COMMISSIONER OF POLICE v GREGORY JOHN HILL [2025] SASC 127

On Appeal from MAGISTRATES COURT OF SOUTH AUSTRALIA (AUXILIARY MAGISTRATE ANDERSON) MCCRM-23-022177 Appellant: COMMISSIONER OF POLICE Counsel: MS R ANDERSEN - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Respondent: GREGORY JOHN HILL Counsel: MR A CULSHAW WITH MR C FABBIAN - Solicitor: FABBIAN LAWYERS Hearing Date/s: 13/02/2025 File No/s: SCCRM-24-036781 A SUPREME COURT OF SOUTH AUSTRALIA (Magistrates Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLICE v HILL [2025] SASC 127 Judgment of the Honourable Justice Stein 7 August 2025 CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - SEXUAL OFFENCES - INDECENT ASSAULT AND RELATED OFFENCES - INDECENT CRIMINAL LAW - PROCEDURE - VERDICT - ALTERNATIVE VERDICTS - PARTICULAR CASES MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - POWERS OF COURT - WHERE POINT NOT RAISED IN COURT BELOW MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - GROUNDS The Commissioner of Police appealed against the acquittal by a Magistrate of a male police prosecutor charged with aggravated indecent assault against a female sheriff’s officer while both were at work in a courthouse. While the Magistrate was satisfied the elements of assault were proved beyond reasonable doubt, the element of indecency, and the circumstances of aggravation were not. The prosecution did not raise any possibility or requirement of an alternative verdict for assault with the Magistrate at any point during the trial. The Commissioner of Police appealed the acquittal on the sole ground that the Magistrate had erred in articulating the elements of the offence causing her Honour to acquit the defendant of indecent assault erroneously. On appeal, the Commissioner of Police also contended that the Magistrate erred in failing to convict the respondent of the alternative offence of assault. -- 1 of 21 -- Held (dismissing the appeal): 1. The Magistrate did not err in the articulation of the elements of the offence. 2. The Magistrate did not err in failing to convict the respondent of the alternative offence of assault. Criminal Law Consolidation Act 1935 (SA) s 56; Magistrates Court Act 1991 (SA) s 42; Evidence Act 1929 (SA) s 71A(4); Joint Criminal Rules 2020 (SA) r 191.1(2), referred to. James v The Queen (2014) 253 CLR 475, applied. Thorogood v Warren (1979) 20 SASR 156; Benbolt v The Queen (1993) 60 SASR 7; Weinel v Rojas (Supreme Court of South Australia, Olsson J, 10 June 1994); Police v Cadd (1997) 69 SASR 150; Fox v Percy (2003) 214 CLR 118; Eades v Director of Public Prosecutions (NSW) (2010) 77 NSWLR 173; R v Brougham (2015) 122 SASR 546; Frunks v Police [2016] SASC 120; Johnson v Ramsden [2019] WASC 84; R v Donovan [2025] SASCA 7; Police v Smith [2025] SASCA 37, discussed. Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296; R v Thompson [2018] SASCFC 104, considered. -- 2 of 21 -- POLICE v HILL [2025] SASC 127 Magistrates Appeal: Criminal 1 STEIN J: Mr Hill, a police prosecutor, was charged with the indecent assault of a female sheriff’s officer (“SO”).1 It was alleged that Mr Hill had touched SO on her buttocks over her clothing when SO called Mr Hill into court. While the Magistrate was satisfied beyond reasonable doubt that Mr Hill deliberately tickled SO’s left buttock, the Magistrate concluded the tickling of SO’s buttock was equivocal as to sexual connotation. In considering the circumstances in which the conduct occurred, the Magistrate could not draw the inference that Mr Hill intended to gain sexual gratification or cause sexual humiliation; it was just as likely the action was a joke or ill-conceived gesture. Mr Hill was therefore acquitted of the charge. 2 The Commissioner of Police appealed Mr Hill’s acquittal seeking orders that the acquittal be set aside, Mr Hill be convicted or, in the alternative, that Mr Hill be convicted of the offence of assault. The only ground of appeal was that the Magistrate erred in the articulation of the elements of the offence and, in consequence, determined the question of guilt on an erroneous factual basis. 3 For the reasons that follow I have determined to dismiss the appeal. The Magistrate did not err in the articulation of the elements of the offence. The appellant did not appeal on the basis of any asserted error by the Magistrate in failing to convict the respondent of assault. Nonetheless, the appellant contended that if the grounds of appeal were not made out, this Court should find the respondent guilty of assault. The prosecution did not charge assault as an alternative on the Information, nor open, nor close its case on the basis the Magistrate should convict the respondent of assault if indecency was not established. In the circumstances of this case, the Magistrate did not err in failing to convict the respondent of assault. Magistrate’s judgment 4 The Magistrate commenced by describing the allegations in the following terms. 5 The defendant is a police prosecutor and the complainant (SO) a female sheriff’s officer. On 17 November 2022, at about 3:36 pm they were working together in a courtroom. It is alleged that when SO called the defendant back into court following an adjournment, he touched her bottom over her clothing in a tickling fashion which amounted to an indecent assault aggravated by the fact he abused his position of authority or trust. The defendant’s case was that the Court should accept the defendant’s evidence that he had no memory of the touching, 1 The complainant sheriff’s officer was anonymised as “SO” by the learned Magistrate below and I have continued that practice for consistency and to comply with the Evidence Act 1929 (SA), s 71A(4). -- 3 of 21 -- [2025] SASC 127 Stein J 2 but he would not usually touch someone in an uninvited way. While there was no challenge to SO’s honesty, the defendant’s case was that the Court could not be satisfied of SO’s reliability beyond reasonable doubt. If the behaviour complained of was proven, the possibility of accidental contact could not be excluded. Defence also submitted that any touching was not indecent and the circumstances of aggravation were not established. 6 The Magistrate then set out the elements of the offence of aggravated indecent assault which I summarise as follows: 1. an application of force which was intentional, that is, not accidental and which was without the consent of the victim; 2. the conduct did not lie within limits of what could generally be accepted in the community as a normal incident of social interaction or community life and was not justified or excused by law; 3. circumstances of indecency; 4. the defendant abused a position of authority or trust in committing the offence. 7 Defence accepted that if the Magistrate found that the defendant had deliberately tickled SO’s bottom, this constituted an application of force which occurred without SO’s consent. 8 The Magistrate framed the issues for determination as: 1. Did the defendant touch SO on the bottom and what was the nature of that touching? 2. Did SO make any comments to the defendant at the time? 3. Is the possibility of accidental contact excluded as a reasonable possibility? 4. Was the touching indecent? 5. Is the circumstance of aggravation proved? 9 The Magistrate made findings of fact as follows. 