Indecent assault where consent is in issue (Section 135 Crimes Act 1961)

[Note: It may not be necessary to include question five in all cases. However, if the defendant disputes indecency and in particular whether the features of the assault—and the surrounding circumstances—which render it indecent were intentional or appreciated, a direction in terms of question five will be required. See R v Aylwin [2007] NZCA 458 at [36]. Judges may wish to make it clear to the jury that the defendant does not need to have known that the right-thinking member of the community would consider that his behaviour was indecent.]

Charge 1: Indecent assault under section 135 of the Crimes Act 1961

The Crown must prove each element of the offence. That is called the burden of proof. The Crown carries that burden. Also, the Crown must prove each element beyond reasonable doubt. That is called the standard of proof. It means you must be sure that each element is proved.

1.	Are you sure that Mr Smith intentionally touched Ms Jones’ breasts while she was in her bed on 1 January 2019?
	If no, find Mr Smith not guilty. If yes, go to question two.
2.	Are you sure that Ms Jones did not consent to Mr Smith touching her breasts?
	“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 no, find Mr Smith not guilty. If yes, go to question three.
3.	Are you sure that, at the time Mr Smith touched Ms Jones’ breasts, Mr Smith did not honestly believe that Ms Jones was consenting?
	“Believe” means what Mr Smith actually believed at the time. An unreasonable belief may nevertheless be honestly held. 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, find Mr Smith guilty.