Practice and Procedure


PUBLISHED December 18, 2003

Where a defendant broke into a house and put his hand over the victim's mouth whilst she was sleeping, the surrounding circumstances were such that the jury could find the assault was indecent.Appeal, with leave of the single judge, against a conviction for indecent assault imposed at Mold Crown Court on 24 May 2000 before HH Judge Dutton. The defendant ('D') was sentenced to four years in a young offender's institution. On 1 July 1999 the 15 year old victim ('V') was asleep at her home. Her parents were at work and she was looking after her brother and sister. V was woken by a hand being put over her mouth, the bedroom light had been turned on, she was rolled onto her back and saw a mask of an old man's wrinkly face. V screamed and struggled, she was under her duvet cover and the man did not attempt to touch her or get onto to the bed. Eventually he ran out of the bedroom and left the house. A glove had been left on the bed and D was identified from the glove. At trial the issue was whether D was the intruder, it was accepted by D that V had been assaulted by the intruder but he denied being that intruder. D gave evidence that he had been at home until he took the dog for a walk, he was gay so would not be sexually interested in V and he found her unattractive. The issue as to whether the assault committed was indecent appeared to have been conceded by D. D appealed conviction on the ground that the assault was not proved by the prosecution to have been indecent. To establish guilt the prosecution had to prove: (i) D intentionally assaulted V; (ii) the assault and surrounding circumstances were capable of being considered indecent, or, if not then; (iii) specific intent had to be proved. The prosecution contended that the essential question was whether right minded persons would consider the surrounding circumstances to be indecent.HELD: Having regard to all the surrounding circumstances it was obviously open to the jury to conclude the circumstances were indecent. D was responsible for an assault on a 15 year old girl, in bed, wearing a t-shirt and shorts. He removed his glove and put his hand on her mouth after turning on the light. Further, after entering the house, through an unsecured door downstairs, D had sought out V in her bedroom upstairs. No evidence was given explaining D's conduct and it was open to the jury to conclude the surrounding circumstances were indecent.Appeal dismissed.