10 The defendant was a 62 year old police prosecutor who had worked as a prosecutor at the particular location for 14 years. SO, aged 57, had worked as a sheriff’s officer at the particular courthouse from about August 2020. Her role was to ensure the smooth running of the court, which included letting parties and lawyers know when they were required in the courtroom. 11 SO was working as the sheriff’s officer in the defendant’s courtroom on 17 November 2022. The relationship between the defendant and SO was purely -- 4 of 21 -- [2025] SASC 127 Stein J 3 professional. They had previously worked together but had not socialised, engaged with each other on a personal level or been playful or flirtatious towards each other. 12 There is a public waiting area outside the courtroom in which the alleged offence occurred with interview rooms off the public waiting area. The courtroom is entered through two self-closing swing doors which have small vertical glass panels. CCTV cameras are located in the waiting room. At about 3:36 pm on 17 November 2022, no one was in the waiting room. A witness, FN, was in an interview room working on her laptop. A solicitor, Mr Lister, was in the courtroom using an audio visual link to obtain instructions from a client in custody. The Magistrate and the defendant were not physically present. The defendant was standing in FN’s doorway having a conversation with her. 13 When SO thought the Magistrate was ready to resume, she opened the right hand courtroom door part way, lent out to attract the defendant’s attention, motioned him in and clapped her hands at him to convey a sense of urgency. The defendant slowly moved from the interview room to the doorway of the courtroom. Initially, he had his right hand in his pocket but, as he approached the door and peered in, he removed his hand from his pocket and it hung by his side. At this time, SO was still standing inside the courtroom holding the door ajar. The Magistrate could not find whether she did so with her shoulder or foot. The defendant peered into the courtroom. The Magistrate had briefly entered the courtroom but then returned so that when the defendant looked in, the Magistrate was not on the bench. It is at that time the alleged incident occurred. 14 After being at the doorway for approximately five seconds, the defendant moved away from the courtroom doorway and returned to FN’s doorway. SO remained standing at the courtroom door with the door open wider. About eight seconds later, SO again called the defendant back into court as the Magistrate had returned to the bench. This time, she held the door wide and stepped into the waiting area, holding the door back so that, about 12 seconds later, the defendant entered the courtroom without making contact with SO. At that time, in the CCTV footage, SO can be observed shaking her head. 15 The Magistrate then addressed the evidence in relation to disputed matters as follows. 16 SO initially gave her account without having seen the CCTV footage. SO said when she called the defendant back into court and she was holding the door open, the defendant touched her left buttock. She described the touch as feeling his fingers move in a tickling movement. She did not see this but felt it. She assumed he used his right hand. It made her angry as he had no permission to touch her. SO gave evidence that when he touched her, she said to him “I wouldn’t be doing anything like that to me if I were you”. The defendant stepped back and laughed. She said, “I’m serious, I’ll have you for sexual harassment”. The defendant went away and then she said words to the effect of “are you coming -- 5 of 21 -- [2025] SASC 127 Stein J 4 in?” or “come on, he’s on the bench”. The defendant said, “I don’t know whether to take you seriously or not” and SO said “well if you come in you will find out”. The defendant moved back into court and there was no further conversation. 17 When viewing the CCTV footage for the first time, SO identified the touch at the 16 second mark of the footage, the conversation with the defendant at about 20 seconds as he was walking away and SO calling him back into court at about 40 seconds. When cross-examined, SO was certain she was not mistaken about the touch. She agreed it came out of the blue and was not accompanied by a comment. She was adamant the conversation about sexual harassment occurred. She discounted the possibility the touch was accidental. SO did not know if the Magistrate entered and went out but she would not have been looking. 18 SO’s memory of what she said to the defendant when she called him in was different to that recorded in her affidavit. When taken through the CCTV footage, SO agreed the touch was short. She said the defendant was laughing when he had taken a couple of steps away and her remark about sexual harassment occurred as he was walking away. When she called the defendant back, she projected her voice so he could hear. SO was asked to listen to the courtroom audio from 3:36 pm. She listened, but said she could not hear a female voice saying “Greg, Greg”. 19 SO was cross-examined about some Return to Work certificates for the period from June 2020 to February 2021. SO agreed she had suffered from a psychological trauma. The certificates indicated her mental health function was impacted in fields of attention, concentration, memory and judgment and she agreed that trauma caused issues with trusting people. However, she said by 17 November 2022, she was back to work and was in a good place. Return to Work certificates after the incident indicated SO had suffered anxiety and insomnia with her attention, concentration and ability to make decisions partially affected, but not her memory. In January 2024, she was assessed as partially affected in relation to concentration and memory. 20 FN did not hear any conversation of which she took note, but she expected she would have done so if she had heard the words “sexual harassment”. 21 Mr Lister did not recall seeing any interaction between the prosecutor or a sheriff’s officer or see anyone in distress. He may or may not have taken notice if he heard the words “sexual harassment”. He accepted something might have happened which he did not hear. 22 The Magistrate made detailed findings of fact based on a review of the CCTV. The Magistrate found that when the defendant approached the door, his right arm and hand were hanging by his side. At the 16 seconds point on the CCTV, he deliberately moved his arm between the door and SO. The Magistrate rejected the submission that the movement of the door was consistent with the defendant helping to hold the door open. The door moved very slightly in, but when his arm went from his side to behind SO, the door moved in, not out, -- 6 of 21 -- [2025] SASC 127 Stein J 5 and did not move again, which was inconsistent with the defendant propping open the door with his shoulder. At 17 seconds, flickering movement can be seen through the glass panel of the door at the level of SO’s bottom. The defendant’s arm was only inside the courtroom for two seconds. At 18 seconds, the defendant stepped back, looking directly at SO with his right hand held in a curled fashion rather than hanging straight down. At 19 seconds, the defendant turned away and walked for three seconds back to FN’s doorway. 