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Appeal court examines the necessary elements required for an indecent assault

Case briefing: Querée v AG [2018] JRC014

The case concerned an appeal against a conviction imposed by the Magistrate’s Court for a charge of indecent assault against a woman the appellant (Querée) was dating (referred to in the judgement as ‘C’). The conviction was overturned on the basis that the necessary intent was not made out and no indecency was proved to take place.

Background

There was no difference of opinion regarding the facts leading up to the incident – the parties met on the dating app Tinder and had two dates in close succession. During this period it seemed that the parties were starting to develop feelings for each other and they had discussed exploring the possibility of an exclusive relationship.

On their second date, the pair had consensual sexual intercourse at C’s home – after which the discrepancy as to the facts arose. C alleged that Querée was rough and forceful with her by grabbing at her breasts really hard. According to C there was a point where she stopped the sexual intercourse and started crying because of the pain. She stated she told Querée not to grab at her breasts and as a result he agreed to be gentle. Subsequently they resumed sexual activity and C alleges that Querée carried on grabbing at her breasts roughly. Querée’s evidence was that C never told him to stop, and he denied that she cried. He claimed that C had asked him to be gentler, which he had tried to be.

The main issues which were dealt with in the Magistrate Court’s judgment were:

  1. Whether Querée grabbed C’s breasts after he was told not to;
  2. Whether he did so knowing consent was revoked; and
  3. Assuming the above were proved, would the touching amount to indecency?

The magistrate found in the affirmative to all three of the above and convicted him of indecent assault.

The Appeal

Intent

Querée appealed to the Royal Court who confirmed (as per AG v Vaughan) that an assault is:

‘touching or laying hold by one person on another in an angry, revengeful, rude, insolent or hostile manner, and it includes an attempt to do so, provided that the person who is threatened is led to anticipate an attack.’

The court acknowledged that the giving of consent by an adult victim provides the appellant with a defence.

However, the Crown also has to prove the mens rea and as such what has to then be considered is whether the touching was committed intentionally or recklessly (the reckless argument was not pursued in the case at hand). In this case, Querée and C were engaging in consensual sexual activity, so it would follow that any subsequent touching once that activity has commenced would be incidental to the act that C has already consented to.

Another point of note is that the evidence submitted by C was not that she told Querée not to touch her breasts but that she had told him to not grab them. If told not to grab, it does not follow that a person cannot touch something altogether. , It becomes a question of degree with which that act is done. As such, the obvious difficulty here is that Querée would have had to decipher alternative meaning from C’s words. Further, she indicated in her cross-examination that when she spoke to her mother the morning after she was unsure as to whether Querée intended to hurt her. It was clear that if C was not sure immediately after the event, then there would have to be compelling evidence to prove Querée’s criminal intent.

Indecency

The court confirmed that it would be wrong to deem the act of sexual intercourse between two consenting adults in private to be indecent.

Applying objective judgement to the circumstances, the court was of the view that most members of society would not consider the circumstances to be indecent in nature. Therefore, even if Mr Querée’s actions did amount to assault, it was not indecent.

The court disagreed with the Magistrate’s conclusion that once C withdrew her consent to the touching of her breasts the circumstances changed and the act became indecent. The appeal court was of the opinion that overall the circumstances remained that consent was still given to full intercourse and as such other sexual activity.

Querée was acquitted and awarded his legal costs.

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