The Historical Offence of Act of Indecency in New South Wales

by Sonia Hickey & Ugur Nedim
The Historical Offence of Act of Indecency in New South Wales

The New South Wales Premier has demanded the resignation of former Minister for Families, Communities and Disability Services Gareth Ward, who has been charged with historical sexual abuse offences.

The 40-year old member for Kiama stepped down from his portfolio last year, when it became publicly known he was under investigation by the police, but remains a member of state parliament.

He is charged with three counts of ‘act of indecency’, and one count each of common assault and sexual intercourse without consent, also known as ‘sexual assault’.

The allegations

The offences are alleged to have occurred in 2013 and 2015.

The earlier is said to have involved an assault with act of indecency against a 17-year old boy at Meroo Meadow, just north of Kiama in the state’s Shoalhaven region, in February 2013, while the later is claimed to have occurred against a 27-year old man in Sydney two years later.

A police spokesperson told the media the charges resulted from determinations made by Strike Force Condello, which was established in May 2021 to “investigate allegations of sexual violence-related offences”.

Strenuous denial

Mr Ward has vehemently denied the allegations, stating:

“I am completely innocent of the charges brought against me. I will be instructing my lawyers to seek to bring this matter before the courts as quickly as possible and I look forward to demonstrating my innocence there”.

“While others have already attempted to prosecute my case in the media rather than the courts, out of respect for our system of justice I will not be doing the same.”

He is entitled to be presumed innocent until and unless he is found guilty in a court of law.

Demand for resignation

Despite the presumption of innocence, New South Wales Premier Domenic Perrottet has called for Mr Ward’s immediate resignation, warning that he will move a motion in parliament for his removal unless he adheres to the premier’s demands.

Mr Perrottet said in a statement.

“While Mr Ward is entitled to the presumption of innocence, as any citizen is, the standards expected of an elected member of parliament are not compatible with the seriousness of the charges he is facing”.

 “Mr Ward is entitled to defend himself against the serious charges against him but he must do that as a private citizen.”  

Mr Ward has been granted conditional bail and will appear in the Port Kembla Local Court in May 2022.

The offence of committing an act of indecency

Committing an act of indecency was an offence contained in section 61N of the Crimes Act 1900 until it was replaced by the offence of ‘sexual act’ on 1 December 2018. It continues to apply to conduct alleged to have occurred before that date.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

  1. The defendant committed an act of indecency on or towards the complainant, or incited another person to do so,
  2. The act was without the complainant’s consent, and
  3. The defendant knew the complainant was not consenting, or was reckless as to whether or not the complainant was consenting.

Whether an act is ‘indecent’ is determined according to the standards of a reasonable person, but it must, in the context of the offence, have some sort of sexual aspect or connotation.

The maximum penalty for the offence is 18 months in prison if the complainant was at least 16 years of age, or two years if he or she was under that age.

Examples of the offence may include performing a sexual act such as masturbating in front of another person, and pretending to perform a sexual act on someone else.

Legal defences

It is important bear in mind that the onus always rests on the prosecution to prove each of the above elements of the offence beyond a reasonable doubt, and that the defendant is entitled to an acquittal if the prosecution is unable to do so.

In addition to this, where the defendant raises evidence of a legal defence, the prosecution must disprove that defence beyond a reasonable doubt.

Defences to charges of indecent assault and act of indecency include:

  1. Self defence,
  2. Duress,
  3. Necessity, and
  4. Lawful correction of a minor.

Going to court?

 If you have been accused of a sexual offence, it is important to engage the services of specialist criminal defence lawyers who are experienced in these types of cases and have a proven track record of obtaining exceptional outcomes

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Authors

Sonia Hickey

Sonia Hickey is a freelance writer, magazine journalist, and owner of 'Woman with Words'. She has a strong interest in social justice and is a member of the Sydney Criminal Lawyers® content team. Sonia is the winner of the Mondaq Thought Leadership Awards, Autumn 2021.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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