Sexual Touching in NSW Explained

You have probably heard of offences like ‘rape’ (which is now coined as ‘sexual assault’) and ‘grooming’, but have you heard of ‘sexual touching’? Sexual touching is a relatively new offence that was inserted into the Crimes Act 1900 (NSW) at the end of 2018, and it replaced the offence of ‘indecent assault’. Given that sexual touching carries a maximum imprisonment of five years and is relatively easy to prove, you should be aware of its basic elements. This article will explain, with a real-life example, the elements that the Police will try to prove.

What constitutes sexual touching? (s 61HB)

Section 61HB of the Crimes Act 1900 (NSW) defines sexual touching as touching the alleged victim:

  1. with any part of the body or with anything else, or
  2. through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual. Circumstances include touching the alleged victim’s genital area, anal area or breasts and where the touching was for sexual arousal or sexual gratification.

Like most criminal offences, there are physical elements and mental elements. For this offence, the alleged offender has to know that the alleged victim was not consenting to the sexual touching. Consent means that he or she freely and voluntarily agrees to that sexual activity. Knowledge comprises of three mental states:

  1. the alleged offender has actual knowledge that the victim does not consent
  2. the alleged offender is reckless as to whether the alleged victim consents; and
  3. the alleged offender has an honest belief that alleged victim consented but has no reasonable grounds for that belief.

Case Law – R v Shanmugam

In a recent Disctrict Court case, R v Shanmugam (No.2) [2020] NSWDC 482, the physical elements and mental elements are set out clearly. The offence happened in early January 2019. After a belated work Christmas party, Shanmugam, the victim and a female workmate ended up at the victim’s home. They all slept in the same bed. Although the victim and Shanmugam had cuddled earlier in the night, there was no expectation by either of them at the time to have sexual relations. The victim woke and saw Shanmugam masturbating. He then rolled towards her and laid against her in the spooning position. He was still masturbating, with his hand against her night shorts while she was facing the wardrobe pretending to be asleep. After she brushed him off, she rolled onto her back to stop him from repeating what he had done. He then put his hands down the front of her pants and rubbed the exterior of her vagina with his hand. She brushed him away, rolled onto her side. She was in shock and reported the incident to the Police.

The conduct of laying against the victim, putting his hands down the front of her pants, and rubbing the exterior of her vagina with his hand satisfied the physical element of sexual touching. In terms of the mental element, the victim continually rolled onto her back, tried to ignore the accused, and tried to stop him. Here, a reasonable person would infer that the victim had not given consent. Shanmugam witnessed these reactions from the victim and continued to sexually touch the victim without her consent. Therefore, he was at least reckless as to whether the victim consented. Shanmugam was sentenced for 1 year and 3 months.

Conclusion

Sexual touching can be a serious offence depending on the circumstances, and the Police can generally satisfy the elements with little difficulty. Our lawyers have rich experience in this area so please contact us on 02 9283 8588 immediately if you need legal representation. We are committed to protecting your legal rights.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

NSW bail applications for serious offences

Last time, we explored a basic overview of a bail application in New South Wales. In this article, we will take a deeper dive into what the Judge considers when a bail application is heard in relation to a serious offence. We will also examine two real-life cases that were heard in the higher courts.

Firstly, the Judge will consider reasons why detaining the accused is not justified. If the Magistrate is not satisfied, then bail would be refused. If the Magistrate is satisfied with the reasons, then the Magistrate will apply the ‘unacceptable risk test’. The accused must be refused bail if there is an unacceptable risk that the accused will:

  • fail to appear at any proceedings for the offence;
  • commit a serious offence;
  • endanger the safety of victims, individuals or the community; or
  • interfere with witnesses of evidence.

McAndrew v R [2016] NSWCCA 58

Mr McAndrew was charged with a serious offence, namely armed robbery, and he failed to convince the Court of Appeal that his detention was not justified.