23 On the basis of enhanced CCTV clips, the Magistrate was satisfied beyond reasonable doubt that the defendant’s hand was not hanging open at the time his hand was adjacent to SO’s bottom. His fingers were curled and the movement of his fingers was consistent with a tickling motion. While the Magistrate could not make a finding the footage proved contact with SO’s bottom, it was not inconsistent with that conclusion. 24 There was no evidence whether the audio synchronised with the timing of the CCTV footage. At about 16 seconds into the audio, a female voice can be heard saying words that sounded like “Greg, Greg”. Further talking, including a female voice, occurred but the Magistrate could not make any findings about that. The defendant’s counsel suggested to the Magistrate that the reference to “Greg, Greg” was the SO calling the defendant shortly before the alleged tickling. The Magistrate did not think this accorded with the CCTV footage timing but considered the audio on the basis the reference related to SO’s first call to the defendant to enter court. 25 The Magistrate recounted the defendant’s evidence. He said he did not deliberately touch SO. He had no specific recollection of the incident. He would not usually touch someone’s buttock in an uninvited way and expected he would recall if this had happened. When his attention was drawn to the movement of his arm, the defendant suggested it was possible he was holding back the door. The defendant did not remember any of the conversation about which SO gave evidence, but he expected he would have remembered it if it had been said because it was an unusual conversation. 26 The defendant said he was familiar with sexual offences and knew that “as far as females go, the breast, vagina, bottom or anus is a no-go zone” saying “as it was written in the law, yes”. After initially denying contact, the defendant conceded that while he did not recall touching SO’s bottom it could have happened. He did not accept he deliberately touched SO or deliberately moved his fingers. He accepted from the enhanced footage that his fingers did move but he said he did not tickle SO’s bottom. He rejected the suggestion he was smelling his hand as part of sexual gratification as he moved away from the door. 27 The Magistrate said SO was an impressive witness, was matter of fact and that she answered questions very directly. There was no sign of embellishment or exaggeration. The Magistrate did not consider SO to be evasive. SO had a very clear memory of how she reacted verbally when she felt the contact, which was -- 7 of 21 -- [2025] SASC 127 Stein J 6 consistent with the personality the Magistrate observed in the witness box and the shake of her head seen in the CCTV was consistent with her being annoyed. 28 The Magistrate considered SO’s account accorded with the independent evidence from the footage. The Magistrate said the CCTV footage provided substantial independent support of SO as a credible and reliable witness. The Magistrate did not accept that the psychological issues SO experienced before, or after, impacted her ability to appreciate what happened, or to recall detail. The absence of any supporting evidence did not undermine SO’s reliability. FN and Mr Lister were concentrating on what they were doing. The Magistrate rejected the submission that the video established there was insufficient time for SO to have spoken the words given in evidence. The Magistrate concluded the CCTV footage neither proved nor disproved SO’s evidence that the defendant smiled when she complained. 29 The Magistrate was satisfied that SO was credible and reliable. 30 The Magistrate did not accept the defendant’s evidence that he had no memory of the incident because nothing remarkable happened and he was not in a position to recall what happened until he obtained particulars of the allegation on 20 January 2023. The Magistrate said that by 1 December 2022, the defendant had been served with an administrative order transferring him from his posting. That order identified the date, location and witnesses relevant to the internal investigation. That was a significant event. The Magistrate considered that as a matter of common sense, the defendant would have been searching his memory of that day and contact with named witnesses. 31 The Magistrate accepted that SO expressed her displeasure and rejected the defendant’s evidence to the contrary. The Magistrate rejected the claimed lack of memory of any remarks and stated that significantly damaged the defendant’s reliability and credibility. While concluding the defendant was not truthful in that aspect of his evidence, it impacted only upon his credit and the Magistrate did not employ consciousness of guilt reasoning. The CCTV footage also disproved the suggestion the defendant moved his arm behind SO to hold the door open. The Magistrate considered there was no other possible explanation for the deliberate movement of his arm. The Magistrate did not consider the defendant credible nor reliable and rejected his evidence. 32 The Magistrate was satisfied beyond reasonable doubt from SO’s evidence and the video footage that the defendant touched SO’s left buttock in a tickling fashion. 33 The Magistrate accepted SO’s evidence beyond reasonable doubt that on being touched, SO said words to the effect of “I wouldn’t do that if I were you”, the defendant then smiled and SO said, “I’m serious, I’ll have you for sexual harassment”. The Magistrate also found the later conversation, when SO called the defendant back into court the second time, to have occurred. -- 8 of 21 -- [2025] SASC 127 Stein J 7 34 The Magistrate excluded as a reasonable possibility that the touching was accidental. The defendant deliberately moved his arm which was hanging by his side to behind SO and the Magistrate excluded that he did so to hold open the door. To move the fingers in the way depicted in the footage and as described by SO required a deliberate movement. If the defendant had apologised to SO on her expressing her displeasure, this would have been evidence relevant to the assessment of whether the touch was accidental. However, the Magistrate did not reason that the absence of an apology established that the contact was deliberate, as there were other reasonable explanations for the lack of an apology, such as embarrassment. 35 The Magistrate was satisfied beyond reasonable doubt that the tickling of SO’s left buttock was deliberate. 36 The prosecutor submitted the defendant, as a police officer performing his duties as a prosecutor, was a person in a position of authority and SO trusted him as he was a police officer. The Magistrate concluded the defendant was not in a position of authority in relation to a sheriff’s officer. Both were separately fulfilling their duties in a courtroom and there was no suggestion the defendant had any power to give directions to the sheriff’s officer or to exercise authority over her. In the circumstances of the case, the Magistrate considered no relationship of trust existed between the defendant and a sheriff’s officer and therefore the Magistrate did not find the alleged aggravating circumstances proved beyond reasonable doubt. 37 The parties agreed the element of indecency required proof of a sexual connotation and it was for the trier of fact to determine whether the conduct would be considered by right-thinking members of the community to offend against their standards of decency. The Magistrate rejected the prosecution’s position the actions of the defendant as seen in the footage could be viewed as indecent per se or that a sexual connotation could be inferred. 