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Section 61M Crimes Act 1900
Aggravated Indecent Assault

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Aggravated Indecent Assault is an offence under section 61M of the Crimes Act 1900, which applies to conduct before 1 December 2018 and carries a maximum penalty of 7 years in prison.

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

  1. You assaulted another person
  2. The assault was indecent
  3. The assault occurred without the other person’s consent
  4. You knew the other person did not consent or were reckless as to whether they were consenting, and
  5. The assault occurred in circumstances of aggravation.

An ‘assault’ includes any unauthorised touching, as well as putting another in immediate fear of unlawful personal violence.

‘Indecent’ means contrary to the ordinary standards of respectable people in the community, and must have a sexual connotation or overtone.

You were ‘reckless’ if you realised there was a possibility the other person was not consenting, but went ahead with your actions regardless.

The assault occurred in ‘circumstances of aggravation’ where:

  1. You were in the company of another person or persons
  2. The other person was under your authority
  3. The other person had a serious physical disability, or
  4. The other person had a cognitive impairment.

The maximum penalty increases to 10 years in prison where the other person was under the age of 16 years.

Defences to the charge include:

  1. Duress
  2. Necessity, and
  3. Self-defence.

If you are going to court for the offence of Aggravated Indecent Assault, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight to secure the optimal outcome.

Read on for more information.

The Legislation

Section 61M of the Crimes Act 1900 is the offence of Aggravated Indecent Assault and reads as follows:

61M Aggravated indecent assault

(1)  Any person who assaults another person in circumstances of aggravation, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 7 years.

(2)  Any person who assaults another person, and, at the time of, or immediately before or after, the assault, commits an act of indecency on or in the presence of the other person, is liable to imprisonment for 10 years, if the other person is under the age of 16 years.

(3)  In this section, circumstances of aggravation means circumstances in which:
(a)  the alleged offender is in the company of another person or persons, or
(b)    (Repealed)
(c)  the alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender, or
(d)  the alleged victim has a serious physical disability, or
(e)  the alleged victim has a cognitive impairment.

Why Choose Sydney Criminal Lawyers®?

Going to court can be nerve-racking, but having a strong and compassionate legal team behind you can make the experience significantly easier to deal with.

Here are 12 reasons to choose our multi-award winning legal team:

  1. Proven Track Record of Exceptional Results

    Sydney Criminal Lawyers® consistently achieves outcomes which are in the highest percentile of the Judicial Commission’s sentencing statistics for criminal cases.

    Our legal team devises effective case-strategies and fights hard to have cases dropped entirely or charges downgraded – saving clients the time, expense and stress of a defended hearing or jury trial.

    Where cases nevertheless proceed, our lawyers have an outstanding track record of winning defended Local Court hearings, and complex jury trials in the District and Supreme Courts.

    We also consistently win appeals in the District and Supreme Courts (including the NSWCCA) after clients have received unsatisfactory results with other law firms in the lower courts.We are one of the few firms to achieve successful criminal law appeals in the High Court of Australia.

    Where our clients wish to plead guilty, we frequently achieve ‘dismissals’ and ‘non convictions’ in cases where other lawyers have advised there is no chance of doing so.

  2. Highest Level of Client Satisfaction

    We have the best and most comprehensive client review record of any law firm in Australia.

    Regular communication, accessibility and quality service are our team’s highest priorities.

    We are committed to thoroughly explaining all steps involved in the criminal law process, providing regular updates throughout the proceedings, and making ourselves accessible and responsive.

    We are passionate about providing an exceptional level of service to our clients, and we fight hard to achieve optimal results in the shortest period of time.

  3. Australia’s Most Awarded Criminal Law Firm

    We have received more awards and accolades than any other criminal law firm in Australia. Our team has been awarded “Criminal Defence Firm of the Year in Australia” in a number of prestigious and competitive awards programs for several years running.

    The awards recognise our exceptional track record of results, our outstanding client service, the high level of satisfaction we achieve, the affordability of our services and our overall excellence.

  4. Fixed Fees

    We want our clients to know exactly how much their cases will cost from the very start. That’s why we were the first criminal law firm in Australia to publish ‘fixed fees’, back in 2004.

