks were identified as part of the facts supporting a guilty finding of indecent dealing in that matter is not helpful in determining this appeal. The touching of the complainant's buttocks was only a part of the facts of the alleged offence and was not determinative on their own of the fact that the touching was indecent. The touching of the boy's buttocks was found to be indecent in the context that the male offender had a sexual interest in the boy which resulted in a number of incidents of masturbation and oral penetration.
In HTD v The State of Western Australia,[28] the appellant was charged with three counts of indecent dealing with a child who he knew to be his linear relative, contrary to s 329(4) of the Criminal Code. Count 1 on the indictment related to touching the child on her buttocks by giving her a massage.
[28] HTD v The State of Western Australia [No 2] [2019] WASCA 39.
The sole issue in dispute at the trial was whether the appellant's admitted conduct in touching the child's buttocks in the course of giving her a massage was indecent.
In considering the direction given to the jury by the trial judge, on appeal, Mazza and Beech JJ relevantly observed:[29]
In relation to count 1, the appellant admitted that he had massaged E's buttocks. The decisive question for the jury was whether the State had proved beyond reasonable doubt that the massaging of the buttocks was indecent. Whether conduct is indecent is a value judgment to be made by the jury according to the community's standards of common propriety. This value judgment is to be made having regard to all of the relevant facts and circumstances the jury find proved on the evidence. A relevant, sometimes highly relevant, fact is the alleged offender's sexual motive for the act or acts said to constitute the indecent dealing.
A person's motive may be express or it might be inferred. Where motive is to be inferred, quite obviously inferential reasoning must be applied.
[29] HTD v The State of Western Australia [No 2] [2019] WASCA 39 [84] ‑ [85]; see also Buss P [22] ‑ [23].
As the magistrate found in this matter, whether the act of touching another person on the buttocks is deemed to be indecent will depend upon the motive and purpose of the accused and the context of the surrounding circumstances, and by regard to all of those matters, a judgment can be made whether the act in question offended against prevailing contemporary community standards of decency and propriety.
For these reasons, I was not satisfied that the error identified in ground 1(a) of the appeal could be made out.
C. Did the magistrate err in failing to find that the unlawful act complained of offended against contemporary community standards?
In ground 1(b) of the appeal the appellant claims that the magistrate erred in law and fact by failing to find that the assault committed by the respondent was indecent in that it offended against prevailing contemporary community standards of decency and propriety.
The appellant argues that the magistrate significantly misidentified community standards, and that her Honour seemed to reason that while in times gone by the respondent's conduct may have had a sexual connotation, current community standards were such that it no longer did.
In particular, the appellant claims that her Honour focused on cultural phenomena in the 'popular media' and the sporting arena to reach this conclusion, and that both analogies were flawed which led her Honour into error.
It is an established principle that in cases involving the application of community standards to factual situations, appellate courts should be more than usually reluctant to interfere with decisions of magistrates.[30]
[30] Higgs v Booth (Unreported, Library No 6420, 29 August 1996) (Kennedy J), 7.
The respondent contends, and I agree, that this principle is of particular importance in this matter because an assessment of whether the touching of the complainant by the respondent was indecent must have regard to the context in which the touching occurred and the time, place and circumstances.
I also agree that her Honour, having heard the evidence and viewed the exhibits, was in a superior position to appreciate and assess the context and circumstances of the touching, whereas this court on appeal, upon a later review, is not in such a position.
It is also of importance that her Honour's findings be considered in the context of the submission put on behalf of the prosecution at first instance. That submission was as follows:
(a)a woman's buttocks should be considered inherently sexual, as they are an inherently private part of one's body and intimately associated with human sexuality;
(b)in other decades, or other ages a woman being grabbed on a private area of her body, to amuse a man, might have been the price to be paid to participate in public life. Just another casual indignity to be borne, much akin to a cat call in the street; and
(c)however, a man groping or grabbing a woman on her buttocks would now be understood to have a sexual dimension regardless of the motivation and would be contrary to standards of decency and propriety that prevail today.
