A Supreme Court judge would set aside F.N.’s sexual assault conviction and substitute a conviction for assault, saying the evidence did not establish that the boy intended a sexual assault. Justice Woulfe’s judgment, delivered on 23 May 2022, disagreed with the court’s majority and adopted the reasoning of Justice Hogan, whose proposed judgment he had read.
The appeal concerned whether the prosecution had shown that F.N. intended to commit a sexual assault, rather than an assault. Justice Woulfe agreed with Justice Hogan that the circumstances could be interpreted as innocent as well as indecent, and did not give rise to an “irresistible inference” of an intention to commit sexual assault.
The judgment described children playing in fields and said the smacking appeared to follow a childish altercation or misunderstanding. F.N. was 14. The complainant’s mother had described him in evidence as seeming younger and immature for his age, more like a nine- or 10-year-old. Justice Woulfe considered those circumstances inconsistent with inferring the required sexual intention.
He also agreed that changes made by the Criminal Law (Rape) (Amendment) Act 1990 and the Sex Offenders Act 2001 were relevant to interpreting the offence. In his view, the change in the offence’s name from indecent assault to sexual assault supported a requirement for a clear sexual element, or conduct from which that element could be irresistibly inferred. He considered it harsh for a young person to be automatically brought within the sex-offender regime without the prosecution establishing an intention to commit sexual assault.
The judgment was a dissent: Justice Woulfe noted that the majority judgment reached different conclusions. He said he would allow the appeal, set aside the sexual assault conviction and substitute a conviction for assault under section 2(1) of the Non-Fatal Offences against the Person Act 1997. The source does not state the majority’s operative order or the final disposition of the appeal.