38 The Magistrate accepted the defence submission that an intent to obtain sexual gratification must be established and the tickling of SO’s buttock was equivocal. The circumstances included that the conduct occurred in a workplace in the presence of at least one other person when the Magistrate was expected to resume a hearing. There was no prior personal interaction between the defendant and SO. There was no suggestion of any flirting behaviour by the defendant. The touch was not accompanied by any comment or other behaviour. Determining the defendant’s intention was a question of inference. In the circumstances, the Magistrate could not draw an inference that the defendant intended to gain sexual gratification or cause sexual humiliation. It was just as likely the conduct was a joke or an ill-conceived gesture. 39 The Magistrate noted that contemporary community standards are such that SO should not have been subject to unwanted touching, the behaviour was harassing, unacceptable and disrespectful and SO should have been able to feel -- 9 of 21 -- [2025] SASC 127 Stein J 8 safe from uninvited touching in the workplace. However, the Magistrate could not be satisfied beyond reasonable doubt that the element of indecency was proved. 40 The Magistrate concluded the defendant’s conduct amounted to assault, but stated that the defendant did not face that charge. The Magistrate therefore found the defendant not guilty. Appeals under s 42 of the Magistrates Court Act 1991 41 On an appeal under s 42 of the Magistrates Court Act 1991 (SA) (the “Act”), the Court must independently review the evidence, making due allowance for the advantage held by the Magistrate seeing and hearing the evidence. The Court should not substitute a different view unless satisfied the Magistrate has erred.2 The Court should not interfere with findings of fact unless they are demonstrated to be wrong by incontrovertible facts or uncontested testimony, or that are glaringly improbable or contrary to compelling inferences.3 42 Pursuant to s 42 of the Act, the prosecution may appeal an acquittal. The appeal is a re-hearing and there is no requirement for leave to appeal. On appeal, this Court may set aside an acquittal and substitute a conviction or order a fresh trial.4 43 A relevant consideration in determining the appropriate disposition of an appeal against an acquittal is the undesirability of exposing a defendant to double jeopardy.5 Double jeopardy principles 44 In Police v Smith, the majority of the Court of Appeal stated:6 In R v Brougham Peek J considered it well established that in South Australia the Supreme Court will have close regard to the double jeopardy principles and exercise appellate restraint when addressing prosecution appeals against acquittals by Magistrates. This particularly will be the case where an acquittal proceeds from a lack of satisfaction by the Magistrate of guilt on the facts, as distinct from a misapprehension as to the law. This analysis was referred to with approval by this Court in R v Fitzgerald. (citations omitted) 45 In R v Brougham,7 Peek J (with whom Gray and Nicholson JJ agreed) referred with approval to Zelling J’s statement in Thorogood v Warren8 to the effect that appellate courts have been very reluctant to interfere with an acquittal based upon a reasonable doubt which owes much to the atmosphere of the trial and the 2 Frunks v Police [2016] SASC 120 at [11]-[12]. 3 Fox v Percy (2003) 214 CLR 118 at [26]-[29] (Gleeson CJ, Gummow and Kirby JJ), [65]-[93] (McHugh J). 4 Police v Cadd (1997) 69 SASR 150. 5 Police v Smith [2025] SASCA 37 at [91] (S Doyle JA and Stein AJA, David JA agreeing at [129]). 6 Police v Smith [2025] SASCA 37 at [92] (S Doyle JA and Stein AJA). 7 (2015) 122 SASR 546. 8 (1979) 20 SASR 156 at 159. -- 10 of 21 -- [2025] SASC 127 Stein J 9 appraisal of the witnesses by the trier of fact, neither of which are readily susceptible to review by an appeal court. Accordingly, an acquittal based on reasonable doubt should not be interfered with other than in a highly unusual case. Justice Peek also quoted from Weinel v Rojas9 in which Olsson J stated that, in addition to the matters referred to by Zelling J in Thorogood v Warren,10 the allowance of an appeal against an acquittal has always been regarded as the exercise of an exceptional discretionary power because it places an alleged offender in a situation of double jeopardy. As a consequence, appeals should be allowed only in the most compelling and clear circumstances, to correct manifest error. A remittal for trial ought to occur only where the acquittal was plainly wrong on any reasonable interpretation of the evidence and the relevant inferences which patently arise from it. 46 In R v Donovan,11 the Court of Appeal referred to double jeopardy principles as raising deep-rooted notions of fairness and decency and to the particular restraint exercised in the case of an acquittal, particularly when that verdict arose from a lack of satisfaction of proof of guilt on the facts. 47 In Police v Smith,12 the Court of Appeal referred to the need, in the interests of fairness to the defendant on a prosecution appeal against acquittal, to take into account the prosecution’s conduct of a case, even when the judicial officer has fundamentally erred. The majority also referred to the Court’s reluctance to allow the prosecution to rely, on appeal, on a position not put below. Circumstances of indecency – authorities 48 The prosecution must establish beyond reasonable doubt the element of indecency to prove an indecent assault under s 56 of the CLCA. An indecent assault is “an assault accompanied by circumstances of indecency”.13 49 In Harkin v Director of Public Prosecutions (NSW) (“Harkin”),14 the appellant appealed against his conviction on two charges of indecent assault against two eleven year old girls. The prosecution case was that the appellant took the girls driving and each took a turn to sit on his lap and steer the car. When one of the girls was on his lap, the appellant was alleged to have put his hand under her t-shirt and touched her breasts. The appellant gave evidence in which he denied having done so. One of the grounds of appeal was that the trial Judge misdirected the jury in relation to the test to be applied in determining whether the acts as established by the evidence were indecent. One of the submissions considered by the Court of Appeal was whether the trial Judge erred in not directing the jury that 9 (Supreme Court of South Australia, Olsson J, 10 June 1994). Justice Olsson expressed similar views in Semple v Williams (1990) 156 LSJS 40 and in DPP (Cth) v Sharon Lee Brown (1994) 72 A Crim R 527. 10 (1979) 20 SASR 156 at 159. 11 [2025] SASCA 7 at [15]-[16] (Livesey P, Bleby and David JJA). 12 Police v Smith [2025] SASCA 37 at [95] (S Doyle JA and Stein AJA, David JA at [129]-[130]). 13 R v Doyle [1957] SASR 182 at 184; R v Nisbett [1953] VLR 298 at 299. 14 (1989) 38 A Crim R 296. -- 11 of 21 -- [2025] SASC 127 Stein J 10 they had to be satisfied beyond reasonable doubt that the acts were intended by the appellant for his sexual gratification. 50 Justice Lee (with whom Wood and Matthews JJ agreed) said that for there to be an indecent assault it is necessary that the assault have a sexual connotation.15 The sexual connotation may:16 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. 