    We offer fixed fees for most types of criminal cases and services.Our fixed fees apply to a range of Local Court cases such as drink driving, drug possession, fraud, common assault and AVOs, and also specific services such as prison visits, bail applications, appeals and defended hearings.

    Unlike many other law firms, our fixed fees are published on our website – which ensures transparency and certainty.

  5. Free First Appointment

    For those who are going to court, we offer a free first conference of up to an hour with one of our Senior Criminal Defence Lawyers.

    We also offer a free first conference to those who have received an unsatisfactory result after being represented in court by another law firm, or after representing themselves, and wish to appeal.

  6. Specialist Lawyer Guarantee

    We guarantee that only lawyers with substantial criminal defence experience will work on your case and appear for you in court.

    This ensures our clients receive the highest quality representation from an experienced, specialist criminal lawyer.

  7. All NSW Courts

    From Bombala to Broken Hill, our lawyers appear in courts throughout New South Wales – and across Australia for Commonwealth cases.

    And we offer fixed fees for most criminal and traffic law cases throughout the state.

  8. Accredited Specialists

    Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.

    All of our lawyers have years of experience representing clients in criminal cases, and our principal has been certified by the Law Society of NSW as an Accredited Criminal Law Specialist since 2005.

    An ‘Accredited Specialist’ is a lawyer who has practised for at least 5 years in a particular field of law (such as criminal law), has passed a rigorous assessment process conducted by the Law Society of NSW, and has been selected by the Specialist Accreditation Committee of the Law Society as an expert in the field.

    Accredited Specialists are required to undertake more training each year than other lawyers and must be successful in having their accreditation renewed every year. Specialist Accreditation is the mark of a true specialist.

    Our firm’s specialist experience ensures you receive the best possible result, whatever your criminal law case may be.

  9. Results-Focused Law Firm

    Our team is passionate about achieving results, and unlike many other law firms, our lawyers do not have monthly financial ‘budgets’ to meet.

    The absence of budgets means our lawyers are entirely focused on achieving optimal results in the shortest space of time; whether by getting charges dropped or downgraded at an early stage or having cases ‘thrown out of court’.

    Not having budgets also means our lawyers are not under pressure to engage in unscrupulous practices such as unnecessarily adjourning cases or ‘overcharging’ clients – which, sadly, is a common complaint against many other lawyers and law firms.

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  10. Team of Lawyers Behind You

    Our clients benefit from the pool of knowledge that only an extensive team of experienced criminal defence lawyers can provide.

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  11. Familiar with Magistrates and Judges

    Each of our lawyers appears in court on a daily basis, and has done so for years. We have therefore been able to develop an understanding of, and rapport with, magistrates and judges in Sydney and indeed across the state.

    Our team’s extensive experience before the courts ensures your case is tailored to the specific nuances of individual judicial officers, maximising the likelihood of a favourable result.

  12. Convenience

    We have offices in locations across the Sydney Metropolitan Area and beyond, including:

    We offer free parking at our Sydney CBD offices, and all of our offices are close to train stations and bus terminals.

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    If you are going to court and wish to arrange a free first consultation, call our 24 hour hotline on (02) 9261 8881 or send us an email at info@sydneycriminallawyers.com.au.

Recent Cases

Our client is a 30-year old male Uruguayan national residing at Bondi, in Sydney’s Eastern Suburbs.

According to the prosecution’s ‘statement of facts’, the 29-year old female complainant attended a Sunday evening gathering at her friend’s Bondi apartment.

Around 15 other people, including our client, also made their way to the apartment during the course of the evening, where attendees consumed food and alcohol, listened to music, socialised and danced.

At around 1am, a number of the attendees went downstairs to a neighbour’s apartment, where they continued to drink alcohol, listen to music and dance.

Between 2am and 3am, the complainant and our client together with one other female and one male attendee made their way down to the reserve next to the beach. Our client and the complainant walked together. All were intoxicated at the time.

After spending some time there, the complainant agreed to accompany our client back to his apartment. 

