Criminal Law

On 3 August, Alan Jones and his legal team marked the beginning of what is expected to be a four-month trial. Jones faces twenty charges of alleged indecent assault and two charges of alleged sexual touching made by six complainants. The offending is said to have occurred between 2003 and 2020.

About the Trial

Jones’s trial is presently taking place in Downing Centre Local Court before Judge Glenn Walsh. Jones’s team elected for him to be tried by a judge alone, meaning there is no jury.

Judge-alone trials may be preferred in the interests of justice. Reasons for a judge-alone trial could involve:

• The degree of media and public interest. Jurors are assumed to only be informed by evidence adduced at the trial. If a trial has significant media coverage, it could reach jurors.
• The length of a trial, which may raise concerns for the obligations of a juror to be removed from their normal life and employment for an extended period.
• The complexity of a trial that may pose difficulties for a jury to comprehend, unless overcome with sufficient explanation and presentation of evidence.

Evidence as to whether juries are more or less inclined to acquit the accused is varied.

Moreover, the trial is taking place in a closed court, meaning members of the general public cannot enter the courtroom.

While evidence concerning the allegations against Jones will continue to emerge throughout the trial, some has been detailed over the first few days.

Complainant J has been the first to provide evidence. J claims that he met Jones when he was 14 years old and a star school athlete. He alleges Jones made weekly deposits into his bank account, and kissed him when alone in a hotel room. Complainant J also alleges Jones grabbed his penis while in the car on the way to Jones’s Fitzroy Falls farm and told him to wear “a robe and nothing else” at the farm before allegedly assaulting him a second time.

Jones denies all of the charges.

Indecent Assault or Sexual Touching?

While Jones faces both charges of indecent assault and sexual touching, the differences between the two offences are minimal.

Indecent assault was repealed on 1 December 2018 and applies only to conduct that occurred before that date. Indecent assault involves the offender assaulting another person and, at the time of, before or after, committing an act of indecency on or in the presence of that same person. Aggravated indecent assault arises in ‘circumstances of aggravation’. This may involve where the offence is committed in company, where the victim is under the authority of the offender, or is under 16 years of age.

As to an ‘indecent’ act, there must be a sexual connotation. A sexual connotation could be inferred from a part of the body involved, or conduct that is accompanied by an intention to obtain sexual gratification.

For offences committed on or after 1 December 2018, ‘sexual touching’ provisions in the Crimes Act 1900 (NSW) apply. Separate sections exist for the sexual touching of adults, and of children.

Sexual touching is defined as a person touching another in circumstances a reasonable person would regard as sexual. This may involve touching with any part of the body, with an object, or through clothing. Sexual touching can occur if touching occurs: in the genital area, for the purposes of sexual gratification, or involves aspects that could make it sexual.

Distinctions to Other Sexual Offences

While Jones faces charges only under indecent assault and sexual touching, the distinctions between other sexual offences are often misunderstood.

Under Division 10 of the Crimes Act 1900 (NSW), the sexual offences are outlined. Some of the key distinctions between these offences are explained below.

Sexual Act: involves an act, other than sexual touching, that is carried out in circumstances that would be considered to be sexual to the reasonable person. The sexual act offence replaced the act of indecency in 2018. It differs from sexual touching as there does not need to be physical contact. Rather, the act merely needs to be undertaken towards, or in the presence of, another person.

Sexual Assault: involves sexual intercourse without the consent of the other person. Under section 61HA, ‘sexual intercourse’ means penetration by any part of the body or an object, as well as forms of oral application and penetration, and the continuation of sexual intercourse.

Sexual Abuse: a more expansive term that can be used to describe a sexual offence where the offender breaches trust or authority, or multiple instances of sexual violence. It is often used in the context of sexual violence against children under the age of consent, especially in claims and compensation matters.

Ongoing Developments

As the trial continues, further evidence from the complainants and witnesses will be heard before Judge Glenn Walsh determines whether the prosecution has proven the allegations beyond reasonable doubt. While the allegations have drawn considerable public interest, the proceedings also provide an important insight into the operation of NSW sexual offence laws, including the distinctions between indecent assault, sexual touching, and other related offences.