Indecent act on a young person where the statutory defence is raised (Section 134(3) Crimes Act 1961)

Charge 1: Indecent act on a young person under s 134(3) of the Crimes Act 1961

On questions 1–5 the Crown must prove the element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove the elements in questions 1–5 beyond reasonable doubt. This is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that Ms Jones was not married to Mr Smith on 1 June 2019?
	If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that on 1 June 2019, Ms Jones was under 16 years of age?
	If no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that Mr Smith intentionally touched Ms Jones by putting his hands down her pants in the area of her bottom when they were in the garden?
	If no, find Mr Smith not guilty. If yes, go to question four.
4.	Are you sure that, in the circumstances, the touching would be regarded as indecent by right-thinking members of our community?
	If no, find Mr Smith not guilty. If yes, go to question five.
5.	Are you sure that Mr Smith was aware of the aspects of the touching, and the surrounding circumstances, which right-thinking members of the community would consider made his behaviour indecent?
	If no, find Mr Smith not guilty. If yes, go to question six.
On questions 6, 7 and 8, the burden of proof lies on Mr Smith, who must satisfy you on those issues on the balance of probabilities, which means “more likely than not”.
6.	Has Mr Smith satisfied you that it is more likely than not that, before Mr Smith touched Ms Jones, he had taken reasonable steps to find out whether Ms Jones was aged 16 years or over?
	If yes, go to question seven. If no, find Mr Smith guilty.
7.	Has Mr Smith satisfied you that it is more likely than not that, at the time Mr Smith touched Ms Jones, he believed on reasonable grounds that Ms Jones was aged 16 years or over?
	If yes, go to question eight. If no, find Mr Smith guilty.
8.	Has Mr Smith satisfied you that it is more likely than not that Ms Jones consented to Mr Smith touching her?
	"Consent" means consent freely given by a person who is in a position to make a rational decision. Lack of protest or physical resistance does not, of itself, amount to consent. If yes, find Mr Smith not guilty. If no, find Mr Smith guilty.