FACTS:

The respondent had been acquitted of one count of intentionally carrying out a sexual act towards a child then under the age of 10 years; namely, four years of age. The respondent had entered the room of the child, who was lying fully clothed on his bed playing with his phone. He was facing the wall. One of the child’s carers gave evidence that she entered the room to find the respondent sitting on a bedside table facing towards the bedroom door – thus facing away from the child. He was masturbating his erect penis while looking at the child to his left. The judge at first instance accepted that the respondent, though looking at the child on the bed to his left, was positioned relative to the child such that the child could not see the actions of the respondent, and that the respondent was hiding his actions from the child. There was no evidence that the child ever saw the respondent masturbating.

The respondent was acquitted and the primary judge permanently stayed the proceedings, as he had the discretion to do. The only issue at appeal was whether or not the evidence led by the Crown was capable of establishing the offence.

DECISION:

The meaning of “with” or “towards” has been considered in the recent case of DPP (NSW) v Presnell[2022] NSWCCA 146, in which enunciated that “Towards” requires an intention by the accused to engage at some level with another person, from which it can be inferred the accused’s sexual or indecent act is directed towards the person. A Person’s mere presence is not enough.A complainant does not have to be aware of the accused’s conduct for the offence to be established, for example under s HJ(1)(d) if the complainant is asleep, they are taken to not be consenting. If the accused is sufficiently proximate to the person so that it can be inferred the accused intends to gain sexual pleasure from exposure to the person’s body, this may be sufficient even if the accused does not intend the person becomes aware of the sexual or indecent act.The case also involved consideration of a sexual act involving a child (s 66DC), where consent is not an element of the offence. Yehia J applied the principle of “intention to engage” at [202] in SC v R [2023] NSWCCA 60 in relation to an offence of aggravated indecent act against a person under the age of 16,contrary to the now-repealed s 61O(1).The case also involved consideration of a sexual act involving a child (s 66DC), where consent is not an element of the offence. The Principle of “intention to engage” was applied by Yehia J at [202] in SC v R[2023] NSWCCA 60 regarding an offence of aggravated act of indecency towards a person under 16 years contrary to now repealed s 61O(1).