51 It followed that proof the appellant had intentionally touched the girl’s breast was sufficient to give the assault the necessary sexual connotation so as to render it capable of being found to be indecent. It would then be for the jury to determine whether in the particular circumstances the conduct offended against standards of decency in the community. 52 His Honour continued to observe that the purpose or motive for the behaviour was irrelevant; the intentional action of engaging in the indecent act was sufficient to put the matter before the jury. However, if the assault did not unequivocally convey a sexual connotation then it must be accompanied by some intention to obtain sexual gratification in order to amount to an indecent assault.17 Justice Lee drew upon the analysis in R v Court (“Court”),18 in particular the statement of Lord Ackner that an assault by its nature may be inherently indecent if the facts, devoid of explanation, give rise to an irresistible inference the accused intended to assault the person in a way right-minded people would clearly think was indecent.19 53 In Eades v Director of Public Prosecutions (NSW),20 the New South Wales Court of Appeal stated that the identification of an act as indecent “is an objective question which is determined by reference to the standards of decency held by right-thinking members of the community”. The surrounding circumstances including the intention or purpose of the accused is relevant to the characterisation of the act.21 Which matters of context assist in deciding whether an act is indecent in any particular factual situation is largely a matter of judgment about the particular situation.22 15 Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296 at 301 (Lee CJ at CL). 16 Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296 at 301 (Lee CJ at CL). 17 Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296 at 301 (Lee CJ at CL). 18 [1989] AC 28. 19 Harkin v Director of Public Prosecutions (NSW) (1989) 38 A Crim R 296 at 302 (Lee CJ at CL) quoting from R v Court [1989] AC 28. 20 (2010) 77 NSWLR 173. 21 (2010) 77 NSWLR 173 at [8]-[9] (Beazley JA, Basten JA agreeing at [1], Campbell JA agreeing at [53]). 22 (2010) 77 NSWLR 173 at [54] (Campbell JA, Basten JA agreeing at [1]). -- 12 of 21 -- [2025] SASC 127 Stein J 11 54 In R v C, M (“C, M”),23 the appellant, a school teacher, was alleged to have committed a number of counts of aggravated indecent assault against the complainant, a student at the school. The jury returned a verdict of guilty on one count which the complainant described as a quick kiss on the lips. The kiss was said to have been accompanied by the appellant exposing his penis. Justice Peek, with whom Blue and Stanley JJ agreed, stated that “an offence of indecent assault requires an element of sexual lewdness – often referred to as a sexual connotation”.24 Justice Peek referred to a number of cases which he described as illustrative, including Court and Harkin, before observing that because the offence requires a sexual connotation, the prosecution case will inevitably include evidence said to be capable of constituting the element.25 The exposure of the penis simultaneously with the kiss would have constituted ample potential evidence of sexual connotation. However, a difficulty arose because it was not possible to be confident the jury were satisfied the appellant had exposed his penis at the time of the kiss. The trial Judge’s direction may have conveyed that reasonable contemporary standards were that the appellant kissing a girl of the age of the complainant could only be described as indecent.26 It was not possible to be confident the jury convicted the appellant on the basis of satisfaction beyond reasonable doubt the kiss had a sexual connotation as distinct from a non-sexual quick peck on the lips with no other sexual conduct established.27 55 In R v Thompson,28 the accused was charged with a number of counts of indecent assault. It was alleged that in the course of giving the complainant a piggy back ride, the accused touched her vagina. Justice Peek, with whom Vanstone J agreed, made a number of observations about the reference to indecency and horseplay.29 As is apparent from the discussion in The Queen v C,M, in a charge of “indecent assault” there is a requirement that the alleged indecency should be within the more narrow meaning of indecency (indecency with a sexual connotation) rather than a broader meaning of indecency (as to which no sexual connotation is required). However, it would be quite wrong to suggest that it must be proven in all cases of indecent assault that the defendant acted with a sexual motive or interest. As an obvious example, if a person assaults a woman by stripping her naked on a street in full view of passers-by, there is clearly an indecent assault because the sexual connotation is satisfied by the gross invasion of the woman’s sexual modesty or privacy. The offender may have had a sexual motive for his conduct but, on the other hand, he may have acted out of simple cruelty or because he wanted to steal the clothes; however that does not matter – a “sexual connotation” does not mean that there is an additional element of the charge of indecent assault to the effect that the offender must act with a sexual intention, interest, motive or whatever. 23 (2014) 246 A Crim R 21. 24 R v C, M (2014) 246 A Crim R 21 at [19] (Peek J, Blue J agreeing at [41], Stanley J agreeing at [42]). 25 R v C, M (2014) 246 A Crim R 21 at [19]-[29] (Peek J, Blue J agreeing at [41], Stanley J agreeing at [42]). 26 R v C, M (2014) 246 A Crim R 21 at [33] (Peek J, Blue J agreeing at [41], Stanley J agreeing at [42]). 27 R v C, M (2014) 246 A Crim R 21 at [35] (Peek J, Blue J agreeing at [41], Stanley J agreeing at [42]). 28 [2018] SASCFC 104. 29 R v Thompson [2018] SASCFC 104 at [83]-[84] (Peek J, Vanstone J agreeing at [1]). -- 13 of 21 -- [2025] SASC 127 Stein J 12 No doubt there will be some cases where proof that the offender had a sexual “motive” may assist in establishing the required sexual connotation. Having regard to the infinite sets of circumstances that may arise, and bearing in mind the differing views expressed in R v Court by the majority and by Lord Goff of Chieveley (dissenting), more may need to be said in an appropriate case. However, it was not necessary or appropriate to do so in The Queen v C, M, and nor is it here. If, contrary to the appellant’s denial, the factual circumstances were as found by the Judge and were deliberate, as his Honour also found, then this was a case where the requirement of sexual connotation was very clearly established and no further discussion was required. (citations omitted) 56 Dissenting in part, Hinton J observed that an indecent assault is an assault having a sexual connotation which the jury considers indecent as it offends contemporary standards of decency.30 His Honour considered it unnecessary for prosecution to prove the accused intended the indecency or was reckless as to indecency. Where an accused is charged with indecent assault and the act constituting the assault is intentional and voluntary, his Honour stated that any suggestion the assault is accidental will generally relate to whether the act is equivocal