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Australian Criminal Law System Add in library

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Jenny is 17 and meets David, 18 years, at a party one night. The party is themed ‘Rocky Horror Picture Show’ and Jenny is dressed in a red corset, ripped stockings and stiletto shoes. Jenny and David spend most of the night together kissing and cuddling on a bean bag. Both consume a lot of alcohol. Towards the end of the night, David suggests that they leave the party together and find a room somewhere. Jenny laughs at him but doesn’t say anything. A few minutes later, Jenny says that she has to go home otherwise she’ll be in trouble with her parents. David says he’ll walk her home. He reaches in and gives her a big cuddle. He whispers in her ear, ‘I’m sure we’ll find something to do on the way home’. Jenny says nothing but giggles and reaches in to kiss David. After walking for a while, David starts to make sexual advances. Jenny is feeling very drunk. She’s also realizing that David has misinterpreted her giggling and smiling, and starts to think she might have led him on. So when David pulls Jenny to the ground in a park a few doors away from her parent’s house and starts to pull down her clothes, Jenny doesn’t resist because she thinks David might get angry for misleading him. She doesn’t want to have intercourse but, when David suddenly forces himself on her, she panics and doesn’t know what to do. She says ‘no’ and tries to push him off briefly but he is too heavy for her and she stops and waits for David to finish. At the first opportunity, she jumps up, pushes off her stiletto shoes and runs the hundred metres to her house leaving David behind. In the morning, she attends the police station and reports that David has sexually assaulted her.

Briefly discuss factors that the prosecution are likely to consider in deciding whether to proceed with a prosecution against David for sexual assault?



A public prosecutor is a government official or agent who has been authorized by the law to bring a charge against an individual for any offense which is punishable by any form of penalty. The prosecutors are usually employed by the state and territory offices and are given a number of discretionary powers (Studdert, 1990).

The primary question that arises for a prosecutor is that whether to proceed with a particular prosecution case. Before a public prosecutor takes up a particular case there are a number of essential elements that needs to be considered.

The initial factor that a public prosecutor must analyse is whether the evidence is enough to justify the prosecution and how much prospect of conviction is there. Factor such credibility, availability of witnesses, and admission of evidence should be taken into consideration (Findlay, Odgers & Yeo, 2005).

In the given case, the fact commences with the victim partying with the alleged assaulter. A prosecutor would primarily look for the elements that would be essential to justify the prosecution case. In this case the victim initially gives enough hints to the alleged assaulter to signify that she is interested in indulging in a sexual encounter with him (Gans, 2012). But what needs to be considered is how explicit were those hints.

According to section 37G of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014, whether a person is consenting to an act depends on the circumstances of the case. These circumstances include any such steps that the person has taken to find whether the other person has consented to the act. This particular section is vital to the given case. In the entire scenario the victim before the alleged act does not refuse outright that she will not indulge in the sexual act but she does insist on going home once the party was over. She indicates that she was not inclined to have a sexual encounter with the alleged assaulter. The second point that needs to be considered is that while the accused was trying himself on her she had shouted ‘no’ in order to stop him. But even then the accused does not stop and continues with the act.

Section 37H of the same Act provides for the effect of intoxication. In this case however, the circumstances state that the intoxication was self-induced. Further, section 40 subsection 1 part (b) and (c) elaborates on the consent for sexual touch. In a particular case whether there was consent or not is a very crucial issue.


Based on these above a prosecution case may be based. Firstly, even though she did not outright refuse there was no explicit consent for a sexual act also during the act she did shout ‘no’ indicating her refusal. Secondly, since the entire act was committed in a park it is possible to get any passerby as a witness in the case. Despite the fact that the prosecution will have a difficulty is establishing evidence there are a few significant aspects that the prosecution can consider as evident which includes her explicit refusal for the sexual act among other things.

Another very integral element that a public prosecutor must consider is whether the given case is of public interest (Gaffy, 1981). This particular issue is of great public relevance since primarily such cases are becoming extremely common in the contemporary times and it is important to set an example for the young adults who indulge in such critical situation that the complications that arise in such cases can be highly dangerous for them and their future (Siegel & Senna, 2009).

There are also some other factors that find relevance while judging the admissibility of any particular case for the prosecutors. These factors are the severability of the crime, what type of evidence is available and how strong is such evidence. Another important factor is the guilt of the accused. It is true that in most of these factors the case stands weak. Primarily the guilt of the accused is questionable (Terry, 2013). This is mainly because in the entire case the victim did not protest forcibly against the act that was being committed on her. Also she was initially indulging in sexual contacts with the accused in the party which could have been misconstrued as her consent by the accused.

However, a good prosecutor needs one strong evidence to justify the entire case. In this entire case the strong evidence is the explicit refusal of the victim to commit the act. Depending on this evidence the prosecutor can proceed with the case.


Findlay, M., Odgers, S., & Yeo, S. (2005). Australian criminal justice. South Melbourne, Vic., Australia: Oxford University Press.

Gaffy, F. (1981). The role of the prosecutor in the Australian legal system. Washington, D.C.: World Peace Through Law Center.

Gans, J. (2012). Modern criminal law of Australia. Cambridge: Cambridge University Press.


Siegel, L., & Senna, J. (2009). Essentials of criminal justice. Belmont, CA: Wadsworth Cengage Learning.

Studdert, T. (1990). The role, duties and obligations of the prosecutor at a trial.

Terry, K. (2013). Sexual offenses and offenders. Australia ; United Kingdom: Wadsworth Cengage Learning.

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