Last Friday the Court of Appeal set aside a conviction on a single count of indecent assault, in Sabet v The Queen [2011] VSCA 124.

The case stands out partly because it arose from a trial where the jury acquitted the accused of all other charges that might have suggested indecent circumstances. (And also because there aren’t many recent appellate Victorian cases considering indecency). Only a charge of indecent assault remained, where the accused kissed the complainant on the cheek.

The Court allowed the appeal and set aside the jury verdict, concluding that following the jury’s acquittals, there was no evidence suggesting the accused sought sexual gratification from the kiss.

The Court applied several authorities, notably a case from the NSW Court of Criminal Appeal, Harkin v The Queen (1989) 38 A Crim R 296. In that case Lee J reviewed several cases on indecency, and then concluded at 301:

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. Thus, if the appellant intentionally touched the breast of the girl Elizabeth, it is my view that if there is nothing more, and there is not, that in itself is sufficient to give to the assault the necessary sexual connotation and to render it capable of being held to be indecent, and it is then for the jury to determine whether in the case of a mature man of 38 and a girl of 11 years and nine months that should or should not be regarded as conduct offending against the standards of decency in our community. 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.

Some of that passage was approved in Sabet, at [13]. The Court applied that reasoning and held that the jury could not have been satisfied beyond a reasonable doubt that the accused was guilty of indecent assault.