as to sexual connotation. That is, the act was not involuntary or unintentional but rather, the act was not indecent because it did not have a sexual import.31 57 In Johnson v Ramsden,32 the respondent was a police officer. The complainant was a member of the public who participated in a charity basketball event with the respondent. The respondent pinched the complainant’s buttock when a photograph was taken at the end of the event. It was not disputed that the action was a misguided attempt at humour and there was no sexual intention. On appeal against the acquittal of the respondent on a charge of indecent assault pursuant to the provisions of the Criminal Code (WA), the appellant contended that the assault was inherently indecent as the sexual connotation arose directly from the area of the body on which the assault occurred, that is, the buttocks are properly regarded as an intimate and private part of the body, carrying a sexual connotation if grabbed over clothing. After referring to a number authorities, including Harkin, Smith J concluded that proof of circumstances incorporating a sexual connotation or character was required. That could be proved by finding touching on an intimate part of the body or by proof of a motive or purpose of sexual gratification. Justice Smith continued to refer to a number of authorities in which touching a person’s buttocks was found to be indecent, observing that in each of those authorities there was some relevant circumstance which made the act indecent or the point was not challenged.33 Justice Smith concluded there was no authority establishing the buttocks are considered a 30 R v Thompson [2018] SASCFC 104 at [180] (Hinton J, dissenting). 31 R v Thompson [2018] SASCFC 104 at [180] (Hinton J, dissenting). 32 [2019] WASC 84. 33 Johnson v Ramsden [2019] WASC 84 at [45]-[53]. -- 14 of 21 -- [2025] SASC 127 Stein J 13 private, intimate part of the body to which any touch of any kind carries a sexual connotation.34 58 It is clear from the authorities to which I have referred above that the prosecution had to establish beyond reasonable doubt that there was a sexual connotation in the touching of SO’s buttocks in a tickling motion by the respondent. Proof of a sexual intention, motivation or purpose is not an element of the offence. Proof of a sexual intention, motivation or purpose may, however, assist in proving a sexual connotation. A sexual connotation may be proved by acts which by their very nature unequivocally demonstrate such a sexual connotation. That may be, for example, by reason of the part of the body touched, as referred to in Harkin, or by gross invasion of sexual modesty or privacy, such as publicly stripping a person naked as referred to in Thompson. There may be assaults not perpetrated on, or with, the bodily areas referred to in Harkin that may inherently possess a sexual connotation and there may be examples of assaults involving those body parts that do not carry an inherent sexual connotation.35 It is not necessary for present purposes to further explore whether the necessary sexual connotation could be established beyond reasonable doubt in circumstances where acts do not unequivocally carry a sexual connotation but there is insufficient proof of sexual intention or motivation. As Peek J observed in Thompson, allegations of indecent assault may arise in an infinite variety of circumstances. Appeal ground – elements of offence 59 The only appeal ground is that the Magistrate erred in the articulation of the elements of the offence and, in consequence, determined the question of guilt on an erroneous factual basis. 60 The appellant contended the Magistrate erred in finding the conduct was not indecent as it had not been proved the respondent acted for his own sexual gratification. On the appellant’s position, the finding by the Magistrate that she could not exclude the possibility the tickling was a joke or ill-conceived gesture did not lead to an unavoidable conclusion she could not be satisfied there was a sexual connotation. The appellant relied on Thompson for the proposition that proof of a sexual connotation does not require proof of sexual intention and there may be circumstances in which there is equivocal touching, no motive to gain sexual gratification but a sexual connotation may still be made out by circumstances amounting to a gross invasion of sexual modesty or privacy. The appellant contended that the fact the tickling action on the buttocks was deliberate and intentional in the workplace in a public arena in view of CCTV cameras was capable of being construed as a gross invasion of sexual modesty or privacy. 61 While both prosecutor and defence agreed at trial that a sexual connotation was required, the appellant submitted the Magistrate incorrectly considered what 34 Johnson v Ramsden [2019] WASC 84 at [41]-[54]. 35 See, for example, R v Jones (2011) 209 A Crim R 379. -- 15 of 21 -- [2025] SASC 127 Stein J 14 was a sexual connotation and sexual connotation required consideration by the Magistrate of the area of the touching, the kind of touching, in particular, tickling, and the overall circumstances in which the touching occurred. Counsel contended that the Magistrate failed to properly consider the available circumstances to find the action occurred in circumstances of indecency, gave undue weight to the respondent’s intention and the circumstances gave rise to humiliation or degradation to the complainant which the Magistrate failed to consider. 62 The respondent contended that the appellant’s argument conflated what is appropriate workplace behaviour with actions which possess a sexual connotation and that, while the ground of appeal was cast in terms of error of law, that tended to mask the actual complaint which was factual in nature. The respondent accepted that the conduct was appalling and inappropriate, but that did not equate to behaviour possessing a sexual connotation. 63 The respondent submitted that the Magistrate’s acceptance of defence counsel’s submission that the ticking was equivocal as to sexual import was dispositive of the charged offending and the Magistrate applied the correct test, leading inexorably to the conclusion that one of the elements of the offence was not proved. The respondent’s position was that the Magistrate’s reference to the requirement to establish intention to obtain sexual gratification was correct as applied to the facts and issues in dispute in the case and that the reasons for finding the contact was equivocal were compelling and correct. 64 As I have set out above, the Magistrate included in the stated elements of the offence the need for the prosecution to prove circumstances of indecency and included in the list of issues for determination whether the respondent touched SO on the bottom, the nature of that touching and whether the touching was indecent. In dealing with the issue of indecency, the Magistrate referred to disagreement between the parties as to what was required to prove a sexual connotation. The reasons then set out the Magistrate’s understanding of the parties’ competing cases. The prosecution’s position before the Magistrate was that the touching was indecent per se or that sexual connotation could be inferred including on the basis the respondent sniffed his hand after touching SO. The defence position was the touching was not indecent per se and would only be indecent if accompanied by a sexual connotation. It was put to the Magistrate by defence counsel that sexual connotation required proof of an intention to obtain sexual gratification or to cause sexual humiliation and such inference could not be drawn in the circumstances. 