Mr McAndrew submitted four arguments:

  1. He needed to take care of his newborn child;
  2. He was unable to adequately grieve the loss of his grandmother whilst he was imprisoned;
  3. He intended to plead not guilty; and
  4. He needed to take care of his mother who had suffered a series of strokes.

The Court rejected all arguments from Mr McAndrew and concluded that his personal and family reasons do not easily translate into a demonstration that his continued imprisonment should not continue. Therefore, Mr McAndrew’s bail application was refused.

R v BNS [2016] NSWSC 350

BNS was charged with a serious offence that is, possession of a commercial quantity of a prohibited drug. The Court dismissed BNS’ bail application for the following reasons:

  1. The Prosecution had a very strong case.
  2. BNS has a high risk of not appearing in Court because he is a citizen of a foreign country and has no familial or community ties to Australia.
  3. BNS is likely to face a substantial term of imprisonment if convicted.

Although BNS’ mother was prepared to offer AUD$1,000,000.00 as a bond, the Court was not convinced that BNS had any sense of obligation to his mother with respect to that money. Furthermore, the Court could not assess the relative impact of the loss of that sum to BNS or his mother in the event that he does not appear.

Conclusion

Convincing the Court to grant bail is not an easy task, especially in relation to serious offences. Our lawyers have been instructed to apply for bail on many occasions and have a very clear understanding of what Judges are looking for. Recently, our team successfully obtained bail for a client who was charged with aggravated sexual assault. If you have been charged with a serious criminal offence, we can help you attain the outcome you deserve.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Victorian Court Arrangements during the Second Lockdown

Due an unfortunate surge of COVID-19 cases, Victoria is now under a second lockdown with metropolitan Melbourne facing the strictest stay-at-home and curfew restrictions which will last for at least 6 weeks from the beginning of August. In this context, how the Victorian judiciary, which traditionally relies heavy on face-to-face hearings, adapt to the second lock-down deserves special attention. This article will take a brief look at such adaptive measures.

Courts operating protocols

In general, Victorian courts and tribunals remain accessible, but they now only hear urgent and priority matters. Most non-urgent matters are either postponed to a later hearing date or scheduled to be heard via video conferencing instead. For those who are required to attend the county court physically, they must adhere to the face covering rules inside the court.

Supreme Court of Victoria

The Supreme Court of Victoria normally deals with the most significant cases. Currently, most hearings at the Supreme Court are being heard remotely. If you are unable to attend court due to COVID-19, you must notify the Prothonotary by email as soon as possible.

County Court of Victoria

In the second lockdown, the County Court will only grant permission for matters to be conducted in person at court on a case-by-case basis where such physical attendances are necessary and urgent with no reasonable alternative. Examples of such cases include those concerning the liberty of a person, or cases involving highly vulnerable participants or dying litigants.

Other hearings are conducted via video conferencing (eHearings) where participants will be able join remotely.

Magistrates’ Court

Like the County Court, the Magistrates’ Court is managing many of its matters remotely and you should not attend court unless otherwise instructed by prior arrangement. A range of non-urgent matters have been adjourned and most matters are now being heard in the Online Magistrate Court ( OMC) premises. The Courts are now also utilising “webex” that allows certain matters to proceed remotely. 

VCAT

VCAT, which mainly deals with small claims, is still accepting new cases and you can still apply for matters that fall within the VCAT’s jurisdiction for determination. However, VCAT is able to issue summons at your request. VCAT is conducting hearings via telephone and video conferencing. Most cases that require face to face contact have been adjourned and rescheduled for hearing for a later date. Parties will be informed of how to attend their scheduled hearing by the tribunal.

Federal Circuit Court

The Federal Circuit Court has suspended all face-to-face hearings in the Melbourne and Dandenong registries for the next six weeks unless exempted by the Chief Justice. The court will conduct all trials and hearings electronically via telephone or Microsoft Teams. Regarding family law cases in particular, the court has asked parties to cooperate and ensure that the best interests of the child are being addressed by complying with court orders. If strict adherence to parenting orders are not possible, all amended arrangements must reflect the essence of the orders.