Her Honour expressly stated in her reasons for decision that she disagreed with the prosecution's submission. Her Honour then went on to articulate why she disagreed with the prosecution's closing submissions and it was her observation that the prevalence of touching between sexes has increased over time. She made this point by referring to the following matters:[31]
(a)in the past a grope or a pinch on the bottom of a woman in the 1970s and the 1980s was depicted in the media as sexualised behaviour;
(b)in 2017 such behaviour is not generally seen, but more overtly sexual behaviour in the popular media is generally seen; and
(c)a slap on the bottom is regularly seen on the sporting field, whereas in the 1970s and 1980s it was unheard of.
[31] Primary Court proceedings, 29 March 2018, ts 30 ‑ 31.
Her Honour properly had regard to the principle that she was required to put aside her own personal views and feelings of what is right and proper, because she was required to determine the community standard as a whole, having regard to all ages, religions, sexes, cultures, sexual orientations and moral standards represented by the community.
Her Honour also properly found that this principle does not mean that she must reach a conclusion that every single person within the community must agree with. In particular, she observed:[32]
Robust discussion and debate and disagreement is what shapes prevailing community standards, and agreement is usually not reached within 100 per cent of the community. In the era of the hashtag Me Too movement, there is no doubt that this is one of those situations that will provoke exactly that type of discussion and debate within the community as to where the line is drawn, but that mere fact does not suggest that this action is or must be indecent by its character.
[32] Primary Court proceedings, 29 March 2018, ts 26.
Her Honour found that the prevailing community standard for men touching women is that men should not touch women at all unless they have active consent. Her Honour then went on to find that that standard says nothing as to the decency or indecency of those actions.[33]
[33] Primary Court proceedings, 29 March 2018, ts 31.
Her Honour clearly rejected the prosecution's submission that the touching of a woman's bottom involves touching a private part of the body that is intimately associated with sexuality. In particular, she found that this proposition was not a reflection of the common sense of propriety today and said that indecency can only be judged by the surrounding circumstances of each case. Further, that all that could be concluded ultimately from the assessment of prevailing standards, and from decided cases, is that the touching of a bottom is capable of being indecent, but it is not inherently so.
Her Honour went on to consider what was considered to be specified by the term indecent in the Criminal Code. Her Honour had regard to the observations made by Malcolm CJ in Spiteri v The Queen.[34]
[34] Spiteri v The Queen [2001] WASC 82 [8] (Anderson J agreed).
Her Honour then went on to consider the observations of Nicholson J in Drago v The Queen,[35] and R v Harkin.[36]
[35] Drago v The Queen (1992) 8 WAR 488.
[36] R v Harkin (1989) 38 A Crim R 296.
Her Honour rejected the proposition put on behalf of the prosecution that the decisions of Furlong v The Queen[37] and Murphy v Spencer[38] were authority for the fact that the grabbing of the bottom is always indecent.
[37] Furlong v The Queen (1992) 13 CR App R (S).
[38] Murphy v Spencer (2013) WASC 256; (2013) 232 A Crim R 74.
Her Honour found that at the end of the day, this was a case in which the touching was capable of being indecent, but was not inherently so.
Importantly, her Honour then found that it is recognised by the law that community standards change over time; but found that from a review of the authorities in relation to offences of this type, that community standards are such that there has been little change in the views of the community regarding the indecency of touching some parts of the body.
Her Honour found that touching of the breasts, vagina, penis, testicles or anus would cause any ordinary right‑thinking member of the community to conclude that it was inherently sexual touching, without further explanation. She then found that a touch to the bottom was a different matter:[39]
It requires an examination of all the surrounding circumstances and requires, at law, for there to be a sexual connotation in the touching. I am, therefore, required, in this case, in my view, to make a finding of fact as to the nature of the touching itself. Before I do so, I comment on a couple of other matters. Firstly, the alleged admissions by the accused to Adam Clews that he pinched her on the bum for a funny photo and she took it the wrong way is not relevant to the question of indecency or whether or not the accused did, in fact, grab the complainant on the bottom.
