Indecent assault offences are always challenging and are often shrouded in controversy. Assaults where the alleged victim is a child complicate the matter. However, in a case where the defendant is also a child, there are a plethora of issues which are distinctively unique to indecent assaults involving children only. This is further magnified when the alleged offences are historical in nature. ‘Historical assault’ is a non-legal phrase which is often connected with allegations that are brought forward by victims, years, if not decades, after the assaults occurred.

Our client was charged with two counts of indecent assault, both of which were historical in nature. He was represented by Nyman Gibson Miralis, which often defends complex indecent assault matters. We also appeared as Solicitor Advocate at the hearing.


Case facts

The defendant was charged in 2015 with two counts of indecent assault. The first alleged offence occurred in 1980. The complainant alleged that the defendant indecently assaulted her. The second alleged offence occurred on an unspecified date 2 – 3 weeks after the first alleged incident. The circumstances of this offence were very similar to the first alleged incident with the same complainant.

At the time of the offences, the complainant was 4 years of age and the defendant was 13 years old.

If convicted, the defendant was facing a total of 4 years in prison for the offences.


The matter was heard in the Downing Centre Local Court in Sydney. The case came down to one pertinent legal issue; that is, the age of the defendant and the impact that had on the allegations brought forward by the Crown. Section 5 of the Children (Criminal Proceedings) Act 1987 (NSW) provides that no child who is under the age of 10 can be found guilty of an offence. However, from the ages of 10 – 14 another rule, known as doli incapax applies.

Doli incapax is a Latin phrase, which when translated means ‘incapable of evil’. The common law doctrine states that a child between the ages of 10 and 14 is ‘incapable of committing a crime because of a lack of understanding of the difference between right and wrong’. However, it is possible for the Prosecution to rebut this presumption if they can prove beyond a reasonable doubt that the child, when doing the alleged act, knew it was seriously wrong; rather than it being an act of mere naughtiness.



At the hearing, the defendant’s legal team was able to successfully disprove the Prosecution’s case; consequently, the presumption of doli incapax remained in place.

We defended our client’s matter through diligent and thorough legal research which was utilised in both oral and written submissions. we argued that the evidence put forth by the Prosecution was not strong or clear enough beyond all doubt or contradiction that our client’s behaviour in 1980 was seriously wrong. Furthermore, we were able to demonstrate to the court that the Prosecution evidence highlighted the defendant’s conduct as more consistent with a child doing something that was naughty. In doing so, the court was apprised of the fact that the evidence negated the suggestion that the defendant knew what he was doing was seriously wrong.


Case result

Due to the hard work of our criminal defence lawyer, the Magistrate was compelled to find that there was no merit to the charges faced by the defendant. Our client was found not guilty of all charges and was subsequently dismissed from court.

For your information see our Indecent Assault FAQ page for the difference between sexual and indecent assault.


Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. Contact us if you require assistance.