To sum up, thanks to remote conferencing technology today, Victorian courts are able to maintain public access to the court system while safeguarding public health and safety during the COVID-19 pandemic. It is notable, however, that specific arrangements vary depending on the type of court and the case they deal with. If you are involved in a court case or plans to initial legal proceedings, it is advisable to look at the arrangement of the applicable court and keep in close contact with your lawyer.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Risk and Avoidance of Insolvent Trading during COVID-19 Pandemic

The COVID-19 pandemic has brought financial difficulties to Australian business due to reduced customers, reduced trade, and hence reduced income. In this context, it is imperative for company directors to keep track of the company’s balance sheet and business activities to avoid ‘insolvent trading’, for which they may be personally liable under the Australian Corporations Act 2001 (‘the Act’).

In this article, we will give you an outline of what ‘insolvent trading’ is, its consequences, avoidance, defences and special relief provisions during the pandemic.

What is insolvent trading?

A company is ‘solvent’ if it is able to pay all its debts when they become due and payable. Otherwise, the company is ‘insolvent’.

‘Insolvent trading’ occurs in either circumstance below:

  1. a company incurs a debt when the company is insolvent; or
  2. a company becomes insolvent by incurring debt.

A company may incur debt in various ways in the sense of insolvent trading. Apart from incurring debts in the usual sense, it also includes paying a dividend, buying back shares, issuing redeemable preference shares, financially assisting a person to acquire shares etc.

Director has a duty to prevent insolvent trading

A director of a company contravenes the Act if the director fails to prevent the company from insolvent trading when he or she is a director (‘contravening director’). Depending on the circumstances, the contravening director may incur civil or criminal liability.

A director may incur civil liability if the director fails to prevent the company from incurring debt in either of the following circumstances:

  1. the director is aware that there are grounds for suspecting that the company is insolvent when incurring the debt, or would become insolvent by incurring that debt; or
  2. a reasonable person in a like position, given the company’s circumstances, would be aware of such grounds for suspecting.

A director may incur criminal liability if:

  1. the company is insolvent when incurring the debt, or would become insolvent by incurring that debt;
  2. the director suspects the above, but nonetheless fails to prevent the company from incurring that debt; and
  3. the director’s failure of prevention was dishonest.

Director’s liability of insolvent trading

A contravening director may face legal actions by the Australian Securities and Investments Commission, the company, liquidators or creditors. The court may make various orders against the contravening director including:

  1. a compensation order, to compensate the company or the creditor;
  2. a relinquishment order, for the contravening director to pay to the federal government the benefit obtained by the director by contravening the Act (‘benefits by contravention’); and
  3. a pecuniary penalty order, for the contravening director to pay a monetary penalty up to 5,000 penalty units (currently $1.05 million) or 3 times the benefits by contravention, whichever is greater.

Where criminal liability is involved, a contravening director may incur up to 5 years of imprisonment to addition to monetary penalties.

Further consequences for the contravening director include:

  1. if the director is unable to pay for the compensation order, relinquishment order or monetary penalties, the director may be bankrupted; and
  2. the director’s bankruptcy or criminal conviction may disqualify the director from managing a company.

How to avoid liability of insolvent trading?

A director may avoid liability of insolvent trading if, after starting to suspect that the company is insolvent or may become so, the director starts developing a course of action reasonably likely to give the company a better outcome. A debt incurred when such a course of action is in place might not be taken as a debt leading to insolvent trading (‘contravening debt’).

In this regard, what the director must do include:

  1. understand the company’s financial position;
  2. take appropriate steps to prevent misconduct by company officers or employees what could compromise the company’s solvency;
  3. take appropriate steps to ensure that the company keeps proper financial records;
  4. take professional advice (by giving the professional sufficient information); and
  5. develop or implement plans to improve the company’s financial position, such as restructuring.

Furthermore, the director must ensure that the company continues to pay its employees’ entitlements and file tax returns.