The complainant alleged that she then awoke to our client having sexual intercourse with her. She claimed that our client attempted to have penile / anal intercourse with her and, when she resisted, became aggressive and began choking her with his hands, to the point she lost consciousness. 

She claimed to awake to hear him say ‘you’re not going anywhere’.

According to the complainant, after the intercourse had ended, she said she was going to the bathroom before running out of our client’s apartment naked and alerting a passer-by, before police were called.

Police attended our client’s apartment and activated their body worn cameras. They placed our client under arrest.

The body cam footage recorded our client informing the police of the evening’s events and asserting that the sexual intercourse was consensual.

Despite this, police charged our client with five separate criminal offences, being:

  1. Sexual intercourse without consent (penile / vaginal), section 61i Crimes Act 1900
  2. Intentional strangulation without consent rendering incapable of resistance, section 37(1) Crimes Act 1900
  3. Intentional strangulation without consent, section 37(1A) Crimes Act 1900
  4. Attempted sexual intercourse without consent (penile / anal), section 61i Crimes Act 1900 by virtue of attempt provisions contained in section 344A(1) of the Act
  5. Sexual touching without consent (penile / anal), section 61KC(a) Crimes Act 1900

They refused our client bail at the police station.

Upon being contacted that Monday morning, our senior lawyer attended Waverley Local Court and successfully applied for our client’s release on bail.

The complainant attended hospital where she informed medical staff of her version of the events, including that she had not consented to the sexual intercourse was so heavily intoxicated that there were points she had ‘blacked out’. 

Consent was the central issue in the case, and it is important to bear in mind that the definition of consent contained in section 61HE of the Crimes Act 1900 makes clear that: 

“The grounds on which it may be established that a person does not consent to a sexual activity include…. if the person consents to the sexual activity while substantially intoxicated by alcohol or any drug”.

That being so, our defence team immediately went to work to raise doubt regarding the complaint’s assertions regarding the absence of consent and the level of her intoxication.

That work involved, among other things:

  • Identifying and obtaining CCTV footage of the relevant areas by way of both formal requests and – where these weren’t complied with, by subpoena, 
  • Obtaining the complainant’s medical records relating to her admission and briefing a pharmacological expert for an expert opinion about whether the blood alcohol concentration would have been sufficient to render her ‘substantially intoxicated’ to the point she had ‘blackouts’ as alleged,
  • Obtaining our client’s proof of evidence regarding the events, and
  • Obtaining corroborating statements from a number of people who were present on the evening. 

Once the prosecution served its ‘brief of evidence’, it became clear that there were numerous inconsistencies within the complainant’s four statements to police, several unsupported assertions therein as well as claims that were at odds with other evidence.

In addition to this, the defence pharmacological report provided an opinion that the complainant’s level of intoxication would not have rendered her so intoxicated as to have blackouts as she asserted.

By that time, the case had been taken over from the police by the Office of the Director of Public Prosecutions (DPP).

After several weeks of negotiations, including our submission of details ‘representations’ regarding the problems with the prosecution case, the DPP withdrew all charges brought against our client.

He is now free to move forward with his life without the heavy burden of a serious criminal prosecution.

Our client is employed with an information technology company in Sydney.

He was charged with one count of sexually touching a female without her consent.

The accusations arose after a work Christmas party in North Sydney.

According to the police, the complainant and our client attended the party and had several alcoholic drinks.

Later in the night, a group of 13 people from the party proceeded to a bar in the Sydney CBD.

The complainant and two of her friends then invited our client to the complainant’s unit in Chatswood, in Sydney’s northern suburbs.

The complainant told police that after eating food at the apartment, she fell asleep on the couch before awaking to our client lying beside her and stroking her vagina.

She told police the next day that she did not consent to the conduct, and officers swiftly arrested and charged our client with sexual touching against.

The conduct of police was immature given their failure to investigate the credibility of the allegations before pressing charges; indeed, charges were brought before police interviewed those present at the apartment, let alone at the Christmas party.

The investigative work was therefore left to our defence team, who quickly obtained statements that undermined the allegations regarding the lack of consent.

It is unfortunate that despite the enormous resources at the disposal of police, they frequently see fit to press charges against people without undertaking investigative work.