65 Against the backdrop of those competing positions, the Magistrate accepted that the tickling of SO’s buttock was equivocal as to sexual import. The Magistrate then stated that an intention to obtain sexual gratification had to be established. Read in isolation, that may suggest the Magistrate considered it was necessary to establish intention to obtain sexual gratification as an element of the offence. However, the Magistrate’s statement must be read in context and in light of the reasons as a whole including, importantly, the immediately preceding statement in which the Magistrate accepted the act of ticking SO’s buttocks was equivocal as -- 16 of 21 -- [2025] SASC 127 Stein J 15 to sexual connotation. That conclusion in turn followed a summary of the parties’ competing positions, including reference to C, M36 and Johnson v Ramsden,37 and was followed thereafter by analysis of the evidence from which intention could be inferred. The Magistrate addressed the particular circumstances, including the fact the conduct occurred in a workplace, the presence of other people and the prior interactions between the respondent and SO before concluding that she could not draw the inference of an intention to gain sexual gratification or cause sexual humiliation. 66 Read in the light of the reasons as a whole, I consider the reference to the need to establish intent to obtain sexual gratification was no more than a reference to establishing sexual connotation in the particular circumstances of the case when the prosecution had failed to establish the acts unequivocally demonstrated the necessary sexual connotation. I therefore do not consider the Magistrate erred in the articulation of the elements of the offence. 67 Further, the appellant faced the difficulty that, on the facts as her Honour found, the Magistrate rejected the position put by the prosecution at trial that the touching was indecent per se. That conclusion was not founded on the prosecution’s failure to establish sexual intention. While the appellant sought to distinguish Johnson v Ramsden, the appellant did not contend that an act of tickling a person’s buttocks is, necessarily of itself, inherently sexual in connotation. The appellant accepted that what amounts to sexual connotation will depend on the particular circumstances and relied on Thompson in support of the contention the acts were capable of being construed in this case as a gross invasion of sexual modesty or privacy or infliction of sexual humiliation so as to establish sexual connotation absent proof of intention. While the example given in Thompson of a woman being stripped naked in public does not mark the bounds of what may constitute a gross invasion of sexual modesty or privacy, that example does not enable a clear analogy to be drawn with the conduct in question in this matter. Characterisation of any acts as unequivocally sexual in connotation, including by gross invasion of sexual modesty or privacy or the infliction of sexual humiliation, requires consideration of the acts in all of the circumstances, including assessment of the nature and kind of conduct and the context in which the conduct occurred. The Magistrate analysed all of the circumstances surrounding the relevant touching. In considering those circumstances expressly to determine whether it was possible to draw an inference the respondent intended to gain sexual gratification or cause sexual humiliation, the Magistrate adverted to the matters on which the appellant’s counsel relied in argument including the touching, the nature of the touching as a tickling motion and that the conduct occurred in a workplace in the presence of at least one other person. These matters were relevant to whether the actions unequivocally bore a sexual connotation. Having heard the oral evidence as well as viewing the CCTV, and despite accepting SO’s evidence and rejecting the respondent’s denial of deliberate touching, the Magistrate did not 36 (2014) 246 A Crim R 21. 37 [2019] WASC 84. -- 17 of 21 -- [2025] SASC 127 Stein J 16 accept the respondent’s actions were inherently sexual in connotation nor carried out with a sexual intention. The Magistrate reached those conclusions in the context of the case as run, the submissions put by the parties at the trial, her Honour’s assessment of the evidence and the factual findings her Honour made. 68 It follows that I am not satisfied the Magistrate erred. 69 Regardless of that conclusion, I reiterate the Magistrate’s comments that the behaviour was harassing, unacceptable, inappropriate and should not have occurred. Alternative verdicts 70 The appellant contended, in the alternative, that this Court should convict the respondent of the alternative offence of assault as an alternative verdict was available as a matter of law, the alternative verdict fairly arose on the evidence and there was a duty on the Magistrate to make a practical judgment on the issues raised and arrive at a verdict fairly arising on the evidence.38 The appellant submitted that if the Magistrate was satisfied beyond reasonable doubt that the elements of assault had been proved, her Honour erred in failing to convict the respondent. 71 The respondent objected to these submissions on the basis the argument did not fall within the ground of appeal and it was not properly before the Court. The appellant did not accept that leave to amend the grounds of appeal was required, relying on r 191.1(2) of the Joint Criminal Rules 2020 (SA) which confers upon this Court a power to determine an appellate proceeding on the merits notwithstanding a failure to raise a contention in an appellate document if it considers it is the interests of justice. 72 While accepting that on the factual findings made by the Magistrate the respondent would have been convicted of assault and the offence of assault is a common law alternative to the charged offence of indecent assault, the respondent did not accept that a judge is under a duty to leave to the trier of fact any alternative verdict arising on the evidence irrespective of the cases of the parties. In any event, the respondent contended there was no unfairness on the prosecution in the failure to consider the alternative verdict when the prosecution had failed to seek a conviction on the alternative verdict at the trial. 73 An uncharged alternative offence is an offence in which the definition of the alternative offence is necessarily encompassed within the definition of the charged offence.39 38 The appellant relied in part on Benbolt v The Queen (1993) 60 SASR 7 and R v Perdikoyiannis (2003) 86 SASR 262. 