Relief of liability of insolvent trading during COVID-19 pandemic

Section 588GAAA of the Act in relation to insolvent trading during COVID-19 took effect from 25 March 2020 for 6 months subject to any regulations. When Section 588GAAA is in effect, a company’s debt is not taken as a contravening debt if it is incurred in the ordinary course of the company’s business.

What defences are available in the event of insolvent trading?

If insolvent trading occurs, a director might rely on the following defences:

  1. the director had reasonable grounds to expect, and did expect that the company was solvent and would remain solvent by incurring the contravening debt; Please note that such a reasonable ground may include the director’s reasonable belief in another person who is competent and reliable in providing information of the company’s solvency;
  2. the director did not participate in the management of the company when the contravening debt was incurred, because the direct was ill or for some other good reason; or
  3. the director took all reasonable steps to prevent the company from incurring the contravening debt.

Please contact our firm for advice specific to your circumstances.

Disclaimer

This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Legal Issues regarding Domestic Violence amid COVID-19 Pandemic

Domestic violence involves violence (including physical, psychological, financial or other forms of abuse) in relationships of family, de facto partnership, cohabitants etc. Concerns are aroused to a potential rise in domestic violence as a vast population is sent home without a job as a result of the COVID-19 pandemic. Such a concern is made clear as the Australian government included in its pandemic relief package $150 million for support related to domestic violence.

In this article, we will briefly explore some legal issues relating to domestic violence in New South Wales in the midst of the pandemic, including the potential release of domestic violence offenders and changes to the justice system relating to domestic violence cases in response to the pandemic.

Release of domestic violence offenders

Correctional premises such as prisons attract public health concerns during the pandemic given the dense concentration of inmates on those premises. In New South Wales, the Crimes (Administration of Sentences) Act 1999 has been amended to empower the Corrective Services to release an inmate on parole if its Commissioner is satisfied that the release is reasonably necessary considering the risk of public health and the good order and security of the correctional premises. Such a power lasts for 6 to 12 months from 25 March 2020. In this context, what if domestic violence offenders are released from prison and pose a risk to victims of their domestic violence after they return home?

Such a concern can be addressed by multiple safeguards in the relevant laws and regulations.

First, offenders that might be released are confined to those who face higher health risks during the pandemic because of existing medical conditions or vulnerability, such as old inmates, and inmates who might expect a release in no more than 12 months ahead. Moreover, the Corrective Services cannot release serious offenders or sex offenders. Only low-risk inmates might be released.

Second, the Commissioner of Corrective Services must take into account a range of factors when considering the release of an offender. For domestic violence offenders, the Commissioner must consider, in particular, the impact on the victim of domestic violence and persons who are likely to reside with the offender after the release. Therefore, no decision can be made lightly.

Third, an offender is only released on parole subject to parole conditions including that the offender must maintain good behaviour and must not commit any offence. If the offender breaches the conditions, minor breaches will be dealt with by Community Corrections. If the breach is serious, Community Corrections can report it to the Parole Authority which has the power to revoke the parole and have the offender arrested and returned to custody. For offenders released on parole during the pandemic by the Corrective Services, the Commissioner also has the power to impose parole conditions and revoke the parole for any reason. Therefore, should domestic violence occur again, it is possible for the offender to be taken back to prison.

Therefore, although possibility exists for domestic violence offenders to be released before completing their prison terms, multiple legal safeguards are in place to minimise their risk to the victims of domestic violence and the community.

Protection of domestic violence victims

In general, protection available to victims of domestic violence remains unchanged. In the event of domestic violence, including the victim being harmed or being threatened of harm by the offender, it is common for the victim to report to the police which might on behalf of the victim apply for an Apprehended Violence Order (AVO). If the police refuse to apply for the AVO, the victim can apply for the AVO on their own. An AVO imposes restrictions on the offender’s behaviour to protect the victim.  It is an offence to breach the restrictions under an AVO with penalties including fines and imprisonment.

What is changed amid the COVID-19 pandemic relates to court procedure aiming at reducing the risk of spreading the virus through court proceedings.

