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Diversion For Sexual Assault – Diversion Dandenong Magistrates' Court
Diversion For Sexual Assault Charges:
Section 40 Crimes Act 1958 – Sexual Assault
Section 23 Summary Offences Act 1966 – Unlawful Assault
Diversion For Sexual Assault Facts:
Our client worked in a warehouse as a supervisor. The complainant was a temporary contract worker who worked there on and off. It was alleged that one day at work whilst the complainant was on a ladder, the client came behind and groped and squeezed the complainant's buttocks.
The matter was reported to the company's HR division first, and no action was taken. The matter was then referred to police, who charged our client with sexual assault.
Upon receipt of the brief there were multiple statements. Whilst no-one had directly witnessed the incident, there were people in close proximity who heard what followed after. What was most notable was that the witnesses stated that the complainant said directly after "Who pinched my arse?". There was no mention of it being a grope or squeeze. Furthermore, the complaint made to HR was inconsistent with the complaint made to police.
Lastly, our client gave a record of interview in which they admitted to pinching the upper leg, but not the buttocks. The reason for the pinch was that the complainant had just played a prank on another worker and it was just meant to be a bit of a joke in response.
Diversion For Sexual Assault Result:
Whilst the allegations were not of the highest level of severity, the fact they were sexual in nature meant there were extremely serious consequences, including potential sex offender registration.
The first point of avenue was to address the factual discrepancies in the case. This was important, because a grope and squeeze is much more sexual in nature than a pinch. Therefore, careful negotiations needed to happen with the Prosecution regarding the factual basis of the charges.
What was most convincing was what the witnesses heard the complainant state immediately after the incident. It was highly unlikely that a grope would occur and that the complainant would shout out about only a pinch. Thus, the prosecution conceded that they could only proceed on the basis of a pinch, not a grope and squeeze.
Further arguments were then had about whether that was sufficiently sexual in nature to establish the charge of sexual assault. Whilst the part of the body touched can contribute to whether or not the touch is sexual, the overall circumstances must be looked at.
After much discussion, the Prosecution again conceded that they could not establish that it was sexual touching beyond reasonable doubt and agreed to proceed only with an unlawful assault on the basis of a pinch to the buttocks.
Lastly, there was an issue about our client receiving any criminal record. He was the sole income earner for his family, which included three children with disabilities. Any criminal record whatsoever could put his employment in jeopardy and mean he was unable to support his family.
Therefore, it was important that we pushed for Diversion in this matter as a way of acknowledging responsibility for the pinch but avoiding any form of criminal record. It was not easy to get a Diversion recommendation as this was still an unwanted pinch of someone's buttocks in the workplace. But eventually the Prosecution agreed and filed a Diversion Notice.
The matter then proceeded as a diversion hearing, which eventually led to the magistrate agreeing to grant our client the one opportunity to avoid any record on this occasion.
It was an excellent result to get the matter down from a sexual assault in the workplace, that could have led to potential sex offender registration and loss of employment, down to a Diversion on an unlawful assault without any record whatsoever. It was a result that came down to close attention to detail of the evidence and careful handling of the negotiations with the Prosecution.