This is partly due to the fact that, unlike police officers in countries such as the United States who must establish ‘probable cause’ before they can charge a person with a criminal offence, officers in our state need only a ‘suspicion on reasonable grounds’ to press charges – which is akin to a ‘shoot first and ask questions later’ state of affairs.

The prosecution withdrew the charge pursuant to defence ‘representations’, which are detailed written submissions identifying inconsistencies, deficiencies and other weaknesses in the police case and formally requesting the discontinuance of proceedings.

Our client is a 38-year old truck driver from the Penrith area.

He has been charged with eight separate sexual offences against a child over a period of time, being:

  1. Indecent assault, person under the age of 16 years
  2. Sexually touching of child, 10 to 16 years of age
  3. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  4. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  5. Sexual touching of child, 10 to 16 years of age
  6. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  7. Aggravated sexual intercourse with child, 10 to 14 years of age (strictly indictable)
  8. Sexually touching of child, 10 to 16 years of age

A ‘strictly indictable’ offence is one which must be referred to a higher court, such as the District Court, due to its seriousness. It cannot be finalised in the Local Court.

Several of the charges, being counts 3, 4, 6 and 7 are ‘show cause’ offences, meaning that for the purposes of a bail application the onus of proof shifts to the defence which is required to convince the court that there are strong reasons for bail to be granted.  If the defence is unable to do so, the defendant must be remanded in custody, in other words remain in prison, while their case goes through the courts – a process that can take years for a case of this nature.

The prosecution alleges that our indecently assaulted his daughter (indecent assault is the predecessor to the offence of sexual touching) when she was between the ages of 6 and 7 years, and continued to engage in sexual activity with her including sexual intercourse without consent (also known as ‘sexual assault’) for years thereafter.

Our client vehemently denies the allegations, providing us with details regarding the improper motivation for the complaints as well as the events surrounding the alleged offences.

Using that information, our defence team immediately went to work accumulating material to support our client’s instructions, which assisted immensely in overcoming the show cause requirement and securing bail for our client in the Local Court, by undermining the complainant’s version of events as well as raising questions regarding the credibility of the complaint.

Our client is therefore at liberty pending the finalisation of the proceedings.

It is a fundamental tenet of our criminal justice system that a person is presumed innocent until and unless he or she is proven to be guilty in a court of law and, despite the undermining of this important principle through amendments to the Bail Act, including the introduction of ‘show cause’ provisions, it is imperative that criminal defence lawyers fight for the liberty of their clients through thoroughly prepared and persuasively presented bail applications, however serious the allegations may be.

Our client is a 44-year old male doctor who resides in the northern suburbs of Sydney.

An allegation was made that he committed the offence of ‘sexual touching’ (previously known as ‘indecent assault’) against a 14-year old girl, who was a patient.

The basis of the allegation was that, during a consultation, our client inappropriately massaged and hugged the girl while having discussions of a sexual nature.

The girl reported the alleged conduct to her father, who then obtained our client’s telephone number and sent him text messages.

Our client returned the messages, saying he was sorry the girl was upset. He made no admissions to the alleged conduct.

The father then took his daughter to a police station to formally report his daughter’s allegations.

Police then contacted our client, who vehemently denied the allegations, asserting he did not inappropriately touch the girl. As to his text response to the father, he was adamant he was merely expressing that he was sorry a patient would be upset after a consultation.

Despite this, our client was arrested and charged with one count of engaging in sexual touching. He then contacted our office for a consultation.

During the appointment, our client informed us that the girl initiated a conversation regarding a disturbing sexual incident that occurred at her school, and that he was merely trying to console and provide her with support.

The case was later taken over from police by the Office of the Director of Public Prosecutions (DPP).

In court, our client formally entered a plea of not guilty.

‘Representations’ were sent to the DPP regarding our client’s position and requesting the withdrawal of the charges, but prosecutors decided to proceed regardless – without seeking an additional statement from the complainant as to the matters raised - and the case ultimately reached a defended hearing in the Local Court.