39 R v McLaren (1997) 92 A Crim R 301 at 303, citing S Mitchell and PJ Richardson (eds), Archbold: Pleading, Evidence and Practice in Criminal Cases (Sweet and Maxwell, 43rd ed, 1988) [4-459]. -- 18 of 21 -- [2025] SASC 127 Stein J 17 74 In James v The Queen,40 the High Court addressed an appeal against a conviction following a trial on indictment based on the failure of the trial Judge to instruct the jury on the availability of verdicts for each of a number of lesser charged offences. The High Court answered “no” to the question whether on a trial on indictment it is the duty of the judge to leave to the jury any lesser alternative verdict that is realistically open on the evidence regardless of the forensic decisions of counsel.41 The High Court accepted that a fair trial may require an alternative verdict be left to the jury, but rejected the adoption of a rule that would require every viable alternative verdict to be left to the jury in every case.42 The High Court distinguished the trial judge’s role in ensuring fairness to the accused by providing instruction on defences raised on the evidence regardless of the tactical decisions of counsel from leaving alternative verdicts on offences not charged. The High Court said:43 However, it is wrong to equate leaving a defence or partial defence with leaving alternative verdicts. The two are distinct. Where there is evidence to support a defence or partial defence it is incumbent on the prosecution to negative it. Satisfaction that the defence or partial defence has been negatived will be an issue in the trial and almost always will require the trial judge to so direct the jury. Where the prosecution does not seek the jury's verdict for an offence not charged, the circumstance that in law the evidence may support conviction for a lesser offence does not without more make guilt of that lesser offence an issue in the trial. Fairness in such a case may favour that the accused's chances of outright acquittal on the issues joined not be jeopardised by the trial judge's decision to leave an alternative verdict. (citations omitted) 75 The High Court continued to refer to the importance of maintaining separation between judicial and prosecutorial functions as stated in a number of decisions since Benbolt v The Queen,44 continuing as follows:45 The view that it is the duty of the trial judge to invite the jury to determine the accused's guilt of an included offence at a trial at which the prosecution has elected not to do so is incompatible with the separation of those functions. It is not the function of the trial judge to prevent the acquittal of the accused should the prosecution fail to prove guilt of the offence, or offences, upon which it seeks the jury's verdict. At a trial at which neither party seeks to rely on an included offence, the trial judge may rightly assess that proof of the accused's guilt of that offence is not a real issue. In such an event, it would be contrary to 40 (2014) 253 CLR 475. 41 James v The Queen (2014) 253 CLR 475 at [6] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). When the Information charges a count of murder, the Judge must direct the jury in relation to the alternative offence of manslaughter whenever that is open on the evidence; see Gillard v The Queen (2003) 219 CLR 1 discussed in James v The Queen at [21]-[23]. 42 James v The Queen (2014) 253 CLR 475 at [6], [26]-[38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 43 James v The Queen (2014) 253 CLR 475 at [33] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). 44 (1993) 60 SASR 7. 45 James v The Queen (2014) 253 CLR 475 at [37]-[38] (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ). -- 19 of 21 -- [2025] SASC 127 Stein J 18 basic principle for the trial judge to embark on instruction respecting proof of guilt of the included offence. The trial judge's duty with respect to instruction on alternative verdicts is to be understood as an aspect of the duty to secure the fair trial of the accused. The question of whether the failure to leave an alternative verdict has occasioned a miscarriage of justice is answered by the appellate court's assessment of what justice to the accused required in the circumstances of the particular case. That assessment takes into account the real issues in the trial and the forensic choices of counsel. (citations omitted) 76 It follows that the Magistrate was not obliged to convict the respondent of the alternative offence of assault.46 I am not persuaded that the Magistrate was wrong in failing to do so given the manner in which the trial was conducted. There may be trials in which the alternative offence is plainly in contemplation. However, in the circumstances of this case, in the absence of any reference to the alternative offence during the trial it is now too late to resort to it. The Magistrate did turn her mind to the offence of assault but stated plainly that this was not the charge the respondent faced. Double jeopardy 77 In the event I am wrong in my conclusions above, I turn to address double jeopardy principles. 78 The appellant accepted double jeopardy principles apply to an appeal against an acquittal but emphasised that the Court may be more inclined to interfere with an acquittal where the verdict is based on error of law as opposed to lack of satisfaction of guilt on the facts. Counsel for the appellant contended that the way the respondent’s defence was conducted, that is, to deny contact, would have remained the same even if the alternative offence of assault had been charged and accordingly, it was difficult to see how the case would have been run differently if the alternative charge had been laid. The appellant further submitted that the forensic choices made by the prosecutor were not necessarily obvious at the close of the trial. 79 The respondent contended that double jeopardy principles concern the impact upon the defendant of being twice vexed after an acquittal and are not predicated for their application simply on demonstrating prejudice. The respondent contended that to the extent the appellant’s complaint relied on the prosecution failing to satisfy the Magistrate that indecency on the correct test was established, the Court should be slow to intervene with factual findings open on the evidence on the basis of not only the usual reluctance to interfere with factual findings but also double jeopardy principles. 46 See also Sio v The Queen (2016) 259 CLR 47 at [79]; R v Keenan (2009) 236 CLR 397 at [138] (Kiefel J, Hayne J agreeing at [80], Heydon J agreeing at [92] and Crennan J agreeing at [93]). -- 20 of 21 -- [2025] SASC 127 Stein J 19 80 In this case the prosecution did not charge common assault as an alternative on the Information, did not open the trial in a way which invited the Magistrate to convict the respondent of common assault if not satisfied beyond reasonable doubt of indecency, and did not close on that basis. It is unknown what forensic choices may have been open or made by the respondent if the alternative charge was prosecuted at trial. Nonetheless, as the respondent submitted, the prosecution ran its case on an all or nothing basis. The appellant also did not include as a ground of appeal a failure by the Magistrate to convict on the alternative and first raised the prospect of inviting this Court to convict the respondent of assault in its submissions filed some five months after the respondent was acquitted and did so without amending the grounds of appeal. 81 In those circumstances, I consider double jeopardy principles would justify this Court declining to convict the respondent on the alternative charge. 82 In light of my conclusions, it is not necessary for me to address the aspects of the respondent’s submissions which asserted errors in the Magistrate’s approach. Orders 83 I dismiss the appeal. -- 21 of 21 --