[39] Primary Court proceedings, 29 March 2018, ts 31.
Her Honour then went on to consider that the actual physical position of the touching on the buttocks had relevance in determining whether or not it was indecent. Her Honour then had regard to the statement made by the respondent before he touched her. She found that the statement made by the respondent to the complainant before he touched her made it clear that he gave consideration to the fact that the touching was not appropriate; but that the statement meant no more than any touching can be unwelcome by some people, which was consistent with current community standards that all touching should be avoided where consent is not freely given. Her Honour was not satisfied that the words stated by the respondent, having regard to either version, implied a sexual touching.[40]
[40] Primary Court proceedings, 29 March 2018, ts 32.
It is clear from these findings that her Honour accepted the respondent's submission that whether the community standards of decency and propriety regard deliberate touching of a person's buttocks as indecent, will turn upon:
(a)the nature and location of the touch; and
(b)the context and circumstances.
It is also apparent from her Honour's reasons that by having regard to those matters she properly took into account the respondent's intention and purpose when carrying out the act in question. This factor, as her Honour properly found, is not the determinative factor but it is a relevant factor. This approach was approved in Drago,[41] and very recently in HTD v The State of Western Australia.[42] Consequently, her Honour squarely addressed the point made by Lord Griffiths in R v Court[43] 'why did he do it?' In this matter, her Honour was clearly bound to assess the nature and quality of the act itself, and the motive and purpose of the respondent in doing so.
[41] Drago v The Queen (1992) 8 WAR 488, 503 (Murray J)
[42] HTD v The State of Western Australia [No 2] [2019] WASCA 39.
[43] R v Court [1989] AC 28; (1988) 87 Cr App R 144.
The magistrate accepted the respondent's explanation before the court of why he did what he did. Whilst in other matters such an explanation may, on the facts, lead a trier to fact to reject such an explanation, the rejection of the respondent's explanation was not open on the facts before the magistrate, as the explanation was not in contest by the prosecution.
In submissions made on behalf of the appellant, counsel made a submission that community standards of propriety and decency have changed and this is evidenced by the 'Me Too' movement, which is a phenomenon that reflects the contemporary standards of decency of ordinary members of the public.
The 'Me Too' movement has brought to the attention of communities across the world, including across Australia, the fact that sexual assaults (including indecent assaults) and sexual harassment of women should not be tolerated by men or women in today's society. The movement is directed toward encouraging victims of such acts not to remain silent, but to speak publicly and/or post their complaints on social media platforms.
Some of the acts victims will, and have, complained of, are acts that local communities will regard as 'indecent', others will be more serious acts including degrading acts of sexual violence. Other acts and conduct complained of will be less serious, but will be acts that may be regarded as unacceptable, humiliating or disrespectful.
The effect of the 'Me Too' movement has been to increase the number of complaints by women and to increase awareness of the unacceptability of such acts and conduct. However, there was no material before her Honour upon which a finding could be made that the effect of the movement itself has resulted in a change in community standards as to the 'acts' and 'conduct' that should, at law, be deemed 'indecent' so as to attract a criminal penalty as prescribed by s 323 of the Criminal Code.
For these reasons, I was not satisfied that error as alleged in ground 1(b) of the appeal could be demonstrated.
Conclusion
In my respectful opinion, her Honour was best placed to determine whether the touching of the side of the complainant's buttock was inherently sexual, or amounted to touching capable of being of a sexual character, taking into account prevailing community standards of decency and propriety.
Her Honour properly considered the applicable principles in finding that the touching of the complainant by the respondent was not indecent.
For these reasons, I was not satisfied that the appellant's proposed grounds of appeal had a reasonable prospect of success. Accordingly, I formed the opinion that leave to appeal should not be granted. I made orders to that effect and dismissed the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith15 MARCH 2019
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