Given the complainant’s age and the nature of the allegations, the prosecution was permitted to use her recorded statement as ‘evidence in chief’ and she appeared via audio/visual link rather than inside the courtroom.

Under cross-examination, the girl admitted to the incident at school that she had described to our client as well as the fact she raised the incident during the consultation. As she was taken through her contact with our client, it became clear she fabricated the allegations of the ‘massage’, and she eventually admitted that she had made this up.

The girl also admitted that our client had been her doctor since she was very young. It became clear during her questioning that, in this context, the ‘hug’ was not inappropriate at all, let alone sexual.

The cross-examination made clear there was no prima facie case against our client (in other words, the evidence was not capable of establishing the offence) and the magistrate dismissed the charges.

Our client is a 51-year old man who resides with his family in Tamworth.

He was charged with multiple historical chid sexual offences against his sister in law, the complainant, which were claimed to have occurred between 1992 and 2002, when he was aged between 22 and 32 and the complainant was 9 to.

The charges were:

The prosecution claimed that six of the offences occurred at a property near Camden in South-Western Sydney, where our client and his family lived with the complainant until 2000.

The alleged offending included touching the complainant on her breasts, touching the outside of her vagina, placing his finger inside her vagina and penile/vaginal sexual intercourse.

Our client, his family and the complainant then moved to Tamworth.

The prosecution further claimed that four of the offences occurred in Tamworth between 2000 and and 2002.

The allegations relating to Tamworth included indecently touching the complainant on her breasts and the outside of her vagina, and placing her hand on our client’s penis, as well as penile/vaginal sexual intercourse.

The police officer in charge of the case took the complainant’s version of events as fact, making no effort to interview those who were alleged to have been at, or in the vicinity of, where the offences were claimed to have taken place.

Instead, our client was charged with the offences and the case was then referred to the Office of the Director of Public Prosecutions (DPP).

The DPP failed to direct police to take these potentially relevant statements.

This was despite our client steadfastly maintaining his innocence from the date of his arrest, and providing information to the police which – if followed up – could have corroborated the facts.

Our defence team was left to undertake the necessary investigations.

We obtained multiple witness statements from those who could shed light on the veracity of the claims against our client.

These materials revealed a range of inconsistencies and factual errors with the complainant’s versions of the events, as did documents obtained by our team pursuant to subpoenas issued to a range of people, departments and organisations – including those linked to the complainant and our client.

These materials, taken as a whole, significantly undermined the complainant’s claims.

Despite writing ‘representations’ to the DPP (which is a formal document calling for the withdrawal of the charges) the prosecution saw fit to appease the complainant by taking the case to trial.

During the trial in Tamworth District Court, the complainant gave detailed testimony about each of the allegations.

One of the allegations was that our client sexually assaulted her during the Tamworth Music Festival in the year 2000.

During our extensive cross-examination of the complainant, she gave evidence which was inconsistent with her prior statements as well as her evidence in chief, and it became abundantly clear that she lacked credibility.

Among many other things, we established that our client was not even in Tamworth during the time of the 2000 Tamworth Festival, but in the suburb of Camden hundreds of kilometres away. This was done by way of alibi evidence in respect of which, and in accordance with the requirements of the law, our team had served the prosecution with an alibi notice.

Our client, on the other hand, gave credible, cogent and consistent evidence on the witness stand, as did the witnesses called by us – some of whom were at the Camden home when alleged sexual offences were supposed to have taken place.  Their testimony significantly undermined the complainant's assertions.

The witnesses we called also testified that the complainant showed an unusual interest in our client’s finances in the lead-up to her complaint, as our client was known to be a wealthy person.

This raised a motive for her complaint, as those who are proven to be the victims of sexual assault may be eligible for victims’ compensation, and/or compensation pursuant to civil proceedings.

During the second week of the trial, the presiding judge directed the jury to return verdicts of not guilty in respect of four of the ten charges on the basis that there was insufficient evidence for a reasonable jury to reach a verdict of guilty on the evidence presented in court.

The jury ultimately retired for deliberations in respect of the remaining six charges, returning not guilty verdicts for all of them within two hours.

Our team is now in the process of making an application for the reimbursement of our client’s legal costs.

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