In New South Wales, an AVO application is filed with the Local Court which will schedule a court hearing to hear the case and, if circumstances so justify, make a final AVO. In response to the pandemic, the Local Court has adjourned existing AVO proceedings for at least 3 months and postponed AVO hearings. Despite that final AVO decisions will be delayed as a result, the victims can still be protected as the court can issue a provisional AVO or an interim AVO. A provisional AVO is applied for by the police if they think it necessary to give the victim immediate protection upon the victim’s report. An interim AVO is made when a victim applies for an AVO on their own or the AVO proceeding is adjourned. Moreover, the Local Court will continue to deal with urgent applications and issue interim AVOs promptly when necessary. When the parties need to communicate with the court, they are required to do so in writing or by email.

If the domestic violence offence is so serious as to be heard before the District Court or the Supreme Court, the court may direct, or the party can apply for a direction, that a witness give evidence by audio-visual link. The court may also order that the victim give evidence in a separate evidential hearing rather than in a jury trial. Such an evidential hearing will be recorded and then played in the jury trial.

To conclude, the pandemic only brought changes to court procedure in relation to domestic violence cases for reducing the risks of parties contracting the virus by attending court hearings. The protection available to victims of domestic violence under Australian law remains unchanged.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.

Justice amid COVID-19 Pandemic in New South Wales

To tackle the COVID-19 pandemic in New South Wales, which unfortunately has the most confirmed cases, the COVID-19 Legislation Amendment (Emergency Measures) Bill 2020 commenced on 25 March 2020. The general goal is to enforce social distancing and reduce travels and contacts of people, in order to control the spread of the virus and protect the general public from it.

The justice system, where personal contact such as appearance in courts and jury trials play an essential role, face changes under the measures introduced by the Bill. Such measures are temporary for at least 6 months after its commencement, but not more than 12 months as prescribed by regulations.

Alternative appearance in proceedings

An accused person in bail proceedings will appear by audio visual link unless the court directs otherwise.

The court may also direct, or a party may apply for a direction, that an accused person, a witness, or a legal practitioner representing a party appear in a proceeding by audio visual link. To make the direction, the court must consider the interest of justice and give the parties an opportunity to be heard. The court must also be satisfied that a party has a reasonable opportunity to communicate with his legal representative in private.

A person may appear before the Mental Health Review Tribunal for the purposes of mental health inquiry by way of telephone upon the Tribunal’s approval, if the Tribunal thinks it necessary due to the COVID-19 pandemic.

Trial by jury

The sheriff may exempt a person from being selected to be summoned for jury trials or coronial inquests by considering the safety or welfare of that person or the community at large.

A court may order that an accused person be tried by a judge alone if the accused having received legal advice consents such an arrangement. The court must also consider the interest of justice if the prosecutor does not agree to the arrangement.

Use of pre-recorded evidence

For criminal proceedings in the District Court or the Supreme Court, the court may order that evidence be given in pre-recorded evidence hearings without a jury. Such pre-recorded evidence is then viewed or heard in subsequent jury trials of the case. Subsequently, if there are new trials in all courts because the original trial is discontinued for any reason, or new trials ordered upon an appeal against conviction, then the pre-recorded evidence can also be admitted in such new trials unless the court declines admission on the ground of unfair disadvantage to the accused.

Witnesses eligible to give evidence in pre-recorded hearings are complainants in proceedings of sexual offence, domestic violence offences and serious indictable violence offences, as well as those who are more susceptible to COVID-19 because of age or health. Having given pre-recorded evidence, the witness will need the court’s leave to give further evidence in trials and subsequent proceedings.

To make such an order, the court must be satisfied with the interest of justice of doing so. In particular, the court must consider the wishes and circumstances of the witness and the availability of necessary facilities. The accused person must have received legal advice in this regard, and both parties must be given an opportunity to be heard. Moreover, and all the pre-trial disclosure and case management requirements are complied with.

Please contact our firm for advice specific to your circumstances.

Disclaimer: This publication is general information only and does not purport to provide legal advice. We do not accept responsibility for any losses for reliance upon this publication.